A A THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A CODE OF FEDERAL PROCEDURE. (Superseding Desty's Fedekal Procedure.) EMBODYING ENACTMENTS OF CONGRESS, CONSTITUTIONAL PROVISIONS ESTABLISHED PRINCIPLES. AND COURT RULES, IN FORCE DECEMBER 1, 1906, AND THE BANKRUPTCY ACT OF 1898, WITH AMENDMENTS AND ORDERS, TOGETHER WITH A COLLECTION OF FORMS AND PRECEDENTS. BY WALTER MALINS KOSE, Author of "Notes on United States Reports." IN THREE VOLUMES. VOL. I. SAN FRANCISCO. BANCROFT-WHITNEY COMPANY, Law Publishers and Law Booksellers, 1907. COPYRIGHT, 1907, BY IVALTEU MALINR ROSS. T \9o7 TO THE MEMORY OF Hobett g. I^apne LATE OF THE SAN FRANCISCO BAR The inspiration of whose unremitting and splendid toil as author, advocate and judge, lives after him. PREFACE. This Code is an outgrowth of Desty's Federal Procedure, so well known to the profession, and an attempt to amplify and de- velop the features of that work upon which its long continued popularity has rested. Through the kindness of the publishers all the matter contained in the last edition of Desty was placed at the disposal of the writer for use in this undertaking. Since Mr. Desty's book first appeared, codification of the law of procedure has become almost universal in the various States, and it seemed advisable to depart from the classification scheme of the Revised Statutes, followed by Mr. Desty and his subse- quent editors, and attempt a Federal Code along more modern and satisfactory lines. Certain departures from the usual rules of codification were rendered necessary by the fact that the governing rules and pre- cedents of Federal procedure are not based exclusively upon statutory provisions. Many of them, especially in equity and admiralty practice, consist of rules promulgated by the Supreme Court, but having all the force of law. Others of them are founded upon provisions of the United States Constitution ; and others no less immutable and established, grow out of, and neces- sarily result from, the peculiar scope, nature and limits of the Federal judicial power. The Code sections herein are therefore derived from four sources, viz : constitutional provisions, statutory provisions, court rules, and decided cases or established principles. These it seemed advisable to arrange and intermingle quite without reference to their derivation, in an eflEort to obtain a logical and symmetrical classification. At the end of each code section its nature is indicated by a reference to the particular section or paragraph or clause of stat- ute, court rule, or constitutional provision there reproduced, or VI PREFACE. the words "author's section'' are appended if the code section is an attempt to complete the treatment of a topic bj a statement of some established principle. Authorities pertinent to the rule or principle stated in each code section are discussed in the anno- tation appended thereto. It was deemed inadvisable to attempt any extended treatment of such matters as bankruptcy, which of itself has been made the subject of separate treatises, or the practice and jurisdiction of the Court of Claims, or other topics of interest exclusively to practitioners in the District of Columbia. The writer does not dare to hope that the work is free from error and omissions, and realizes that in many instances the topics considered are not explored with the thoroughness which a greater abundance of time might have rendered possible. Acknowledgments are due to Mr. Andrew Henrj' Rose for valuable assistance rendered during the past year in the annota- tion of chapters five to nineteen of Part One, and chapters thirty- five to sixty-nine of Part Two. The other portions of the Code were prepared during a sojourn of a year and a half in Arizona. The writer is under many obli- gations to friends in Prescott and Tucson for the use of excel- lent libraries whose facilities were freely and generously extend- ed during that time. To Colonel William Herring of Tucson, and to Surah II. Sorin, his daughter, a most excellent lawyer, to Messrs. Hawkins, Ross and Anderson, and to Hon. Robert E. Morrison, of Prescott, thanks are especially due and gratefully expressed. Walter Malins Rose. Los Angeles, California. January, 1907. TABLE OF CONTENTS CODE SECTIONS INCLUDED, ARE SUMMARIZED AT THE HEAD OF EACH CHAPTER. PART I. FEDERAL COURTS AND THEIR JURISDICTION. Chapter 1. Federal Jurisdiction in General. Sees. 1-29. Chapter 2. Supreme Court. Sees. 32-62. Chapter 3. Circuit Court of Appeals. Sees. 70-86. Chapter 4. Circuit Court — Organization and General Powers, Sees. 100-120. Chapter 5. Circuit Court — Jurisdiction. Sees. 124-159. Chapter 6. District Court — Organization and Powers. Sees 168-183. Chapter 7. District Court — Jurisdiction. Sees. 193-215. Chapter 8. Court of Claims. Sees. 222-246. Chapter 9. Judicial Circuits and Judicial Districts, Sees. 255-295. Chapter 10. Terms of Federal Courts. Sees. 304-370. Chapter 11. Court Records and places where kept. Sees. 373- 395. Chapter 12. Venue in civil and criminal causes. Sees. 402-431. Chapter 13. Judicial officers and their accounts in general. Sees. 441-456. Chapter 14. United States Judges. Sees. 466-478. Chapter 15. Attorneys and counselors. Sees. 487-550. Chapter 16. Clerks of United States Courts. Sees. 558-605. Chapter 17. United States Marshals. Sees. 613-663. Chapter 18. Commissioners and other Judicial Officers. Sees. 672-696. Chapter 19. Fees. Sees. 704-750. VII PART 11. FEDERAL PROCEDURE. Chapter 21. General and Miscellaneous provisions. Sees. 790- 826. Chapter 22. AVrits and process in Federal Courts. Sees. 835-860. Chapter 23. Time for commencement of action or prosecution. Sees. 869-890. Chapter 24. Procedure in common law causes. Sees. 900-925. Chapter 25. Equity procedure in j^eneral — bills in equity. Sees. 935-963. Chapter 26. — Subpoena, appearance, default, demurrer and plea. Sees. 967-986. Chapter 27. — Answer, replication and issue. Sees. 996-1009. Chapter 28. —Parties. Sees. 1019-1026. Chapter 29. —Taking of testimony. Sees. 1036-1057. Chapter 30. — Hearing and reference to master. Secs.1067-1080 Chapter 31. — Decrees and orders, rehearing, enforcement, bill of review. Sees. 1090-1100. Chapter 32. — Injunctions and receivers. Sees. 1110-1126. Chapter 33. Procedure on removal of causes. Sees. 1135-1157. Chapter 34. Patent, trademark and copyright procedure. Sees 1167-1185. Chapter 35. Admiralty procedure in general — libel and process. Sees. 1195-1213. Chapter 36. — Stipulations, security and property or money in custody. Sees. 1216-1231. Chapter 37. — Form and election of remedies in rem and in personam. Sees. 1239-1248. Chapter 38. — Claim, answer, intervention, dismissal and cross libel. Sees. 1258-1273. Chapter 30. — Trial proof and references, decree and enforce- ment. Sees. 1281-1289. Chapter 40. — Proceedings for limitation of liability. Sees. 1298-1305. Chapter 41. — Procedure in prize cases. Sees. 1315-1334. Chapter 42. Procedure in eases under commerce laws. Sees. 1345-1367. Chapter 43. Suits on behalf of United States. Sees. 13S0-1419. VIII TABLE OF CONTENTS. IX Chapter 44. Procedure in suits against United States. Sees. 1440-1503. Chapter 45. Searches and seizures. Sees. 1508-1521, Chapter 46. Provisions respecting foreign seamen and offen- ses, ao-ainst navigation laws. Sees. 1523-1531, Chapter 47. Arrest and bail, civil and criminal. Sees. 1537-1562. Chapter 48. Criminal procedure in general. Sees, 1571-1596 Chapter 49. — Punishment, custody and discharge of prisoners. Sees. 1606-1632. Cliapter 50. Extradition. Sees, 1642-1660. Chapter 51. Habeas Corpus. Sees. 1669-1689. Chapter 52, Grand and petit juries in civil and criminal cases. Sees. 1700-1725. Chapter 53. Witnesses. Sees. 1735-1755. Chapter 54. Evidence. Sees. 1760-1812. Chapter 55. Costs. Sees. 1822-1855. Chapter 56. Judgment and execution. Sees. 1858-1874. Chapter 57. Appeal and error in general — time of taking. Sees. 1886-1914. Chapter 58. Mode of taking appeal, assignments and exceptions. Sees. 1923-1939. Chapter 59. Perfecting appeal — record and docketing. Sees. 1950-1998. Chapter 6o. Bond and Supersedeas. Sees, 2009-2026. Chapter 61. Docket, motions, hearing and scope of review. Sees. 2035-2095. Chapter 62, Decision, disposal of cause and mandate. Sees. 2105-2133. Chapter 63. Bankruptcy jurisdiction and procedure in general. Sees. 2200-2225. Chapter 64. — Referees and trustees. Sees. 2235-2258. Chapter 65. — Petition and adjudication. Sees. 2270-2294. Chapter QC). — Creditors claims — administration and dischai'ge. Sees. 2304-2328. Chapter 67. — Proceedings before referees and evidence. Sees. 2335-2350. Chapter 68. — Jurisdiction and procedure on appeal. Sees. 2360-2368. Chapter 69. Procedure under exclusion and naturalization laws. Sees. 2380-2408. TABLE OF CONTENTS. APPENDIX I. A. Supreme Court Eules. J3. Equity Ilules. C. Admiralty Rules. D. Court of Claims Rules. E. Circuit Court of Appeals Ilules. F. Circuit Court Ilules in A^arious Districts. APPENDIX II. Bankruptcy Act and Orders in Bankruptcy. (The bankruptcy forms are in appendix III. F. 328-F. 402) APPENDIX III. FORMS. (A synopsis of the forms appears at the beginning of Ap- pendix III.) INDEX. TABLE OF PARALLEL EEFERENCES Showing Constitutional Provisions, Revised Statutes, Statutes at Large and Court Rules and THEIR PLACE IX THIS CODE. TABLE OF PARALLEL REFERENCES FOR THIS CODE UNITED STATES CONSTITUTION, Code Section 20 1669 Art. I, Sec. 8, CI. 17, . Art. I, Sec. 9, CI. 2. .. Art. Ill, Sec. 1 (pt) ... Art. Ill, Sec. I, CI. 2, . . Art. III. Sec. 2, Art. Ill, Sec. 2, CI. I, 426 Art. Ill, Sec. 2, CI. 2, 3.5 467 •2 Code Section Art. Ill, Sec. 2. CI. 3, 1099 Art. VI, Sec. 2. CI. 2, 1053 Amend. Art. IV, 1508 Amend. Art. V, 1571, 1738 Amend. Art. VI, ..1570. 1700, 1739 Amend. Art. VII 910. 2081 Amend. Art. VIII, 1543, 1008 PARALLEL REFERENCES FOE SECTION'S OF REALISED STATUTES. FOUXD IN THIS CODE. TABLE OF REVISED STATUTES Rev. Stat. Sec. 1 189 355 362 363 364 365 366 367 368 373 377 380 381 536 542 546 548 552 555 558 561 562 563 503 563 563 563 563 563 563 563 563 563 563 563 563 563 563 563 .563 564 (par. 1) ( par. 2 ) (par. 3) ( par. 4 ) (par. 5) {par { par. 7 ) (par. 8) ( par. 9 ) (par. 10) (par. 11) (par. 12) (par. 13) (par. 14) (par. 15) (par. 16) (par. 17) (par. 18) .452, .550, ection 442 Rev. Stat. Sec, ! 565 Code Section 1334 500 566 911 1283 5-? 6 567 383 551 568 384 55-' 569 213 553 570 679 554 573 369 555 574 368 556 578 360 557 549 581 582 167, 359 170 058 583 364 528 586 3S1 529 590 183 415 591 172 413 592 173 285 593 174 1573 594 175 168 595 176 567 596 177 568 597 473 586 598 178 382 599 179 193 600 180 194 602 isi 195 603 182 196 013 .... 472 197 624 566 198 626 585 199 638 365 200 201 641 642 .137, 1149, 1150. 1151 1152 202 203 1 643 138, 644 1145. 1146, 1147, 1143 160 204 905 1 645 648 396, 1805 912 206 ! 649 914 207 ' 661 357 208 , 662 358 209 ■ 669 355 210 j 670 356 423 ' 671 362 XIV TABLE or PARALLEL REFERENCES. [CkKle Fed. Rev. Stat. Sec. Code S 672 673 674 675 677 559, 614, 678 679 680 615. 681 684 685 687 688 689 690 698 1959, 700 701 707 708 709 2120, 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 158, 646, 729 730 731 732 733 734 737 738 740 402, 741 742 746 747 748 749 750 1100, 1289, 751 752 753 754 "CtiOD 363 32 33 34 680 560 380 683 I 681 I 304 305 I 36 844 913 37 2087 2082 2119 38 1907 2018 2041 15 466 476 471 687 841 843 1114 1111 20 12 29 935 176.S 807 923 1593 1286 427 428 430 421 420 422 817 424 854 855 403 370 493 496 497 1958 1670 1673 1674 1675 Rev. Stat. Sec. Code Section 755 167G 756 1677 757 1678 758 1679 759 1680 760 1681 761 1682 762 1683 763 1684 764 1684 765 1684 766 1685 771 524 772 546 773 545 774 547 775 548, 649 766 618 779 617 782 625 783 627 784 629 785 630 786 631 787 644 788 660 789 622 790 042, 643 791 647 792 648 794 570 797 596, 605 798 595 799 602 800 1701 802 1723 803 1706 804 1707 805 170S 808 1700 809 1710 810 1711 811 1712 812 1713 813 1720 819 171.5 822 1719 823 705 824 716 825 717 826 718 827 719 828 706 829 712 830 6:59 831 584, 721 832 713 833 520 834 521 837 720 Procedure] TABLE OF PARALLEL REFERENCES. ftev. Stat. Sec. Code Section 838 544 839 579 840 580 842 581 843 582 844 591 845 592 846 448, 455 848 725 849 729 850 730 851 731 852 732 853 735 854 736 855 738 856 744 857 750 858 1735 859 1740 860 1741 861 917 862 1036. 1281 863 1761 864 1762 865 1764 866 1765 867 1766 868 1767 869 1768 870 1769 871 1770 872 1771 873 1772 874 727. 1773 875 1774 876 1742 877 1743 878 741, 1744 879 1745 880 1746 881 1747 SS2 1777 883 1778 884 1780 885 1781 886 1782 887 1784 888 1785 889 1786 890 1787 891 1788 892 1794 893 1795 894 1796 895 1798 896 1799 897 1800 898 1801 899 387 Rev. Stat. Sec. Code Section 900 388 901 389 902 390 903 391 904 392, 531, 597 905 1803 906 1804 907 1800 908 1808 909 1513 910 824 911 835. 836 912 837 913 936. 1195 914 900 915 905 916 9-25 917 802. 1196 918 805 919 1383 920 1384, 1514 ft21 823, 1833 922 857 923 1385, 1515 024 1399 925 1400 926 1401 927 1402 028 1403 929 1404 930 1405 931 1406 932 1407 933 906 934 1386. 1516 935 1412 936 1413 937 Sll, 1414 938 1393, 1517 939 1387, 1518 940 1218, 1519 041 1220, 1221 942 1552 943 1553 044 1554 945 1555 946 1556 047 1557 948 840 049 820 950 819 951 1411 952 1408 053 1932 954 813 955 814 956 815 957 1388 958 1409 959 1394 TABLE OF PAKALLEL REFERENCES. [Code Fed. fley. Stat. Sec. 960 961 962 963 964 965 966 967 968 969 970 971 972 97.3 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 Code 747 .924, .737, Section . 1395 1858 . 1306 1397 1410 1398 1859 .1862 1827 1415 1520 1521 1828 1829 1416 1830 1831 1832 1834 1835 1836 1837 1838 1839 1840 1865 1417 I 1866 1867 1868 1558 1559 1560 1873 1872 821 822 1953 1926 1927 2009 2010 1891 1888 1925 1928 1935 2012 1902 1903 1842 2083 1929 1998 1537 1544 1545 1546 1549 1550 Rev. Stat. Sec. 1020 Code .494 .222, 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 228, 562, 1054 578, 1055 1056 1057 1058 1059 (Par. 1&2) 1059 (Par. 3) 1059 (Par. 4) 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 224 Section . 1551 . 1572 . 1574 , 1577 . 1578 . 1579 . 1580 , 1581 , 1582 , 1583 , 1584 1716 1585 1586 , 1587 1588 1589 1590 1591 1592 2017 1606 1607 884 885 886 888 881 887 468 225 226 308 684 685 573 594 593 498 231 232 233 234 1449 1451 230 1452 1453 247 246 1454 874 , 808 223 1455 1456 1457 1458 1459 1460 Procedure] TABLE OF PARALLEL REFERENCES. xvii Rev Stat. Sec. 1078 1080 1081 1082 1083 1084 108.5 1086 1087 1088 1089 1091 1092 1093 1660 1671 1763 1764 1765 1766 1909 1981 1983 1986 2469 2470 3066 3170 3224 3227 3228 3229 3230 3231 3458 3462 3492 3494 3636 3637 3990 3991 4063 4064 4065 4069 4070 4071 4072 4073 4074 4078 4079 4080 4081 4299 4300 4301 4302 4303 .739 Code Section 1461 1462 1463 , . . . 1464 1465 1466 1467 . 1468 1469 1470 . 1471 . 1473 . 1474 . 1475 . 540 . 1702 . 444 . 446 . 447 453 48(a) 872 675 722 1789 1790 1510 662 1120 876 877 1390 1390 1596 659 1509 543 883 1121 1122 661 661 861 862 863 156 655 1750 1751 1752 1753 435 1524 1525 1526 656 1527 1528 1529 1717 1419, .728, 1530, Rev. Stat. Sec. 4303 4305 4389 4618 4619 4621 4622 4623 4624 4625 4626 4627 4G28 4629 4636 4638 4639 4640 4644 4645 4646 4647 4650 4651 4799 4800 4906 4908 4918 4919 4920 4921 4922 4963 4966 4968 4969 4970 5237 5242 5261 5262 5270 5271 5272 5273 5274 5275 5276 5277 5278 5279 5280 5293 5340 5351 5391 5392 5393 5397 Code .640, Section 1531 1392 652 1315 530 1316 1317 1318 1319 1320 1321 1322 1323 1324 1333 1325 1326 1327 1328 1329 1330 1331 13.32 743 306 1627 1748 1749 1169 1171 1172 1170 1174 1183 1184 871 1185 1182 1119 .907, 1118, 1874 244 1.59 1642 1645 1647 1648 1649 16.50 1651 1652 1654 1655 1.523 1418 654 890 1594 1736 1575 1576 143, TABLE OF PARALLEL REFERENCES. [Code Fed. Rev. Stat. Sec. Code Section 5409 1561 5410 1562 5498 499 5504 600 5536 1609 5537 650, 1611 5538 651, 1612 5539 1613 5540 1614 Rev. Stat. Sec. Code Section 5541 1615 5542 1616 5545 1619 5546 1620 5547 1621 5548 1622 5549 1623 5550 1624 Procedure] TABLE OF PARALLEL REFERENCES. PARALLEL REFERENCES FOR SECTIONS OF STATUTES A.T L^A^RGE. FOUND IN THIS CODE. stats, at Large Date of Act Code Section Chap. Sec. Vol. Page 1S70 June 22 150 17 10 164 555 1874 April 7 SO 2 18 27 1894,1961 June 1 200 18 50 28 June 20 328 2 18 109 506,571, 623 June 20 328 3 18 109 445 June 20 333 8 18 113 1811 June 22 391 21 18 186 875 June 22 391 22 18 190 882 June 23 468 18 252 227 1875 Feb. 10 77 2 18 316 1173 Feb. IS 18 320 6OO Feb. 22 95 2 18 333 575, 628 Feb. 22 95 1 18 333 449 Feb. 22 95 3 18 333 572 Feb. 22 95 4 18 333 146, 845 Feb. 22 95 5 18 334 508 Feb. 22 95 6 18 334 598 Feb. 22 95 7 18 333,334 450, 457 Mar. 1 114 3 18 336 163 Mar. 1 114 4 18 336 1705 Mar. 3 130 8 18 401 525 Mar. 3 133 1 18 452 450 Mar. 3 1S7 1 18 470 23,129,130,131, 401 Mar. 3 137 6 18 472 1157 Mar. 3 137 3 18 470 1136,1137,1138,1144 Mar. 3 137 4 18 471 1 153 Mar. 3 137 5 18 472 818 Mar. 3 137 7 18 472 1139,1140,1141,1142,1154 Mar. 3 137 8 18 472,473 404, 856 Mar. 3 137 9 18 472 1895 Mar. 3 145 2 18 480 1625 Mar. 3 149 18 481 1450 1876 June 30 156 2 19 63 964 Aug. 15 304 19 206 1775 1877 Feb. 27 69 19 241 544 Mar. 3 105 19 344 1849 Dec. 14 20 7 523 1878 Mar. 16 37 20 30 1737 TABLE OF PARALLEL REFERENCES. [Code Fed. Stats, at Large Date of Act Code Section Chap. Sec. Vol. Page i.sro June Feb. Mar. Mar. Rlar. isso June issi Mar. Mar. Mar. Mar. Mar. Mar. Mar. Apr. Aug. Aug. Aug. Aug. Aug. Aug. 1883 Mar. Mar. Mar. Mar. Mar. Mar. Mar. Mar. 1884 Mav JulV 1S.S.5 Feb. Feb. Feb. 18SO Aug. 1887 Feb. Feb. Feb. Feb. Feb. Feb. Feb. Mar. Mar. Mar. Mar. Alar. Mar. hlAT. 30 15 1 1 3 3 3 3 3 3 3 22 25 3 3 3 3 5 3 3 3 3 3 3 3 3 29 5 2G 52 81 125 125 183 1.30 138 138 138 138 138 47 89 378 378 378 378 S89 433 116 116 116 116 116 116 116 143 60 225 149 149 164 928 104 104 104 104 104 104 105 3.59 359 3.59 359 3.59 3.59 359 2 21 20 2 20 9 20 20 21 1 21 7 21 8 21 9 21 10 21 11 21 5 22 22 22 22 22 22 22 22 22 22 22 22 6 22 7 22 1 22 9 23 1 23 23 23 23 6 24 6 24 9 24 12 24 16 24 18 24 20 24 2 24 1 2 3 4 5 6 7 24 24 24 24 24 24 24 43 1703, 1704, 1714, 1721 292 490 327 605 341 1541 415 603 308 1809 412 470 503 1178 504 1179 504 1180 504 1181 504 1177 31 1718 1510 215 1643 215 1646 216 742. 1659 216 1644 254 682 336 454 485 235 485 238 485 245 486 1476 486 1477 486 1478 486 1479 631 576, 707 33 538 122 889 321 154, 534 322 1382 333 147 309 1864 380 848, 849 382 151, 1348 383 812, 1367, 1370 384 366, 537, 1349, 1350, 1351, 1352 1353, 1354, 1355, 1356, 1357, 1371 386 726 386 1358 387 1176 505 229, 230, 873 505 212, 1482 505 139, 242, 1481 505 1480 505 1483 506 1484 506 1485 Procedure] TABLE OF PARALLEL REFERENCES. xxi Stats, at Large Date of Act ' ' > Code Section Chap. Sec. VoL Page Mar. 3 359 8 24 506 1486 Mar. 3 359 9 24 507 1487,1892 Mar. 3 o59 10 24 507 1488, 1860, 1909 Mar. 3 359 11 24 507 1489 Mar. 3 359 12 24 507 237 Mar. 3 359 13 24 507 239 Mar. 3 359 14 24 507 240 Mar. 3 359 15 24 508 1490 Mar. 3 359 16 24 508 1491 Mar. 3 362 24 541 584%, 715 Mar. 3 373 1 24 552 401,1136,1155,1156 Mar. 3 373 2 24 554 1125 Mar. 3 373 3 24 554 1124,1138 Mar. 3 373 6 24 555 1154 Alar. 3 373 7 24 555 443 1888 Feb. 29 17 13 25 42, 43 216, 425 Aug. 1 728 1 25 357 150,533,1861 Aug. 1 729 2 25 357 385,1380 Aug. 1 729 3 25 358 1863 Aug. 8 785 25 386 1721 Aug. 8 792 4 25 390 G32 Aug. 13 866 1 25 433,434 23, 129, 130, 131, 401. 1136, 1137 1155, 1156 Aug. 13 S66 2 25 433 132, 133, 134, 1124, 1135, 1138 Aug. 13 866 4 25 433 24 Aug. 13 866 6 25 436 1154 Aug. 13 S66 7 25 437 443 Sept. 13 1015 13 25 479 2405 1S8» Feb. 6 113 3 25 655 564 Feb. 6 113 6 25 656 1914, 1936, 1957, 2016, 2040, 2122 Mar. 2 382 1 25 855 848, 849 Mar. 2 25 859 1371 Mar. 2 382 10 25 862 152, 847 ATar. 2 382 23 25 862 846. Mar. 2 411 1 25 941 527 ISOO Apr. 9 73 3 26 50 1810 June 10 407 15 26 138 140, 367, 1443, 1444, 1445, 1446 1447, 1913, 2011, 2042 July 2 647 4 26 209 142, 536, 1345 July 2 647 5 26 210 1346 Sept. 4 874 1 26 424 27 Sept. 4 874 2 26 424 157 Sept. 30 1126 1 26 537 1472 1891 Feb. 10 127 5 26 743 loll Mar. 3 517 2 26 826,827 563,709, 804 Mar. 3 517 3 26 827 309 Mar. 3 517 6 26 826 1904 Mar. 3 517 7 26 828 1906, 2020, 2056 Mar. 3 517 8 26 828 474 Mar. 3 517 9 26 829 '31V g86 Mar. 3 517 10 26 829 212l' 21"3 Mar. 3 517 11 26 829 1890,' 1905 Mar. 3 517 12 26 829 842 Mar. 3 529 4 26 839 16'9 Date of Act SUts. at Large Chap. Sec. Vol. Afar. 3 529 5 26 Mar. 3 529 26 jrar. 3 52./ 9 26 ]Mar. 3 538 1 26 Mar. 3 538 3 26 Mur. S 538 4 26 Mar. 3 538 5 26 iMar. 3 538 26 Mar. 3 538 7 26 Mar. 3 538 8 26 IVIar. 3 538 10 26 Mar. 3 538 11 26 Mar. 3 538 12 26 IMar. 3 551 2 26 ]\Iar. 3 5G1 8 26 1893 l^rar. 9 14 27 IMav 5 GO 2 27 Julv 16 190 1 27 Julv 2C 200 2 27 July 20 209 1 27 July 20 209 3 27 Julv 20 209 4 27 Julv 20 209 5 27 Julv 26 256 3 27 AufT. 3 301 27 1 HUli Feb. 11 83 27 Mar. 2 209 27 Mar. 3 208 27 Mar. 3 211 1 27 Mar. 3 225 1 27 Mar. 3 225 2 27 Mar. ,} 225 3 27 Mar. 3 226 27 Mar. 3 538 9 26 Nov. 3 14 2 28 18J»4 Apr. 57 9 28 Julv 31 174 13 28 July 31 174 17 28 Aug. 13 Aug. 13 282 5 28 Aug. 18 301 1 28 Aug. 27 349 74 28 Aus. 27 349 1 t 28 1895 Jan. 12 23 10 28 Jan. 12 23 73 28 Mar. 2 174 1 28 T^lar. 2 174 2 28 IMar. 2 174 3 28 Mar. 2 177 28 IMar. 2 180 28 IMar. 2 189 28 1S9G Feb. 26 33 Mar. 2 39 1 29 TABLE OF PAR.\LLEL REFERENCES. [Code Fed. . Code Section Page 839 1010 840 1626 840 1030 851 241 852 1492 852 501, 1493. 1494 853 1495 853 1496 853 1497 853 1498 854 1500 854 1501 854 1502 1084 1391 1099 878 7 1776 25 2404 222 616 252 1824 252 1823 252 478, 1825 252 495. 1826 252 1826 272 1779 347 734 443 1364 031 532 609 746 714 5G5 751 1809 751 1870 751 1871 751 1685 854 1499 IS 653 54 211 210 451. 477 210 1783 1420. 1421, 1422. 1423 280 417 416 1538 570 144. 535 570 418 602 148 601 1812 744 677 744 678 744 677 809 1783 814 1863 010 583 740 42 879 Procedure] TA Stats. Chap. Sec. ^ May 28 252 6 May 28 252 8 May 28 252 9 May 28 252 10 May 28 252 11 May 28 252 12 May 28 252 13 May 28 252 14 May 28 252 15 May 28 252 16 May 28 252 18 May 28 252 19 May 28 252 20 ]\Iay 28 252 21 Dec. 22 3 1807 Jan. 6 4 Feb. 19 263 Feb. 19 265 Feb. 25 316 1 Mar. 3 395 July 24 11 18 1808 INIar. 15 68 8 May 17 339 1 May 17 S39 2 June 370 3 June 370 4 June 370 9 June 24 495 2 June 27 503 1 June 27 503 2 June 27 503 July 541 2 July 541 4 July 541 5 July 541 7 July 541 8 July 541 10 July 541 11 July 541 14 July 541 15 July 541 18 July 541 19 July 541 20 July 541 21 July 541 22 July 541 23 July 541 24 July 541 25 July 541 26 July 541 27 July 541 28 July 541 30 TABLE OF PARALLEL REFERENCES. xxiil The Bankruptcy at Large -■ Code Section Vol. Page 29 179 509, 633, 745 29 181 503,507,515, 518 29 181 510, 634 29 182 620 29 182 621 29 183 624, 638 29 183 519, 522, 636, 641 29 183 517, 637 29 183 504 29 183 511, 635 29 183 748 29 184 601, 671, 674, 676, 1542 29 184 673, 1123 29 185 395, 723 29 481 626 29 481 143 29 536 709, 710 29 577 514 29 595 749 29 695 416 30 209 1512 30 317 587 30 416 141, 419 30 416 859, 1440, 1441, 1442 30 425 825 30 426 825, 826 30 427 1126 30 487 505, 619 30 494 230 30 491 139 30 495 212 30 545 809, 850, 2200 30 547 2226, 2227 30 547 2228, 2251, 2329, 2330, 2331, 2332 2333 30 548 2230, 2271. 2295. 2296 30 549 2229 30 549 1539 30 549 2201 30 550 2324, 2327 30 550 2328 30 551 2278, 2279, 2281. 2285, 2286 2287. 2288, 2293 30 551 2288. 2289. 2290 30 551 2211 30 552 1813, 2315, 2345, 2346, 2347 2348, 2349 30 552 2344 30 553 2202, 2204, 2205 30 553 2360, 2361 30 553 2362, 2363, 2367, 2368 30 553 2322 30 554 2321 30 554 2209 30 554 803, 2206 Act is also printed in full in appendix II. TABLE OF PARALLEL REFERENCES. [Cede Fed. Stats, at Large Date of Act July -July July July July July July July July July July July July July July July Julv July July July July Julv Jufy July July July July July July July July July July July Julv July July 1S9J> Feb. 8 Jlar. 3 ilar. 3 ]\[ar. 3 ]\lar. 3 Feb. 20 Apr. 12 May 23 June G June 6 June 6 June 6 IIKH Feb. 6 Mar S Mar. 3 Mar. 3 Mar. 3 Chap. 541 541 541 541 541 541 541 541 :ai 541 541 541 541 541 541 541 541 541 541 .541 .541 541 .541 541 541 541 541 541 541 541 541 541 541 .541 545 546 ."-76 121 425 425 427 441 791 803 217 845 845 8.53 8GG Sec. Vol. 31 30 32 30 33 30 34 30 35 .30 36 30 37 30 38 30 39 30 40 30 41 30 42 30 43 30 44 30 45 30 46 30 47 30 48 30 49 30 50 30 51 .30 52 30 53 30 54 30 55 30 56 30 57 30 58 30 59 30 67 30 69 30 70 30 71* 32 72* 32 30 3 30 2 30 30 12 30 18 30 30 30 2 31 35 31 31 23 191 541 786 506 31 786 508 31 1 31 31 31 31 31 31 31 , Code Section Page 554 2210 554 2284 555 691, 2234 55.") 22.S5 555 223G 555 2237 555 2238 555 2239 555 2240 555 2241 55G 810, 1754, 2335 557 233G 557 2244, 2337 557 2245 557 2247 557 2248 557 2249 847 2252 558 2257 558 2258 558 2212 559 2214, 2222 559 2224 559 2225 559, 560 2311 560 2;313 560 2303 5G1 2314 561 2269, 2273, 2274, 2275, 2276 2277, 2280 563 2203 565 2316 567 2203 800, 386 2213 800 2259 571 2019 597 230, 873 717 1595 822 816 1151 145, 1381 1153 542 1237 6G3 1354 1221 32 1381 85 1672, 2095 182 1762 415 1911 415 1893 639 588 660 2020, 2056 760... 149 1093 2407 1093 724, 2408 1115 1G31 1446 1363 Procedure] TABLE OF PARALLEL REFERENCES. xir Stats, at Large Date of Act . . Code Secti n Chap. Sec. Vol. Page 1902 Feb. 14 18 3 32 33 429 Mar. 2 514 1 31 956 601 May 31 946 1 32 284 880 June 9 1071 1-3 32 329 310 June 21 1138 32 396 733 June 21 1140 1 32 39 1617 June 21 1140 2 32 39 1618 June 21 1140 3 32 397 1017 June 28 1301 1 32 475, 476 589, 711, 1000 1003 Feb. 2 351 1 32 793 155 Feb. 5 487 3 32 797 2227 Feb. 5 487 4 32 797 2327 Feb. 5 487 32 798 2315 Feb. 5 487 6 32 798 2278,2280 Feb. 5 487 8 32 798 2202 Feb. 5 487 9 32 799 2241 Feb. 5 487 10 32 799 2249 Feb. 5 487 11 32 799 2252 Feb. 5 487 12 32 799 2303 Feb. 5 487 16 32 800 2203 Feb. 5 487 17 32 800 386, 2213 Feb. 5 487 18 32 800 2259 Feb. 9 529 32 806 1540 Feb. 9 529 2 32 806 IfioS Feb. 11 544 1 32 823 1347 Feb. 11 544 2 32 823 1910 Feb. 12 547 32 825 469 Feb. 14 552 1 32 825 1807 Feb. 19 708 1 32 847 431,1369,1814 Feb. 19 708 2 32 848 1362 Feb. 19 708 3 32 848 539,1359,1360,1361,1365 Feb 25 755 1 32 904 1366 Mar. 3 1012 5 32 1214 541 Mar. 3 1012 29 32 1220 153 1904 Feb. 18 160 1 33 41 1504 Mar. 22 748 33 144 1791 April 1 1396 33 185 1793 April 19 13! 3 33 186 1792 April 28 1775 33 527 171 Aug. 18 301 28 416 746 1!>05 Feb. 20 523 11 33 727 1797 Fpb. 20 592 17 33 728 162 Feb. 24 778 33 811 1420,1421.1422,1423 Mar. 3 1483 1 33 1207 512 1906 April 14 1625 2 .34 114 184 April 14 1627 34 116 1906 June 11 3073 4 34 232 892 June 28 3573 34 546 672 June 29 3591 34 588 431 June 29 3591 34 588. 589 1369 June 29 :5591 34 590 1349, 1.350, 1351 June 29 3591 34 591 1352.1.353,1354,1370.1371 June 29 3591 34 592 366 ^xvi TABLE OF PARALLEL REFERENCES. [Code Fed. Stats, at Large Date of Act . ' ^ Code Section Chap. Sec. Vol. Page June 29 3591 5 34 592 432,433,434,1355,1356,2027 June 29 3591 34 594 1358 June 29 3591 9 34 595 1368 June 29 3.i92 34 596 164 June 29 3592 4 34 596 2380,2381,2382,2383,2384,2385 2386, 2387 June 2.') 3592 5 34 597 2388 June 29 3592 6 34 598 2389 June 29 3592 7 34 598 2390 June 29 3592 8 34 699 2391 June 29 3592 9 34 599 2392 June 29 3592 10 34 599 2393 June 29 3592 11 34 599 2394 June 29 3592 12 34 599,600 2395,2396 June 29 2592 13 34 600, 601 752, 753, 754 June 29 3592 14 34 601 2397 June 29 3592 15 34 601 2398, 2399, 2400, 2401 June 29 3592 24 34 606 891 June 29 3592 28 34 606 2402 June 29 3592 30 34 606 2403 June 29 3608 34 618 1735 June 30 3914 34 754 513, 606 June 3C 3914 34 755 688 June 30 3934 3 34 815 1889 June 30 3935 35 816 5571/2 DISTRICT OF COLUMBIA CODE. Code Section Sec. 930, 31 Stat 1656 1657 Sec. 931, 31 Stat 1657 1656 Sl^rocedure] TABLE OF PAUALLEL REFERENCES. PAEALLEL KEFERENCES SHOWING SUPREME COURT RULES AND THEIR PLACE IN THIS CODE. Note: — These rules are also printed in full in appendix I. A. Code Section ' Kule 1 1060 I Rule 2, CI. 1 488 Rule 2, CI. 2 489 I Rule 3 1880, 1937 Rule 4 1933, 1938 J Rule 5 1939; Rule 5, par. 1 838 Rule 5, pt. 2 858 Rule 5, par. 3 968 Rule 6 2057, 2058, 2059, 2060 2061, 2062 Rule 7 2091, 2092, 2093 Rule 8 1950, 1954, 1970, 2035 Rule 9 1951, 1973, 1975 1978, 2003 Rule 10, . .561. 1950, 1979, 1986, 1987 1988, 1989, 1090, 1991 Rule 11 lf»95 Paile 12 2088, 2089 Rule 13 2085 Rule 14 1997 Rule 15 1890, 1897, 1898 Rule 10 2111 Rule 17 2115 Rule 18 2113 Rule 19 2117 Rule 20 2072, 2073, 2074, 2075 Rule 21 2066, 2007, 2008, 2009 2070, 2070 Code Section Rule 22, CI. 2 2077, 2078. 2079 Rule 23, CI. 1 2124, 2125. 2120 ^ , 2127 Rule 24, CI. 1 1843 Rule 24, CI. 2 1344 Rule 24, CI. 3 1345 Rule 24, CI. 4 1840 Rule 24, CI. 5 9131 Rule 24, CI. 185-^ Rule 24, CI. 7 708 Rule 25 2105, 2100, 2107 Rule 20 2044. 2045, 2040. 2047 2048, 2049, 2050, 2051, 2052, 2053 Rule 27 2094 Rule 28 2109 Rule 29 " . " ' 2014 Rule 30 9199 Rule 32 20.54 Rule 33 2030. 2038 Rule 34. CI. 1 IG86 Rule 34, CI. 2 1(187 Rule 34, CI. 3 I688 Rule 35, Sec. 1 1930 Rule 35, Sec. 2 1992 Rule 30 1547, 1548, 1924, 2013 Rule 37, CI. 1 1902 Rule 37, CI. 2 1902 Rule 37, CL 3 1902 Rule 38 1847, 2128 Rule 39 2132 PARALLEL REFERENCES SHOWING THE EQUITY RULES AND THEIR PLACE Rule Rule Rule Rule Rule Rule Note: 1 . 2 . 3 . 4 . 5 . 6 . IN THI.S CODE. -Ihese rules are also printed in full in appendi.\ I. B. Code Section 305 004 939 .940. 941 942 943 Code Section Rule 7 907, 1095 Rule 8 1096 Rule 9 1097 Rule 10 1098 Rule 11 909 Rule 12 970 TABLE OF PARALLEL REFERENCES. [Code Fed Code Section Rule 13 371 Rule 14 972 Rule 15 973 Rule 16 974 Rule 17 975 Rule 18 977 Rule 19 978 Rule 20 944 Rule 21 945, 946 Rule 22 947 Rule 23 948 Rule 24 949 Rule 25 965, 1010 Rule 26 954 Rule 27 955 Rule 28 956 Rule 29 957 Rule 30 959 Rule 31 980 Rule 32 979 Rule 33 981 Rule 34 985 Rule 35 986 Rule 36 983 Rule 37 984 Rule 38 982 Rule 39 996 Rule 40 998, 999 Rule 41 950, 951, 1000 Rule 42 952 Rule 43 950 Rule 44 999 Rule 45 958 Rule 46 1007 Rule 47 1019 Rule 48 1020 Rule 49 1021 Rule 50 1022 Rule 51 1023 Rule 52 1025 Rule 53 1026 Rule 54 976 Code Section Rule 55 1112, 1115, lllG Rule 56 !)60 Rule 57 961 Rule 58 962 Rule 59 997 Rule 60 1006 Rule 61 1001 Rule 62 1008 Rule 63 1002 Rule 64 1003 Rule 65 1004 Rule 66 101)!) Rule 67 1037, 1045, 1046. 1047 1048, 1049, 1050, 1054 Rule 68 1052 Rule 69 1055 Rule 70 1053 Rule 71 1051 Rule 72 963 Rule 73 1076 Rule 74 1070 Rule 75 1071 Rule 76 1078 Rule 77 1072 Rule 78 1057 Rule 79 1073 Rule 80 1074 Rule 81 1075 Rule 82 690, 1069 Rule S3 1077, 1079 Rule 84 1080 Rule 85 1092 Rule 86 1090 Rule 87 1024, 1025 Rule 88 1094 Rule 89 806 Rule 90 937 Rule 91 938 Rule 92 1093 Rule 93 2022 Rule 94 953 PARALLEL REFERENCES SHOWING THE GENERAL ADMIRALTY RULES AND THEIR PLACE IN THIS CODE. XoTE:— These rules are also printed in full in appendix I. C. Code Section Rule 1 1202 Rule 2 1203, 2023. 2024, 2025 Rule 3 1205 Rule 4 1223, 1964, 1965, 196G Rule 5 1216, 1967 Rule 6 1208, 1224 Code Section Rule 7 1204 Rule 8 1211 Rule 9 1210 Rule 10 1222. 1996 Rule 11 1219. 2065. Rule 12 1240, 202(> Procedure] TABLE OF PARALLEL REFERENCES. Code Section Rule 13 1241, 1968 Rule U 1242, 1977 Rule 15 1243 Rule 16 1245 Rule 17 1246 Rule 18 1247 Rule 19 1248 Rule 20 1213, 1239 Rule 21 1285 Rule 22 1199 Rule 23 1198 Rule 24 1201 Rule 25 1225 Rule 26 1228, 1258 Rule 27 1259 Rule 28 1261 Rule 29 1269 Rule 30 1262 Rule 31 1263 I Rule 32 1265 ! Rule 33 1266 ! Rule 34 1227, 1268 1 Rule 35 1217 Code Section Rule 36 1200, 1264 Rule 37 1209 Rule 38 1212 Rule 39 1271 Rule 40 1270 Rule 41 1287 Rule 42 1230 Rule 43 1231 Rule 44 1282 Rule 45 77 Rule 46 805 Rule 47 1206, 1207 Rule 48 1260 Rule 51 1267 Rule 52 1289 Rule 53 1226, 1272 Rule 54 1299, 1300, 1301, 1302 Rule 55 1303 Rule 56 1304 Rule 57 1298 Rule 58 1305 Rule 59 1229, 1244, 1273 PARALLEL REFERENCES TO CIRCUIT COURT OF APPEALS RULES. XoTE: — Ihe C. C. A. rules for each circuit are printed in full in ap- pendix I. E., and at the end of each, as there printed, appears a reference to the Code section where it is reproduced or referred to. Rule 7 Rule 8 Rule 9 Rule 11 Rule 12 Rule 13 Rule 14 Rule 10 Rule 17 Rule 18 1950, Code Section 491 1887 839 1931 j 2086 .2015. 2021 1971, 2035 i 1978 1 2118! 1997 ' Code Rule 19 1899, 1900 Rule 20 Rule 28, CI. 4 Rule 30 Rule 31 1843, 1844, 1846 Rule 31, CI. 3 Rule 31, CI. 5 Rule 33 1086, 168] Rule 38 (9th circuit) Section , 1901 2110 2127 2127 1983 1984 1848 1852 1688 2406 COURT OF CLAIMS RULES. XoTE: — These rules are printed in full in appendix I. D. Rule 3 Code Section 1908 TABLE OF PARALLEL REFEREKCES. [Code Fcd„ Note : PARALLEL EEFERENCES TO THE ORDERS IN BANKRUPTCY SHOWING WHERE REPRODUCED IN THIS CODE, These orders are also printed in full in appendix II. Code Section Order in Bankr. 1 2210 Order in Bankr. 2 2217 Order in Bankr. li 2218 Order in Bankr. 4 2219 Order in Bankr. i) 2270 Order in Bankr. (i 2283 Order in Bankr. 7 2282 Order in Bankr. 8 2294 Order in Bankr. 9 2291 Order in Bankr. 10 2220 Order in Bankr. 11 2272 Order in Bankr. 12, CI. 1 2338 Order in Bankr. 12, CI. 2.... 2.339 Order in Bankr. 12, CI. 3 2340 Order in Bankr. 13 2246 Order in Bankr. 14 2254 Order in Bankr. 15 2255 Code Section Order in Bankr. 21, CI. 4. Order in Bankr. 21, CI. 5. Order in Bankr. 21, CI. G. Order in Bankr. 22 Order in Bankr. 23 Order in Bankr 24. Order in Bankr. 25. Order in Bankr. 26. Order in Bankr. 27. Order in Bankr. 28. Order in Bankr. 29. Order in Bankr. 30. Order in Bankr. 31. Order in Bankr. 32. Order in Bankr. 33. Order in Bankr. 34. Order in Bankr. 35. !^rl^r •" S^"!^!* ^^ "^^ ^^''^^^ ^" Bankr. 35, CI. 2' ! Ti__,._ jj 2250 Order in Bankr. 35, CI. 3.. Order in Bankr Order in Bankr 18 2317 Order in Bankr. 35, CI. Order in Bankr. 19 2223 Order in Bankr. 36 Order in Bankr. 20 2341 Order in Bankr. 21, CI. 1 2304 Order in Bankr. 21, CI. 2... 2305 Order in Bankr. 21, CI. 3.... 2306 Order in Bankr. Order in Bankr. Order in Bankr. Order in Bankr. 36, 36, 37 38 CI. CI. CI. 4. . 1.. 2.. 3.. 2307 2308 2309 2350 2342 2310 2312 2243 2343 2318 2319 2320 2325 2326 2323 2292 2215. 2242 2253: 2221 2364 2365. 2366 2207 2208. PART I. FEDERAL COURTS AND THEIR JURISDICTION. CHAPTER 1. FEDERAL JURISDICTION EN" GENERAL. § 1. Nature of Federal Judicial power. § 2. Scope and extent. § 3. The ancillary jurisdiction of Federal courts. § 4. Federal Courts power to decide non-Federal questions and entire controversy. § 5. States may not impair or regulate Federal jurisdiction or pro- cedure. § 6. Inherent limitations on Federal judicial power. § 7. Suits against a State prohibited. § 8. The Federal Courts. § 9. Federal jurisdiction is limited and must affirmatively appear. § 10. What law administered. § 11. — in admiralty criminal and bankruptcy cases and suits by States. § 12. — State laws as rules of decision. § 13. — is there a Federal common law? § 14. Federal Constitution treaties and laws supreme. § 15. When Federal jurisdiction is exclusive. § 16. Concurrent and conflicting jurisdiction — personal actions — plea of another action pending. § 17. — property in custody of the law, and garnishment cases. § 18. — persons in custody — habeas corpus. § 19. — power of State or Federal court to vacate or relieve against the others judgment or decree. § 20. — Federal injunction to stay proceedings in State courts. § 21. — State writ to restrain or control Federal proceedings. § 22. — comity between different Federal courts. § 23. Suits by assignees and colorable transfers to obtain or defeat Federal jurisdiction. § 24. Citizenship of national banks for jurisdictional purposes. § 25. Territorial limits and extent of Federal jurisdiction. § 26. —District of Columbia, government forts, docks and buildings. § 27. Federal jurisdiction over crimes on Great Lakes. § 28. Local law as to remedies for improvements, applies to Federal oc- cupants. § 29. The law applied in civil rights cases. Fed. Proc— 1. § 1 [a] FEDERAL JURISDICTION IN GENERAL. [Code FecL § 1. Nature of Federal judicial power. 'Jlie judicial power of the courts of the United States is no; merely the cognate of the legislative power of Congress, but niucli l)roadcr. The Federal courts are called upon to declare and ad- minister the law between litigants and respecting matters whicli may be the subject of judicial controversy in a very large class of cases as to which Congress is invested with no power whatever to ))rovide the rules by which those controversies are to be deter- minedJ^^ From this it results that tlie Federal courts derive many of the legal rules and principles which they apply from other sources than the enactments of Congress. They come in part from the State, through State constitutions, statutes and common law ; in ])art from the national government, through the Federal Constitu- tion and laws; and in part from no acknowledged law-making power at all, but from what is termed international law or the law of nations. f^^ While Congress is unable to declare the substan- tive rules of law applicable to all legal controversies of Federal cognizance, it has an important control over these substantive rules through its power to prescribe the procedure and regulate or declare the remedies that shall be applicable to suits in the Federal courts.f'^^-C'^^ Author's section. [a] Federal judicial power broader than legislative. It has been said tliat the powers of the legislative, executive and judicial branches should be coextensive and that the judiciary should have power to construe every law which the legislative branch has power to enact, i Undoubtedly the Federal judiciary possesses this power of construction and exposition. This, however, serves but to emphasize a much wider and more important jurisdiction which it also possesses. There are, for in- stance, many constitutional prohibitions as to which Congress has no sort of power to legislate, that may nevertheless demand the intervention of Federal courts imder what may be termed their restrictive powers. Thus, the familiar prohibition against a deprivation of property by a State without due process of law, does not authorize Congress to provide due process of law for the vindication of this right. 2 Yet the power of the courts to protect this and all other constitutional rights against infraction by Congress or the States is obvious and well settled. Again, Congress cannot legislate as to contracts or other transactions be- cause arising between citizens of different States or citizens and aliens. Yet the Federal courts have been given a jurisdiction over controversies grow- Osburn V. United States Bank, 9 2Civil Risrhts Cases. 10!) U. S. 3, Wheat, 818, 6 L. ed. 223. 27 L. ed. 840, 3 Sup. Ct. Rep. 22. 2 Procediue] NATURE OF FEDERAL JUDICIAL TOWER. § 1 [b] ing out of tliese matters by reason of the cliaraetor of the parties in- volved, and quite outside either the legislative powers of Congress or the prohibitions of the Federal constitution. In the cases where the judicial power is but the correlative of the legislative — of which patent and bank- ruptcy matters are illustrations — the Federal judicial power is plenary and in its nature properly exclusive. In the class of cases where the ju- dicial function is restrictive, Federal courts are concerned primarily with the protection of some Federal right, or rights, and do not extend their inquiries beyond. In the cases where the jurisdiction depends on the character of the parties, the national government is not necessarily otherwise concerned than as furnishing an impartial arbitrator between persons whose legal rights are or may be entirely governed by local or State laws. There is yet another class of controversies justiciable in the highest Federal court because of the parties involved, and quite outside of the law-making power of either State or nation; controversies, namely, be- tween States of the Union.s These give to the Supreme Court the dignity and importance of a quasi international tribunal. It is of course not always true that a case falls within some one of these four classes of controversies to the entire exclusion of the others. A controversy between citizens of different States may involve one or more Federal questions, and a cause concerned primarily with the na- tional patent law may involve some question of local jurisprudence. It is true, however, that causes going from a State court to the Supreme Court on writ of error, always present a case concerned only with what is above termed the restrictive power of the Federal courts;* and that in such cases the Supreme Court refrains from a consideration of any questions of local law. 5 [b] Federal courts administer local, national, and international law. In these several classes of controversies which the Constitution has made of Federal cognizance, the Federal coiu'ts, are, or may be, called upon to administer rules and principles of State law, rules prescribed by Congress, rules and principles enunciated by the Supreme Court in the discharge of its important function of interpreting and expovinding the Federal con- stitution, and rules and principles of international law. The question a;, to the authoritative and proper source whence the Federal courts shall derive the rules of substantive law applicable in these various classes of controversies is of the utmost importance, and is considered in subsequo}iu sections of this code.6 The Federal courts have developed a very consider- able body of learning in their exposition and application of the various rules and principles of local and national law, but as yet the Supreme Court has established but few precedents to indicate the foundation upon which its framework of quasi international jurisprudence is to be up- reared. This is largely due to the infrequenc.y of legal disputes between States of the Union except over matters of boinidary, and in part to t!:c 3See post. § 2. epost, § 10 et seq. 4Post, § ;5S. sPcst, § 2084. S 1 [c] FKDERAL JURISDICTION IX GENEUAL. [Code Fed. reluctance of the court to assume this function except in cases of absolute necessity.'' The admiralty jurisdiction of the Federal courts presents many features that would justify its separate classification. It is a sort of com- mon law of the seas, not founded upon act of Congress; s and the Federal courts resort to establish precedents and the writings of admiralty jurists for the principles that they expound and the rules that they apply in admiralty causes. Nevertheless the power of Congress to modify, amend, and add to the law maritime is established; and if right- fully so, then the Federal jvidicial power of expounding admiralty law is but the correlative of the power of Congress to enact it. [c] Power of Congress over procedure, as affecting substantive law. Keeping in mind the fact that Federal courts are called upon in in numerable cases to expound and apply rules of local or State law as to which Congress has no legislative power, and the further fact that Con- gress has the power to prescribe the forms of procedure and the remedial machinery in all such cases,9 it is plain that Congress has a most im- portant power of influencing the administration of purely local law., through its control over Federal procedure. Furthermore, as the substan- tive law administered by the Federal courts in many controversies justici- able before thorn, has its source in one sovereignty and the law of proced- ure in another, it is also obvious that the Federal courts nmst distinguish sharply between substantive law and procedure, in order to determine the scope of the power of Congress to prescribe the law applicable in contro- versies before thei: .. and to decide when fundamental principles underly- ing our system of dual sovereignties require them to accept the rules of substantive law which the law-making power of the State prescribes, with- out qualifications or additions of their own making. This matter is con- sidered in detail in subsequent code sections.io It so happens that Con- gress has always followed the policy of assimiliating the Federal procedure ia common -law cases to that of the State courts ;ii has adopted the State remedies of attachment, execution and the like; 12 the state law as to limitation of actions; 13 and as to execution liens. i* Congress has also declared, in terms, that State law shall be the rule of decision in Federal courts except when in conflict with the Federal law. is This legislation has prevented the distinctions above pointed out from becoming of prac- tical moment in the great majority of cases. It has also, it is conceived, and perhaps unfortunately, prevented that examination and elucidation of basic principles which the Supreme Court might otherwise have made. [d] Difficulty of the subject. It is not surprising that Federal procedure presents many difficult and in- tricate questions demanding the most careful study. The Federal courts ex- ernise four distinct jurisdictional functions. They administer State, Federal, ^Missouri v. Illinois. 200 U. S. 496, uPost, § flOO. 50 L. ed. 572, 26 Sup. Ct. Eep. 713. ispost. §§ 005, 925. sPost, § 11. isSee post, § 870. sSee post. § 790. i^Post, § 1862. loPost, §§ 10 et seq; 799. ispost, § 12. Procedure] SCOPE AND EXTENT. § 2 [a] and inteniational law, and the law of the seas. They are required to pre- serve the ancient distinction between common law and equity, often in the face of State laws planned to effect its abolition. And finally they must not only restrain unconstitutional action by other departments of government, State and Federal, but must themselves refrain from exceeding the jur- isdiction conferred upon tliem, and from ignoring the source whence the substantive law they administer should be derived. § 2. Scope and extent. The judicial power'^^^ shall extendi^^^ to all^'^^ cases in law and equity f'^^"^®^ arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ;'^^^"f^^ to all cases affecting Ambassadors, other pub- lic ministers, and consuls ;™'f-'^ to all cases '^'^^"^^^ of admiralty and maritime jurisdiction ;'^'^^"'^'^'^^ to controversies^'^^'^®^ to which the United States shall be a party ;f'^"f'"^ to controversies^'^^'f®^ between two or more States ;'^"^''^p^ between a State and citizens of another State ;f°^ between citizens of different States ;'^*i^''^^^ 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. U. S. Cons. Art. Ill § 2. [a] Judicial power defined. The judicial power or jurisdiction of courts, is the power to hear and determine a cause; i to hear and determine the subject matter in contro- versy between parties to a suit; 2 the power to declare the law. 3 The exer- cise of judicial power over the parties to a suit is the exercise of jurisdic- tion.* When it has once attached, a court may decide the entire causeJ and retains jurisdiction after judgment until complete relief is accorded within the scope of the subject matter involved.s The repeal of a law conferring jurisdiction ousts jurisdiction in pending causes.'? lUnited States v. Arredondo, 6 U. S. 220, 31 L. ed. 402, 8 Sup. Gt. Pet. 709, 8 L. ed 547; Overbv v. Gor- Rep. 482. don, 177 U. S. 220, 221, 44 L. ed. 6 Ward v. Todd, 103 U. S. 329, 26 744, 20 Sup. Ct. Rep. &03. L. ed. 339; Way man v. Southard, 10 2Rhode Island v. Massachusetts, 12 Wheat. 23, 6 L. ed. 253 ; Bank of Pet. 718, 9 L. ed. 1233, Grignon v. United States v. Halstead, 10 Wheat. Astor, 2 How. 338, 11 L. ed. 283. 04, G L. ed. 264. 3Ex parte McCardle, 7 Wall. 514, "Insurance Co. v. Ritchie, 5 Wall. 19 L. ed. 204. 544, 18 L. ed. 540; Assessor v. Os- 4Rhode Island v. Massachusetts, 12 bornes, 9 Wall. 5G7, 19 L. ed. 748; Pet. 718, 9 L. ed. 123.3. Railroad Co. v. Grant. 98 U. S. 401, 5Elliott V. Peirsol, 1 Pet. 340, 7 L. 25 L. ed. 231; Sherman v. Grimiell, od. 164: Grignon v. Astor, 2 How. 123 U. S. GSO, 31 L. ed. 278, 8 Sup. 343, 11 L. ed. 283; In re Sawyer, 124 Ct. Rep. 260; National Ex. Bk. v. S 2 [b] FEDERAL JURISDICTION IN GENERAL. [Code Fed. [b] Meaning of words "shall extend." Thoso words are used in an imperative sense and the entire section is mandatory, so that Congress could not, without violation of its duty, have refused to carry it into operation. s It is the duty of Congress to vest all tlie judicial power either in appellate or original form.!* The enumeration of matters of Federal jurisdiction in this section, negatives the exercise of any jurisdiction not comprehended within it.io Courts created by written law cannot transcend the jurisdiction conferred.! i in other words. Federal courts are courts of limited jurisdiction which must affirmatively appear.12 [c] When jurisdiction extends to "all cases" and when not. As to all cases arising under the constitution, laws and treaties, or in- volving the admiralty jurisdiction, foreign ministers and consuls, the con- stitution requires that Congress shall in every instance provide a Federal tribunal, though not necessarily of original cognizance. The words are sat- isfied by authorizing merely an appellate jurisdiction in the Federal courts, since the manner in which Congress shall extend the jurisdiction is within its discretion.! 3 Hence, the jurisdiction is not necessarily exclusive, al- though it has been said it may be made so.i* In vesting jurisdiction in the remaining cases included in the above section, the word "all' is omitted. But this omission is of no significance as respects civil cases where a State is party since the next clause of the Constitution expressly confers jurisdiction on the Supreme Court of "all" such cases.is It is of signifi- cance, however, in controversies between citizens of difi'erent States, where land is claimed imder grants for different States, and between citizens, for- eign States, citizens or subjects. In such cases Congress need not vest jurisdiction over all cases and has in fact always restricted the jurisdic- tion to cases involving a substantial sum. is The extension of jurisdiction to cases in which the United States is party, omitting the word "all," was also by design, saving the government from imperative provisions either in the matter of suing or of being sued, and leaving Congress free to make regulations from time to time.iT [d] Cases in law and equity, and controversies defined. It is not every violation of the Constitution that is justiciable in the Federal courts, but only such as arise in some case in law or equity.! s Peters, 144 U. S. 572, 36 L. ed. 545, isMartin v. Hunter. 1 Wheat. 334, 12 Sup. Ct. Rep. 767. 4 L. ed. 104, 105; The Moses Taylor, SMartin v. Hunter, 1 Wheat. 328, 4 Wall. 411, IS L. ed. 401; ]\Iavor v. 331. 4 L. ed. 103, 104. Cooper, 6 Wall. 247. IS L. ed. 852. SMartin v. Hunter, 1 Wheat. 328, i4The Moses Taylor, 4 Wall. 411, 4 L. ed. 104. 18 L. ed. 401. See post, § 15. !OMarbury v. Madison, 1 Cranch, !5Post, § 35. 173, 2 L. ed. 72; National Exch. isMartin v. Hunter, 1 Wheat. 335, Bank v. Peters, 144 U. S. 573, 3G L. 336, 4 L. ed. 105. ed. 545, 12 Sup. Ct. Rep. 767. i^Ibid. i!Ex parte BoUman, 4 Cranch, 93, isCohens v. Virginia, 6 Wlieat. 264, 2 L. ed. 554. 5 L. ed. 257. i2See post, § 9. 6 Procedure] SCOPE AND EXTENT. § 2 [e] "The judicial power only becomes capable of acting when the subject is submitted to it by a party who asserts his right in the form prescribed by law. It then becomes a case." 1 9 A suit by the United States to de- termine the question of fraud in obtaining an award against Mexico, brought imder act of 1892, has been held to be a "case" within this sec- tion. 20 A common-law cause is one in which legal rights are ascertained and determined; and an equity case is one in which relief is sought ac- cording to the principles and practice of equity jurisprudence as estab- lished in England. 1 A proceeding to obtain from the Federal district court, a license for ocean and coastwise vessels is not an action or suit, within the judicial power granted by this section of the Constitution. 2 Many ad- ministrative acts involving the exercise of judgment upon law and fact, svich as the auditing of the accounts of a receiver of public moneys, may be made the subject of judicial controversy, but are nevertheless not strictly an exercise of judicial power. 3 A proceeding before a territorial judge to obtain an award of damages pursuant to a treaty is not a case and the judge does not act judicially.* But a claim for fugitive slaves has been held a judicial controversy. 5 In a legal sense, action, suit, and cause are convertible terms, and an application for habeas corpus is a "cause" within the law permitting certification of questions where the circuit judges are divided in opinion. 6 A proceeding by a creditor to have a debtor adjudged bankrupt has been held a case; 7 also extradition pro- ceedings against a fugitive from justice.? This subject is further consid- ered in determining what constitutes a case within the law defining the jurisdiction of the circuit court, both original and on removal.9 [e] Moot questions and absence of actual controversy. Where there ceases to be any real controversy between parties to a pending cause it will be dismissed n* and it is the court's duty to investi- isOsbom V. Bank of United Weston v. Charleston, 2 Pet. 449, 7 States, 9 Wheat. 819, 6 L. ed. 212. L. ed. 481 ; so, also, is a petition for 2 0La Abra etc. Co. v. United habeas corpus. Holmes v. Jennison, States, 175 U. S. 453-457, 44 L. ed. 14 Pet. 540. 10 L. ed. 579. 232, 20 Sup. Ct. Rep. 168. ^In re Oregon Bulletin Co., 3 Saw. ilrvine v. Marshall, 20 How. 565, 531, Fed. Cas. No. 10,500. 15 L. ed. 994. sin re Metzger, 17 Fed. Cas. Xo. 2Pacific S. W. Co. V. United States, 234. 187 U. S. 447, 47 L. ed. 253, 23 Sup. sSee post, § 129, et seq. Ct. Rep. 154. locieveland v. Chamberlain, 1 SMurrav v. Hoboken L. Ins. Co. 18 Black, 426, 17 L. ed. 93; Wood Paper How. 272, 15 L. ed. 376. Co. v. Heft, 8 Wall. 336, 19 L. ed. ^United States v. Ferreira, 13 379; South etc. Min. Co. v. Amador How. 40, 46, 14 L. ed. 44. etc. Min. Co. 145 U. S. 301, 12 Sup. sPrigsr V. Pennsylvania, 16 Pet. Ct. Rep. 921, 36 L. ed. 712; Dakota 5.3.0. 10 L. ed. 1060.' Co. v. Glidden, 113 U. S. 225, 28 L. 6Ex parte Milligan, 4 Wall. 121, 18 ed. 981, 5 Sup. Ct. Rep. 428; Card- L. ed. 292, 293. A suit is the prose- ner v. Goodyear Co. 131 U. S. CUT., cution of some demand in a court 21 L. ed. 141; Little v. Bowers, 134 of justice; Cohens v. Virginia, 6 U. S. 558, 559. 33 L. ed. 1016, 10 Sup. Wheat. 264, 5 L. ed. 257. The term Ct. Rep. 620; East Tenn. etc. 11. R. is comprehensive and a proceeding v. Southern Tel. Co. 125 U. S. 696, 31 for writ of prohibition is a suit; L. ed. 853. 8 Sup Ct. Rep. 1391. See § 2 [t] FEDERAL JURISDICTION IN GENERAL. [Code Fed gate upon motion and affidavits, any suggestion that the parties have »iom- posed their difTerences and are imposing upon the court. n If one party has unconditionally paid the amount in dispute appeal will be dismissed.! 2 Courts will not decide abstract or moot questions; there must be an actual controversy in regard to rights which actually exist and are capable of enforcement. 13 [f] "Arising under" the Federal constitution, etc. "A case in law or equity consists of the right of one party as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the right construction of either."i* This construction is necessary to support the extension of the appellate power to cases in the State courts not founded upon a Federal right, but in which a Federal right is asserted and denied during the progress of the cause to final judgment. In construing the law granting jurisdiction, original or by removal, to the circuit courts in cases "arising under" the Federal Constitution, etc., the term has been given a narrower meaning and requires that the cause be founded upon a Federal right which must appear from plaintiflf's bill or complaint. is It is not necessary that a case involve nothing but a Federal question to come within the constitutional grant, nor is the Federal jurisdiction neces- sarily limited to a consideration of that question. ig [g] Cases under the Federal Constitution, laws and treaties. Criminal cases are included within these terms as well as civil cases. i" If the title or right set up would be defeated by one construction (.f the Federal Constitution and laws, and sustained by the opposite constructioii, Security etc. Ins. Co. v. Preivitt. 200 409, 45 L. ed. 254, 21 Sup. Ct. Ren. U. S. 446, 50 L. ed. 545, 26 Sup. 206, Security etc. Ins. Co. v. Prewitt. Ct. Rep. 314. 200 l^. 8. 446, 50 L. ed. 545, 26 Sup. iiHatfield v. King. 184 U. S. 165, Ct. Rep. 314. 46 L. ed. 481, 22 Sup. Ct. Rep. 477. i^Cohens v. Virginia, 6 Wheat. 379, i2San Mateo Co. v. Southern Pa- 5 L. ed 257; Tennessee v. Davis, 100 cific R. R. Co. 116 U. S. 141, 142, 29 U. S. 257, 25 L. ed. 648; U. S. v. Old L. ed. 589, 6 Sup. Ct. Rep. 317: Settlers, 148 U. S. 427, 37 L. ed. 509. Singer Mfg. Co. v. Wright, 141 U. S. 13 Sup. Ct. Rep. 650; Nashville etc. 700', 35 L. ed. 906, 12 Sup. Ct. Rep. Rv. v. Tavlor, 86 Fed. 181. 103; California v. San Pablo etc. 'isSpeer* v. Colbert, 200 U. S. 130, R. R. 149 U. S. 313, 37 L. ed. 747, 50 L. ed. 403, 26 Sup. Ct. Rep. 201. 13 Sup. Ct. Rep. 876. See post, §§ 129, 133. This was nec- isWaite v. Dowley, 94 U. S. 534, 24 essary to prevent impositions upon L. ed. 181; Williams v. Hagood, 98 the Federal jurisdiction since in U. S. 75, 25 L. ed. 51 ; Cheong Ah causes triable in the Federal courts, Moy V. United States, 113 U. S. 218, non-Federal questions are equally ex- 28 L. ed. 983, 5 Sup Ct. Rep. 431; aminable. See post. § 4. Marye v. Parsons, 114 U. S. 330, 29 isOsborn v. Bank of U. S. 9 L. ed. 205, 5 Sup. Ct. Rep. 932, 962; Wheat. 820, 823, 6 L. ed. 204. See :vrills V. Creen, 159 V. S. 653, 40 L. also post. § 4, note [b]. ed. 293, 16 Sup. Ct. Rep. 132: Kim- i^Tennessee v. Davis, 100 U. S. ball V. Kimball, 174 U. S. 161, 43 L. 257, 25 L. ed. 648. ed. 932; Tyler v. Judges, 179 U. S. 8 rrocedure] SCOPE AND EXTENT. I 2 [h} it comes within this provision. 1 8 The section covers the case of a con- troversy depending upon the con.struction and effect of an act of Congress,i3 such as a controversy over the exercise of a right to construct and operate a road, derived from Congress. 20 A claim by the owner of a fugitive slave is a case arising under the Constitution and laws.i So, also is a seizure for violation of the slave trade act. 2 Controversies as to land titles found- ed on acts of Congress and depending upon the construction of those acts;3 controversies vmder patent laws* and tmder copyrights and revenue laws,6 are all included. It is well settled that where a corporation is created by act of Congress a suit by or against it is one arising under the Federal laws.'^ Hence a provision in the charter authorizing suit by or against it in the circuit court is valid.s An application for habeas corpus alleg- ing that petitioner is in custody of State officers in violation of the Fed- eral Constitution presents a controversy under the Federal Constitution which Congress has power to make cognizable in the Federal courts. 3 A full discussion of cases arising under the Federal Constitution and laws, will be found in the chapters dealing with the jurisdiction of the circuit court, both original and on removal, 10 and with the jurisdiction of the Supreme Court and the circuit court of appeals. n [h] Cases affecting ambassadors and other public ministers. "Other public ministers" includes envoys, ministers, commissioners, charges d' affaires, and agents, duly accredited by the state department and empowered to discuArge diplomatic duties for their respective govern- ments. 12 In deciding the question of the diplomatic character of a foreign representative, the courts are controlled by the action of the state department.! 3 The next clause of the Constitution vests in the Supreme isOsborne v. U. S. Bank, 9 Wheat. 160 U. S. 93, 40 L. ed. 340, 16 Sup. 822, 6 L. ed. 204. Ct. 231; Texas etc. Ry. v. Codv, 166 isRailroad Co. v. Mississippi, 102 U. S. 609, 41 L. ed. 1132, 17 Slip. Ct. U. S. 140, 26 L. ed. 96. Rep. 703. 2 0Southern Kansas R. R. v. Bris- sQsborn v. U. S. Bank, 9 Wheat. coe, 144 U. S. 135, 36 L. ed. 377, 12 828, 6 L. ed. 225. Sup. Ct. Rep. 538. 9Ex parte Royall, 117 U. S. 250, iPrigg v. Pennsylvania, 16 Pet. 29 L. ed. 868, 6 Sup. Ct. Rep. 739. 016, 16 L. ed. 1060. Compare Clifford v. Williams, 131 2The Slavers (Reindeer), 2 Wall. Fed. 100 where application was based 402, 17 L. ed. 911. on allegation of denial of full faith sChouteau v. Eckhart, 2 How. 372, and credit to a decree as to custody 11 L. ed. 293; Stanlev v. Schwalby, of a child. 147 U. S. 518, 37 L. ed. 259, 13 Sup. loPost, §§ 129, 133. Ct. Rep. 418. iiPost, §§ 39, 42. 4Birdsdall v. Coolidge. 93 U. S. 68, 127 Ops. Atty. Gen. 186, R. S. § 23 L. ed. 802. 4130. An attache is also included. sLittle V. Hall, 18 How. 171, 15 United States v. Benner, Baldw. T ed. 328. 234, Fed. Cas Xo. 14568. -•insurance Co. v. Ritchie, 5 Wall. isEx parte Hitz, 111 U. S. 767, 28 543, 18 L. ed. 540. L. ed. 592, 4 Sup. Ct. Rep. 698; In TOsborn v. U. S. Bank, 9 Wheat, re Baiz. 135 U. S. 421, 10 Sup. Ct. 828, 6 L. ed. 225; Northern Pac. R. Rep. 854, 34 L. ed. 222; United R. v. Amato, 144 U. S. 471, 30 L. ed. States v. Liddle, 2 Wash. C. C. 205, 506, 12 Sup. Ct. Rep. 740; Washing- Fed Cas. No. 15.598; United States ton etc. Ry. v. Coeur D' Aleue Ry. v. Benner, Baldw. 234, Fed. Cas. No. 9 § 2 [1] FEDERAL JURISDICTION IN GENERAL. iCode Fed. Court exclusive jurisdiction of suits or proceedings against such diplomatic functionaries and their domestics or domestic servants. It furtlier vests original but not exclusive jurisdiction in that court of suits by such digni- taries, n This provision of the Constitution was incorporated by Congress in the judiciary act of 1789 and has been retained in the Revised Statutes. But Congress has not vested in any inferior court a concurrent original jurisdiction of suits by diplomatic agents, eo nomine, nor has it made specific provision for review of cases voluntarily brought by such persons in the State or inferior Federal courts. There is no provision or principle of law forbidding suit by a public minister in the inferior Federal courts in cases otherwise of Federal cognizance, e. g., because arising under the Federal laws or because between an alien and citizens.ie If any such person were impleaded as defendant in the State court and his constitu- tional immunity from such suit were denied or even ignored, error would lie from the Federal Supreme Court. i'? By the Crimes act of 1790, R. S. §§ 4062-4066, Congress has forbidden issue of process against foreign min- isters and their registered domestics and has prescribed penalties for the issue of such process and for the offence of assaulting or violating the safe conduct of any public minister.is But an indictment for such an assault is not a case affecting a public minister, within the provision of the Con- stitution here under consideration.! 9 [i] Suits against consuls. The term "consul" includes consuls-general, vice consuls-general, cosnuls, vice consuls, commercial agents, and vice commercial agents.i A consul is a commercial and not a diplomatic agent,2 and Congress has kept this dis- tinction in view in all its legislation upon the subject. The jurisdiction of the Supreme Court while original, is not exclusive; it may therefore be exercised in appellate form and Congress may vest original jurisdiction in the inferior Federal courts.^ Accordingly Congress gave the district court jurisdiction of all suits civil and criminal against consuls or vice consuls except in criminal cases of more than a prescribed penalty in which latter cases the circuit court has jurisdiction.'* The judiciary act of 1789 made 14,568; United States v. Oretga, 4 isUnited States v. Ortega, 11 Wash. C. C. 531, Fed. Cas. No. 15,971. Wheat. 467, 6 L. ed. 521. i4Post, §§ 35, 3G. iR. S. S§ 1130, 1674. isSee post, §§ 35, 36. 2The Anne, 3 Wheat. 445, 4 L. ed. leSee Bors v. Preston, 111 U. S. 428; Gittings v. Crawford, Tanev 1, 261, 28 L. ed. 419, 4 Sup. Ct. Rep. Fed. Cas. No. 5,465. 407. sBors v. Preston, 111 U. S. 256, iTDavis V. Packard, 7 Pet. 270, 8 257, 28 L. ed. 419, 4 Sup. Ct. Rep. L. ed. 684. See 76 Am. Dec. 668 note. 407; U. S. v. Ravara, 2 Dall. 297, Fed. isPo.st, § 801. These provisions Cas. No. 16,122. have been construed in United States 4 See post, § 209, R. S. § 563, CI. v. Benner, Baldw. 234, Fed. Cas. No. 17. See, also, Lorway v. Lusada, 14.568; U. S. v. Ortega, 4 Wash. C. C. 1 Low. 77, Fed. Cas. No. 8517; Bix- 531, Fed. Cas. No. 15,971; United by v. Janssen, 6 Blatchf. 315, Fed. States V. Liddle, 2 Wash. C. C. 205, Cas. No. 1452; In re Baiz, 135 U. S. Fed. Cas. No. 15.598; In re Baiz, 135 403, 34 L. ed. 222, 10 Sup. Ct. Rep. U. S. 421, 10 Sup. Ct. Rep. 854, 34 L. 854; Davis v. Packard, 7 Pet. 276, 8 €d. 222. L. ed. 684. 10 Procedure] SCOPE AND EXTENT. § 2 [k] this jurisdiction exclusive of the State courtss but tlie revised statutes do not make the jurisdiction of suits against consuls exclusiA'e, eo nomine,'' Hence if the case is one in which the Federal jurisdiction is not exclusive by reason of the subject-matter, the State courts may take jurisdiction. They may commit a consul for extradition to another State.'^ Suits against consuls involving merely local law, and not presenting diverse citizenship or any Federal question, might apparently be entertained by a State court without any right of removal, or of review on error to the Federal Supreme Court unless some Federal right arose and was denied prior to final judgment. s This could not have been done under the original law. 9 It would seem therefore that in such cases Congress has failed in the performance of its "imperative duty"io to provide a Federal tribunal either of original or appellate cognizance, for "all cases" affecting consuls [j] Suits by foreign consuls. These are cognizable originally in the Supreme Court,ii but the jurisdic- tion is not exclusive. A consul is apparently free, therefore, to sue in the Supreme Court in any case; or to proceed in the inferior Federal court if it has jurisdiction of the subject-matter involved; or in the State courts, where the mutter is not of exclusive Federal cognizance.i2 Cases are fre- quent in which consuls have proceeded in the district court under the admiralty jurisdiction in prize cases or for the protection of foreign sea- men.! ^ [kj The admiralty and maritime jurisdiction — tort cases. Admiralty cases were included in the grant of Federal jurisdiction be- cause as the seas are the joint property of nations, the jurisdiction is necessarily national. i It is closely connected, with the grant of Federal power over commerce. 2 The principal subjects of admiralty jurisdiction are maritime contracts and torts. 3 But salvage, jettison and general average which are neither contract nor tort, are also included.'* The word "maritime" was used to guard against a narrow interpretation of the word "admiralty."^ Admiralty and maritime jurisdiction includes jurisdiction 5Act of 1789, c. 20, § 9. And isThe Bollo Corrunes, 6 Wheat. see Mannliardt v. Soderstrom, 1 168, 5 L. ed. 229; Robson v. The Binn. 138; Commonwealth v. Kosloff, ITuntiess, 2 Wall. Jr. 59, Fed. Cas. 5 Serg. & R. 545. No. 11,971; The London Packet, 1 6See post, § 15 note [a]. Mason 14, Fed. Cas. No. 8474. Tin re lasigi, 79 Fed. 754. iChisholm v. Georgia 2 Dall. 475, 8 Wilcox V. Luco, 118 Cal. 642, 62 1 L. ed. 440. Am. St. Rep. 306, 50 Pac. 759, 45 L. 2New Jersev etc. Co. v. Merchants' R. A. 582; De Give v. Grand Rapids Bk. How. 392, 12 L. ed. 465. etc. Co. 94 Ga. 605, 21 S. E. 582. sThe Belfast, 7 Wall. 037, 19 L. 9Davis v. Packard, 7 Pet. 270, 8 ed. 266. L. ed. 684; Valarino v. Thompson, 7 -iThe Eagle, 8 Wall. 23, 19 L. ed. N. Y. 576. 365. lOMartin v. Hunter, 1 Wlieat. 328, spretz v. Bull, 12 How. 466, 13 L. 33(1, 4 L. ed. 203, 104; supra note [b]. ed. 1008; The Hine v. Trevor, 4 Wall. iiR. S. § 687, post, § 36. 555, 561, 18 L. ed. 463; The Moses i2Ragory v. Wissman, 2 Ben. 240, Taylor, 4 Wall. 411, 18 L. ed. 397. Fed. Cas. "No. 12,217. 11 § 2 [k] FEDEKaL jurisdiction in general. [Code Fed. of all things done upon and relating to the sea, or, in other words, all transactions and proceedings relative to commerce and navigation, and to damages or injuries upon the sea. 6 The question whether a matter is of admiralty cognizance is determined by the locality where an act occurred in cases of tort,'? as also in cases of prize, jettison, and salvage; in cases of contract it is determined by the subject-matter. s It has several times been declared that the limits of the admiralty jurisdiction conferred by the Constitution, are to be defined and declared by the courts and that neither Congress nor the States have any power to enlarge or restrict them. In other words the question whether a given matter is of admiralty cog- nizance is exclusively judicial. 9 This is not equivalent to saying that the question whether a matter is cognizable in the Federal court as a court of admiralty is exclusively judicial. The inferior Federal courts derive their admiralty 10 and all other jurisdiction, from Congress which might, con- ceivably, omit to give them jurisdiction of matters essentially maritime, n and conversely, extend their jurisdiction to matters essentially maritime within judicial dollnitions, not previoiisly made justiciable before them. Moreover Congress has undoubted power to regulate admiralty practice; 12 and to change the substantive rules of admiralty law applied in the Fed- oral courts. 13 Indeed the States also have power to create rights such as a lien for supplies in a vessel's home port, which being essentially mari- time in nature will be recognized and enforced in admiralty, n With regard to place or locality as the test of admiralty jurisdiction, it is settled that in addition to the seas and waters where the tide ebbs and flows, within the United States and waters within a foreign coxintry,i5 the admiralty jurisdiction of the Federal courts extends to all public navigable lakes and rivers of the United States. H" It makes no difference that the tide does not ebb and flow, it although the early cases made 6De Lovio v. Boit, 2 Gall. 398, Fed. i^See post, § 11 [b]. Cas. No. 3776, per Story S. isThe Eagle, 8 Wall. 21, 19 L. ed. ^Philadelphia etc. R. R. v. Tow- 305; Panama R. R. v. Napier etc. boat Co. 23 How. 215 IG L. ed. 433; Co. IGG U. S. 285, 41 L. ed. 1004, 17 The Plvmouth, 3 Wall. 33, 18 L. ed. Sup. Ct. Rep. 572. 125; Warino; v. Clarke, 5 How. 452, leThe Genesee Chief v. Fitzhugh, 12 L. ed. 226. 12 How. 443, 13 L. ed. 1058; Fretz 8Ex parte Easton, 95 U. S. 72, 24 v. Bull, 12 How. 466, 13 L. ed. 1068; L ed. 373. See infra note [kk]. .Jackson v. The Magnolia, 20 How. 9 The Lotta wanna, 21 Wall. 570, 22 296, 15 L. ed. 909; Nelson v. Leland, L. ed. 654; Butler v. Boston S. S. 22 How. 48, 16 L. ed. 269; The Pro- Co. 130 U. S. 557, 32 L. ed. 1017, 9 peller Commerce, 1 Black, 574, 17 L. Sup Ct. Rep. 612. ed. 107; The Hive v. Tievor, 4 Wall. lOUnited States v. Bevans, 3 555. IS L. ed. 451; The Belfast. 7 Wheat. 337, 4 L. ed. 404; Jackson v. Wall. 624, 19 L. ed. 266; The Eagle. Magnolia, 20 How. 296, 15 L. ed. 909; 8 Wall. 15, 19 L. ed. 305; The Daniel Carpenter v. Emma Johnson, 1 Cliff Ball, 10 Wall. 557, 19 L. ed. 999; 633, Fed. Cas. No. 2430. The IMontello. 20 Wall. 430. 22 L. ed. iiThis would of course be in viola- 391; Ex parte Boyer, 109 U. S. 629. tion of the imperative duty imposed 3 Sup. Ct. Rep. 434, 27 L. ed. 1056; on Congress. See supra note [b]. In re Garnett, 141 U. S. 15. 35 L. i2The Genesee Chief v. Fitzhugh, od. 631, 11 Sup. Ct. Rep. 843. 12 How. 443, 13 L. ed. 1058. iTThe Genesee Chief v. Fitzhugh, isSee po.st, § 11 [a]. 12 How. 454, 13 L. ed. 1058; The 13 Procedure] SCOPE AND EXTENT. § 2 [k] that the test of jurisdiction.! ^ It is equally immaterial that the lake or stream is wholly within a Stateis or within the body of a county.20 The jurisdiction does not depend upon the fact that the commerce in which the vessel is involved or which is otherwise affected is interstate or foreign commerce. 1 If the voyage or contract is merely between places in the same State or the vessel exclusively engaged in commerce within a State, it is within Federal admiralty jurisdiction so far as locality determines that jurisdiction. 2 The act of 1845 extending admiralty jurisdiction to the great lakes was therefore merely declaratory and inoperative as u grant of jurisdiction. s Temporary interruption by low water does not destroy the character of water as navigable.* The fact that a canal is entirely artificial, created and owned by a State, does not make it any the less public navigable water; 5 nor does the fact that a stream is made navigable by artificial improvements. 6 But under a law as to license 01 vessels on public navigable waters of the United States a river is not such where only navigable between places in a State and where it does not in connection with other waters, form a continued highway for commerce with other States or foreign countries." A right of action for a tort committed in any of the places or locali- ties above declared to be within the admiralty jurisdiction, is therefore cognizable in the Federal court in admiralty.^ But if the substance and consummation of the wrong be upon the land or to something upon or affixed to the land, the tort is not maritime though the instrumentality of the injury is of a maritime character. 9 No maritime tort is committed where buildings, bridges, wharves or property thereon, are injured by Hine v. Trevor, 4 Wall. 505, 18 L. ed. 451. isThe Thomas Jeffer.son, 10 Wheat. 429, 6 L. ed. 358; Peyroux V. Howard, 7 Pet. 343, 8 L. ed. 707; Waring v. Clarke, 5 How. 464, 12 L. ed. 220. i9The Belfast, 7 Wall. 040, 19 L. ed. 260. 20 Jackson v. The ^Magnolia, 20 How. 301, 15 L. ed. 909; The Pro- peller Commerce, 1 'Black. 580, 17 L. ed. 107; Leathers v. Blessing, 105 U. S. 630, 26 L. ed. 1192. iln re Garnett, 141 U. S. 18, 35 L. ed. 631, 11 Sup. Ct. Rep. 840; The Mary Washington. 1 Abb. 0. Fed. Cas.'Xo. 9229; The Barge Leonard, 3 Ben. 260, Fed. Cas. No. 8.250; The Sarah Jane, 1 Low. 205, Fed. Cas. No. 12,349. See U. S. v. ^^'ishkah B. Co. ] 30 Fed. 42, 08 C. C. A. 592. 2The Belfast, 7 Wall. 624, 19 L. ed. 266; The Montello. 20 Wall. 4.30, 22 L. ed. .391 ; Ex parte Bover. 109 U. S. 629. 27 L. ed. 1056. 3 Sup. Gt. Rep. 434; In re Garnett, 141 U. S. 18, 35 li, ed. 631, 11 Sup. Ct. Rep. 843. See Nelson v. Leland, 22 How. 56, 10 L ed. 269; Bondies v. Sherwood, 22 How. 217, 16 L. ed. 238. 3,Jackson v. The Maunolia, 20 How. 301, 15 L. ed. 909; The" Eagle, 8 Wall. 25, 19 L. ed. 365. 4 Nelson v. Leland, 22 How. 56. 16 L. ed. 269. 5Ex parte Bover, 109 U. S. 629. 27 L. ed. 1056, 3 Sup. Ct. Rep. 434; The McChesney, 8 Ben. 157, Fed. Cas. No. 4463; Maionev v. INIihvaukee, 1 Fed. 613; The Oler, 2 Hughes 15, Fed. Cas. No. 10,485. 6The Montello, 20 Wall. 430. 22 L. ed. 391. ■?The Montello, 11 Wall. 411, 20 L. ed. 191. sFretz v. Bull, 12 How. 468, 13 L. 1068; The Eagle. 8 Wall. 21, 19 L. ed. 365; The Propeller Commerce, 1 Black. 580. 17 L. 107. 9The Plymouth, 3 Wall. 33, 18 L. ed. 125; Johnson v. Chicago Elev. Co. 119 U. S. .397. 30 L. ed. 447, 7 Sup. Ct. 254; The Ottawa. Brown's Adm. 3.57, Fed. Cas. No. 10,610. 13 ;; L' lUkJ KKDIOKAI. .1 IKISJUCTION IX (IK.NKUAL. I Code Fed. fire from a vessel, lo or by its collision therewith. n Nor where persons are injured on shore by negligence on board ship.12 But admiralty has jurisdiction of a suit for injury to a vessel, by wharves or a drawbridge, or sunken obstructions; is or of a suit for injury to a floating dock.i-* So also it has jurisdiction where a person is injured aboard ship by negligence of persons loading from a wharf; is or injured while leaving a vessel, if the act is incomplete, or by falling therefrom.ie [kkj — maritime contracts — prize. As respects contracts the admiralty jurisdiction extends to all such as are of a maritime character. 1 In determining this question our courts have virtually laid out of view the restricted and illiberal conceptions of the matter forced upon the admiralty courts of England by the common law tribunals,2 and have proceeded upon enlarged views of the jurisdic- tion which admiralty should rationally and properly exercise. The mari- time character of a contract is determined by considering its nature and subject-matter.3 It is obviously proper that all contracts which require or may require for their interpretation and construction, a knowledge of the peculiar principles of the law maritime, or the peculiar usages or imple- ments of the sea, should be deemed of a maritime nature; and that is per- haps the ultimate test to be applied in deciding whether a contract is in fact maritime. All contracts which are made to be performed in places Avithin the ad- miralty jurisdiction are maritime.^ Thus, contracts of affreightment and for transportation of freight or passengers,5 when to be performed in places lOThe Plymouth, 3 Wall. 36, 18 L. i^Simpson v. The Ceres, 22 Fed. ed. 125; Ex parte Phenix Ins. Co. Cas. 173. 118 U. S. 616, 30 L. ed. 274. 7 Sup. isHermann v. Port Blakely Co. Ct. Rep. 25; Goodrich Co. v. Gagnon, 69 Fed. G47. 36 Fed. 124. iSThe Strabo, 90 Fed. 110; The ii.Iohnson v. Chicago Elev. Co. 119 Manhassett, 19 Fed. 435. U. S. 397, 7 Sup. Ct. Rep. 254, 30 L. iSteamboat Orleans v. Phoebus, 11 ed. 447; The Neil Cochran. Brown's Pet. 183, 9 L. ed. 677; The Thomas Adm. 164, Fed. Cas. No. 7.99G; Mil- Jefferson, 10 Wheat. 429, 6 L. ed. waukee v. The Curtis, 37 Fed. 705. 3 358; The Belfast, 7 Wall. 637, 19 L.R.A. 712; The John C. Sweenev. 55 L. ed. 266. Fed. 542; The ArKansas, 17 Fed." 388, 2De Lovio v. Boit, 2 Gall. 398. Fed. 5 McCrarv, 364; The JNIaud Webster, Cas. No. 3776. 8 Ben. 552, Fed. Cas. No. 9.302; sphiladelphia etc. R. R. v. Tow- Homer Ramsdell. etc. Co. v. Com- boat Co. 23 How. 215, 16 L. ed. pagnie Gen. Trans. 63 Fed. 848. 433; New England etc. Co. v. Dun- 12 The Marv Stewart, 5 Hughes ham, 11 Wall. 26, 20 L. ed. 90: The 313, 10 Fed.' 138; The Epsilon, 6 Gilbert Knapp, 37 Fed. 210: Wort- Ben. 381, Fed. Cas. No. 4506; The H. niann v. Griffith. 3 Blatchf. 528, Fed. S. Pickards, 42 Fed. 240; The Alary Cas. No. 18,057. Garrett, 63 Fed. 1011; The Belle of 4 Waring v. Clarke, 5 How. 452, 12 the Coast, 66 Fed. 62. L. ed. 226. isBoston V. Crowlev, 33 Fed. 204, sMarshall v. Bazin, 7 N. Y. Leg. Etheridge v. Philadelphia, 26 Fed. Obs. 342, Fed. Cas. No. 9,125; The 43; Leonard v. Decker, 22 Fed. 742; Aberfoyle, 1 Abb. Adm. 242, Fed. Panama R. R. v. Napier etc. Co. 168 Cas. No. 16; IMorewood v. Enequist, U. S. 285, 41 L. ed. 1004, 17 Sup. 23 How. 493. 16 L. 516; The Moses Ct. Rep. 572. Taylor, 4 Wall. 427, 18 L. ed. 397; 14 ProcpJure] SCOPE AND EXTENT. § 2 [kk] within inaritinie jurisdiction, contracts for pilotage or navigation of a ves- sels for seamen's wages j" for wharfages and towage; 9 for docking a ves- sel,! o for consortship, or assistance,! i are all maritime contracts enforce- able in admiralty. It is not necessary that the entire performance be in places within the admiralty jurisdiction so long as a substantial portion is.! 2 Other contracts which may fairly be deemed performable in places within admiralty jurisdiction and which are therefore cognizable in ad- miralty are, a contract to furnish cargo space for a foreign cotton ship- ment,! * a stevedore's contract,! 4 a contract to remove ballast,! 5 a docking contract,! 6 and a contract to act as watchman while vessel at dock.!'' The services rendered by a shipkeeper,!8 cabin boy,! 9 chambermaid,2o steam- boat clerk,! ships carpenter,2 cook or steward,^ deckhand,* engineer and fireman,5 surgeon, 6 of a cooper in putting cargo in order,'? or cargo weigher and inspector,8 have all been deemed maritime and cognizable in admiralty. But place of performance is not a final test of jurisdiction, although long made so in England, 9 and other contracts besides those performable upon Sears v. Wills, 1 Black 112, 17 L. ed. 35; The Eddy, 5 Wall. 494, 18 L. ed. 48D; New Jersey S. Nav. Co. v. Mer- chants' Bank, 6 How. 385, 12 L. ed. 4i65; The Hammonia, 10 Ben. 514, Fed. Cas. No. 6,006; The Priscilla, 106 Fed. 739'; The Richard Winslow, 71 Fed. 428, 18 C. C. A. 344. 6Hobart v. Drogan. 10 Pet. 120, 9 L. ed. 303; Ex parte JNIcNeil, 13 Wall. 243, 20 L. ed. 624; Ex parte Hagar, 104 U. S. 521, 26 L. ed. 816; The Laurel, 113 Fed. 373; Ex parte Loud, 154 U. S. 582, 20 L. ed. 627, 14 Sup. Ct. Rep. 1204. ■?Sheppard v. Taylor, 5 Pet. 711, 8 L. ed. 269; The Thomas Jefferson, 10 Wheat. 429, 6 L. ed. 358; Leon v. Galceran, 11 Wall. 188, 20 L. ed. 74. 8The Falls of Ivpltie, 114 Fed. 357; Ex parte Easton, 95 U. S. 68, 24 L. ed. 373; Braisted v. Denton, 115 Fed. 428; The Kate Tremaine, 5 Ben. 69, Fid. Cas. No. 7,622. 9The Oscoda, 66 Fed. 347. !OThe Vidal Sala, 12 Fed. 207. iiAndrews v. Wall, 3 How. 571, 11 L. ed. 729; Boutin v. Rudd, 82 Fed. 686, 27 C. C. A. 526. !2New Jersev etc. Co. v. ]\ler- chants' Bk. 6 How. 392, 12 L. 465; The Thomas Jefferson, 10 Wheat. 429, 6 L. ed. 358; The Willamette Valley, 71 Fed. 714; Phenix Ins. Co. V. Erie etc. Co. 10 Biss. 18. Fed. Cas. No. 11,112; Domenico v. Alaska P. A. 112 Fed. 554. See Pacific C. S. S. Co. V. Fergu.son. 70 Fed. 996, 22 C C. A. 671. !3Baltimore S. P. Co. v. Patterson. 106 Fed. 736, 45 C. C. A. 575. i^The Gilbert Knapp, 37 Fed. 210; The Canada, 7 Feb. 123, 7 Sawv. 173; The Hattie M. Bain, 20 Fed. 390; Florez v. The Scotia, 35 Fed. 917; The :\Iain, 51 Fed. 956, 2 C. C. A. 569 cuiit'-a; The Esteban, 31 Fed. 924. !5RGberts v. The Windemere, 2 Fed. .'25. !6The Vidal Sala, 12 Fed. 21 L !7The Maggto P. 32 Fed. 301. But see Gurney v. Crockett Abb. .^dm. 493, Fed. Cas. No. 5,874. !SThe Geo. T. Kemp, 2 Low. 477, Fed. Cas. No. 5,341. !9Gurnev v. Crocket, 1 Abb. Adni. 490, Fed. Cas. No. 5874. 2 0The Farmer, Gilp. 524, Fed. Cas. No. 13,852. !The Sultana, 1 Browns Adm. 13, Fed. Cas. No. 13,602. 2The Farmer, Gilp. 524, Fed. Cas. No. 13.852. 3The Pekin, Gilp. 203, Fed. Cas. No. 13,090. 4The Ohio, Gilp. 505, Fed. Cas. No. 17,825. 5 The Ohio, Gilp. 505, Fed. Cas. No. 17,825. sGurney v. Crockett. 1 Abb. Adm. 490, Fed. Cas. No. 5.874. 7The Onore, 6 Ben. 564, Fed. Cas. No. 10,538. sThe River Queen. 2 Fed. 731. 9See De Lovis v. Boit, 2 Gall. 398, Fed. Cas. No. 3,770; Insiirance Co. v. Dunham, 11 Wall. 1, 20 L. ed. 98. 15 § 2 [kk] FEDEKAL JURISDICTION IN GENERAL. [Code FclI. navigable waters may be maritime. It is the peculiar and exclusive func- tion of courts of admiralty to enforce all rights in rem that may exi.st against vessels afloat. lo Hence all contracts which give rise to liens or rights in rem are of admiralty cognizance. Thus contracts for sup- plies and repairs,ii wharfage contracts,i2 towage contracts,i3 and all others creating maritime liens are necessarily of admiralty cognizance Salvage,! 4 jettison and general averagers although matters of cjiiasi contract only, also create rights in rem enforceable only in admiralty, besides being distinctively martime in character. There are yet other ct)ntracts deemed maritime, neither made nor performable upon navigable waters, nor giving rise to rights in rem, which are nevertheless so concerned with martime matters and risks that a court construing or enforcing them may be called upon to determine any and all the que^^- tions that can arise in maritime commerce, such as jettison, abandon- ment, average, salvage, capture, prize, bottomry, etc.i^ It is appropri- ate that admiralty should have jurisdiction over them. Among coiitnicts of this type may be mentioned bottomry and respondentia,! s i,iarine insurance,! 9 and charter parties. 20 Both the owner! and charterer2 may sue on charter parties. They sometimes contain or are accompanied by other contracts, such as one giving the charterer an agency for general average,3 or a bond for performance, * which are also maritime. A stipula- tion in a charter party has been enforced in admii-alty though not of itself maritime. 5 But an agreement which creates a sort of jjartnership and not a char- ter party, is not of admiralty cognizance,6 nor has admiralty any juris !OSee post, § 15 [e]. callv overruled. See Bk. 4 U. S. !!The General Smith, 4 Wheat. Notes 741, 742. 443, 4 L. ed. 609; The Aurora, 1 i'? Insurance Co. v. Dunham. 11 Wheat. 105, 4 L. ed. 45; Cutler v. Wall. 1, 20 L. ed. 99. Rae, 7 How. 731, 12 L. 890; Law- isBlaine v. The Chas. Carter, 4 rence v. Alorrisina S. B. Co. 9 Fed. Cranch 332, 2 L. ed. 636. 208. !9Insurance Co. v. Dunham, 11 !2Ex parte Easton, 95 U. S. 68, 24 Wall. 1. 20 L. ed. 99; De Lovio v. L. ed. 373. Boit, 2 Gall. 398, Fed. Cas. No. 3776. !3The Oscoda, 66 Fed. 347. 2o:Morewood v. J:ingiiist, 23 How. !5The Williams, 1 Brown 215, Fed. 493, 16 L. ed. 516; Maury v. Culli- Cas. No. 17.710; The Roanoke, 50 fora, 4 Woods, 123, 10 Fed. 391; The Fed. 577; The John Gilpin, 01c. 82, City of Carlisle, 39 Fed. 814, 5 L.R.A. Fed. Cas. No. 7345. 59;' The Alberto. 24 Fed. 381. !6 Coast wrecking Co. v. Phenix 3 Ward v. Thompson Newb. 95 Fed. Ins. Co. 7 Fed. 242; San Fernando v. Cas. No. 17,162. Jackson, 12 Fed. 341; National Bd. 2The Tribune, 3 Sum. 144. Fed. V. Melchers. 45 Fed. 646; Wellman Cas. No. 14,171. V. Morse, 76 Fed. 576, 22 C. C. A, 3The Ripon City, 102 Fed. 17(>, 42 318; Dike v. The Joseph, McLean, C. C. A. 247. 574, Fed. Cas. No. 3908. After the ^Haller v. Fox, 51 Fed. 299. goods are delivered to consignee, libel sKeyser v. S. S. S. Co. 91 Fed. for contribution on general average 271. 33 C. C. A. 496. has been held not maintainable: 6 Ward v. Thompson, 22 How. 333, Cutler V. Rae, 7 How. 731, 12 L. ed. 16 L. ed. 249; Vandewater t. Mills, S90. This case is, however, practi- 19 How. 90, 15 L. ed. 554. 15 Procedure] SCOPE AND EXTENT. § 2 [kk] diction over matters of account between part owners." The premium on a marine insurance policy is recoverable in admiralty,^ although no lien exists therefor.9 While bottomry and respondentia are maritime hypothe- cations, enforceable in admiralty an ordinary mortgage of a vessel is not.io Not only are all vessels subjects of admiralty cognizance, but floating boat houses,! 1 barges,i2 dredges,i3 and canal boats,i4 may become sub- ject to the assertion of maritin.e claims. Petitory actions to recover vessel or cargo are maintainable in admiralty, is though a merely equitable title will not sustain such an action. 1 6 Without attempting to discuss exhaustively, contracts held not mari- time, it is settled that a contract to build a vessel is not maritime;!'? and a lien given by State law thereon is not enforceable in admiralty. is A broker's contract for customary services,! 9 or for commissions in obtaining a charter, 20 or for buying vessel, 1 or for obtaining a guano con- cession, 2 is not maritime. A contract for storage at the end of a voyage is not maritime; 3 nor for preparing a cargo ;■! nor one for compressing cot- ton for shipment ; 5 nor one for furnishing all supplies at a certain place for one year; 6 nor for furnishing coal to a dredge pumping mud and water. ■^ Admiralty does not recognize merely equitable rights or titles noi will it enforce a trust.^ Agreements merely preliminary to a maritime con- "Steamboat Orleans v. Phoebus, 11 1 "Peoples F. Co. v. Beers, 20 How. Pet. 182, 9 L. ed. 677; Grant v. Pol- 401. 15 L. ed. 961; Roach v. Chapman, Ion, 20 How. 169, 15 L .ed. 871; 22 How. 132, 16 L. ed. 294; More- Kellum V. Emerson, 2 Curtis, 83, Fed. wood v. Enequist. 23 How. 494, 16 Cas. No. 7669. L. ed. 516; Edwards v. Elliott, 21 SThe Dolphin, 1 Flip. 581 , Fed. Cas. Wall. 556, 22 L. ea. 487 ; Norton v. No. 3,973; The Guiding Star, 9 Fed. Switzer, 93 U. S. 366, 23 L. ed. 903. 524. isPeoples F. Co. v. Beers, 20 How. 9In re Insurance Co. 22 Fed. 115. 401, 15 L. ed. 9f)l ; The Count De Les- lOBogart v. The John Jay, 17 How. sep. 17 Fed. 461. 402, 15 L. ed. 95; Schuehardt v. Bab- isThe Humbolt, 86 Fed. 351 bidge, 19 How. 240, 15 L. ed. 625; 2 0Brown v. West, 112 Fed. 1018, 50 The J. E. Rumbell, 148 U. S. 15, 37 L. C. C. A. 664; Taylor v. Weir, 110 ed. 345, 13 Sup. Ct. Rep. 498; The Fed. 1005. Sailor Prince, 1 Ben. 468. Fed. Cas. iDoolittle v. Knobelock, 39 Fed. 40. No. 12,219. 11 Woodruff V. Scow, 30 Fed. 270. i2The City of Pittsburgh, 45 Fed. 700; The Dick Keyes, 1 Biss. 608 Fed. Cas. No. 3898. i3McRae v. Bowers, etc. Co., 86 Fed. 348. i4Ex parte Easton, 95 U. S. 68, 24 L. ed. 373. isWard v. Peck, 18 How. 267, 15 L. ed. 383; The Friendship, 2 Curt, 426, Fed. Cas. No. 5123; Wenbers v. A Cargo, etc., 15 Fed. 287; The Clar 2Wenberg v. A Cargo, etc., 15 Fed. 288. 3 The Richard Winslow, 71 Fed. 428, 18 C. C. A. 344. 4 Coyne v. The Alex. McNeil, 20 Int. Rev. Rec. Fed. Cas. No. 3312a. SThe Pavla R. 32 Fed. 175. eDiefenthal v. Hamburg, etc., 46 Fed. 397. "In re Hydraulic Dredge, 80 Fed. 556, 25 C. C. A. 628. «Ward V. Thompson, 22 How. 330, issa Ann, 2 Hughes, 89. Fed. Cas. No. 16 L. ed. 249; Kellum v. Emerson, 2 5826. Curt. 79 Fed. Cas. No. 7669; Davis v. iBHill V. The Amelia, 6 Ben 475, Child, 2 Ware, 78, 87 Fed. (as. No. Fed. Cas. No. 6487; Kynoch v. The 3,628; The William D. Rice. 3 Ware. Ives, Newb. 205, Fed. Cas. No. 7,958: 134, Fed. Cas. No. 17,691; Kvnoch v. The Perseverance, 1 Blatchf. 385, The S. C. Ives. Newb. 205, Fed. Cas. Fed. Cas. No. 11017. No. 7,958; Andrews v. The Essex. ?,tc. Fed. Proc. — 2. 17 § 2 [1] FEDERAL JURISDICTION IX GENERAL. [Code Fed. tract are not cognizable in admiralty.s The following are not maritime contracts: A contract to furnish blocks to save a wrecked vessel; lo a supercargo's contract to sell in a foreign port;ii a warehouseman's con tract of bailment; 12 a contract to procure parties to care for a cargo; is a contract for storage of grain on a vessel during winter.i^ The services rendered by a drayman taking cargo to or from a vessel,i5 by a day laborer on a boat or dock, is or watchman on vessel out of commission,! ■< or by a captain's body servant, 18 or by musicians,i9 or by a solicitor of freight, 2 are not maritime nor cognizable in admiralty. Cases of prize are peculiarly of admiralty cognizance, i The common - law courts have no jurisdiction. 2 Prize jurisdiction is vested by tlie re- vised statutes chiefly in the district court. 3 [1] Controversies to which United States is party. Congress is not required to vest the judicial power in "all" cases in which United States is party and to do so would be to waive the govern ment's imnuuiity from suit. 5 The ancient doctrine that the sovereign is not suable without its consent, applies in full force to the United States.^ Congress has however authorized suits against the government upon a great variety of claims and in some other cases, and vested jurisdiction in the Court of Claims, and the circuit and district courts, and sometimes in the Supreme Court."? The doctrine of the Supreme Court as to its original jurisdiction over suits by or against the United States, seems to have un- dergone substantial changes since earlier days. At the time of the decision in Florida v. Georgia, 8 it was taken for granted that as the Supreme Court 3 Mason, G Fed. Cas. No. 374; Wen- L. ed. 485; Penhallow v. Doane, 3 berg V. A Cargo, etc., 15 Fed. 285. Dall. 54. 1 L. ed. 507; The Amiable 9Andrews v. Eessex Ins. Co. 3 Nancy, 3 Wheat. 546, 4 L. ed. 45(5; Mason 6. Fed. Cas. No. 374; The Jecker v. Montgomery 13 How. 498. Tribune, 3 Sum. 144, Fed. Cas.- No. 14 L. ed. 240. 14,171. 2Doane v. Penhallow, 1 Dall. 218, loTons of Iron. 2 Ben. 21. Fed. Cas. 1 L. ed. 108; Ross v. Rittenhouse, 2 No. 13270. Dall. 160, 1 L. ed. 331. iiThe Virginia, 2 Paine, 115, Fed. 3See post, §§ 15, 200. Cas. No. 141. 5See supra note [c]. i2The Mary Washington, Chase, sCohens v. Virginia, 6 ^Vheat. 411, 125, Fed. Cas. No. 9.229. 412, 5 L. ed. 257; U. S. v. Ringgold. isThe Gustavia, 1 Blatchf. 189, 8 Pet. 103, 8 L. ed. 899; Gary v^Cur- Fed. Cas. No. 5876. tis, 3 How. 245, 11 L. ed. 576; U. S. 14 The Pulaski, 33 Fed. 383; The v. King, 7 How. 854, 12 L. ed. 934; Richard Winslow, 71 Fed. 426, 18 C. DeGroot v. U. S. 5 Wall. 431, 18 L. C. A. 344. ed. 700; The Siren, 7 Wall. 154, 19 L. iBThe Harriet, Olcott, 229, Fed. ed. 129; Haycraft v. U. S. 22 Wall. Cas. No. 6.097. 98. 22 L. ed.' 738 ; U. S. v. Thompson, isGraham v. Hoskins, Olcott 244 98 U. S. 489, 25 L. ed. 194; Minne- Fed. Cas. No. 5669. sota v. Hitchcock. 185 U. S. 386, 46 I'The Sirius, 65 Fed. 226. I, ed. 954, 22 Sup. Ct. 650; Oreaon isThe Farmer, Gilp. 524, Fed. Cas. v. Hitchcock, 202 U. S. 60, 50 L.^ed No. 13852. 935, 26 Sup. Ct. Rep. 568. i9The Superior, Gilp. 514, Fed. Cas. TSee post §§ 139. 22 et s^q.. See No. 14136. Minnesota v." Hitchcock, 185 U. S. 20The Pavla R. 32 Fed. 174. 386, 46 L. ed. 954, 22 Sup. Ct. 650. iGlass V. The Betsey, 3 Dall. 6. 1 sij How. 478, 15 L. ed. 181. 18 Procedure] SCOPE AND EXTENT. § 2 [IJ was not given original jurisdiction of cases ivhere tlie United States is a party, under the doctrine of Marbury v. Madison,9 it could entertain jurisdiction only in the appellate form; that as the judicial power was not extended in terms to controversies between the United States and any State or States of the union, such cases were not justiciable; and that after the adoption of the eleventh amendment,! o the only cases as to which the States had waived their sovereign immunity from suit were in con- troversies between States. In that case the boundary dispute between Florida and Georgia vitally interested the Federal government because its title and that of its grantees to public lands in northern Florida would be destroyed by a decree in accordance with the contentions of the state of Georgia and believing that the United States could not intervene as a party of record, application was made for leave to be heard and to file testi- mony in the case, without becoming parties of record. A majority of the court was constrained by the apparent necessity of the case to sanction this anomalous proceeding although combatted by the dissenting judges as permitting intervention by a party not authorized either to sue one of the States of the union or to proceed originally in the Supreme Court. Recent cases have disregarded these principles without apparently examin- ing the 'decision in Florida v. Georgia, or considering its reasoning. In one such case the Supreme Courts original jurisdiction of a suit by the United States against the State of Texas was sustained; n and in the other and later case, a suit by a State against the Secretary of the Interior was upheld because in effect a suit against the United States.12 Jn other words the United States may either sue or be sued originally in the Supreme Court where a State is the other litigant party. Jurisdiction over actions brought by the United States has been vested in the circuit and district courts; 13 and it has been held that the United States may sue in the State courts and often does so.i^ Aside from the many cases where the United States has appeared as plaintiflF in actions ex contractu against its officers it has sued as for money had and received,! 5 and for benefit of a surety ;!6 also to set aside land patents,! 7 and patents for inventions,! s SMarbury v. ]\Iadison, 1 Cranch state may sue the United States in 137, 2 L. ed. 60 the Court of Claims does not violate !0Post § 7. the principles early established since iiUnited States v. Texas. 14.3 U. the Supreme Court's original juris- S. 621, 36 L. ed. 285 12 Sup. Ct. 488. diction is not exclusive. United i2Minnesota v. Hitchcock, 185 U. States v Louisiana, 123 U. S. 37, S. 373. 46 L. ed. 954, 22 Sup. Ct. 650. 31 L. ed. GO. 8 Sup. Ct. Rep. 17. See Oregon -^. Hitchcock, 202 U. S. !3Post. §§ 130, 196. 60. 50 L. ed. 935. 26 Sup. Ct. Rep. i4Claflin v. Houseman, 93 U. S. 568. These holdings are not easily 1.36. 23 L. ed. 833. See United Suites reconcilable with rules of interpreta- v. Pedmli. Ill Fed. 14. tion applied in early cases to the con- loUnited States v. Grundy. 3 stitutional grant of judicial power, Cranch. 350, 2 L. ed. 459. nor witli the doctrine that the sover- !6]\[eredith v. I'nited States, 13 eign immunity of the Stotes from Pet. 496. 10 L. ed. 258. suit should not be deemed Avaived by ! "United States v. San Jacinto Tin them except as it has been expressly Co. 125 U. S. 273, 31 L. ed. 747, 8 Sup. waived in the Federal cor ;titu- Ct. Rep. 850. tion. A further holding that a isUnited States v. American «tc. 19 § 2 [m] FEDERAL JTTrisDICTION IX (JENERAl-. [Code Fed. for cancellation of other instruments,! 9 and to enjoin labor leaders from interfering with the transportation of the mails. 20 Nor is the government restricted to eases in wliich its pecuniary interests are involved. It is enough that the wrongs complained of afliect the public at large in respect to a matter within the natiojial powers and involving the national duties.21 [m] What are suits against the United States. A suit in which the United States were made parties defendant of record would doubtless be a suit against the United States just as it has similarly been held of suits against a State ; 1 and a suit against the property of the United States is similarly inhibited except by consent. 2 A suit against a United States officer where the United States, though not named, is the real party against whom the relief is asked and the judgment will operate, is in fact a suit against the government; although the doctrine of U. S. v. Lee, 3 and of several cases following it somewhat modifies this general proposition. Those cases have sustained actions of ejectment and trespass against officers in possession of land as government officers, and under claim of title in the government. The gist of these actions is the tort of the individuals, but the decision turns entirely upon the existence of valid title in the government whose rights are thus indirectly litigated. Another line of cases affirms the right of the individual to sue even high executive officers of the government to compel the perform- ance of ministerial duties or to restrain a violation of private rights.* [nj Cases in which a State is party. The provision applies to States that are members of the union, and to public bodies owing obedience and conformity to its Constitution and laws. 6 To constitute a state, a political organization must be a State in con- templation of the Constitution.7 Indian nations are not States.s The District of Columbia is not a State within the term as here used.? A Fed- eral corporation, not being a citizen of any State is not within the terms Tel. Co. 128 U. S. 315, 32 L. ed. 450, Ct. Rep. 4LS; Same v. Same, 102 i) Sup. Ct. Rep. 90. U. S. 255, 40 L. ed. 900, 10 Sup. Ct. isUnited States v. Union Pac. Ry. Rep. 7G0. 160 U. S. 50, 40 L. ed. 319, 16 Sup. ^Marbury v. Madison, 1 Cranch, Ct. Rep. 190. 137, 2 L. ed. 60; United States v. 20ln re Debs, 158 U. S. 580. 39 L. Commissioner, 5 Wall. 565, 18 L. ed. ed. 1103, 15 Sup. Ct. Rep. 900. 692; Kendall v. United States, 12 2iln re Debs, 158 U. S. 580. 39 L. Pet. 010, 9 L. ed. 1181 ; United States ed. 1103, 15 Sup. Ct. Rep. 907. v. P>laine, 139 U. S. 319, 35 L. ed. 183, lOsborn v. Bank of United States, 11 Sup. Ct. Rep. 607; Carroll v. Saf- 9 Wheat. 738. 6 L. ed. 204. ford, 3 How. 463, 11 L. ed. 671. 2Stanlev v. Schwalby, 162 U. S. GScott v. Jones, 5 How. 377, 12 L. 270, 40 K ed. 966, T6 Sup. Ct. Rep. ed. 198. 760; In re Avers, 123 U. S. 443, "Cherokee Nation v. Georgia, 5 Pet. 31 L. ed. 216. 8 Sup. Ct. Rep. 164; 18, 8 L. ed. 25. * Minnesota v. Hitchcock. 185 U. S. 373, s-Cherokee Nation v. Georgia, 5 Pet. 46 L. ed. 954. 22 Sup. Ct. Rep. 655. 16. 8 L. ed. 31 ; Snead v. Sellers, 66 3 United States v. Lee. 106 U. S. Fed. 371, 13 C. C. A. 518. 196, 1 Sup. Ct. Rep. 240, 27 L. ed. sHepburn v. Ellzey, 2 Cranch, 171: and see Stanley v. Schwalbv, 453, 2 L. ed. 332. 147 U. S. 508. 37 L. ed. 259, 13 Sup. 20 Procedure] SCOPE AND EXTENT. § 2 lii] of the jurisdiction here granted. lo The fact that a State is the nominal party plaintiff in suit on attachment bond does not oust the circuit courf.s jurisdiction.il While the constitution extends the judicial power to all cases arising under the constitution and laws, a suit against a State may not be held justiciable on that ground unless also within the class of cases as to whicli the States have expressly waived their nonsuability.12 Since the 11th amendment forbidding suits against States by individuals,! 3 the judicial power extends only to suits against them by other States, domestic or foreign, and to suits by them against other States, domestic or foreign, and their citizens or subjects. In all cases the jurisdiction is original in the Supreme Court. A State cannot there sue its own citi- zens,i4 and if they be necessary parties to a suit otherwise cognizable, the jurisdiction is ousted.! 5 Suits between States have been principally over boundaries, as to which the jurisdiction is well settled,i6 though re- cent cases have sometimes been instituted in an attempt to protect private rights,!'? or to protect the public health against sanitary works in an- other State,! 8 or to restrain the diversion of the waters of an interstate river. 19 Federal jurisdiction is not extended to "all" controversies between States, although none are in terms excluded. 20 But political questions and all questions which on the settled principles of public law are not cog- nizable in courts of justice are not justiciable as controversies between States.! The controversy must be one directly between two States in- volving state property, or powers, and not an attempt to protect private contract rights, e. g., by assuming the prosecution of debts owing by de- lOSmith V. RackliflFe, 87 Fed. 964, 26 Sup. Ct. Rep. 408, 571; Virginia 31 C. C. A. 328, Affirmed, Smith v. v. Tennessee. 148 U. S. 504, 37 L. Reeves, 178 U. S. 436, 44 L. ed. 1140, ed. 537, 13 Sup. Ct. Rep. 728. A 20 Sup. Ct. Rep. 919. controversy over boundary exists 1! State of Missouri v. Bowles Mill where a dispute is between two States Co. 80 Fed. 161. as to the enforcement of the oyster !2Hans V. Louisiana, 134 U. S. 14, legislation of one of them in certain 16-21, 33 L. ed. 845, 849. 10 Sup. Ct. waters. Louisiana v :\Iississippi, 202 Rep. 507; Smith v. Reeves, 178 U. U. S. 1, 58, 50 L. ed. 913, 934, 26 S. 436, 20 Sup. Ct. Rep. 923, 44 L. Sup. Ct. Rop. 408. 571. ed. 1140. iTLouisiana v. Texas, 176 U. S. isPost, § 7. 23, 44 L. ed. .356, 20 Sup. Ct. Rep. 251 ; !4Ca]ifornia v. Southern Pac. R. R. New Hampshire v. Louisiana, 108 U. 157 U. S. 258, 39 L. ed. 694, 15 Sup. S. 76, 27 L. ed. 056, 2 Sup. Ct. Rep. Ct. Rep. 003; Pennsylvania v. Quick- 170. silver Co. 10 Wall.' 550. 19 L. ed. isMissouri v. Illinois, 180 U. S. 241, 998. 45 L. ed. 512, 21 Sup. Ct. Rep. 331. isMinnesota v. Northern Securities !9Kansas v. Colorado, 185 U. S. 142, Co. 184 U. S. 199, 46 L. ed. 499, 46 L. ed. 838, 22 Sup. Ct. Rep. 5,52; 22 Sup. Ct. Rep. 308. South Carolina v. Georgia, 93 U. S. i«Xew Jersey v. New York, 5 Pet. 4, 23 L. ed. 782. 290, 8 L. ed. 127; Rhode Ishmd v. 20Rhode Island v. Massachusetts, Massachusetts, 12 Pet. 057, 9 L. ed. 12 Pet. 721. 9 L. ed. 1233. 1234; Alabama v. Georgia, 23 How. iLouisiana v. Texas, 176 U. S. 23, 510, 16 L. ed. 5.59; Iowa v. Illinois, 44 L. ed. 356, 20 Sup. Ct. Rep. 251; 202 U. S. 59, 50 L. ed. 934, 26 Sup. Hans v. Louisiana, 134 U. S. 1, 33 L. Ct. Rep. 571; Louisiana v. Mississip- ed. 842, 10 Sup. Ct. Rep. 504. pi, 202 U. S. 1. 58. 50 L. ed. 913, 934, 21 § 2 [o] FEDERAL JURISDICTION IN GENERAL. [Code Fed. fendant State to citizens of the plaintiff State. 2 Controversies ex con- tractu, between States are necessarily rare and where tortious action by a State is alleged it has been said it must appear to be the action of the State and not merely of an ofhcer in the maladministration of its laws. 3 Thus where the tort committed was that of officers in the malevolent mis- application of the quarantine laws of Texas the State injured was held not entitled to relief against the State of Texas as such; but where the injury alleged was to the health of the people in an adjoining State, by the ac- tion of a sanitary district acting as agent of the State government and according to lawful authority, the tort was held that of the State.* "It would be objectionable and indeed impossible for the court to anticipate by definition" what controversies can and what cannot be brought under this provision. 5 Torts affecting the public health against which other relief would be inadequate, and torts affecting the public property of a State probably constitute the chief justiciable controversies. Absence of other adequate relief and ability to make an effective decree in case juris- diction is entertained are important and often controlling factors. Lo] Suits by State against citizens of another State, etc., or arising under Federal laws. Suits against citizens of other States in the Federal court have been in- frequent. Ordinarily a State would proceed in its own courts where defend- ant was within its jurisdiction, since the right to do so is not ousted by the grant of Federal jurisdiction; 7 and actionable controversies against a non- resident for injuries to the State as such, do not often arise. The cases in which jurisdiction has been sustained imder this clause have been mainly for the protection of State property rights. s The jurisdiction is confined to civil causes and this grant of judicial power does not authorize the Supreme Court to administer the penal laws of a State. Hence a suit against a foreign insurance company to enforce payment of a penalty for violation of its municipal laws, cannot be entertained under this section. 9 In one or two cases in which a State has brought proceedings against a sister State, members of the court have intimated that citizens or municipal districts of the defendant States would have been the proper defendant.io The removal acts have never permitted the removal of a cause because 2New Hampshire v. Louisiana, 108 son, 170. U. S. 521, 42 L. ed. 112G. 18 U. S. 91, 27 L. cd. G62, 2 Sup. Ct. Rep. Sup. Ct. Rep. G8.5. 184. sPennsylvania v. Wheeling Bridge sLouisiana v. Texas, 176 U. S. 23, Co. 13 How. 518. 14 L. ed. 249; Texas 44 L. ed. 35G, 20 Sup. Ct. Rep. 258. v. White, 7 Wall. 700. 19 L. ed. 227; ^Missouri V. Illinois. 180 U. S. 208, Florida v. Anderson, 91 U. S. G67, 23 45 L. ed. 498, 21 Sup. Ct. Rep. 344, L. ed. 290; Akibama v. Burr. 115 U. sMissouri v. Illinois, 180 U. S. 208, S. 413, 29 L. ed. 435, 6 Sup. Ct. Rep. 81. 45 L. ed. 497, 21 Sup. Ct. Rep. 343, nVisconsin v. Pelican Ins. Co. 127 344. Costs may be decreed against U. S. 265, 32 L. ed. 239, 8 Sup. Ct. the losing State in litigation with Rep. 1370. Such suits must be another State. Missouri v. Illinois, brought in State court. Postal, etc. 202 U. S. 598, 50 L. ed. 1160, 26 Sup. Co. v. Alabama, 155 U. S. 487, 39 L. Ct. Rep. 713. ed. 231, 15 Sup. Ct. Rep. 192. 'i' Plaquemines, etc. Co. v. Hender- lOSee Louisiana v. Texas, 176 U. 22 Procedure] SCOPE AND EXTENT. § 2 [q] between a State and citizens of anotlier State or aliens, but the act of 1875 permitting removal of causes arising vmder the Federal constitution, laws or treaties, was held to include suits brought by a State where such a question was involved, n The fact that the Supreme Court has original jurisdiction where a State is a party does not prevent Congress conferring also appellate jurisdiction,! 2 and the principle forbidding suits against a State though arising under the Federal Constitution and laws,i3 does not apply to suits by a State. [pj Procedure in suits affecting States. Rule 5 of the Supreme Court provides for service of process against States. 16 Early cases held that a State might properly sue by the governor in behalf of the State.i^ But the practice now is for the State to sue as such, by its Attorney General. is In one case an avithority and ratifi- cation by the governor, of the solicitor's action in filing a bill, was filed in the Supreme Court.i9 Filing of demurrer signed by A. B., "Attorney General of New York," is an appearance by the State. 20 Subpoena has issued to be served sixty days before the return day.i In boundary cases the chancery practice prevails, but technical principles of pleading may be disregarded. 2 Disputed matters of fact and the proper location of the boundary when settled, are adjusted through the appoincment of com- missioners. 3 [q] Suits between citizens of different States and aliens. This jurisdiction was conferred on the Federal courts to secure an im- partial tribunal for settlement of such controversies. s Congress has vest- ed the jurisdiction principally in the circuit court, both original, and on removal from State courts. 9 Certain general principles, however, growing out of this grant of Federal judicial power, may appropriately be considered here. It is apparent from the wording of the constitutional provision that controversies merely between two or more aliens are not of Federal cog- S. 23, 44 L. ed. 356. 20 Sup. Ct. Rep. Co. 184 U. S. 199, 46 L. ed. 499, 22 251; xviissouri v. Illinois, 180 U. S. Sup. Ct. Rep. 308. 241, 45 L. ed. 512, 21 Sup. Ct. Rep. isTexas v. White, 7 Wall. 719, 19 331. L. ed. 227; so governor may engage iiRailroad Co. v. Mississippi, 102 counsel in re Paschal. 10 Wall. ^493, XJ. S. 141, 26 L. ed. 96; Ames v. Kan- 19 L. ed. 992. sas. 111 U. S. 472, 28 L. ed. 482. 4 2 0Xew Jersey v. New York, 6 Pet. Sup. Ct. Rep. 437; Southern Pac. R. 327, 8 L. ed. 414. R. V. California, 118 U. S. 112. 30 L. iGrayson v. Virginia, 3 Dall. 321, ed. 104, 6 Sup. Ct. Rep. mi: Arkan- 1 L. ed. 619. sas V. Kansas, etc. Co. 96 Fed. 355. 2Rhode Island v. Massachusetts, 14 See post, § 133. Pet. 257, 10 L. ed. 423. i2See post, § 36.[a] sFowler v. Lindsey, 3 Dall. 413, 1 isSee post, § 7, note.[c] L. ed. 658; Missouri v. Iowa, 7 How. isSee post, § 858. 667. 12 L. ed. 861. i7Georgia v. Brailsford. 2 Dall. 402, sBarrow S. S. Co. v. Kane. 170 U. 1 L. ed. 433; Kentuckv v. Denuison, S. Ill, 42 L. ed. 964, 18 Sup. Ct. Rep. 24 How. 97, 16 L. ed. 717. 526. isSee Minnesota v. Northern Sec. sPost, §§ 131, 134. 23 § 2 [r] FEDERAL JURISDICTION IN GENERAL. [Code Fed. nizance.io A territory is not a State within this provision and its citi- zens cannot sue, or be sued by, citizens of States or aliens under this grant of judicial power. n Nor is a State a citizen within this provision. 12 Fed- eral jurisdiction fails where all the parties on one side of the controversy have not a right by diverse citizenship or alienage, to sue all the parties on the other side.is To protect defendants properly entitled to a removal from State to Federal court against devices to defeat the right by joinder of other parties under this principle, Congress has provided a right of re- moval where a case contains a controversy between citizens of different states or aliens, which is separable from other issues in the cause.i* To this end also, the courts will not permit a right of removal to be defeated by the joinder of nominal or imnecessary parties; is but will rearrange the parties according to their interest, in determining the right to removal. 1 6 They will also entertain jurisdiction originally when the joinder of proper, but not necessary, parties would defeat it.i^ [r] — suits by assignee and transfers to give jurisdiction. From the first. Congress has legislated to prevent undue enlargement of Federal jurisdiction through the device of assignments made to parties who having the requisite diverse citizenship could sue in the Federal court.19 [sj — representative parties and real party in interest. Another settled principle in the construction of the grant of jurisdic- tion for diverse citizenship or alienage, is that where a nominal plaintiff is made by law the conduit through whom the real complainant seeks relief, the latter is regarded as the real party for jurisdictional purposes.! But this principle is not to be confused with another, equally well settled, that the courts look to the citizenship of the party in whom the cause of action is vested and not to the status of his predecessor in interest or lOMossman v. Higginson, 4 Dall. Hool v. Jamieson, 166 U. S. 397, 41 14. 1 L. ed. 720; Montalet v. Murray, L. ed. 104!), 17 Sup. Ct. Rep. 5&6. 4 Cranch, 47, 2 L. ed. 545. 1 4 Post, § 135. iiHepburn v. Ellzev. 2 Cranch. 453, isWood v. Davis, 18 How. 46n, 15 2 L. ed. 332; New Orleans v. Winter, L. ed. 460; Bacon v. Rives, 106 U. S. 1 Wheat. 94, 4 L. ed. 44; Cameron v. 104, 27 L. ed. 69, 1 Sup. Ct. Rep. 3; Hodges, 127 U. S. 325. 32 L. ed. 132, Einstein v. Georgia, etc. Ry. 120 Fed. 5 Sup. Ct. Rep. 1154: Hool v. Jamie- 1008. son, 166 U. S. 397, 41 L. ed. 1049, 17 isHarter v. Kernochan, 103 U. S. Sup. Ct. Rep. 596; Watson v. Bon- 506, 567, 26 L. ed. 411; Carson v. fils, 116 Fed. 157, 53 C. C. A. 535; Hvatt, 118 U. S. 279, 30 L. ed. 167; Weller v. Hanaur, 105 Fed. 193. Evers v. Watson. 156 U. S. 532, 39 L. i2Stone V. South Carolina, 117 U. ed. 520. 15 Sup. Ct. Rep. 430. S. 433, 29 L. ed. 962. 6 Sup. Ct. Rep. i^Cameron v. McRoberts, 3 Wheat. 799; Missouri, etc. R. R. v. Missouri, .594, 4 L. ed. 467; Vattier v. Hinde, etc. Comrs. 183 U. S. 58, 46 L. ed. 7 Pet. 263, 8 L. ed. 675; Horn v. Lock- 78, 22 Sup. Ct. Rep. 18; Arkansas v. hart, 17 Wall. 579, 21 L. ed. 657; Kansas, etc. Co. 183 U. S. 188, 46 L. Hotel Co. v. Wade, 97 U. S. 20. 24 L. ed. 144. 22 Sup. Ct. Rep. 47. ed. 917; Delaware, etc. R. R. v. Frank, isStrawbriflge v. Curtiss, 3 Cranch, 110 Fed. 689. 207, 2 L. ed. 435; New Orleans v. ^s See post, § 23. Winter. ! \Mioat. 95. 4 L. ed. 44; iJrvine v. Lowrv, 14 Pet. 300. 10 24 ■ ■ Procedure] SCOPE AND EXTENT. § 2 [t] those beneficially interested. 2 Thus the citizenship of an executor or ad- ministrator controls, regardless of the citizenship of decedent; 3 and the citizenship of a trustee, regardless of the beneficiaries.* In the case of a guardian suing for an infant or for an insane person, or of an infant suing by his next friend, the question in whom the right of action is vested, controls. If it is vested in the guardian, his citizenship is decisive,* but if he merely sues in the ward's name,« or if an infant sues by his next friend^ the citizenship of the ward or infant controls. [t] — citizenship of corporations, partnerships and associations. After some vacillation in early cases, the rule finally became and is now well established that, for jurisdictional purposes, a corporation is a citizen of the State of its incorporation and its stockholders are conclu- sively presumed citizens of such State,io though there is otherwise no legal presumption that a corporation's president is a citizen of the same State.ii. The presumption of uniform citizenship is not extended to unin- corporated associations, joint stock companies, or partnerships and the actual citizenship of members thereof controls. 12 State laws requiring foreigTi corporations to file their articles of incorporation, even though adopting them as domestic corporations upon compliance with this require- ment, do not deprive such foreign corporations of their original citizen- ship for jurisdictional purposes. is A corporation which goes into an- other State and obtains a charter there remains for Federal jurisdictionaf L. ed. 462; Coal Co. v. Blatchford, 11 C. C. A. 459. See Toledo T. Co. v. Wall. 177, 20 L. ed. 179; Marvland Cameron, 137 Fed. 48, 69 C. C. v. Baldwin, 112 U. S. 491. 28 L. ed. A. 28. 822. 5 Sup. Ct. Rep. 278; Stewart v. ^Williams v. Ritchev. 3 Dill. 406. Baltimore, etc. R. R. 168 U. S. 449, Fed. Cas. No. 17,734: Toledo T. Co. 42 L. ed. 537. 18 Sup. Ct. Rep. 105; v. Cameron, 137 Fed. 48, 69 C. C. Williams v. Ritchey, 3 Dill. 406. Fed. A. 28. Cas. No. 17,734: Jack v. Williams, 113 lOLouisville, etc. R. R. v. Letson, Fed. 823: Cincinnati, etc. R. Co. v. 2 How. 555, 558, 11 L. ed. 353; Rail- Thiebaud, 114 Fed. 918, 52 C. C A. road Co. v. Koontz, 104 U. S. 12, 26 .'i38; Bishop v. Boston, etc. R. R. 117 L. ed. 643; St. Louis, etc. Ry. v. Fed. 771; Franklin v. Conrad-S. Co. James, 161 U. S. 562, 40 L. ed. 802, 137 Fed. 737, 70 C. C. A. 171. 16 Sup. Ct. Rep. 621; Barrow S. S. 2Knapp V. Railroad Co. 20 Wall. Co. v. Kane, 170 U. S. 106, 42 L. ed. 124, 22 L. ed. 328. 964, 18 Sup. Ct. Rep. 526. sChappedelaine v. Dechenaux, 4 nUta.h-Nevada Co. v. De Lamar. Cranoh 308. 2 L. ed. 629; Mexican, 133 Fed. 113, 66 C. C. A. 179. etc. R. R. V. Eckman. 187 U. 8. 429. 47 i2Great Southern, etc. Hotel Co. v. L. ed. 245, 23 Sup. Ct. Rep. 213: New .Tones, 177 U. S. 449. 44 L. ed. 842. Orleans v. Gaines, 138 U. S. 606. 34 20 Sup. Ct. Rep. 690; Chapman v. L. ed. 1102, 11 Sup. Ct. Rep. 428; Barney. 129 U. S. 677, 32 L. ed. 800, Dodffe v Perkins. 4 Mason, 435 Fed. 9 Sup. Ct. Rep. 426. See Fred Macey Cas.'^No. 3,954. Co. v. Macey, 135 Fed. 725. 68 C. iDodge V. Tulleys, 144 U. S. 455, C. A. 363, holding Michigan organi- 456, 36" L. ed. 501, 12 Sup. Ct. Rep. zation a partnership; nnd Derk. etc. 728. Co. V. Charles, etc. Agency, 135 Fed. ^Mexican, etc. R. R. v. Eckman, 187 613. holdinu: citizenship of partners U. S. 429, 47 L. ed. 245. 23 Sup. Ct. suflicientlv alleged. Rep. 211. i3Raihvay Co. v. Whitton, 13 Wall. eStont V. Rigney, 107 Fed. 545, 46 285. 20 L. ed. 571: Pennsylvania R. 25 S 2 [u] FEDERAL JURISDICTION IN GENERAL. [Code Fed. purposes a citizen of the State of its original corporation. It can neither sue nor be sued in the Federal courts as a citizen of the second State.i^ If it comes into court alleging its incorporation in both States it cannot maintain suit against a citizen or other corporation of either State, since such a pleading is deemed to show a joinder of two plaintiffs who are citi- zens of two different States. is A consolidation of two corporations works a dissolution of the original concerns and creates a new corporation,! 6 unless the legislature otherwise intend. i" The citizenship of the new company is that of the State first granting it a charter. is [u] Change of status after suit brought and to confer jurisdiction. The status of the party at the time suit is brought, and not beforei or afterwards, governs; 2 hence Federal jurisdiction can neither be divesteds nor conferred* by a change of citizenship pending suit. Moreover if juris- diction properly attached when suit was brought, a change in parties, such as the substitution of the administrator of a deceased party, will not oust it; 5 nor will the fact that the party originally bringing suit has ceased to take an active part therein. 6 It has been held that in the absence of objection to the jurisdiction it is sufficient if it existed at the time judgment was entered. 7 It has also been decided that a voluntary transfer of plaintiff's interest to one whose citizenship does not entitle to a Federal tribunal, will not oust the jurisdiction after it has properly attached.* The fact that a party changes his domicil prior to suit, though with the express purpose of acquiring a right to sue in the Federal court, Co. V. St. Louis, etc. R. R. 118 U. S. 2 Connolly v. Taylor, 2 Pet. 565, 7 297, 30 L. ed. 83, 6 Sup. Ct. Rep. 1094; L. ed. 518;' Colorado, etc. Min. Oo. v. St. Louis, etc. Rv. v. James, IGl U. S. Turck, 150 U. S. 144, 37 L. ed. 1030, 566, 40 L. ed. 802, 16 Sup. Ct. Rep. 14 Sup. a. Rep. 35. 021 ; St. Joseph, etc. R. R. v. Steele, sMollan v. Torrance, 9 Wheat. 539, 167 U. S. 663, 42 L. ed. 315, 17 Sup. 6 L. ed. 154; Morgan v. Morgan, 2 Ct. Rep. 925: Southern Ry. Co. v. Wheat. 297, 4 L. ed. 242; Dunn v. Allison, 190 U. S. 326, 47 L. ed. 1078, Clarke, S Pet. 3, 8 L. ed. 845; Collins 23 Sup. Ct. Rep. 713. v. Qty of Ashland. 112 Fed. 175. i^Louisville, etc. Ry. v. Louisville ^Connolly v. Taylor, 2 Pet. 565, 7 Trust Co. 174 U. S. 563, 43 L. ed. L. ed. 51S;'Gibson V. Bruce, 108 U. S. 1081, 19 Sup. Ct. Rep. 821, and cases 563. 27 L. ed. 826, 2 Sup. Ct. Rep. cited: Walters v. Chicago, etc. R. R. 873. 104 Fed. 377; Freeman v. Amer. Sur. sciarkev. Matthewson, 12 Pet. 171, Co. 110 Fed. 548. 9 L. ed. 1041; Hemingway v. Stansell, isOhio. etc. R. R. v. Wheeler, 1 106 U. S. 402, 27 L. ed. 245, 1 Sup. Ct. Black. 297. 298, 17 L. ed. 130; Louis- Rep. 473; Hardenbergh v. Ray, 151 ville, etc. Rv. v. Louisville Trust Co. U. S. 118, 38 L. ed. 93, 14 Sup. Ct. 174 U. S. 552, 43 L. ed. 1081, 19 Sup. Rep. 305; Whvte v. Gibbs, 20 How. Ct. Rep. 821. 542, 15 L. ed. 1016. leClearwater v. IMeredith, 1 Wall. « Washington, etc. Ry. v. Coeur 40, 17 L. ed. 604: Shields v. Ohio, 95 D'Alene Ry. 160 U. S. 94, 40 L. ed. U. S. 325, 24 L. ed. 357. 346, 16 Sup. Ct. Rep. 231. iTCentral R. R. v. Georgia, 92 U. ^Pacific R. R. v. Ketchum, 101 U. S. 670, 23 L. ed. 757. S. 298. 25 L. ed. ^32. isWestheider v. Wabash R. R. 115 sGlover v. Shepperd, 21 Fed. 481; Fed. 841. Ross v. City of Ft. Wavne; 63 Fed. iNoves V. Crawford. 134 Fed. 796. 466, 11 C. C. A. 288; Jarboe v. Tem- 26 Procedure] SCOPE AND EXTENT. § 2 [v] does not defeat that right if the change is bona fide. 9 The wife's domicil for jurisdictional purposes is presumed to be that of her husband though in fact she reside elsewhere.io l|v] — interveners and cross complainants. The general rule that interveners in a case where jurisdiction depends on diverse citizenship or alienage, must themselves have the necessary diverse citizenship,! 4 is subject to important exceptions. When the Federal court has acquired a jurisdiction over the subject matter of the litigation either because in possession of its officers, or otherwise, of such a nature that no State court could properly entertain jurisdiction over the same, it is ob- vious that justice might be thwarted unless third persons asserting rights in that subject matter were permitted to appear and protect them.i5 in such cases diverse citizenship of the intervener need not appear and his application is regarded as ancillary to the main suit. 1 6 Thus in fore- closure proceedings brought by certain bondholders for themselves and others, or in other proceedings to enforce a lien, and in creditors' suits to reach assets, other bondholders and other creditors may come in reganl- less of their citizenship, i^ So where property has been attached, a third person may intervene to protect his rights. is The principle applies also to a cross bill or complaint filed by a defendant in the original bill. If he seeks affirmative relief respecting the property which has come within the court's exclusive custody, e. g. to foreclose an asserted lien of his own, or to cancel the plaintiff's claim, he may do so and join other par- pier, 38 Fed. 217; but see Adams Exp. Shakers v. Watson, 68 Fed. 736, 15 Co. V. Denver, etc. Ry. 16 Fed. 717, 4 C. C. A. 632; Clarke v. Eureka Co. McCrarv, 77. Bank. 116 Fed. 534, and Everett v. 9 Morris V. Gilmer, 129 U. S. 328, School Dist. 102 Fed. 520, where the 32 L. ed. 690, 9 Sup. Ct. Rep. 289. See principle is more broadly stated, also post, § 23. 1 "Galveston, etc. R. R. v. Cowderv. lOThompson v. Stalmann. 139 Fed. 11 Wall. 478, 20 L. ed. 205; Chicago. 93. etc. R. R. v. Union, etc. Co. 109 U. S. i4Clvde V. Richmond, etc. R. R. 65 717, 718, 27 L. ed. 1081, 3 Sup. Ct. Fed. 336; Forest Oil Co. V. Crawford, Rep. 594; Stewart v. Dunham, 115 101 Fed. 849, 42 C. C. A. 54: Rouse U. S. 61, 29 L. ed. 329, 5 Sup. Ct. v. Letcher, 156 U. S. 47, 39 L. ed. Rep. 1164: Lilienthal v. McCormick. 341, 15 Sup. Ct. Rep. 266; United, 117 Fed. 89, 54 C. 0. A. 475; Mc- etc. Co. V. Louisiana, etc. Co. 68 Fed. Bee v. JMarietta, etc. R. R. 48 Fed. 673. 247 ; Central Trust Co. v. Bridges, 57 isConwell v. White, etc. Canal Co. Fed. 762. 6 C. C. A. 539: OslK)rne v. 4 Biss. 195, Fed. Cas. No. 3,148; Barge, 30 Fed. 806: Forbes v. Mem- Henderson V. Goode, 49 Fed. 887; phis, etc. R. R. 2 Woods, 323. Fed. United, etc. Co. v. Louisiana, etc. Co. Cas. No. 4,9^:0; Belmont Nail Co. v. 68 Fed. 673. Columbia, etc. Co. 40 Fed. 336. But i^Stewart v. Dunham. 115 U. S. 61, it has been otherwise held wliere all 115 L. ed. 329, 5 Sup. Ct. Rep. 1164; bondholders were necessary parties. Rouse V. Letcher, 156 U. S. 49. 39 See Mangels v. Donau. etc. Co. 53 L. ed. 342, 15 Sup. St. Rep. 266; Fed. 513; Tug River Co. v. Brigel, Siwix aty, etc. Co. v. Trust Co. of 67 Fed. 625, 14 C. C. A. 577. North America, 82 Fed. 128, 27 C. C. isKrippendorf v. Hvde, 110 U. S. A. 73; Rice v. Durham Water Co. 91 276, 28 L. ed. 145, 4 Slip. Ct. Rep. 27; Fed. 433; Park v. New York. etc. R. Raisin v. Statham. 22 Fed. 146. R. 70 Fed. 641. See Society of 27 § '^ [w] FEDERAL JUUISDICTION IN GENERAL. [Code Fed. ties who have not the requisite diverse citizenship, without ousting the jurisdiction that originally attached. 19 And the cross bill may be retained where independent relief is prayed, though the original bill be dismissed. 2 The right to a hearing in the court having possession of the res, may be asserted by the ordinary bill of intervention, or by cross bill of original defendants or by a bill in the nature of an original bill. The form of pleading is immaterial if the court proceed upon it in connection with the other pleadings respecting the property before the court. i Bills which would be deemed original under ordinary rules of equity pleading are not so regarded by the Federal courts in proceedings of this sort. 2 The princi- ple of these cases merges itself in the broader subject of the ancillary ju- risdiction of the Federal courts. s [w] Probate jurisdiction resulting from diverse citizenship. The Federal courts have no probate jurisdiction, at least, in so far as probate is an ex parte proceeding.^ But as they have jurisdiction of "con- troversies" between citizens of different States and aliens, it follows that if such a controversy arises in the course of probate proceedings it is jus- ticiable in the Federal courts.9 Accordingly they may take jurisdiction of a suit against an administrator to establish a claim against the estate: i" is^Morgan, etc. Co. v. Texas, etc. Ry. 137 I J. S. 171, 201. 34 L. ed. 625, 11 Sup. Ct. Rep. 61; Chicago, etc. R. R. V. Third Nat. Bank, 134"U. S. 276, 33 L. ed. 900, 10 Sup. Ct. Rep. 550; Toledo, etc. R. R. v. Continental Trust Co. 95 Fed. 504, 36 C. C. A. 155; Springfield, etc. Co. v. Barnard Co. 81 Fed. 264, 26 C. C. A. 389; Schenck \-. Peav, Woolw. 175, Fed. Cas. No. 12,450; First Nat. Bank v. Salem, etc. Co. 31 Fed. 583, 12 Sawv. 485, 496; Jesup v. Illinois Cent. R. R. 43 Fed. 496; Mercantile Trust Co. v. Atlantic & P. R. R. 70 Fed. 518. 2 0Barnard v. Hartford, etc. R. R. Fed. Cas 1.003; Jesup v. Illinois Cent. R. R. 43 Fed. 496; Railroad Co. v. Chamberlain, 6 Wall. 748, 18 L. ed. 859. See Kromer v. Everett Imp. Co. 110 Fed. 22, where proceedings in in- tervention were dismissed after dis- missal of original cause. See also post, § 0G3. i]\Torgans, etc. Co. v. Texas, etc. Ry. 137 U. S. 201, 34 L. ed. 636, 11 Sup. Ct. Rep. 71 ; Rouse v. Letcher, 156 U. S. 48, 39 L. ed. 342, 15 Sup. Ct. Rep. 266; Compton v. Jesup, 68 Fed. 203, 281, 15 C. C. A. 3.97; Lum- iey V. Wabash R. Co. 76 Fed. 66, 22 C. C. A. 60: Blake v. Coal Co. 84 Fed. 1014, 28 C. C. A. 678: Conti- nental, etc. Co. V. Toledo, etc. R. R. 87 Fed. 133, 32 C. C. A. 44, s. c. on appeal, 95 Feu. 504, 505. 36 C. C. A. 155; Caray v. Houston, etc. Ry. 52 Fed. 674;' Fish v. Ogdensburgh, etc. R. R. 79 Fed. 131. 2:\linnesota Co. v. St. Paul Co. 2 Wall. 633, 17 L. ed. 895; Schenck v. Peav, Woolw. 175, Fed. Cas. No. 12,- 450.' ^Post, § 3. sFouveraTie v. New Orleans, 18 How. 473, 15 L. ed. 399; Gaines v. Fuentes, 92 U. S. 21, 23 L. ed. 524; Byers v. McAuley, 149 U. S. 619, 620, 37 L. ed. 867, 13 Sup. Ct. Rep. 906; Clark V. Guv, 114 Fed. 783. sEverliart v. Ever hart, 34 Fed. 82; Brodhead v. Shoemaker, 44 Fed. 518, 11 L.R.A. 567; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006, 3 Sup. Ct. Rep. 327; Kirby v. Chicago, etc. R. R. Co. 106 Fed. '.551. 1 "Clark v. Bever, 139 U. S. 96. 35 L. ed. 88, 11 Sup. Ct. Rep. 468; Alice E. M. Co. V. Blanden, 136 Fed. 252. The right to sue to establish a claim has been held to be confined to cases where some special equitable feature and necessitj' exist. Schurmeier v. Conn. etc. Ins. Co. 137 Fed. 47. 69 C. C. A. 22. Procedure] SCOPE AND EXTENT. § 2 [w] or to obtain payment. n Proceedings for the probate of a will are merely ex parte and not a suit or controversy.! 2 And a contest prior to pro- bate has been held not Federally cognizable. is It is also decided that pro- ceedings to set aside the probate of a will or the issue of letters of ad- ministration on the ground of fraud is not a proper subject for equitable relief, and Federal jurisdiction has accordingly been denied. i* But a suit to set aside a will is a controversy justiciable in the Federal courts at the suit of a citizen of another State or alien.15 In general, it seems to be settled that a Federal court may take jurisdiction in equity where diverse citizensliip exists, whenever by established Federal equity principles, a cred- itor or other party interested in the probate proceedings would have a right to resort to a court of equity for the protection or enforcement of some right. 16 The fact that the State provides a method for relief in the probate court cannot affect this right, provided it is in fact of an equi- table nature. Hence a distributee may sue the administrator in a Fed- eral court where citizenship is diverse upon allegations of fraud and waste, to compel an accounting and for complainants' share of the estate.i" So a creditor maj- sue the administrator for discovery of assets.is A legatee may sue an executor to compel payment of legacj' claimed to be void.is Suits for the construction of a will and to have complainant's rights ad- judged, have been sustained in the circuit court.20 So, also Federal juris- diction to set aside a sale of property by a probate court, on the ground of fraud has been upheld.21 But a suit to compel the personal represen- tatives to settle a debt of their decedent will not lie in the Federal court where it presents no ground for equitable interference with probate pro- ceedings.! Nor will any proceeding be cognizable in the Federal court iiHess V. Reynolds, 113 U. S. 73, 47. 69 C. C. A. 22. In O'Callaghan 28 L. ed. 927. 5 Sup. Ct. Rep. 377. v. O'Brien. 199 U. S. 110, 50 L. ed. I21n re Cilley, 58 Fed. 977; Wahl 111, 25 Sup. Ct. Rep. 727, the cases V. Franz, 100 Fed. 680, 40 C. C. A. are re\'iewed at length and me law 638. upon the question of Federal juris- isCopeland v. Benning, 72 Fed. 5. diction in probate mattei's is sum- See also Reed v. Reed, "31 Fed. 49; marized. Oaklev v. Tavlor, 64 Fed. 245. i^Payne v. Hook, 7 Wall. 425. 19 L. i4Caseof BVoderick's Will, 21 Wall. ed. 261; Pulliam v. Pulliam, 10 Fed. 503, 22 L. ed. 599; Simmons v. Saul, 23; ]\Iaver v. Foulkrod, 4 Wash. C. 138 U. S. 459, 34 L. ed. 1054, 11 Sup. C. 349, Fed. Cas. No. 9..341; Herron v. Ct. Rep. 369. Comstock. 139 Fed. 377 (C. C. A.). ir.Gaines v. Fuentes. 92 U. S. 10, isKennedv v. Creswell, 101 U. S. 23 L. ed. 524; Ellis v. Davis, 109 U. 641, 25 L. ed. 1075. S. 498, 27 L. ed. 1000, 3 Sup. Ct. Rep. isDomestic, etc. Church v. Oaither, 327; Lawrence v. Nelson, 143 U. S. 62 Fed. 422. 223, 36 L. ed. 1.30. 12 Sup. Ct. Rep. 20Toms v. Owen. 52 Fed. 417; 440; Hayes v. Pratt, 147 U. S. 570, Wood v. Paine, 66 Fed. 807. See Cen- 37 L. ed. 279. 13 Sup. Ct. Rep. 503; tral Xat. Bank v. Fitzgerald, 94 Fed. Everhart v. Everhart. 34 Fed. 82; 19. Williams v. Cra.bb, 117 Fed. 197, 54 2iJohnson v. Waters, 111 U. S. 640. C. C. A. 213. 59 L.R.A. 425; Wart v. 28 L. ed. 547, 4 Sup. Ct. Rep. 619; Wart, 117 Fed. 760; Pichard^on v. Arrowsmith v. Cleason. 129 U. S. 99, Green, 61 Fed. 431. 9 0. C. A. 565. .32 L. ed. 6.34, 9 Sup. Ct. Rep. 241. _ 16 See cases supra; also Schur- iBedford Quarries Co. v. Thomlin- meier v. Conn. etc. Ins. Co. 137 Fed. son, 95 Fed. 208. 36 C. C. A. 272. 29 J 3 FEDERAL JURISDICTION IN GENERAL. [Code Fed. which would interfere with the State courts' custody of the estate under the rules limiting another court's concurrent jurisdiction of property in custodia l(>gis;2 and if a claim established by the Federal court is not paid, the creditor must, at least in the first instance, resort to the State court of probate for relief. 3 LxJ Suits by land claimants under grants from different States. The jurisdiction over such suits has been vested in the circuit court both original and on removal. s [yj Suits affecting foreign States. The reports contain a few cases in which foreign States have appeared as plaintifls in the Federal courts luider the grant of jurisdiction contained in the Constitution.! o Suit against a foreign State cannot be maintained as of right in the domestic court, and impleading such State as defendant is a mere invitation to it to come in and litigate.n In New York the State court has entertained suit by a foreign State.12 § 3. Ancillary jurisdiction of Federal courts. On grounds of necessity and expediency and to prevent conflicts of jurisdiction"^^^ certain causes may be brought in the Federal court if auxiliary to some other case or controversy there pending, thoug]i neither diverse citizenship, nor a Federal question capable of sustaining jurisdiction, nor the requisite value in dispute, ex- ists. "^^^ If by a receivership, or a suit to enforce a lien or credit- ors suit, or the like, property has been brought into the custody or under the control of a Federal court in some suit of Federal cog- nizance,"^*^^ other claimants and parties in interest are permitted to come into that court and there have their rights adjudicated and enforced, regardless of their citizenship. Proceedings to construe, '^'^^ or enforce,^*^^^ or to set aside and restrain^®^''^^^ a Federal judg- ment or decree, are deemed ancillary and maintainable in the Federal court regardless of ordinary jurisdictional restrictions. The same is true of proceedings to enforce some incidental right arising in a Federal suit, such as a liability on an appeal or at- tachment bond and the like.^^^ Proceedings to redress some 2See post, § 16, note. L. ed. 127; Republic of Colombia v. sThiel Detective Service Co. v. Mc- Cauca Co. 100 Fed. 339; King of dure, 130 Fed. 55. Spain v. Oliver, 2 Wash. C. C. 429, TPawlot v. Clark, 9 Cranch, 323, Fed. Cas. No. 7,814. 3 L. ed. 735. See post, 8 131. 1 Planning v. Nicaragua; 14 How. sColson V. Lewis, 2 Wheat. 378, 4 Tr. 517. L. ed. 266. See post, § 134. i2RepnbHc of iNlexico v. Arrangois, lOThe Sapphire, 11 Wall. 164, 20 5 Duer, 634, 11 How. Pr. 576. 30 Frocedure] ANCILLARY JURISDICTION. § 3 [b] abuse or misapplication of a Federal court's process in a suit cognizable in the Federal court, are also within the ancillary- rule. ^^^""^'^ The same considerations which justify the Federal courts in taking cognizance of all such proceedings as ancillary to some other cause, forbid their taking jurisdiciton on removal of any similar ancillary proceeding in a State court J^^ A bill in equity in such ancillary proceeding is not original and substi- tuted service is permissible. f*^^ On appeal the jurisdiction is governed by and rested upon the same grounds as the jurisdiction in the original cause. ^^^ Author's Section. [a] Grounds of the ancillary jurisdiction. The courts have stated the grounds of the ancillary jurisdiction in a number of cases. 21 In those cases where the basis of the jurisdiction is property in custody, it would obviously result in contlicts of jurisdiction between State and Federal courts, to deny others interested in such prop- erty the right of resort to the court having the property under its con- trol. In the cases where the jurisdiction is founded upon the fact of a Federal judgment or decree and the need for aid in its enforcement, con- struction or restriction, a denial of the ancillary jurisdiction would give to State tribunals a supervisory power not intended, and deprive Federal courts of the necessary right fully to regulate the course of proceedings before them, secure to a successful party the fruits of his judgment, and protect injured parties against a judgment wrongfully obtained. In cases where the ancillary jurisdiction is exercised over abuses or misapplica- tion of Federal process, it is obvious that it is a mere incident to the power of a court to control its own process. It is amply justifiable upon a consideration of the abuses and conflicts that would result from per- mitting other courts to interfere. [b] Regardless of citizenship or amount in controversy. The jurisdiction depends neither upon the value in dispute nor the ex- istence of a Federal question, nor the citizenship of the parties. 1 It is concerned usually with cases where the jurisdiction originally was based upon the character of the parties. While an auxiliary jurisdiction is fre- quently exercised by Federal courts in matters essentially of Federal cog- 2iKrippendorf v. Hyde, 110 U. S. iLamb v. Ewing, 54 Fed. 273. 4 C. 283, 28 L. ed. 145. 4 .Sup. Ct. Rep. 21. C. A. 320; Pullman's P. ('. Co. v. See Compton v. Jesup, 68 Fed. 270, Washburn, 66 Fed. 794; White v. 15 C. C. A. 397; Central Trust Co. v. Ewing, 159 U. S. 36. 40 L. ed. 67, 15 Bridges, 57 Fed. 762, 6 C. C. A. 539; Sup. Ct. Rep. 1019; Sullivan v. Bar- Conwell V. White Water Valley, etc. nard, 81 Fed. 880. Co. 4 Biss. 200, Fed. Cas. No. 3,148; Lamb v. Ewing, 54 Fed. 273, 4 C. C. A. 320. 31 f 3 [c] FEDERAL JURISDICTION IN GENERAL. [Code Fed. nizance such as admiralty and bankruptcy causes, it would not seem to be necessary to justify that jurisdiction under the doctrine here considered.2 [c] Receivership and other foreclosure cases. Freqvient instances of the exercise of ancillary jurisdiction have occurred in railroad foreclosure suits where receivers have been appointed ar 115 Fed. 96. 52 C. C. A. 176; Connor V. Alligator, etc. Co. 98 Fed. 155; Gunby v. Armstrong, 133 Fed. 417, 66 C. C. A. 627. See Bausman v. Denny, 73 Fed. 69, 70, where the ancillary jurisdiction is explained on other grounds. !2Pope v. Louisville, etc. R. R. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Rep. 500. See Gilmore v. Herrick, 93 Fed. 526, 527. See also post, § 129. isRouse V. Letcher, 156 U. S. 47, 39 L. ed. 342, 15 Sup. Ct. Rep. 266; Chattanooga, etc. R. R. v. Felton, 69 Fed. 273; Washington v. Northern Pac. R. R. 75 Fed.\333. i^Carpenter v. Northern P. R. R. 75 Fed. 850; Sullivan v. Barnard, 81 Fed. 886. But see Rav v. Pierce, 81 Fed. 881; Pitkin v. Cowen, 91 Fed. 599; and Gilmore v. Herrick, 93 Fed. 526, 527. 15 See Gilmore v. Herrick, 93 Fed. 526, 527. 1 "Baltimore, etc. Assn. v. Ander- son, 90 Fed. 146, 32 C. C. A. 542. isSullivan v. Swain. 96 Fed. 259. isCabaniss v. Reco Min. Co. 116 Fed. 318, 54 C. C. A. 190; in Kromer v. Everett Imp. Co. 110 Fed. 22, an in- tervention was dismissed along with the original controversy, but it does not appear that any property was in the custody of the court. 20 At least it has been held that a cross bill may be retained after the original has been dismissed. Bar- nard V. Hartford, etc. R. R. 2 Fed. Cas. 836: Jesup v. Illinois C. R. R. 43 Fed. 496: Railroad Co. v. Cham- berlain, 6 Wall. 748. 18 L. ed. 859. iFoUett V. Tillingha&t, 82 Fed. 241. But they are officers of the United States and hence may sue in the circuit court. See post. § 124. 2]Montgomery v. McDermott, 103 Fed. 801. 813, 42 C. C. A. 348. sChristmas v. Russell, 14 Wall. 69, 20 L. ed. 762. 4 Central, etc. Co. v. Farmers' L. & T. Co. 114 Fed. 263, 52 C. C. A. 149. Fed. Proc. — 3. 33 § 3 [f] FEDERAL JURISDICTION IN GENERAL. [Code Fed. ciliary to a suit at law in which the title was litijjated and adjudged to the claimants and against the United States. 5 A bill to restrain persons from selling stock of a railroad company is not ancillary to a foreclosure suit to which the stockholders were not parties. 6 [d] Proceedings to construe judgments. Proceedings to construe a judgment are ancillary and maintainable re- gardless of citizenship or other grounds of Federal jurisdiction. s A bill by a railroad to have a foreclosure decree of its property construed and ita rights thereunder declared, is ancillary to such foreclosure suit.* [dd] Enforcement and revival of judgments. It is well settled that the jurisdiction of a court does not terminate with the judgment but continues until its satisfaction.! i Proceedings on exe- cution are part of the proceedings in the cause; 12 and actions in aid of execution at law are merely ancillary.is It would be an impairment of a court's jurisdiction to deprive it of power to execute its decrees.!* It is under this principle that the circuit court's power to issue mandamus chiefly arises. For while the circuit court has no original jurisdiction to issue the writ, it may be issued when ancillary to jurisdiction already acquired; is e. g., to compel the funding or payment of a judgment at law by a munici- pality; 16 to compel a corporation to issue stock certilicates to a purchaser at marshal's execution sale.i" A creditor's bill is properly brought in the circuit court where based on a judgment at law in that court; is but not where based on judgment at law in the district court. 1 9 A bill is main- tainable by purchaser at Federal foreclosure sale, to enjoin an improper State court proceeding which would cloud his title, 20 or any attack upon sstillman v. Combe. 197 U. S. 438, Ct. Rep. 633; Indiana v. Lake Erie, 49 L. ed. 822, 25 Sup. Ct. Rep. 480. etc. R. R. 85 Fed. 1 ; Smith v. Bour- BRaphael v. Trask, 118 Fed. 777. bon Co. 127 U. S. 112, 32 L. ed. 73, sjenks v. Brewster, 96 Fed. 625. 8 Sup. Ct. Rep. 1043. See also post, sMilwaukee, etc. R. R. v. Soutter. § 841. 2 Wall. 632, 17 L. ed. 895. leBoard of Liquidation v. United iiWayman v. Southard. 10 Wheat. States, 108 Fed. 689, 47 C. C. A. 587; 23, 6 L. ed. 253; Campbell v. Hadley, Brooks v. Memphis, Fed. Cas. No. 1 Spr. 470, Fed. Cas. No. 2.358. 1954; Knox Co. v. Aspinwall, 24 How. i2Union Bank v. Gearv, 5 Pet. 113, 384, 16 L. ed. 738; Riggs v. Johnson 8 L. ed. 60. * Co. 6 Wall. 187, 194, 18 L. ed. 773; isUnited States v. Halstead. 10 Ex parte Flippin, 94 U. S. 350, 24 L. Wheat. 64, 6 L. ed. 264; Claflin v. ed. 195. McDermott, 12 Fed. 375, 20 Blatchf. i^Hair v. Burnell, l-Oe Fed. 280. 522. See also post, § 841. i^Central Nat. Bank v. Stevens, isBabcock v. Millard, 2 Fed. Cas. 169 U. S. 465, 42 L. ed. 807, 18 Sup. 299; Hatch v. Dorr, 4 McLean, 112, Ct. Rep. 403. Fed. Cas. No. 6.206. i5Bath Co. V. Amy, 13 Wall. 249, 1 9 Winter v. Swinburne, 8 Fed. 50, 250, 20 L. ed. 539; Davenport v. Coun- 10 Biss. 454. ty of Dodge, 105 U. S. 242, 243, 26 20 Julian v. Central T. Co. 193 U. L. ed. 1018; Rosenbaum v. Bauer, S. 93, 48 L. ed. 629, 24 Sup. Ct. Rep. 120 U. S. 4o8, 30 L. ed. 743, 7 Sup. 399. 34 Procedure] ANCILLARY JURISDICTION. § 3 [e] his title based upou alleged irregularity in the foreclosure proceedings.! A bill praying that possession of property be delivered up is ancillary to a previous decree quieting complainant's title.3 A cross bill to have a judg- ment declared a lien on certain property by virtue of a lease which secured such judgment is ancillary to the case in which the judgment was ob- tained.* A proceeding to satisfy costs recovered in equity, against patent rights of defendant is a mere incident to the original cause.s A bill to re- vive and continue prior decrees in force is cognizable by the court render- ing such decrees regardless of citizenship of parties thereto.6 Nor is di- verse citizenship requisite in a proceeding to compel payment of a Federal judgment out of a fund made liable therefor by such judgment,? or to subject attached property to a judgment. s In all these cases the proceed- ing must be in the court rendering the original judgment, in order to be deemed ancillary. 9 [e] Relief against judgments. A bill to set aside a decree as fraudulent is maintainable in the circuit court rendering it, regardless of citizenship. 12 _\ suit to set aside a fore- closure decree and a reorganization plan thereunder, as fraudulent, is cog- nizable as ancillary to the foreclosure proceedings.! 3 So a suit to set aside a judgment for fraud may be maintained against an assignee of the judgment regardless of citizenship. 1* An ancillary bill to set aside a judg- ment may be maintained though it has been carried into execution, and the court by its decree will seek to restore the status prior to its ren- dition, is But where defendant in the original cause had died and the suit was not revived, and the bill filed to set aside the former decree in his favor was not against defendant's estate and did not join her personal repre- sentatives, it was held not sustainable as ancillary, and dismissed because diverse citizenship did not appear. is in proceedings to set aside a decree for fraud the party in whose favor the original decree was rendered should be made a party and given an opportunity to rebut the alleged fraud.i? A bill to set aside a judgment in partition for irregularity in service of iRiverdale, etc. Mills v. Alabama 454; Wheeling v. Mavor, 1 Hughes, G. Co. 198 U. S. 188, 49 L. ed. 1008, 94, Fed. Cas. No. 17,502. 25 Sup. Ct. Rep. 629- i2Richardson v. Loree, 94 Fed. 375, sRoot V. Woohvortn, 150 U. S. 401, 36 C. C. A. 301. 37 L. ed. 1123, 14 Sup. Ct. Rep. 139. isCarey v. Houston, etc. R, R. 161 4Milwankee, etc. R. R. v. Oham- U. S. 115. 40 L. ed. 638, 16 Sup. Ct. berlain. 6 Wall. 750, 18 L. ed. 861. Rep. 541; Pacific R. R. v. Missouri P. 5Maitland v. Gibson. 79 Fed. 136; R. R. Ill U. S. 522, 28 L. ed. 498, 4 Wonderlv v. Lafavette Co. 77 Fed. Sup. Ct. Rep. 583; Foster v. Mans- 665. ' " field, etc. R. R. 36 Fed. 627, 628; eShainwold v. Lewis. 69 Fed. 494. Symmes v. Union T. Co. 60 Fed. 855. TCity of New Orleans v. Fisher, 180 KO'Rrien Co. v. Brown. 1 Dill. 588, U. S. 18.5, 45 L. ed. 485, 21 Sup. Ct. Fed. Cas. Xo. 10,399. Rep. 347. laOsborn v. Michigan, etc. R. R. 2 sHatcher v. Hendrie, etc. Co. 133 Flip. 503, Fori. Cas. No. 10,594. Fed. 267. 68 C. C. A. 19. isRa^ton v. Sharon, 51 Fed. 712. sMercantile Trust Co. v. Kana- i^Harwod v. Railroad, 17 Wall. 80, wha, etc. R. R. 39 Fed. 337; Winter 21 L. ed. 558; Wicklifi-e v. Eve, 17 v. Swinburne, 8 Fed. 50, 10 Bi^*. How. 470, 15 L. ed. 163. 35 S 3 [f] FEDERAL JURISDICTION IN GENERAL. [Code Fed. process and to annul an agreement subsequent to the judgment has been held not maintainable, because adequate remedy existed at law by eject- ment.! 8 The circuit court rendering a judgment may entertain a suit to impeach same though between two aliens.19 [f] Injunction against actions at law or other proceedings. Bills of injunction against judgments in the Federal courts are deemed dependent, and ancillary to the original cause.20 Hence the Federal court rendering judgment in ejectment may entertain a bill to restrain its en- forcement as ancillary to the ejectment case;i or permit a landlord to come in and open a judgment in ejectment. 2 So it may entertain bill to enjoin garnishment proceedings on a judgment fraudulently obtained at law, regardless of citizenship; 3 to enjoin execution of a judgment on writ of entry; -t to enjoin the assignment of a judgment; 5 to enjoin execution and for permission to intervene in the action at law; 6 to restrain enforce- ment of judgment because complainant not properly served; t to prevent marshal's sale on foreclosure.8 But where the bill joins many new parties and is not merely to restrain execution, but mainly seeks the establish- ment of an equitable title it is not sustainable as ancillary. 9 A bill on the equity side of the court to enjoin the prosecution of ac- tions at law in the same court is ancillary and maintainable regardless of citizenship.il Ejectment proceedings may be thus enjoined by a bill seek- ing also the cancelation of certain deeds as a cloud on title. 12 A bill for reformation in equity is ancillary to an action on the law side of the court. 13 Proceedings on a creditors bill have also been enjoined on an ancillary application.! * An ancillary' bill is maintainable against pro- ceedings in a number of cases at law to prevent multiplicity of suits isYeatman v. Bradford, 44 Fed. 5 Thompson v. McRevnolds, 29 Fed. 538. 657. isLacassagne v. Chapuis, 144 U. S. ^McDonald v. Seligman, 81 Fed. 126, 36 L. ed. 368, 12 Sup. Ct. Rep. 753. 659. TBrown v. Walker, 84 Fed. 532. 2 0Dunlap v. St«tcon, 4 Mason, 349, SBroadis v. Broadis, 86 Fed. 951, Fed. Oas. No. 4,164; Krippendorf v. 954. Hyde, 110 U. S. 285, 28 L. ed. 147, 4 sSterling v. Barnwall, 12 Fed. 324. Sup. Ct. Rep. 27; Sims v Guthrie, 9 nCortes Co. v. Thannhauser, 9 Cranch, 25, 3 L. ed. 642; DeViginer V. Fed. 227, 20 B^atchf. 59; Hauf v. New Orleans, 16 Fed. 11, 4 Woods, Wilson, 31 Fed. 384; Widaman v. 206. Hubbard, 88 Fed. 806, 812; St. Lukes iJohnson v. Christian, 125 U. S. Hospital v. Barclay, 3 Blatchf. 259, 646, 31 L. ed. 821, 8 Sup. Ct. Rep. Fed. Cas. No. 12,241: South P. O. Co. 1135; Webb v. Barnwall, 116 U. S. v. Calf Creek, etc. Co. 140 Fed. 507; 193, 29 L. ed. 595, 6 Sup. Ct. Rep. Campbell v. Golden M. Co. 141 Fed. 350; Dunn v. Clarke, 8 Pet. 1, 8 L. 610. ed. 845. i2Smythe v. Henry, 41 Fed. 705 2King V. Davis, 137 Fed. 198. 713. 3 Jones V. Andrews, 10 Wall. 333, isRosembaum v. Council, etc. Ins. 19 L. ed. 935. Co. 37 Fed. 728. 4Dunlap V. Stetson, 4 Mason. 349, i^Bradshaw v. Miners' Bank, 81 Fed. Cas. No. 4,164. Fed. 902, 26 C. C. A. 673. 36 Procedure] A2SCILLARY JURISDICTION. § 3 [h] whore the defense in all was the same and the interest of all a common one. 15 [g] Enforcement of liability on bond given in original cause. An action on an undertaking given to stay proceedings pending motion for new trial, is ancillary and cognizable by the court in which the cause was pending.i The Federal court will entertain ancillary jurisdiction re- gardless of citizenship, in an action on an appeal bond given therein ; - on a bond staying execution ; 3 on the statutory liability of the endorser of a writ issued by such court;* on a rejilevin bond; 5 on an attachment bond; 6 and on a forthcoming bond given in attachment proceedings." [h] Proceedings to redress abuse or misapplication of Federal court's process. The leading case upon this branch of the ancillary jurisdiction, was concerned with a conflict between State and Federal courts growing out of a Federal attachment claimed to be wrongful, and against which re- lief was sought in the State court. That case laid down the principle that a bill filed on the equity side of the Federal court to prevent in- justice or an inequitable advantage under its mesne or final process is not original but ancillary, and that such a bill was the proper way for a claimant of property attached by the marshal on process from the circuit court to establish his right.io It is not proper for State court to attempt to replevy property held by the marshal either under attach- ment or execution.il Later cases have also recognized the propriety of other proceedings less formal than bill in equity, 12 such as petition of intervention, motions supported by affidavits, and interpleaders at law.13 If the claimant proceed by bill in equity, appeal and not writ of error is the proper mode for obtaining a review.i* The attachment laws of many States provide a summary mode for determining claims to at- tached property and the Federal courts usually follow such practice and afford ancillary relief in the mode prescribed by the local law and le- iBVirginia-Carolina Chem. Co. v. nFreeman v. Howe, 24 How. 450, Home Ins. Co. 113 Fed. 1, 51 C. C. 16 L. ed. 749, 752; Covell v. Heyman, A. 21, 12G Fed. 1002. 1003. Ill U. S. 170, 28 L. ed. 390, 4 Sup. Ct. iJVierchants, etc. Bank v. Leland, Rep. .355. 38 How. Pr. 31, Fed. Cas. No. 9,452. i2Krippendorf v. Hyde, 110 U. S. 2 Arnold v. Frost. 9 Ben. 207, Fed. 276, 28 L. ed. 145, 4 Sup. Ct. Rep. Cas. No. 558; Seymour v. Phillips, 27. 7 Biss. 400, Fed. Cas. No. 12,089. isQumbel v. Pitkin, 113 U. S. 545, 3Lamb v. Ewing, 54 Fed. 269, 4 28 L. ed. 1129, 5 Sup. Ct. Rep. 616; C. C. A. 320. S. C. on second appeal, 124 U. S. 131. 4Pullman's P. C. Co. v. Washburn, 31 L. ed. 374, 8 Sup. Ct. Rep. 383. 66 Fed. 790. In an early case replevin in the cir- "Patterson v. Mather, 26 Fed. 31. cuit court was deemed a proper pro- fiFiles v. Davis, 118 Fed. 405. ceeding. :Maddux v. Usher, 2 llask. "Reillv V. Holding, 10 Wall, 56, 19 261, Fed. Cas. No. 8.936. L. ed. 858. i^Brochon v. Wilson. 91 Fed. 619, lOFreeman v. Howe, 24 How. 450, 34 C. C. A. 31. 16 L. ed. 749, 752. 37 § 3 [I] FEDERAL JURISDICTION IN GENERAL. [Code Fed. gardloss of citizenship of the parties.is Where a circuit court judgment was reversed by the Supreme Court for want of jurisdiction, it has been held that the former might decree restitution of the property taken under execution on such judgment prior to appeal, regardless of the want of jurisdiction. 16 The reports also contain other instances of the ancillary Federal jurisdic- tion respecting process of the court and its satisfaction. An ancillary bill to restrain further prosecution of garnishment proceedings has been upheld;! also to restrain a marshal from using papers seized illegally .ipon replevin and to compel him to return them. 2 Judgment entered on motion against the marshal for execution money not paid over, has been sustained. 3 So where corporate stock was about to be sold on execution by the marshal, it has been held that a litigant from a State court might maintain a bill in the circuit court to protect his rights by preventing tlie threatened sale.* [i] Independent action against marshal for abuse of process. The exclusive jurisdiction of the Federal court prevents replevin in the State court for property seized by the marshal, but not an action of trespass, since that does not affect the possession of the property; 6 nor does it prevent an action on the marshal's bond.'i' [jj Ancillary matters in State court not removable. It results from the doctrine of the ancillary nature of proceedings to try claims to attached property, that such proceedings in a suit in the State court are not removable to the Federal tribunal upon grounds of di- verse citizenship. 5 But where removal would not result in a conflict of jurisdiction because the res in controversy was in possession of a State court, the right to remove to a Federal tribunal for diverse citizenship will not be denied when a separate suit or controversy really arises in the course of State court proceedings. Thus when a proceeding to set aside a State court judgment may be taken by original suit in the State court and isClarke v. Matfchewson, 12 Pet. 4New York Commercial Co. v. 164, 172, 9 L. ed. 1041; Gumbel v. Franci?* S3 Fed, 769, 28 C. C. A. 199. Pitkin, 124 U. S. 131, 3.1 L. ed. 374, eCovell v. Heyman, 111 U. S. 176, 8 Sup. Ct. Rep. 387; Bates v. Davs, 28 L. ed. 390, 4 Sup. Ct. Rep. 355; 17 Fed. lb?, 5 McCrary, 342. Buck v. Colba.th, 3 Wall. 334, 18 L. leNorthwestern Fuel Co. v. Brock, ed. 257. , ^. ^ ,„ 139 U. S. 216, 35 L. ed. 152, 11 Sup. oJt T^^-'d^'"'rf' i 9«?' Ct. Rep. 523. This ease is sustain- -\l:^'{- l^'l * ^"P ^*- ?,^P- f^^J ,« ,, J lu • • 1 c -n , 9First Isat. Bank v. TurnbuU, 16 able under the pimciples of ancillary ^^,^^j, ^1 L. ed. 296; DuVivier v. jurisdiction though the doctrine is Hopkins, 116 Mass. 125, 17 Am. Rep. not invoked by the court. ^^{. ^^^^,1 ^, Cincinnati, etc.. Con- 1 Jones v. Andrews. 10 Wall. 327, 19 struction Co. 9 Fed. 351, 10 Biss. 555; f- ed. 935. Poole ^ Thatcherdeft. 19 Fed. 49: 2Gibbs V. Usher, Holmes 348, Fed. Hospes v. Car Co. 22 Fed. 565; Ladd Cas. No. 5,387. v. West. 55 Fed. 353; Coeur D'Alene sGwin V. Breedlove, 2 How. 29, Ry. v. Spalding, 93 Fed. 280, 35 C. 11 L. ed. 167. C. A. 295. 38 i I Procedure] JURISDICTION OF ENTIRE CAUSE. § 4 is not a mere supplementary proceeding, sucli suit may be removed to the Federal court. lo So also a removable suit or controversy may arise in the progress of probate proceedings in a State court, n [k] Ancillary bills not original — substituted service. Mr. Justice Story termed a bill to enjoin enforcement of a judgment "dependent." 14 The cases for the most part are content to point out that while bills in ancillary proceedings would often be termed original under the ordinary rules of equity pleading, they are not properly such *'with reference to the line which divides the jurisdiction of the Federal courts from that of the State courts."i5 Substituted service of process in such proceedings is accordingly upheld, 1 6 though the court may order personal service as well. 1 7 Mere notice without subpoena has been sus- tained when preceeding by bill was really unnecessary.! 8 The substituted service should have the sanction of an order of court.is Service of sub- poena in bill of review upon the United States district attorney has been upheld as service upon the United States.20 £1] Ancillary cases appealable to circuit court of appeals. Since causes in which Federal jurisdiction is based on diverse citizen- ship are appealable to the circuit court of appeals, whose judgment is final, the appeal in ancillary proceedings growing out of diverse citizen- ship, follows the same course. i § 4. Federal courts power to decide non-Federal questions and entire controversy. When jurisdiction arises from the character of the parties, the questions involved are mainly, if not entirely, of a local or non- lOGaines v. Fuentes. 92 U. S. 10, 23 ers' L & T. Co. v. Houston, etc. R. R. L. ed. 524; Barrow v. Hunton, 99 U. 44 Fed. 115; Shainwald v. Davids, S. 80, 25 L. ed. 407; Cowley v. North- 69 Fed. 701, 703. ern Pac. R. R. 159 U. S. 579. 40 L. iTCortes Co. v. Thannhauser, 9 Fed. ed. 263, 16 Sup Ct. Rep. 130. See 220, 228, 20 Blatchf. 59. also under removal of causes, post, isMaitland v. Gibson, 79 Fed. 136. §134. isGregorv v. Pike. 79 Fed. 520, 2.5 iiSee ante, § 2. [w]. C. C. A. 48'; Pacific R. R. v. ilissouri KClarke v.^Mathewson, 12 Pet. 172, P. R. R. 3 Fed. 772, 1 McCrary, 647. 9 L. ed. 1044. zoBush v. United States, 13 Fed. isMilwaukee etc. R. R. v. Soutter, 627, 8 Sawv. 322; Rouse v. Letcher, 2 Wall. 609, 17 L. ed. 895. And see 156 U. S. 47, 39 L. ed. 341, 15 Sup. ( t. Krippendorf v. Hvde. 110 U. S. 276, Rep. 266, 28 L. ed. 146. 4 Slip. Ct. Rep. 27; Pa- iRouse v. Hornsby, 161 U. S. 5SS. cific R. R. v. Missouri etc. R. R. Ill 40 L. ed. 818, 16 Sup. Ct. Rep. 610, U. S. 505, 28 L. ed. 498, 4 Sup. Ct. Gregory v. Van Ee, 160 U. S. 043, 40 Rep. 583; Pope v. Louisville, etc. R. L. ed. 567, 16 Sup. Ct. Rep. 431; R. 173 U. S. 573, 43 L. ed. 814, 19 Carev v. Railwav Co. 161 U. S. 115. Sup. Ct. Rep. 501. 40 L. ed. 038, 10 Sup. Ct. Rep. 537; i6Dunn v. Clarke, 8 Pet. 1, 8 L. Pope v. Louisville etc. R. R. 173 U. ed. 845; Milwaukee etc. R. R. v. Sout- S. 573, 43 L. ed. 814, 19 Sup. Ct. Rep. ter, 2 Wall. 609, 17 L. ed. 895; Farm- 501. »ee post, § 77. 39 § 4 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. Federal nature, and the Federal courts have as complete a power to decide upon them as have the local courtsJ^^ It is a settled principle that Congress has power to provide a Federal tribunal for all cases involving a Federal question, even though other ques- tions of law and fact not in themselves of Federal cognizance are involved. '^''^ This being so it is obviously proper that jurisdic- tion should extend to the entire case. Hence, where jurisdiction of a Federal court has rightfully attached, either originally or by removal before trial, because a Federal right is involved, it ex- tends to the whole case and to all issues raised whether Federal or non-Federal, and the court has jsower to decide upon all ques- tions, i^*^^ But when a cause is tried in the State court, review in the Federal supreme court is confined to the validity of the Federal right alleged to have been impaired in the State tribunal. '^'^^ Author's Section. [a] Where jurisdiction rests on character of parties. Where Federal jurisdiction rests upon diverse citizenship the Federal court is an auxiliary State court and has the same power as the latter to decide the whole case and to examine and decide the validity of any ordinance or law under the State constitution as well as under the Federal Constitution.! Nor is the scope of the jurisdiction narrowed by the fact that a Federal question arises incidentally in the progress of the cause.2 [b] Jurisdiction not ousted by non-Federal questions. Where jurisdiction rests upon a Federal question it is not ousted by the existence of non-Federal questions. This principle was laid down in an early case and is obviously necessary as otherwise the mandate of the Constitution that jurisdiction should extend to "all" cases arising under Federal laws etc., would generally be defeated. 3 A case "arises under" the Federal Constitution and laws whenever its correct decision depends upon the right construction of either,* so that it matters not how many other questions be involved, provided a Federal question is one ingredient of the mass. 5 The intent was to give those claiming Federal rights a trial in a Federal court. ^ iFallbrook Irrig. Dist. v. Bradley, ed. 487, 4 Sup. Ct. Rep. 437; South- 164 U. S. 154, 41 L. ed. 369. 17 Sup. em Pac. R. R. v. California, 118 U. Ct. Rep. 61. S. 112, 30 L. ed. 104. 6 Sup. Ct. Rep. 2Jew Ho v. Williamson, 103 Fed. 993. 10. See note [c] infra. 5]\Iayor v. Cooper, 6 Wall. 252, sOsbom V. Bank of United States, 18 L. ed. 8.53; Railroad Co. v. Missis- 9 Wheat. 823, G L. ed. 204, 224. sippi, 102 U. S. 141. 2G L. ed. 98: ^Cohens v. Virginia. 6 Wheat. 379, Tennessee v. Davis. 100 U. S. 2G4, 25 5 L. ed. 285; Railroad Co. v. Missis- L. ed. 050. sippi, 102 U. S. 140. 20 L. ed. 98; eQeborn v. Bank of United States. Ames V. Kansas, 111 U. S. 449. 28 L. 9 Wheat. 823, 6 L. ed. 204. 224. 40 Piocedure] JURISDICTION OF ENTIRE CAUSE. § 4 [d] [c] Jurisdiction of entire cause. It is a general principle of law that a court having jurisdiction may decide every question which occurs in a cause. ^ The inconvenience of confining Federal courts to the examination of Federal questions in cases where the jurisdiction rests thereon, made the adoption of this principle in the administration of their jurisdiction, of obvious propriety.* To guard against an undue extension of Federal jurisdiction, however, the coui-ts have found it necessary to require that the Federal question upon which Federal jurisdiction is invoked shall appear plainly from plaintiff's statement of his case in the complaint. & Otherwise litigants could bring almost any cause into the Federal court upon plausible al- legations of a Federal question. In a recent case at circuit, the question of the validity of a State law under the State Constitution was avoided on grounds of proprietj^, where not really necessary to a decision.io There can be no doubt, however, of the power of Federal courts to determine the validity of State statutes under the State constitution, where the question is involved in the decision of a cause on trial before them. 11 "Where a controversy when commenced involves a substantial Fed- eral question, its elimination during the progress of the cause does not prevent the court deciding other issues under the State law and constitu- tion. 12 So where it appears that the amount in controversy really falls below tlie sum required for jurisdictional purposes, the jurisdiction Avhich rightfully attached imder an averment of sufficient value in dispute, is not ousted. 13 It has been intimated that in cases where Federal jurisdiction is invoked on the ground that a State ordinance or law violates the Federal Constitution, the Federal court may not examine its repugnancy to the State constitution. 1* This seems unsound. [dj Non-Federal questions not examinable on error to State court. In exercising its right of reviewing State court decisions, the Supreme court has recognized the propriety of confining its examination of the record to the correctness of the decision on the Federal question raised But this is not secured under the 4,828; Whelan v. New York, etc. R. law as it exists to-day, in cases where R. 3.5 Fed. 859. the defense rests on Federal grounds. sPost. § 129. ^Elliott V. Peirsol, 1 Pet. 340, 7 loPeoples Gas, etc. Co. v. Chicago, L. ed. 170; Grignon v. Astor, 2 How. 114 Fed. 384. 343, 11 L. ed. 283; Wilcox v. Jackson. uSatterlee v. Matthewson, 2 Pet. 13 Pet. 511, 10 L. ed. 264; In re Saw- 414. 7 L. ed. 458. yer, 124 U. S. 220, 31 L. ed. 402, 8 i2Miohigan R. R. Tax Cases, 138 Sup. Ct. Rep. 493. Fed. 223; Omaha Horse Rv. Co. v. sOsbom V. Bank of United States, Cable etc. Co. 32 Fed. 727;' Peoples 9 Wheat. 738, 823, 6 L. ed. 204; S. Bk. v. Layman, 134 Fed. 635. Mavor V. Cooper. 6 Wall. 247, 2.52, isCowlev v. Xorthern Pacific R. R. 18 L. ed. 851; Railroad Co. v. Mis- 159 U. S. 582, 40 L. ed. 263. 16 Sup. sissippi, 102 U. S. 135, 141, 20 L. ed. Ct. Rep. 127; Scott v. Donald, 165 U. OS; New Orleans N. W. & La. Sucjar S. 89, 41 L. ed. 632, 17 Sup. Ct. Rep. Co. 125 U. S. 32, 31 L. ed. 607, 8 Sup. 266; Stillwell. etc. Co. v. Williams- Ct. Rep. 741 : Nashville etc. R. R. ton Oil Co. 80 Fed. 70. V. Tavlor. 86 Fed. 177; Fisk v. Union i-i.Jew Ho v. Williamson. 103 Fed. Pac. R. R. 8 Blatchf. 248, Fed. Cas. 10. 41 i 5 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. and decided.15 The provision of the statute that review shall be by writ of errorifi confines the examination to questions of law. § 5. States may not impair or regulate Federal jurisdiction or procedure. Having delegated to the general government jurisdiction over certain subject matters and between certain parties, the States may not regulate or impair or forbid any part of that jurisdiction. This principle forbids any attempt by the States to confer juris- diction, or prescribe the modes of proceeding in Federal courts, or the remedies enforced ;f^^"'^'^^ or to restrict the right of removal where permitted by the Federal Constitution and laws;"^^' or to confer general rights enforceable only in the State courts and for- bidden to parties suing in the Federal courts. ^^^ Author's Section. [a] State regulation of Federal jurisdiction or modes of proceeding. The States have no power to confer jurisdiction on the Federal courts nor limit or impair the jurisdiction granted by Congress, 20 or prescribe ex- clusive modes of invoking it.i The forms and modes of proceeding in the Federal courts are not subject to State regulation.2 The modes of redress furnished by State law do not bind the Federal courts in controversies between citizens of different States and aliens. 3 While Congress has declared that the local procedure shall be followed in actions at law in Federal courts, 4 the State laws respecting process and procedure can have no effect proprio vigore, in the Federal courts. 5 The regulation of Federal practice, procedure and remedies is for Congress, and for the isPost, § 2084. iBarber etc. Co. v. Morris, 132 Fed. lepost, § 38. 945, 06 C. C. A. 55. 20United States v. Peters, 5 Cranch, ^Keary v. Farmers etc. Bk. 16 Pet. 138. 3 L. ed. 53; Pavne v. Hook, 7 ^^' ^0 L.' ed. 897; Beers v. Haughton, Wall. 425, 19 L. ed. "261; Greely v. ^ Pet. 359. 9 L. ed. 145; Clark v. Townsend', 25 Cal. 604 :' Steamboat Smith, 13 Pet. 203, 10 L. ed. 123; Orleans v. Phoebus, 11 Pet. 184, 9 L. Camp1)ell v. Boyreau, 2i How. 227, 16 ed. 677; Union Bk. v. Jollv, 18 How. L. ed. 96; Kelsey v. Forsyth, 21 How. 503, 15L. ed. 472; Toland v. Sprague, §8, 16 L. eel. .32. 12 Pet. 330, 9 L. ed. 1093; Hyde v. '^nion Bank v. Vaiden, 18 How. Stone, 20 How. 175, 15 L. ed. 875; f^^' \^« V .in f.f "1 J' t "'V Cowles V. Mercer Co. 7 Wall. 122, 19 ^l^:' A , %. '90 i' ,-- '1. T J or> T. TT 1 - 1117 11 (or. 509; Hyde v. Stone. 20 How. l/o, 15 i1;t'^- .'o^n-T'^-^" 'o' ^'^^O' L. ed. 874; Pavne v. Hook, 7 Wall. 19 L. ed. 260; Insurance Co. v. Morse. 430^ jg l. ed. 260; Chicot Co. v. Shev- 20 Wall. 453, 22 L. ed. 365; Southern ...Q^d, 148 U. S. 5.34, 37 L. ed. 546. Pac. Co. V. Denton. 146 U. S. 209. 36 13 gi,' (^'t j^pp ,595 L. ed. 943, 13 Sup. Ct. Rep. 44; Lead- 4Post, § 900 ville Coal Co. v. McCreery, 141 U. S. sOgden'v. Saunders, 12 Wheat. 367, 477, 35 L. ed. 824, 12 Sup. Ct. Pvop. 6 L. ed. 600; Duncan v. Darst. 1 How. 28; Bigelow v. Nickerson, 70 Fed. 120, 305, 11 L. ed. 139; The Mayor v. Lord, 17 CCA. 1, 30 L.R.A. 336. 9 Wall. 413, 19 L. ed. 707. 42 Procedure] STATES MAY NOT IMPAIR OR REGULATE. | 5 [b] Federal courts, under its control.* Neither the fundamental, nor the statutory State law can forbid the practice prevailing in the Federal courts of charging juries as to matters of fact; 7 nor is the State practice as to mandamus proceedings effective in the Federal court unless regular- ly adopted. s The States may not control or discriminate against Fed- eral judgments as respects the period within which suit may be main- tained thereon; and while they may limit suit on judgments to a cer- tain time, the judgments of Federal courts within the State must be as favorably treated as domestic State judgments. 9 The provision of State law tluit no lis pendens sliall bind a purchaser unless recorded in a specified waj' is not operative on the Federal courts.io [b] In equity cases. In equity causes the jurisdiction and procedure of Federal courts are uniform througliout the United States and not subject to restraint or regu- lation by the States. 12 The fact that the State has abolished the distinc- tion between law and equity can make no difference in the Federal court there sitting.i" That the State has provided a remedy at law cannot oust Federal equity jurisdiction if the cause is within recognized grounds of Federal equity cognizance ;14 nor can the fact that the State permits recourse to equity, justify proceeding upon the equity side of the Fed- eral court if by its practice the proceeding is regarded as properly at law. 15 The practice of the Federal courts as to deficiency decree on fore- closure is not subject to State control,i6 nor the allowance of costs and attorney's fees to a trustee therein.i'? The Federal courts preserve the «Noonan v. Lee, 2 Black, .509, 17 L. S. 200, 37 L. ed. 1052; 14 Sup. Ct. Rep. ed. 278; St. Louis etc. Rv. v. Vickers, 75; United States v. Wilson. 118 U. 122 U. S. 3G3, 30 L. ed.'llGl; Dodge S. 90, 30 L. ed. 110, 6 Sup. Ct. Rep. V. Tallevs, 144 U. S. 4.57, 36 L. ed. 991; Scott v. Neelv, 140 U. S. 110, 501. 12 Sup. Ct. Rep. 728. Ill, 35 L. ed. 358. 11 Sup. Ct. Rep. 7St. Louis etc. Ry. v. Vickers, 122 712; Cates v. Allen, 149 U. S. 456, U. S. 363, 30 L. ed! 1161, 7 Sup. Ct. 459, 37 L. ed. 804, 13 Sup. Ct. Rep. Rep. 1216. 883, 977; Rollins v. Brierfield Coal Co. sThe Mayor v. Lord, 9 Wall. 413, 19 150 U. S. 379, 37 L. ed. 1113, 14 Sup. L. ed. 704. Ct. Rep. 127. nietcalf v. Watertown, 153 U. S. i4Smvth v. Ames. 169 U. S. 516, 679, 38 L. ed. 861, 14 Sup. Ct. Rep. 42 L. ed. 819, 18 Sup. Ct. Rep. 418; 951. Ray v. Tatum, 72 Fed. 114, 18 C. C. loKing V. Davis. 137 Fed. 223. A. *464; Barrett v. Twin City Co. 118 i2United States v. Rowland, 4 Fed. 861; Mississippi Mills Co. v. Wheat. 115, 4 L. ed. 526; Kirbv v. Cohn, 150 U. S. 207, 37 L. ed. 1052, Lake Shore etc. R. R. 120 U. S.'l37, 14 Sup. Ct. Rep. 75. 138, 30 L. ed. 569, 7 Sup. Ct. Rep. 430; 1 5 Whitehead v. Shattuck, 138 U. S. Dodge V. Woolsey, 18 How. 347, 15 151. 34 L. ed. 873, 11 Sup. Ct. Rep. L. ed. 401; Creen v. Creighton, 23 276; Scott v. Neely, 140 U. S. 110, How. 105, 16 L. ed. 419; MoConihay 111, 35 L. ed. 358, 11 Sup. Ct. Rep. V. Wright, 121 U. S. 206, 30 L. ed. 712. 932, 7 Sup. Ct. Rep. 940; Ridings v. le^oonan v. Lee, 2 Black, 507. 17 Johnson, 128 U. S. 217, 32 L. ed. L. ed. 278. 401, 9 Sup. Ct. Rep. 72. it Dodge v. Tallevs, 144 U. S. 457, isMississippi Mills v. Cohn, 150 U. 36 L. ed. 501, 12 Sup. Ct. Rep. 728. 43 5 5 [c] FEDERAL JURISDICTION IN GENERAL. [Code Fed. distinction between common law and equity as recognized and defined in England at the time of the revolution. is But when the creation of a new equitable remedial proceeding by a State, establishes a new equitable right or an enlargement of existing equitable rights, this may be ad- ministered and enforced by the Federal coiirt sitting in equity. is TIun is so because in all controversies where jurisdiction depends wholly upon diverse citizenship the substantive rights administered are created or exist under the State law. It is only the mode of enforcement that is beyond the control of the local law. LcJ In admiralty. State courts cannot enlarge or limit the admiralty jurisdiction of the Federal courts.i They cannot confer on their own courts the cognizance of admiralty causes. 2 But the States may create a right essentially of a maritime nature, such as a .lien for repairs in the home port, and this will be enforced in the Federal court in admiralty 3 just as new equitable rights will be enforced by the Federal court in equity. So an action for death by marine tort given by a State statute is enforceable in ad- miralty.* [dj In criminal cases. The jurisdiction, modes of procedure, and the law administered, in criminal trials in the Federal courts are altogether independent of State control. 5 The State law forbidding comments by the judge on the facts in his charge to the jury, 6 or prescribing the modes of challenge, or of isMcCollum V. Eager, 2 How. 64, Orleans v. Phoebus, 11 Pet. 184. 9 L. 11 L. ed. 179; In re Sawyer, 124 U. S. ed. 677; Smith v. Marvland, 18 How. 209, 31 L. ed. 402, 8 Sup. Ct. Rep. 482. 76. 15 L. ed. 209. Scott V. Neely, 140 U. S. Ill, 35 L. 2Tavlor v. Carrvl. 20 How. 598. ed. 358; 11 Sup. Ct. Rep. 712; White 605, 15 L. ed. 1028; The Moses Taylor, v. Berry, 171 U. S. 376, 43 L. ed. 4 Wall. 427, 18 L. ed. 397; The Hine 199, 18 Sup. a. Rep. 917; Thompson y Trevor, 4 Wall. 570, 571, 18 L. ed. V Railroad Go's 6 Wall 137, 18 L.ed. 451. ^j^g Lottawanna, 21 Wall. 580, ^65; New Orleans v Louisiana etc. 22 L. ed. 654; In re Steamboat Jo- Co. 129 L_. S. 4b 32 L. ed 60., 9 ^^^. 39 ^ ^ Contra see Sup. Ct. Ren. 223: National Surety ,-r/ tt i o n m i --.^ Co.%. State Bank 120 Fed. 593, 56 Warner v. Uncle Sam, 9 Cal /26. C C A 657 ^The Lottawanna, 21 Wall. 580, 22 'isClarke 'v. Smith, 13 Pet. 195, 10 ^- ^^- *^54. S«e post, § 11, note [b]. L. ed. 123; Broderick's Will, 21 Wall. ^I" re Long, etc. Co. 5 Fed. 608; 520, 22 L. ed. 606; Holland V. Challen, The City of Norwalk. 55 Fed. 105: 110 U. S. 24, 28 L. ed. 55, 3 Sup. Ct. The Transferer No. 4. 61 Fed. 308. Rep. 495; Dick v. Foraker, 155 U. S. 9 C- C. A. 521; The Williamette, 70 415, 39 L. ed. 205, 15 Sup. Ct. Rep. Fed. 878, 18 C. C. A. 366, 31 L.R.A. 124; Rich v. Braxton, 158 IT. S. 405, 715. 39 L. ed. 1032, 15 Sup. Ct. Rep. 1017; ^See post §§ 15, 1537 et seq, 1571 Bardon v. Land, etc. Co. 157 U. S. 330, 39 L. ed. 720, 15 Sup. Ct. Rep. 650. See post, § 10 note [aa]. et seq. sStarr v. United States, 153 U. S. 625, 38 L. ed. 841, 14 Sup. Ct. Rep. iThe St. Lawrence, 1 Black, 526, 919; Allis v. United States, 155 U 527, 17 L. ed. 180; The S. E. Rumbell, S. 124, 39 L. ed. 91, 15 Sup. Ct. Rep. 148 U. S. 12, 37 L. ed. 345; Steamboat ,36; Simmons v. United States, 142 U. 44 Procedure! STATES MAY NOT IMPAIR OR REGULATE S 5 [f] excepting to instructions," or of impaneling grand juries,? have no ap- plicability to Federal criminal trials. [e] Attempts to restrict right of removal. In the leading case on this question the State of Wisconsin required foreign insurance companies seeking to do State business, to agree not to remove causes for trial to the Federal court. This agreement was held not binding upon the companies, although the State's power to im- pose conditions upon foreign corporations seeking to do domestic busi- ness was admitted.9 The rule thus established has since been adhered to; 10 although its effect is practically nullified by a recent case hold- ing that under the power to impose conditions on foreign corporations a State may validly provide for forfeiture of a right to do domestic busi- ness in case such corporations exercise the right of removal. n In other words while a State may not exact such a stipulation it may enforce such a penalty. It may be questioned whether this decision will prove a final adjudication of the matter. Power to protect the jurisdiction delegated by the States to the Federal government must necessarily exist in some form and in some department; in Congress if not in the courts. [f J Attempts to limit the enforcement of rights to State courts. When a general right of action is conferred by State law it cannot be withdrawn from Federal cognizance by enacting that it shall only be enforced in a State court. Thus, where a I'ight of action for death is given by State statute, it can be enforced by any Federal court within the State having jurisdiction by diverse citizenship or other wise. 12 So a law requiring counties to be sued in the county courts, cannot oust Federal jurisdiction. is But a law permitting suit against the State may provide that the suitor must resort to the State court since such a suit is not within the Federal jurisdiction and would only be there cognizable upon the consent of the State.i* The fact that the State law provides for the bringing of will contests or the distribution of a decedent's S. 148, 35 L. ed. 969, 12 Sup. Ct. Rep. uSecuritv etc. Ins. Co. v. Prewitt, 171. 202 U. S. 246. 50 L. ed. 1013, 26 Sup. 7St. Clair v. United States, 154 U. Ct. Rep. 619. See also United, etc. S. 134, 38 L. ed. 936, 14 Sup. Ct. Rep. Ins. Co. v. Cable, 98 Fed. 767. 39 C. 1002, 1010. C. A. 264. There is a provision en- sUnited States v. Ambrose, 3 Fed. forcing such a penaltv in California. 285. See Pol. Code, § 595." ^Insurance Co. v. Morse, 20 Wall. i2Chicaffo. etc. R. R. v. Whitton, 13 445, 22 L. ed. 365. \vall. 270, 286. 20 L. ed. 571; Bigelow lODovle V. Insurance Co. 94 U. S. v. Xickerson, 70 Fed. 120, 17 C. C. A. 538, 24 L. ed. 148; Barron v. Burn- 1, 30 L. R. A. 336. side 121 U. S. 200. 30 L. ed. 915, 7 isLincoln Co. v. Liming, 133 U. S. Sup. Ct. Rep. 931 ; Southern Pac. Co. 530, 33 L. ed. 766, 10 Sup. Ct. Rep. V. Denton. 146 U. S. 207. .36 L. ed. 943, 363; Cunningham v. Ralls Co. 1 Fed. 13 Sup. Ct. Rep. 44; Ooldey v. Morn- 455, 1 McCrarv. 117; Hoover v. Craw- ini News, 156 U. S. 523. 39 L. ed. fora Co. 39 Fed. 9. 519, 15 Sup. Ct. Rep. 559; Ashe v. i^Smith v. Reeves, 178 U. S. 445, Union, etc. Ins. Co. 115 Fed. 234. Si'e 44 L. ed. 1145, 20 Sup. Ct. Rep. 922. Allen V. Texas, etc. R. R. 25 Fed. 515. 45 S 5 [f] FEDERAL JURISDICTION IN GENERAL. [Code Fed. estate, in the State probate court does not prevent the Federal court taking jurisdiction if diverse citizenship exists and the proceeding has resolved itself into a suit at law or in equity.is A state law providing for creditors bill in the State chancery court may be invoked by a creditor citizen of another State suing in the Federal court. 16 A State law regulating the venue of actions cannot affect the rules as to place of action, enacted by Congress for the Federal courts. 1 7 A State law limiting remedies of its citizens to its own courts cannot prevent citizens of other States from suing in the Federal courts. is Hence a railroad con- demnation suit may be removed to the Federal court though the State law makes them cognizable only in the probate court. is The provision of a State statute that foreclosure of mortgage given by a guardian shall be in the county court cannot defeat Federal jurisdiction.20 State law authorizing proceeding in rem in its own courts for enforcement of a lien that is really maritime in nature, is void and resort must be had to the Federal court in admiralty. 1 Requirement of a State law that a previous order of court is a necessary preliminary to suit on a judgment, cannot require such an order of a State court before suit in the Federal court.2 A litigant loses nothing by appealing to the Federal rather that the State court. 3 It is a general rule that whenever a citizen of a state can go into its courts to defend his property against illegal acts of State officers,* and to secure a decision of his controversy with another citizen of the same State; 5 a citizen of another State has a similar right to resort to the Federal tribunal. Hence if a State provide that the remedy for an illegal schedule of railroad rates is by proceeding at law in the State supreme court, this cannot deprive a citizen of another State of his right to proceed in the Federal court and to apply for equitable relief where the isPavne v. Hook. 7 Wall. 425, 19 L. ed. 262; Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524; Hayes v. Pratt, 147 U. S. 570, 37 L. ed. 279, 13 Sup. Ct. Rep. 503; Ellis v. Davis. 109 U. S. 498, 27 L. ed. lOOG. 3 Sup. Ct. Rep. 327; Lawrence v. Nelson, 143 U. S. 223, 36 L. ed. 130, 12 Sup. Ct. Rep. 440; Clark v. Bever, 139 U. S. 102, 103, 35 L. ed. 88; 11 Sup. Ct. Rep. 468; Richardson v. Green, 61 Fed. 423. 9 C. C. A. 565; Williams v. Crab, 117 Fed. 197, 54 C. C. A. 213, 59 L.R.A. 425 and cases cited. As to Federal probate jurisdiction. See § 2, note, [w] leDarragh v. Wetter Mfg. Co. 78 Fed. 7, 23 C. C. A. 609. 1 TiEast etc. R. R. v. Atlanta etc. R. R. 49 Fed. 612, 15 L.R.A. 111. i^Union Bank v. Vaiden. 18 How. 507; 15 L. ed. 472; Bigelow v. Nicker- son, 70 Fed. 121, 30 L.R.A. 341, 17 C. C. A. 1. isMineral etc. R. R. v. Detroit etc. Co. 25 Fed. 520. 2 0United States Mortgage Co. v. Snerry, 138 U. S. 332, 34 L. ed. 969, 11 Sup. Ct. Rep. 321; Davis v. James, 2 Fed. 620, 10 Biss. 51. iThe Lottawanna, 21 Wall. 580, 22 L. ed. 654. 2 Union T. Co. v. Rochester etc. R. R. 29 Fed. 610. 3Ex parte McNeil, 13 Wall. 236, 20 L. ed. 624; Davis v. Way, 16 Wall. 221, 21 L. ed. 452; Smith v. Reeves, 178 U. S. 445, 44 L. ed. 1145. 20 Sup. Ct. Rep. 922. 4 Reagan v. Farmers L & T. Co. 154 U. S. 391, 38 L. ed. 1022, 14 Sup. Ct. Rep. 1052. sSchiirmeier v. Conn. M. L. Ins. Co. 137 Fed. 46, 69 C. C. A. 22, and cases cited. 46 Procedure] INHERENT LIMITATIONS § 6 [bj facts entitle him thereto under the established principles of equity juris- prudence in the Federal courts. 6 § 6. Inherent limitations on Federal judicial power. Certain limitations upon the exercise of judicial power arise from the fact that the Constitution distributes the powers entrusted to it, among the three great departments of government, legis- lative, judicial and executive. The first makes, the second con- . strues and the third executes the law. The three are co-ordinate equal and independent. It has been deemed vital that no one of these departments be permitted to encroach upon the powers of the others. Hence the courts may not be required, nor have they a right to exercise non-judicial powers, '^^^''^"^ and the executive and legislative departments may not be required, nor have they a right to exercise any part of the judicial power confided to the courts. ^'^^ Author's Section. [a] Conferring non-judicial powers on courts. The courts cannot be required by the other departments to discharge non- judicial functions, such as passing ujion pension claims,io or re- viewing a decision of the court of claims which is merely advisory to the interior department.! i [b] Assumption of non-judicial powers. Nor can courts make the law, but must expound it as they find it.i* They must give effect to the will of the legislature, not of the judge.i* The motive for the passage of a law is not a proper subject of inquiry; i5 nor is the expediency or wisdom of legislation.! 6 They may review but it has been said, cannot restrain acts of other departments.! 7 As re- spects the executive they may not interfere with the discharge of ordinary duties,! 8 or with executive discretion,! 9 or executive action with- eSmyth v. Ames, 169 U. S. 516, 42 v. Des Moines etc. Ry. 142 U. S. 544, L. ed. 838, 18 Sup. Ct. Rep. 422. 35 L. ed. 1099, 12 Sup. a. Rep. 308. lOHayburns Case, 2 Dall. 409, 1 L. is Wilkes v. Dinsman, 7 How. 127, ed. 436. 12 L. ed. 618; Brass v. North Dakota, iiln re Sanborn, 148 U. S. 224. 37 153 U. S. 404, 38 L. ed. 757, 14 Sup. L. ed. 429, 13 Sup. Ct. Rep. 577. Ct. Rep. 857; Li Sing v. United States, isGelston v. Hoyt, 3 Wlieat. 309, 180 U. S. 495, 45 L. ed. 638, 21 Sup. 4 L. ed. 381; Luther v. Borden, 7 Ct. Rep. 449; Dred Scott v. Sandford, How. 45, 12 L. ed. 581. 19 How. 405, 15 L. ed. 691. KOsborne v. LTnited States Bank, !7Mississippi v. Johnson, 4 Wall. 9 Wheat. 866, 6 L. ed. 204. 500, 18 L. ed. 437. ispletcher v. Peck. 6 Cranch, 131, !8Bartlett r. Kane, 16 How. 272, 3 L. ed. 162; Ex parte McCardle, 7 14 L. ed. 931. Wall. 514, 19 L. ed. 264; Soon riin2 v. !9Board of Liquidation v. McComb, (Irowloy. 113 U. S. 710, 28 L. ed. 1145, 92 l\ S. 541, 23 L. ed. 623. 6 Sup. Ct. Rep. 7.30. United States 47 § G [c] FEDERAL JURISDICTION IN GENERAL. [Code Fed. in the scope of duties prescribed by law.20 The question when mandauuis or injunction will lie against executive oiTicers is discussed on a subse- quent page.i [c] Power to entertain political questions. Similarly it is settled that the courts will not take cognizance of polit- ical questions; 2 but as to them will follow the decision of the political department. 3 Thus, the question as to the adoption of a constitution, or amendment or existence of a treaty is political ;< so also in the recog- nition of foreign States; 5 and of disputed boundary between two sovereign States, 6 though not between States of the Union. ^ [d] — assumption of judicial powers by Congress or the executive. It is equally inadmissible for Congress or the executive departments to assume the exercise of judicial power; 10 though the Federal Constitution does not prohibit an exercise of judicial functions by the State legisla- tures.! 1 The construction of statutes is not a legislative power,i2 nor can the legislature impose upon the courts its construction of a prior law.i3 Similarly the question whether a statute is repealed by a later law is judicial not legislative.! * A direction by Congress that the Fed- eral courts dismiss certain claims adjudicated against the government, thus denying their previous legal effect, is void as an assumption of ju- 20Craig v. Leitensdorfer, 123 U. S. L. ed. 608; Gelston v. Hoyt, 3 Wheat, 211, 31 L. ed. 114; 8 Sup. Ct. Rep. 324, 4 L. ed. 381; United States v. 85; Quackenbush v. United States, Yorba, 1 Wall. 423, 17 L. ed. 635. 177 U. S. 25, 44 L. ed. 656, 20 Sup. 6De La Croix v. Chamberlain, 12 Ct. Rep. 530; Keim v. United States, Wheat. 600, 6 L. ed. 741; Garcia v. 177 U. S. 292, 44 L. ed. 775, 20 Sup. Lee, 12 Pet. 516, 9 L. ed. 1176; United Ct. Rep. 574. States v. Reynes, 9 How. 154, 13 L. !See post, § 841. ed. 74. 2Marbury v. Madison, 1 Cranch, ''Rhode Island v. Massachusetts, 169, 170, 2 L. ed. 60; Cherokee Nation 12 Pet. 725, 9 L. ed. 1233; United V. Georgia, 5 Pet. 20, 8 L. ed. 25; States v. Texas, 143 U. S. 621, 36 L. Georgia v. Stanton, 6 Wall. 71-76, ed. 285, 12 Sup. Ct. Rep. 488. 18 L. ed. 721; United States v. Blaine, lOGordon v. United States, 117 U. 139 U. S. 326, 35 L. ed. 183, 11 Sup. S. 697, ^Appx.) ; Kilbourn v. Thomp- Ct. Rep. 607; In re Cooper, 143 U. S. son, 103 U. S. 192, 193, 26 L. ed. 377; 503, 36 L. ed. 232, 12 Sup. Ot. Rep. Interstate Commerce Com. v. Brim- 453. son, 154 U. S. 485, 38 L. ed. 1047, sFoster v. Xeilson, 2 Pet. 307, 7 14 Sup. Ct. Rep. 1125. L. ed. 415; United States v. Lee, 106 nOalder v. Bull, 3 Dall. 392, 395, U. S. 209, 27 L. ed. 171, 1 Sup. Ct. 398, 1 L. ed. 648; Satterlee v. Mat- Rep. 240; White v. Hart, 13 Wall, thewson, 2 Pet. 413, 7 L. ed. 458. 649, 20 L. od. 685, More v. Steinbach, isOgden v. Blackledge, 2 Cranch, 127 U. S. 80, 32 L. ed. 51. 8 Sup. Ct. 277, 2 L. ed. 276; Postmaster General Rep. 1067; In re Baiz, 135 U. S. 432, v. Early, 12 Wheat. 148, 6 L. ed. 577. 34 L. ed. ^22, 10 Sup. Ct. Rep. 854. i3Wneaton v. Peters, 8 Pet. 634, 8 4Luther v. Borden, 7 How. 39, 42, L. ed. 1055. 47, 12 L. ed. 581; Terlinden v. Ames, i^United States v. Claflin, 97 U. S. 184 U. S. 2S8, 46 L. ed. 534. 22 Sup. 549, 24 L. ed. 1082; District of Col- Ct. Rep. 484. umbia v. Hutton, 143 U. S. 27, 28, 36 sRose V. Ilinelv, 4 Cranch. 272, 2 L. ed. 60, 12 Sup. Ct. Rep. 369. 48 Procedure] SUITS AGAINST A STATE PROHIBITED. { 7 [a] dicial power. 15 The essential difl'erence between judicial and legislative power is that the former declares what the law is while the latter pre- scribes what the law is to be.iG The legislature prescribes general rules for the government of society, but the application of those rules belongs elsewhere.i"^ The presumption is that the legislature does not intend to assume judicial functions. i* Cases ai'e few in which executive action has been challenged as a usurpation of judicial power. The question whether public lands have been disposed of is judicial rather than executive. 19 But the executive possesses many important powers re- specting the reservation and disposal of public lands; 20 and the making and correction of surveys. 1 The issue of a distress warrant from the treasury to satisfy a claim against a tax collector for balance due, has been held an executive and not a judicial act. 2 Nor is the president's approval of the sum found by a commission to be a fair price for land taken, a judicial act.s § 7. Suits against a State prohibited. The judicial power of the United States shall not be construed^^^ to extend to any suit in law or equity"^^^ commenced or prose- cuted against one of the United States by citizens of another State,^''^ or by citizens or subjects of any foreign State. '^'^^"^'^ Xlth Amendment, U. S. Constitution. [a] Origin and retroactive operation of this amendment. The amendment was held to extend to cases pending at the time of its ratification and further prosecution thereof ceased. i" Its adoption re- sulted directly from the decision of the Supreme Court in Chisholm v. Georgian declaring the States suable in the Supreme Court at the in- stance of citizens of other States. In effect it denied the soundness of that decision by declaring that the Constitution should not be construed as containing any waiver by the States of their sovereign immunity from suit. It has its full effect if the Constitution be construed as it would have been had the jurisdiction of the court never been extended to th'j isUnited States v. Klein, 13 Wall. 18 L. ed. 863; Wisconsin etc. R. R. 144-147, 20 L. ed. 519. v. Forsythe, 159 U. S. 55. 40 L. ed. 71. isCalder v. Bull, 3 Uall, 386, 1 L. iKnight v. United States Land ed. 64S. Assn. 142 U. S. 176. 35 L. ed. 974. i7Fletcher v. Peck, 6 Cranch, 136, 2Den v. Hohokon Land etc. Co. 18 3 L. ed. Ib2. How. 280, 15 L. ed. 372. 18 Angle V. Chicago, etc. Ry. 151 sShoemaker v. Unitetl States, 147 U. S. 20, 38 L. ed. 55, 14 Sup. Ct. U. S. 301, .37 L. ed. 170. Rep. 240. lOOsborn v. Bank of c nited States, laHardin v. Jordan, 140 U. S. 401, 9 Wheat. 858, 6 L. ed. 233. 35 L. ed. 428. iiQeorgia v. Brailsford, 2 Dall. 419, 2 0Grisar v. McDowell, 6 Wall. 381. 1 L. ed. 440. Fed. Proc.— 4. 49 § 7 [b] FEDERAL JURISDICTION IN GENERAL. [Code Fed. suits therein restrained. 12 The amendment saved the States the embar- rassment of legal proceedings by their creditors for the collection of debts incurred during and after the war for independence. Lb] Suit in law or equity. Whether an exception of admiralty proceedings was intended or ef- fected, has not been decided although argued in an early case.is [c] By citizens of another State or aliens. The fact that citizens of the State sought to be sued and corporations created by Congress, are not included, does not mean that they might sue in the Federal court where the cause is itself of Federal cognizanct because arising under the Federal constitution and laws.i* The true principle of construction is that the sovereign non-suability of a State is not to be deemed waived in the grant of Federal judicial power ex- cept in the cases specifically mentioned.i5 [d] What constitutes a suit against a State. Early cases held that the amendment was satisfied by denying juris- diction over cases where a State was party defendant of record.is But this rule has long since been discarded as an inadequate and unreliable test. The real nature of the proceeding controls. 1 7 The Constitution contains many prohibitions upon State action and limitations upon State power which the Supreme Court is bound to enforce for the protection of individual rights. In interpreting the eleventh amendment therefore, the court has striven to give it reasonable effect without rendering nug- atory the various salutary restrictions upon State action infringing in- dividual rights. The distinction running through all the cases is be- tween preventive and affirmative relief; between those cases in which State action is sought to be restrained by proceedings against State offi- cers, and those in which some affirmative though legal and proper act of the State is sought to be compelled. 1 8 Tlie amendment does not shield State officers in the performance of unlawful acts though prescribed by State law; but it protects the State against compulsion in the performance of its sovereign functions, against the enforcement of a liability ex i20sborn v. Bank of United States, i^In re Ayers, 123 U. S. 443, 31 L. 9 Wheat. 858, 6 L. ed. 233. ed. 216. 8 Sup. Ct. Rep. 164, 173; iSGovernor of Georgia v. Madrago, Poindexter v. Greenhorn, 114 U. S. 1 Pet. 116, 124, 7 L. ed. 76, 80. 270, 287, 29 L. ed. 185, 5 Sup. Ct. i4Hans V. Louisiana. 134 U. S. 14, Rep. 903. 16-21, 33 L. ed. 845. 10 Sup. Ct. isCunningham v. Macon & B. R. R. Rep. 5O7--509; Smith v. Reeves, 178 Co. 109 U- S. 453, 454, 27 L. ed. 995, 3 U. S. 436, 44 L. ed. 1142, 20 Sup. Ct. Sup. Ct. Rep. 298; Hagood v. South- Rep. 923. em. 117 U. S. 52, 70, 29 L. ed. 805, i5See ante, § 2 [o]. 6 Sup. Ct. Rep. 616; Hans v. Louis- leOsborn v. Bank of United States, iana. 134 U. S. 20, 21. 33 L. ed. 842, 9 Wheat. 738, 6 L. ed. 204 ; Chaff raix 10 Sup. Ct. Rep. 504; Pennoyer v. v. Board of Liquidation, 11 Fed. 638; McConnaughv. 140 U. S. 1, 35 L. ed. Davis V. Gray. 16 Wall. 220 21 L. 363, 11 Sup. Ct. Rep. 703, 704. ed. 447. 50 Procedure] SUITS AGAINST A STATE PROHIBITED. § 7 [e] contractu or ex delicto, against direct proceedings for the recovery of property held by the State through its officer. The cases in which by mandamus or other writ State officers have been compelled to perform certain acts at the suit of individuals injured, are no exception to this rule, since the foundation of the relief is the wrong of the officers in dis- obeying or maladministering the State law and not a wrong committed by the State. Neither are the cases in which detinue, trespass and eject- ment have been maintained against State officers holding real or personal property under claim of right or title in the State, although the title of the State is indirectly litigated in such proceedings, since the theory on which such cases proceed is that of a tort by the defendant official. 19 If then, by way of illustration, a State, having agreed that the coupons on its bonds shall be valid tender for State taxes, thereafter prohibits its officers from accepting such coupons in payment, the State cannot be sued directly for breach of contract, nor indirectly by proceeding to compel its officers to accept the coupons in payment contrary to the mandate of the statute, but injunction will lie to restrain sale of the land for non- payment of taxes after coupons have been tenderetl, and tort proceedings may be maintained against the offending officers after seizure for non- payment, and they cannot plead the invalid statute in defense. 20 [e] Proceedings to enforce liability or compel affirmative action. A suit will not lie to compel a State to pay its bonds;! nor to realize upon security given therefor. 2 The proceeding is equally prohibited where the State is not made party but suit is against its treasurer, 3 or second mortgage bondholders proceed against the governor of a State which has foreclosed a first mortgage, < or creditors sue the State auditor. » Suit to enforce payment of the State bonds may not be maintained by an- other State to which the holders have assigned same in order to evade the eleventh amendment. 6 JIandamus will not lie to compel State tax col- lectors to accept State coupons in payment of taxes, where a State has repudiated its agreement that they may be so received, and forbidden I9lt must be confessed, however, Hagood v. Southern, 117 IT. S. 52, 29 that thev are close to the border L. ed. 805, 6 Sup. Ct. Rep. 608; Smith line. See' ante. § 2. [niT v. RadcliflFe, 87 Fed. 064, 31 C. C. A. 20Marye v. Parsons, 114 U. S. 329, 328; McGahev v. Virginia, 135 U. S. 29 L. ed. 205, 5 Sup. Ct. Rep. 932, 6S4, 34 L. ed. 304, 10 Sup. Ct. Rep. 962; Poindexter v. Greenhorn. 114 U. 972; Smith v. Reeves, 178 U. S. 445, S. 270. 3.-50. 29 L. ed. ISo. 5 Sup. Ct. 44 L. ed. 1146, 20 Sup. Ct. Rep. 920. Rep. 903, 962; McGahev v. Virginia, ^Cimningham v. Macon, etc. R. R. 135 U. S. 662, 684, 34 L. ed. 304, 10 109 U. S. 451, 27 L. ed. 992, 3 Sup. Ct. Sup. Ct. Rep. 972. Rep. 292. IBank of Washington v. Arkansas, SLousiana v. Steele, 134 U. S. 232 20 How. 532, 15 L. ed. 993; Ex parte 33 L. ed. 891, 10 Sup. Ct. Rep. 511; Ayers, 123 U. S. 443. 31 L. ed. 216, North Carolina v. Temple, 134 U. S. 8 Sup. Ct. Rep. 181. S. 22, 33 L. ed. 849, 10 Sup. Ct. Rep. 2Christian v. Atlantic etc. R. R. 509. 133 U S. 243, 33 L. ed. 589, 10 Sup. 6New Hampshire v. Louisiana. 108 Ct. Rep. 260. U. S. 76, 27 L. ed. 656, 2 Sup. Ct. Rep. 3Louisiana v. Juniel, 107 U. S. 723, 176. 27 L. ed. 443. 2 Sup. Ct. Rep. 128; 51 § 7 [£] FEDERAL JURISDICTION IN GENERAL [Code Fed. its collectors from accepting them.' Nor can a State funding board be compelled to issue bonds in lieu of certain destroyed obligations, where no State law so directs. s Specific performance of a State contract can- not be decreed in a suit against its treasurer and other officers.9 And if injunction, sought against State officers, would indirectly compel specific performance by preventing all acts which constitute the breach, it has been held that this is equally forbidden.io A suit against a State treasurer, Attorney General and other officers to restrain them from pay- ing over an agricultural college fund to defendant and to compel them to pay same to plaintiff has been held to be for affirmative relief against the State and not maintainable; n so also is a suit against a State au- ditor to compel tax levy to pay bonds; 12 and a suit to compel State offi- cers to issue a certificate to a foreign corporation to do business, with- out paying the tax made by State law a condition precedent.13 [f j Suits for injunction against State officers. The leading case on this branch of the subject enjoined a State auditor from executing a State law imposing an arbitrary tax upon the bank of the United States in violation of its charter rights under the Fed- eral constitution.! 5 Perhaps the most frequent instances of the exercise of this jurisdiction have been suits to enjoin State boards from putting into effect a schedule of railroad rates, or gas, telegraph, or stockyard rates alleged to be invalid as working a deprivation of property without due process of law,i6 or as violating the Federal commerce laws. it The. governor and land commissioner of a State have been enjoined from sell- ing lands previously donated to a railroad. is A State board of liquidation TiMcGahey v. Virginia, 135 U. S. U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. 684, 34 L. ed. 304, 10 Sup. Ct. Rep. Rep. 722. 972. isProut v. Starr. 188 U. S. 537, 47 sFarmers Nat. Bank v. Jones, 105 L. ed. 585, 23 Sup. Ct. Rep. 398; Hav- Fed. 463. erill Gaslight Co. v. Barker, 109 Fed. 9Hagood V. Southern, 117 U. S. 52, 094; Starr v. Chicatro etc. R. R. 110 29 L. ed. 805, 6 Sup. Ct. Rep. 608. Fed. 3; Reagan v. Farmers L. & T. lOEx parte Ayers. 123 U. S. 443, Co. 154 U. S. 362, 38 L. ed. 1014, 14 31 L. ed. 216, 8 Sup. Ct. Rep. 181. Sup. Ct. Rep. 1047; Smyth v. Ames. It is hard to reconcile this case ex- 169 U. S. 466, 42 L. ed. 819, 18 Sup. cept upon the theory that injunction Ct. Rep. 418; Chicago etc. R. R. v. against prosecutions by State officers Day, 35 Fed. 866, 1 L.R.A. 744; West- was refused because adequate reme- em U. T. Co. v. Mvatt, 98 Fed. 335 : dy existed at law by defending the Hickman v. IMissouri, etc. R. R. 97 suits brought. Fed. 113; Clyde v. Richmond, etc. R. iiBrown University v. Rhode Is- R. 57 Fed. 436; Cotting v. Kansas, land College, 56 Fed. 55. But see Yale etc. Stock Yards, 79 Fed. 679. See University v. Sanger, 62 Fed. 177. also ]\IcNeil v. Southern Rv. 202 U. i2Nortli Carolina V. Temple. 134 U. S. 54.3, 50 L. ed. 1142, 26 Sup. Ct. S. 22, 33 L. ed. 849, 10 Sup. Ct. Kep. Rep. 722, enjoining enforcement of 509. void law. isManchester etc Ins. Co. v. Her- iTSouthern Ry. v. Greensboro, I. riott. 91 Fed. 711. & C. Co. 134 Fed. 82. isOsborn v. Bank of United States, isDavis v. Gray, 16 Wall. 203, 21 9 Wheat. 738, 6 L. ed. 204. A late L. ed. 447; Cobb v. Clough, 83 Fed. case is McNeil v. Southern Rv. 202 604. 52 Procedure] SUITS AGAINST A STATE rROHIBITED. 7 [g] has been restrained from an over-issue of bonds. i9 Other State officials have been restrained from issue of State books in violation of complain- ants' copyright; 20 from proceedincs to collect a license tax on interstate commerce;! from interfering with property illegally sold to State for taxes; 2 from assessing, certifying or collecting a tax claimed to be un- lawful; 3 from revoking a foreign insurance company's license; * from in- terfering with the business of a foreign insurance company which had com- plied fully with the State law; 5 from carrying out a State statute as to registration of voters; 6 from distraining property of a railroad company under illegal tax proceedings ; 7 from diverting an agricultural college fund administered by the State but to which a certain college had a vested beneficial right ;S from seizing liquors under a dispensary law; 9 and to prevent the enforcement of a law which would subject complainant to seizure of his property and the closing of his place of business. lo Some eases have restrained county and State attorneys from instituting civil, criminal, or contempt proceedings in violation of constitutional rights.n But in others such relief has been refused as constituting a suit ajjiinst the State,! 2 though the real reason for the decisions would seem te ^ the want of any necessity for equitable interference by injunction. [gj Suits for recovery of property and torts of State officers. An early case held that a libel in admiralty against the Governor of a a State for slaves seized for illegal importation and placed in his cus- tody and for money, the proceeds of others already sold, was in effect a suit against the State and not maintainable, it appearing that the pos- session of the State was acquired by entirely lawful means.! 4 This case is not inconsistent with the established proposition that the mere sugges- tion that possession is by an officer in his official capacity and under claim of title or right in the State, will not oust judicial inquiry. la The isBoard v. McComb. 92 U. S. 531, 541, 23 L. ed. 623. 20Howell V. Miller, in Fed. 129, 33 C. C. A. 407. ! State V. Lagarde, GO Fed. 186. 2Virginia etc. Iron Co. v. Bristol Land Co. 88 Fed. 134. sTavlor v. Louisville etc. E. R. 88 Fed. 350, 31 C. C. A. 537; Gregg v. Sanford, 65 Fed. 151, 12 C. C. A. 525; Western U. T. Co. v. Henderson, 68 Feu. 588; Union Pac. R. R. v. Alex- ander. 113 Fed. 347; Secor v. Single- ton, 35 Fed. 376. ^Metropolitan L. Ins. Co. v. Mc- Nall, 81 Fed. 888. sMutual Life Ins. Co. v. Bovle. 82 Fed. 705. «Mills V. Green. 67 Fed. 818, 69 Fed. 852, 16 C. C. A. 516. 'Allen V. Baltimore etc. R. R. 114 U. S. 311, 2!) L. ed. 200, 5 Sup. Ct. Rep. 925. ^President etc. of Yale v. Sanger, 62 Fed. 177. But see Brown Univ. y. Rhode Island Colleee. oG Fed. 55. sScott v. Donald." 165 U. S. 107, 41 L. ed. 648, 17 Sup. Ct. Rep. 262. !OMinneapolis Brew. Co. v. McGilli- vray, 104 Fed. 258. i!Tuchman v. Welch. 42 Fed. 548; Western U. T. Co. v. :\Iyatt. 98 Fed. 335; Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535. 19 Sup. Ct. Rep. 209. i2Ball V. Rutlai!^ R. R. 93 Fed. 513; Ex narte Avers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rop. 164. Arbuckle v. Blackburn, 113 Fed. 616, 51 C. C. A. 122; Union Trust Co. v. Stearns, 119 Fed. 790. 1 ■'Governor of Georgia v. Madrago, 1 Pot. 110. 7 L. el. 73. isi'nited States v. Peters, 5 C.amh. 115, 3 L. ed. 53; Osborn v. Bank of United States, 9 Wheat. 738, L. ed. 53 S 7 [h] FEDERAL JURISDICTION IN GENERAL. [Code Fed. officer must justify his possession by showing the validity of the right or title of the State and if he fail to show a valid title in the State or a valid law to support the alleged right of the State, his possession will be ousted and enjoined. Individual property rights may thus be vindicat- ed as against the State though it is not a party to the controversy and not technically bound by the decision, and the decree does not a-jtualiy quiet the title of complainant. ifi Pursuant to this principle detinue has been held maintainable against a sheriff for unlawful seizure of personal property to pay taves for which a valid tender of State coupons in pay- ment had previouslj'' been made.i^ And ejectment, trespass, and other actions regarding possession of real property have been sustained.is It has been said that the gist of the action is tort; is but the right or title actual- ly litigated is that of the State. Similarly it has been held that a<;tions for damages against State officers or to recover money or property wrong- fully taken may be maintained; and if the officer justify under a State law which infringes rights guaranteed by the Federal constitution the relief prayed may be granted, and it will not be deemed a suit agahist the State. 2 But an action against State officers for infringing the pro- visions of the anti trust law of 1890 is in fact a suit against the State where their acts are done pursuant to a state dispensary law monopo- lizing the sale of liquors, i [h] Waiver of immunity from suit. A bank in which a State is incorporator is not thereby exempt from suit under the eleventh amendment, 2 even although the state is the sole stockholder, as its nonsuability is deemed waived, pro tan to. s The fact that a State is controlling stockholder in a railroad does not aflfect its sua- 204; United States v. Lee, 106 U. S. 19G, 27 L. ed. 171, 1 Sup. Ct. Rep. 240. isUnited States v. Lee, 106 U. S. 222, 27 L. ed. 182, 1 Sup. Ct. Rep. 262; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 777, 778. i^Poindexter v. Greenhorn, 114 U. S. 270, 29 L. ed. 185, 5 Sup. Ct. Rep. 903. isUnited States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Stanley v. Schwalbv, 162 U. S. 255, 271, 40 L. ed. 960, "^16 Sup. Ct. Rep. 754; Belknap v. Schild, 161 U. S. 10, 40 L. ed. .599. 16 Sup. Ct. Rep. 443; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 777, 778; Saranac Land etc. Co. v. Roberts, 68 Fed. 521. Some of these cases are suits against the United States but the principle has been declared to be the same. The interest of the State in certain lands has been held not to defeat ejectment brought against a city. Wheeler v. Chicago, 68 Fed. 526. 19 Stanley v. Schwalby, 147 U. S. 508, 37 L. ed. 259. 13 Sup. Ct. Rep. 418; Same v. Same, 162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct. Rep. 754. 20In re Tyler, 149 U S. 164, 37 L. ed. 689. 13 Sup. Ct. Rep. 785; Scott v. McDonald, 165 U. S. 58, 41 L. ed. 638, 17 Sup. Ct. Rep. 265. iLov/enstein v. Evans, 69 Fed. 908. 2Bank of United States v. Planters Bank, 9 Wheat. 908, 6 L. ed. 244; Briscoe v. Bank of Kentucky, 11 Pet. 324, 9 L. ed. 736 ; Darrington v. Bank of Alabama, 13 How. 12, 14 L. ed. -30; Curran v. x\rkansas, 15 How. 309, 14 L. ed. 705. sBank of Kentucky v. Wister, 2 Pet. 323, 7 L. ed. 437. 54 Procedure] THE FEDERAL COURTS. § 8 [a] bility.* A State may waive its exemption from suit; 5 and its appearance in a suit as party defendant is such waiver. 6 But the filing of a stipula- tion by the governor of a State in a libel in admiralty for slaves in his cus- tody has been deemed not a waiver of immunity on the part of the State.7 In a case at circuit where a suit filed by the State had been removed by the defendants to the Federal court, it was held that the filing of a cross bill did not oust the jurisdiction which the State had voluntarily invoked. 8 A State in its statute permitting suits against it may limit such suits to its own courts and thus forbid Federal jurisdiction. 9 £i] Conclusion. The substantial result of the decided cases is that in all instances ex- cept where specific and affirmative fulfilment of State promises is sought to be compelled, or a liability to be enforced; individual rights may be vindicated against wrongful State action by treating its officers as tort feasors and enjoining or punishing their acts when not supported by valid State law, or ousting their possession when not supported by valid right or title in the State. § 8. The Federal courts. The judicial power of the United States shall be vested in^^^ one Supreme Court/'^^ and in such inferior courts"^^^""^^^ as the Con- .gress may from time to time ordain ar. n T? . 13 C, C. A. 012, 34 L.R.A. 742; Field mo n'^Tni !?r ?S ^91 sf^Trt' ^- Haines, 28 Fed. 920; National P. i ^oRiee v. Adler, 71 Fed. 151, 18 C. v. Popper, 179 U. S. 315, 45 L. ed. C. A. 15. 207. 21 Sup. Ct. Rep. 97. 98. iGFitlelitv etc. Co. v. Bucki, 189 U. isMeister v. Moore, 96 U. S. 82. S. 135, 47 L. ed. 744, 23 Sup. Ct. Rep. 24 L. ed. 826. 582. But a State should not allow isChoely v. Clayton. 110 U. S. 709, attorney fees in suit on a Federal 28 L. ed. 301, 4 Sup. Ct. Rep. 332. injunction bond where the Federal 20ln re Burrus, 136 U. S. 024, 34 L. equity practice does not permit it. ed. 512. In re Barry, 42 Fed. 132. Fed. Proc— 6. 81 § 10 [ff] FEDERAL JURISDICTION IX GENERAL. [Code Fed. also the status of a slave.i The measure of damages on an attachment bond given in the State court, provided by the State law, must be ap- plied by the Federal court when suit on such bond is removed thereto. 2 As already shown, State tax laws and the decisions construing them often affect titles to property and hence are conclusive as rules of prop- erty.3 The authorities also show that the Federal courts will in other cases follow the State court's construction of local tax laws where no Fed- eral questions are involved; 4 and will accept the State court's decision that a tax law is sufficient under the State constitution; 5 or a State decision as to property exempt from State taxation, though slow to pronounce an exemption in advance of such decision. 6 [ff] Rule where local law rests simply in judicial decisions. In the absence of any controlling local statute, the Federal courts as coordinate State tribunals may, within certain limits, exercise their own judgment, as to what the local law is,io and frequent divergencies of view between Federal and State courts have resulted. Prior State decisions are no more binding upon them than upon the State supreme court.n It is observed, however, that the Federal cases of this type do not disre- gard the State decisions upon an assertion of a right to disregard the local law. It is still the local law that they administer and merely the judicial interpretation thereof in the State tribunals that they question. They recognize the fact that decisions by the highest State court are good evi- dence of the local law; 12 and decisions by a Supreme Court commission are in the same category.is They assume that the State decision is deliberate and after thorough consideration;!^ and lean towards the same view in case of doubt. 15 They endeavor to avoid any unseemly conilict.is A series or course of State decisions establishing a local rule of property will be iDred Scott v. Sanford, 19 How. 452, 15 L. ed. 783. 2Fidelity, etc. Co. v. Bucki Co. 189 U. S. 135,' 47 L. ed. 745, 23 Sup. Ct. Rep. 582. 3See supra, note.[b] 4ln re Tvler, 149 U. S. 187, 37 L. ed. 689, 13"^ Sup. Ct. Rep. 785; Lewis v. Monson, 151 U. S. 549. 38 L. ed. 265, 14 Sup. Ct. Rep. 424; Commercial Bank v. Chambers, 182 U. S. 560, 45 L. ed. 1229, 21 Sup. Ct. Rep. 863. 50sborne v. Florida, 164 U. S. 654, 41 L. ed. 586, 17 Sup. Ct. Rep. 214; Merchants Bk. v. Pennsvlvania, 167 U. S. 463, 42 L. ed. 237,' 17 Sup. Ct. Rep. 830. 6Ford V. Delta & P. L. Co. 164 U. S. 675. 41 L. ed. 590, 17 Sup. Ct. Ren. 230, 2.35; New Orleans v. Stem- fel, 175 U. S. 316, 44 L. ed. 174, 20 Sup. Ct. Ren. 112. lOBurgess v. Seligman. 107 U. S. 33, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; 82 East Ala. Ry. v. Doe, 114 U. S. 353. 29 L. ed. 136, 5 Sup. Ct. Rep. 869; Casserleigh v. Wood, 119 Fed. 308. 56 C. C. A. 212. 11 See post, § 12, note.Cb] i2Swift v. Tvson, 16 Pet. 18, 10 L. ed. 865; In re Barry, 42 Fed. 132: In re Burrus, 136 U. S. 624, note, 34 L. ed. 512, note; Wade v. Travis Co. 174 U. S. 508, 43 L. ed. 1000, 19 Sup. Ct. Rep. 715. isAnkinnev v. Ilannon, 147 U. S. 126, 37 L. ed.' 105. But see Montgom- erv V. McDermott, 103 Fed. 801, 43 €.' C. A. 348. i4Cross V. Allen, 141 U. S. 539, 35 L. ed. 843, 12 Sup. Ct. Rep. 67. isClark v. Bever. 139 U. S. 117, 35 L. ed. 88. 11 Sup. Ct. Rep. 468; Daly V. James, 8 Wheat. 535, 5 L. ed. 670; Yazoo, etc. R. R. v. Adams, 181 U. S. 583, 45 L. ed. 1012, 21 Sup. Ct. Rep. 729. lePleasaiit Twp. v. Aetna Ins. Co. Procedure] WHAT LAW ADMINISTERED § 10 [h] followed by the Federal courts as completely as a local statute would be followed. 1" The same is true of State decisions establishing the common law or public policy of a State. is It is in the absence of State decision, or where there is but one or, if more, where they are conflicting, or change the rule, that the divergence of view arises. [g] Repeated State decisions respecting local common law and public policy. Repeated decisions of the highest State court come to be recognized as authoritative and binding expositions of the common law of a State and of its laws and customs of a local character,! especially when af- fecting land titles. 2 It has been said however that the Supreme Court does not feel bound by a State court's application of common law rules to the determination of private rights. 3 It is also decided that a single State deci- sion construing a State's common law is not conclusive. "5 Where a question arises as to public policy of a state, respecting acts done or contracts made the Supreme Court has declared the State decisions to be binding where the contract or matter is wholly within the State's legislative control and no Federal question or principle of general commercial jurisprudence is involved. 5 "\ATiere the State law shows it to be the policy of the State not to permit a vendor of personalty to remain in possession to the preju- dice of his creditors the Federal courts will recognize and adopt such policy. 6 A State's declared policy as to admitting life insurance com- panies to do business must be respected by the Federal courts.'? Where a territorial legislature has adopted the common law, the Supreme Court will be bound thereby. s [h] — in absence of State decision. In the absence of State decision the Federal courts are of course bound to decide questions of State law and also of the meaning and construction of State statutes and constitutional provisions for them- 138 U. S. 73, 34 L. ed. 8G4, 11 Sup. 553; Murray v. Chicago, etc. Ry. 92 Ct. Rep. 215. Fed. 871, 35 C. C. A. G2. See also ifSee supra, note.[t>] infra, note, [i] isSee infra. note.Eg] sSee Hartford Ins. Co. v. Chicago, iBurgess v. Seligman. 107 U. S. etc. R. R. 175 U. S. 108, 44 L. ed. 84, 20, 27 L. ed. 365; 2 Sup. Ct. Rep. 10; 20 Sup. Ct. Rep. 37 and cases there Bucher v. Railroad. 125 U. S. 583. 31 cited. Vidal v. Giard, etc. 2 How. L. ed. 795. 8 Sup. Ct. Rep. 978; Bon- 198. 11 L. ed. 233; Detroit v. Os- durant v. Watson. 103 U. S. 289, 20 borne. 135 U. S. 498, 499, 34 L. ed. L. ed. 450. 202. 10 Sup. Ct. Rep. 1013; Parker 2Beauregard v. New Orleans, 18 v. Moore, 115 Fed. 799, 53 C. C. A. How. 502, 15 L. ed. 469. and see supra. 369. In re Zug. 16 Nat. Bk. Reg. 2S0, 30 eDooley v. Pease, 180 U. S. 128, 45 Fed. Cas. 948: Malcomson v. Wappo L. ed. 4.59. 21 Sup. Ct. Rep. 329. Alills, 85 Fed. 908. TMcClain v. Provident, etc. Ins. Co. 3C)iicag(> V. Robbins, 2 Black, 428, 110 Fed. 80. 49 C. C. A. 31. 17 L. ed."298. nValker v. New ]\Iexico etc. R. R. 4Foxcroft V. Mallett, 4 How. 379, 165 U. S. 004, 41 L. ed. 837, 17 Sup. i 1 L. ed. lOOS; Union P. Rv. v. Yates, Ct. Rep. 421. 79 Fed. 589, 25 C. C. A. 103, 40 L.R.A. 83 § 10 [h] FEDERAL JURISDICTION IN GENERAL. [Code Fed. selves. 10 But a subsequent State decision opposed to the earlier Federal one, will usually be accepted and followed by the Federa court.n especially where title to realty is affected by the rule,i2 or the con- struction of a local statute.13 In such cases where the State decision intervenes between the judgment rendered at circuit and the decision of an appeal therefrom, the State decision will ordinarily be followed by the appellate court,i4 though the supreme court has refused to recognize such an intervening State decision contrary to its convictions, and to the injury of a nonresident creditor.! 5 Nor will the Supreme Court ac- cept such subsequent State decision where contract rights have vested un- der their contrary holding.^ 6 In any event a subsequent State decision does not render the Federal judgment erroneous on its face.i'? The Fed- eral court has refused to suspend its decision until the determination of a similar suit in the State court,i8 and has refused to examine allega- tions that the State case in which decision was rendered was not a genuine one.i9 If contract rights have vested prior to any construction of a law by either State or Federal court, the Federal courts assert a right to ex- lOO'Brien V. Wheelock, 95 Fed. 904, sion. See Knight v. Shelton. 134 :J7 C. C. A. 309; Coates v. Muse, 1 Fed. 623; Mitchell Co. v. Matthues, Brock. 537. Fed. Cas. No. 2.916; 134 Fed. 493, and Sioux Falls v. Groves v. Slaughter, 15 Pet. 499. 10 Farmers L. & T. Co. 136 Fed. 721, 69 L. ed. 800; Burgess v. Sellgman, C. C. A. 373. following State decision 107 U. S. 34. 27 li. ed. 359, 2 while Federal cause pending. Sup. Ct. Rep. 10; Folsom v. Ninety- i5Pease v. Peck, 18 How. 598, 599, six. etc. 159 U. S. 625, 40 L. 15 L. ed. 520; Roberts v. Bolles, 101 od. 278, 16 Sup. Ct. Rep. 174; Breed U. S. 129, 25 L. ed. 880. And see V. Glasgow Ins. Co. 71 Fed. 909; Strvker v. Board of Comrs. 77 Fed. Knight V. Shelton. 134 Fed. 423. 583, 23 C. C. A. 286. iiGreen v. Neal, 6 Pet. 299, 300, leCity, etc. Co. v. Otturawa, 120 8 L. ed. 402; New Orleans W. Wks. Fed. 309; Rowan v. Runnels, 5 How. Co. V. Southern, etc. Co. 36 Fed. 833; 139, 12 L. ed. 85; Julian v. Central T. Andrews v. National P. & F. Wks. Co. 193 U. S. 93, 48 L. ed. 629, 24 76 Fed. 166, 22 C. C. A. 110. 36 L.R.A. Sup. Ct. Rep. 399; Burgess v. Selig- 139; Fairfield v. Gallatin Co. 100 U. man, 107 U. S. 33, 34, 27 L. ed. 359, S. 52, 25 L. ed. 544; Western U. T. 2 Sup. v.t. Rep. 10; Foote v. John- Co. V. Poe, 64 Fed. 11. See post, § son Co. 5 Dill. 285, Fed. Cas. No. 12, note, [a] 4,912; King v. Dundee, etc. Co. 11 i2Suydam v. Williamson, 24 How. Sawv. 666, 28 Fed. 33. See infra, 433, 16 L. ed. 742. note, [k] isMoores v. National Bk. 104 U. S. i^Hoffman v. Knox, 50 Fed. 491, 1 629, 26 L. ed. 870 : McCall v. Han- C. C. A. 535. cock, 10 Fed. 9, 20 Blatchf. 344; isLoring v. Marsh. 2 Cliff. 319, Fed. Kibbe v. Ditto, 93 U. S. 680, 23 L. ed. Cas. No. 8,514; Roberts v. Northern 1005. Pac. R. R. 158 U. S. 26, 39 L. ed. i4Atlantic, etc. R. R. v. Hopkins. 873, 15 Sup. Ct. 756. See Knight v. 94 U. S. 11, 24 L. ed. 48; United Shelton, 134 Fed. 423, following State States V. Morrison, 4 Pet. 137, 7 L. decision rendered while Federal case ed. 804; Moores v. National Bk. 104 pending. U. S. 629, 26 L. ed. 870. See Stuts- 19 Sioux Falls v. Farmers L. & T. man Co. v. Wallace, 142 U. S. 306, Co. 136 Fed. 721, 69 C. C. A. 373. 35 L. ed. 1022, 12 Sup. Ct. Rep. 231, following a State decision though case appealed before State's admis- 84 II Procedure] WHAT LAW ADMINISTERED. § 10 [i] ercise an independent judgment as to the meaning of such laws regardless of an intervening State decision. 20 [i] — single and conflicting decisions. The Federal courts have frequently refused to follow a single State decision not founded upon a statute, and not a rule of property,i especial- ly where seemingly made under a misapprehension, 2 or where the rea- sons assigned are not satisfactory ; 3 or where obtained by collusion.^ They do not consider themselves bound by the decision of an inferior State court,5 nor where the question was not directly decided. 6 In cases of conflict between the State decisions construing local laws they have asserted a right to decide for themselves; 7 so also where a doctrine is criticized by a later State case. 8 In one case it is declared that the Supreme Court will not follow mere oscillations in the course of settle- ment of questions in the State courts. 9 Where the decision of a Supreme court commission conflicts with one of the court proper, the Federal court 2 0Louisville T. Co. v. Cincinnati, ed. 996, 15 Sup. Ct. Rep. 954. But 76 Fed. 296, 22 c. C. A. 334; Bartholo- see Sioux Falls v. Farmers L. & T. mew V. Austin, 85 Fed. 359, 29 C. Co. 136 Fed. 721, 69 C. C. A. 373. C. A. 568; Jones v. Hotel Co. 86 Fed. sBeals v. Hale, 4 How. 54, 11 L. ed. 375, 30 C. C. A. 108; Speer v. Board, 873; Patapsco, etc. Co. v. Morrison, 88 Fed. 749, 32 C. C. A. 101 ; Clapp v. 2 Woods, 404; Fed. Cas. No. 10,792. Otoe Co. 104 Fed. 473, 45 C. C. A. See -xitchell Co. v. Matthews, 134 579; Southern Pine Co. v. Hall, 105 Fed. 493, following decision by single Fed. 84, 44 C. C. A. 363; United, judge. etc. Co. V. Harris, 113 Fed. 27; Great, eCarroll v. Carroll, 16 How. 275, 14 etc. Hotel Co. v. Jones, 116 Fed. 793, L. ed. 936; St. Louis, etc. R. A. v. 54 C. C. A. 165; Brunswick, etc. Co. V. Terre Haute, etc. R. R. 145 U. S. Xat. Bank, 112 Fed. 812. 403, 404, 36 L. ed. 748, 12 Sup. Ct. iLane v. Vick, 3 How. 476. 11 L. ed. Rep. 953; Keokuk, etc. R. R. v. Coun- 687; Gibson v. Lyon, 115 U. S. 446, ty Court, 41 Fed. 306; Myrick v. 29 L. ed. 442, 6 Sup. Ct. Rep. 132; Heard. 31 Fed. 243: Matz v. Chicago, Barber v. Pittsburgh, etc. R. R. 166 etc. Co. 85 Fed. 183; Stowe v. Sav. U. S. 99, 41 L. ed. 933, 17 Sup. Ct. Bank, 92 Fed. 90: Wiemer v. Louis- Rep. 491; Murray v. Chicago, etc. R. ville W. Co. 130 Fed. 251. But see R. 92 Fed. 871, 35 C. C. A. 62; Ryan Phelps v. Harris, 101 U. S. 382, 383, V. Staples, 76 Fed. 727, 23 C. C. A. 25 ^. ed. 855. Fed. 100; Chisholm v. Caines, 67 Fed. TQhio, etc. Trust Co. v. Debolt, 16 294; Bancroft v. Hambly, 94 Fed. How. 431, 14 L. ed. 997; San Antonio 979, 36 C. C. A. 595; Union P. Ry. v. Mahaffv, 96 U. S. 315, 24 L. ed. V. Yates, 79 Fed. 589, 25 C. C. A. 816; Chisholm v. Caines, 67 Fed. 294; 103, 40 L.R.A. 553. Morris v. United States, 174 U. S. zPreston v. Bowmar, 6 Wheat. 583, 240, 43 L. ed. 946, 19 Sup. Ct. Rep. 5 L. ed. 330: Lauriat v. Stratton. 6 649; Southern P. Co. v. Orton, 32 Sawy. 347, 11 Fed. 114: Keokuk, etc. Fed. 477; Wilson v. Lumber Co. 67 Ry. V. County Court, 41 Fed. 314. Fed. 682. But see New Orleans, etc. 3Levy V. Stewart, 11 Wall. 255, 20 Co. v. Southern, etc. Co. 36 Fed. 834. L. ed. 86; Coler v. Board of Comrs. sBrunswick, etc. Co. v. Nat. Bank, 89 Fed. 257; United, etc. Co. v. Har- 112 Fed. 812. ris, 113 Fed. 27; Smith v. Atl. Ins. sGelpcke v. Dubuque, 1 Wall. 205, Co. 22 Fed. Cas. 425. 17 L. ed. 520. 4Andes v. Ely, 158 U. S. 318, 39 L. 85 § 10 [j] FEDERAL JURISDICTION IN GENERAL. [Code Fed. will follow the latter. lo Where the State law is unsettled the circuit court may properly follow the Federal Supreme Court. n [j] — State decisions changing the local rule. The general doctrine of the cases is that the Federal courts will adopt a change in a local rule of property made by the State decisions.12 In other words they will generally follow the latest decision; is btit will sometimes refuse to accept the latest of conflicting decisions where the qviestion does not really seem settled; 1* or a late decision at variance with a lonsr line of earlier decisions.i5 [k] — change in local decisions impairing vested contract rights. Although a judicial decision is not a law within the obligation clause of the constitution;! yet where a contract when made is valid under the existing judicial construction of the State laws, the Federal courts will not become parties to its impairment by following a subsequent change in such judicial construction. 2 In other words the Federal courts will not accept and follow a change in the State judicial interpretation of the local law to the injury of contract rights that have vested under the earlier construction. s The most frequent application of this rule has been in the case of municipal bonds sold to bona fide purchasers under State decisions sustaining their validity, which were departed from in sub- sequent decisions.4 The rule has been applied even though at the time of sale of bonds there were no state decisions, and adverse rulings have been lOMontgomery v. McDermott, 103 v. Pilsbury, 105 U. S. 294, 26 L. ed. Fed. 801, 43 C. C. A. 348. 1090; Los Angeles v Los Angeles iiOber V. Gallagher, 93 U. S. 207, Water Co. 177 U. S. *V;5, 44 L. ed. 23 L. ed. 829. 894, 20 Sup. Ct. Rep. 736; Supervis- i2Green v. Neal, 6 Pet. 299, 300, ors v. United States, 18 Wall. 82, 8 L. ed. 402; Fairfield v. Gallatin Co. 21 L. ed. 771. 100 U. S. 52. 54, 25 L. ed. 54G, 547; 3x\nderson v. Santa Anna, 116 U. Western U. Co. v. Poe, 64 Fed. 13. S. 361. 29 L. ed. 633, 6 Sup. Ct. Rep. isUnited States V. Morrison, 4 Pet. 413; Morgan v. Curtenius, 20 How. 124, 7 L. ed. 804; Wade v. Travers 3, 15 L. ed. 823; Lee Co. v. Rogers, Co. 174 J. S. 508. 43 L. ed. 1060, 7 Wall. 183, 19 L. ed. 160; Mitchell v. 19 Sup. Ct. Rep. 71 S- King v. Wilson, Burlington, 4 Wall. 275, 18 L. ed. 1 Dill. 567, Fed. Cas. .0. 7,810; Mitch- 350; Louisville, etc. Ry. v. Gaines, 2 ell V. Lippincott, 2 Woods, 473, Fed. Flipp. 630, 3 Fed. 274; Jones v. Hotel Cas. No. 9,665; Smith v. Slu-iver, 3 Co. 86 Fed. 372; Wicomico Co. Conirs. Wall. Jr. 228, Fed. Cas. No. 13.108. v. Bancroft, 135 Fed. 977, 70 C. C. But see Nelson v. Madison, 3 Biss. A. 287; Rollins v. Lake Co. 34 Fed. 253, Fed. Cas. No. 10,110. 846; Bartholomew v. Austin, 85 Fed. i4Myrick v. Heard, 31 Fed. 243. 366. 29 C. C. A. 568; Clark v. Bever, 15 Wilson V. Ward L. Co. 67 Fed. 139 U. S. 117, 35 L. ed. 97, 11 Sup. Ct. 681; Forsyth v. Hammond, 71 Fed. Rep. 475; Vermont, etc. Co. v. Dy- 454, 18 C." C. A. 178. gert, 89 Fed. 124; Westinghouse A. lUniversity v. People, 99 U. S. 320, B. Co. v. Kansas, etc. Ry. 137 Fed. 26, 25 L. ed. 387. (C. C. A.); Farmers L. & T. Co. v. 20hio, etc. Co. v. Debolt. 16 How. Sioux Falls, 131 Fed. 890; Caesar v. 432, 14 L. ed. 997; Gelpcke v. Du- Capell, 83 Fed. 427; McCall v. Han- buque, 1 Wall. 205, 206, 17 L. ed. 520; cock, 10 Fed. 9, 20 Blatchf. 344. Haveraeyer v. Iowa Co. 3 Wall. 303, 4 See note to Gelpcke v. Dubuque, 18 L. ed. 38; Taylor v. Ypsilanti, 105 in Book VL, U. S. Notes, p. 303; U. S. 72, 26 L. ed. 1008; Louisiana City of Lamson, 9 Wall. 486, 19 86 Procedure] WHAT LAW ADMINISTERED. § 10 [1] ignored where made after the rights of parties had become fixed. 5 Other cases have gone still further and upheld municipal bonds though the State decisions were numerous and uniform the other way, on the ground that the question of their validity was one of general commercial law as to which the Federal courts might ignore State decisions. 6 But later State decisions sustaining the validity of bond issues will be follov/ed by Federal courts rather than early adverse decisions.'' The principle of the foregoing cases cannot however, be applied by the Supreme Court on error to a State cour^ since the only matter there reviewable is the de- nial of a Federal right and a State decision reversing earlier cases or misconstruing a contract is not a law inpairing its obligation.^ Nor should this principle be applied where it would result in conflicting rules respecting land titles within a State; as for example by following early State cases upholding a wife's right to mortgage her separate estate foif a husband's debts rather than later State cases, contra. 9 [1] Matters within national legislative power — remedies and procedure. The line of distinction between laws Congress may and may not pass under its power to organize and equip the Federal courts for the trial of causes, has never been clearly drawn.n However difficult to define, it is as certain that the power has its limitations, as it is that it exists. It cannot safely be said that only mere matters of procedure as distinguished from substantive rights, are within this power of Congress, for the L. ed. 725; Olcott v. Supervisors, 16 v. Aetna, etc. Ins. Co. 138 U. S. 73, Wall. G93. 21 L. ed. 382: Commission- 34 L. ed. 864. 11 Sup. Ct. Rep. 215; ers, etc. v. Thayer, 94 U. S. 642, 24 Barnum v. Okolona, 148 U. S. 307, L. ed. 135; Louisiana v. Pillsburv. 105 37 L. ed. 495, 13 Sup. Ct. Rep. 038; U. S. 295, 26 L. ed. 1096; Township Columbia Av. etc. Co. v. Dawson, 130 of Elmwood V. Marcy. 92 U. S. 294. 23 Fed. 152, following a contrary Fed- L. ed. 910: Douglas v. Pike Co. 101 eral case; Northwestern Sav. Bank U. S. 688. 25 L. ed. 968; Thompson v. v. Centreville. 143 Fed. 81. Perriere, 103 U. S. 818, 26 L. ed. 612: GTownship of Pine Grove v. Tal- Bolles v. Brimfiekl, 120 U. S. 759, .30 cott, 19 Wall. 678, 22 L. ed. 233. In L. ed. 786, 7 Sup. Ct. Rep. 736 ; Knox that case there was a sort of legisla- Co. v. Ninth Nat. Bank. 147 U. S. 99, tive recognition of the validitv of the 37 L. ed. 93, 13 Sup. Ct. Rep. 267; bonds. See also Olcott v. Supervisors, Loeb V. Columbia, etc. Trustees, 179 16 Wall. 690, 21 L. ed. 382; Pana v. U. S. 492. 493. 45 L. ed. 291, 21 Sup. Bowler, 107 U. S. 541, 27 L. ed. 424, Ct. Ron. 174: Wilkes Co. v. Coler, 180 2 Sup. Ct. Rep. 704. U. S. 506, 45 L. ed. 642, 21 Sup. Ct. TWade v. Travis Co. 174 U. S. 509, Rep. 458, see S. C. 190 U. S. 437, 47 L. 43 L. ed. 1065. 19 Sup. Ct. Rep. 719; ed. 1126, 23 Sup. Ct. Rep. 811: Foote King v. Wilson, 1 Dill. 558, 568, Fed. v. Johnson Co. 5 Dill. 284, Fed. Cas. No. Cas. No. 7,810. 4,912; McCall v. Hancock, 20 Blatchf. sCentral Land Co. v. Laidlev, 159 346, 10 Fed. 9; Union Bank v. Board U. S. Ill, 112, 40 L. ed. 94, 95, 16 of Comrs. 90 Fed. 9; Speer v. Board Sup. Ct. Rep. 82; Bacon v. Texas, of Comrs. 88 Fed. 760, 32 C. C. A. 163 U. S. 221, 222. 41 L. ed. 137, 138, 101; Franklin Co. v. Gardner Sav. 16 Sup. Ct. Rep. 1029; Turner v. Ins. 119 Fed. 38, 55 C. C. A. 614; Rees Wilkes Co. 173 U. S. 463, 43 L. ed. V. Olmstead, 135 Fed. 296, 68 C. C. A. 768, 19 Sup. Ct. Rep. 465. 50. sMitchell v. Lippincott, 2 Woods. sBlock V. Commissioners, 99 U. S. 470, Fed. Cas. No. 9.665. 699, 25 L. ed. 491; Pleasant Twp. nSee post, § 799. 87 § 10 [1] FEDERAL JURISDICTION IN GENERAL. [Code Fed. modes prescribed for the vindication of rights often practii;ally deter- mine their legal existence. Under its power to regulate the modes of proceeding in Federal courts, Congress may prescribe the rules of evi- dence, the time for bringing actions, the forms of remedies, and the modes of enforcing judgments therein, and may declare what property shall be subject to levy on execution from the Federal courts. Upon some of these matters Congress has legislated by prescribing a viniform Federal law. Upon others it has declared that the Federal courts shall in common law causes be governed by the rule of the State where sitting. In this latter class of cases the State law is therefore administered, not because it is binding upon Federal courts proprio vigore, but because Congress has de- clared that it shall be observed and followed. In such cases therefore the question when a rule of the local courts must be administered and applied is merely a question of the proper meaning and construction of the acts of Congress and does not involve the fundamental principle which in other cases requires a recognition of the local law. In the matter of forms of proceeding and remedies, for instance. Con- gress has declared that the local law shall be followed by Federal courts in common law causes.12 But the Federal courts very properly disre- gard a change in the local law on the subject where the practice act has adopted the State procedure in force at a prior time;i3 or a State law forbidding mandamus in aid of judgments, where the Federal practice act otherwise requires.i* Other cases have admini.stered a new State statut- tory rerDedy;i5 or followed the local statute and decisions as to procedure because the Federal statute so required; is or disregarded it upon the same theory ;17 or refused to accept the State decisions interpreting the local practice acts; is or refused to be bound by local decisions respect- ing collateral attack upon judgnients.is As the Federal equity practice is not assimilated to that of the States, the rights of parties under a Federal injunction bond are governed by Federal law; hence in suit thereon in a State court the latter cannot allow attorney's fee as damages contrary to the Federal practice.20 B\it on the other hand, where suit is brought in the Federal court on a State court attachment bond, the State law is the rule of decision, and the Fed- eral court cannot disallow an attorney's fee as damages where allowable i2Seepost, § 900. L. ed. 973; Doll v. Eqnitable L. A. isHomer v. Brown, 16 How. 363, Soc. 138 Fed. 705. See King v. Davis, 14 L. ed. 970. 137 Fed. 108, refusing to follow State i^United States v. Capdovielle, 118 decisions as to presumptions in aid Fed. 809, 55 C. C. A. 421. of defective substituted service. isCampbellsville, etc. Co. v. Hub- isPhoenix B. Co. v. Castleberry, bert, 112 Fed. 718, 50 C. C. A. 435. 131 Fed. 175, 65 C. C. A. 481. 16 Atlantic & P. R. R. v. Hopkins, 2 0Tullock v. Mulvane, 184 U. S. 94 U. S. 11, 24 L. ed. 48. 514, 46 L. ed. 657, 22 Sup. Ct. Rep. 17 Butz v. Muscatine, 8 Wall. 582, 372; Missouri, etc. R. R. v. Elliott, 19 L. ed. 490, 494. 184 U. S. 530, 46 L. ed. 673, 22 Sup. isAmis V. Smith, 16 Pet. 313, 10 Ct. Rep. 446. 88 I Procedure] WHAT LAW ADMINISTERED. § 10 [mj under the State practice. 21 In each case the question what law governs, is determined by ascertaining whether the State or the nation has power to prescribe the rule. [m] Matters within legislative powers of Congress — limitation of actions. Statutes of limitation are concerned rather with the mode of enforcing rights than with their existence; with procedure rather than with sub- stantive rules of law. But whether they always affect merely the remedy and not the right, 1 it seems plain that under its power to prescribe the procedure of Federal courts. Congress would have an undoubted right to prescribe the time within which suitors may apply to Federal courts for relief. 2 Hence the Federal cases declaring when State statutes of limi- tation and the decisions thereunder shall be held binding upon them involve merely a question of the proper meaning and construction of the act of Congress making the State laws, rules of decision.3 Under that act the local statutes of limitation and the decisions thereunder are rules of decision in actions at common law. The cases have very uniformly* recognized the propriety of regarding the local acts of limitation as rules of property; and such statutes and the local decisions thereunder are deemed binding.s This is especially true in cases, in equity as well as at law, involving the question of title to land by adverse possession. « The 2iFidelity & D. Co. v. L. Bucki, 814; Texas, etc. Rv. v. Smith, 159 etc. Co. 189 U. S. 135, 47 L. ed. 744, U. S. 71, 40 L. ed.' 77, 15 Sup. Ct. 23 Sup. Ct. Rep. 582. Rep. 904; Bauscrman v. Blunt. 147 iSee Michigan Ins. Bank v. Eldred, U. S. 652, 37 L. ed. 318, 13 Sup. Ct. 130 U. S. 696. 32 L. ed. 1081, 9 Sup. Rep. 466; Michigan Ins. Bank v. El- Ct. Rep. 696, declaring that statutes dred, 130 U. S. 696, 32 L. ed. 1081. of limitation of personal actions are 9 Sup. Ct. Rep. 691; Metcalf v. Wat- laws affecting remedies onh', and not ertown, 153 U. S. 673, 38 L. ed. 861, rights. " 14 Sup. Ct. Rep. 947; Bovle v. Ar- 2See Amv v. Dubuque. 98 U. S. ledge. Hemp, 622. Fed. Cas.' No. 1.758: 471, 25 L. ed. 229. Post, § 799. French v. Edwards, 4 Sawy. 129. Fed. 3See Michigan Ins. Bank v. Eldred, Cas. ao. 5.097; Tioga, etc. R. R. v. 130 U. S. 696, 32 L. ed. 1081. 9 Sup. Blossburg, etc. R. R. 20 Wall. 150, Ct. Rep. 091. 22 L. ed. 337: Black v. Elkhorn M. ^Campbell v. Haverill, 155 U. S. Co. 47 Fed. 603; Elder v. McClaskev, 614, 39 L. ed. 282, 15 Sup. Ct. Rep. 70 Fed. 538, 17 C. C. A. 251; Butler 219. V. Poole, 44 Fed. 586; Brown v. Hiatt, sDaire v. Briggs, 97 U. S. 637, 24 1 Dill. 377, Fed. Cas. No. 2.011: Bur- T.. od. 1089; Hanger v. Abbott, 6 leigh v. Rochester, 5 Fed. 673; Bul- Wall. 537, 18 L. ed. 942; Porterfield lion, etc. Bank v. Hegler, 93 Fed. 892. v. Clark. 2 How. 125, 11 L. ed. 185; But see Rollins v. Lake Co. 34 Fed. Andraea v. Redfield, 98 U. S. 235, 846. 25 L. ed. 162; Amv v. DulnKpie, 98 eElmendorf v. Tavlor, 10 Wheat. U. S. 471, 25 L. ed. 229; Shell)v v. 176, 6 L. ed. 289; Pevton v. Guy, 11 Wheat. 367, 6 L. ed. 497; Stitth, 5 Pet. 485, 8 L. ed. 203: Green v. Neal. 6Pet. 291. 8 L. ed. 402, Porterfield v. Clark, 2 How. 125. Barrett v. Holmes, 102 U. S. 655, 26 11 L. ed. 185: Miller v. Mcln- L. ed. 292; Balkan V. Woodstock Iron tvre, 6 Pet. 66, 8 L. ed. 322; Co. 154 U. S. 189, 38 L. ed. 957, 14 Boone v. Chiles, 10 Pet. 221, 9 L. ed. Sup. Ct. Rep. 1014 and cases cited. 404; Leffinswell v. Warren, 2 Black, Great W. T. Co. v. Purdv, 162 U. S. 603. 17 L. ed. 261 ; St. Paul, etc. Co. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. v. Sage, 49 Fed. 320, 1 C. C. A. 256; 89 § 10 [m] FEDERAL JURISDICTION IN GENERAL. [Code Fed. period prescribed by a State law for presentation of claims against an es- tate, is also a rule for Federal courts, which will refuse to entertain a suit by a nonresident creditor against an administrator after such period has elapsed; 7 or to set off an outlawed claim by the estate, in a suit for a legacy. 8 The States may, under this section, declare the period of limitation for suits or Federal judgments, so long as they do not discriminate against them by prescribing a shorter period for judgments of the local Federal courts than for their own domestic State judgments. 9 The period of limi- tation on causes of action created by Congress and enforceable only in Federal courts, is governed by the local statute imless Congress other- wise prescribe, and unless the State deliberately attempt to discriminate unreasonably against their enforcement; lo as, for example, an action for infringement of copyright; n or of a patent 12 or to enforce stockholders' liability in a national bank.is But decisions of state courts respecting the time when the statute be- gins to run, where resting upon general principles and not on any positive statute, have been disregarded. 1* It has been similarly held that the Federal courts may disregard local decisions, not based upon statute, declaring that the statute of limitations was not suspended by the civil war.15 A State decision that all actions to enforce a statutory liability were specialities, has been disregarded.! 6 The question whether the Fed- eral court in equity will administer a State statute of limitations pre- sents somewhat different considerations. Such statutes can scarcely be said to create substantive rights which the Federal court must respect, but to be concerned rather with the mode of their enforcement. In passing statutes of limitation the States merely exercise their undoubted right to determine the time within which suits may be brought in their own courts, and as Congress must possess the same power over the bringing of actions in Federal courts,i7 it follows that by merely adopting the State practice and making the State laws rules of decision in actions at law the Federal courts are left free from the coiupulsion of such laws in Hoge V. Magnes, 85 Fed. 357, 29 C. i2Campbell v. Mayor, 81 Fed. 183, C. A. 564; Barrett v. Holmes. 102 U. Rich v. Ricketts, 7 Blatchf. 231, Fed. S. G51, 26 L. ed. 201; Scott v. Mineral Cas. No. 11,762. See Brickill v. Bal- Dev. Co. 130 Fed. 497, 64 C. C. A. timore, 52 Fed. 739. 659. But see Nelson v. Madison, 3 i3Thompson v. German Ins. Co. 76 Biss. 253, Fed. Cas. No. 10,110. Fed. 893; Butler v. Poole, 44 Fed. V Security T. Co. v. Black, etc. Bk. 586. 187 U. S. 211, 47 L. ed. 147, 23 Sup. nMurrav v. Chicago, etc. Ry. 92 Ct. Rep. 52. Fed. 871, 35 C. C. A. 62; Brigham s Wilson V. Smith. 117 Fed. 707. Co. v. Gross, 107 Fed. 769. sMetcalf v. Watertown, 153 U. S. isHanger v. Abbott, 6 Wall. 534, 671, 38 L. ed. 862, 14 Sup. Ct. Rep. 18 L. eu. 941; Lew v. Stewart, 11 947. See Phelps v. O'Brien Co. 2 Dill. Wall. 244, 20 L. ed. 86; Brown v. 519, Fed. Cas. No. 11,078. Hiatt, 1 Dill. 377, Fed. Cas. No. 2,011. loCampbell v. Haverill, 155 U. S. isBrunswick T. Co. v. National 614, 39 L. ed. 282, 15 Sup. Ct. Rep. Bank, 88 Fed. 611. 219. iTSee Amy v. Dubuque, 98 U. S. iiBradv v. Daly. 175 U. S. 158, 44 471, 25 L. ed. 229. L. ed. 113, 20 Sup. a. Rep. 06. 90 I Procedure] WHAT LAW ADMINISTERED. § 10 [n] equity. But as equity often follows the rule as to limitation of actions at law, there are cases in which the Federal courts in equity have followed such local statutes, especially where constituting rules of property affect- ing local land titles or where the complainant has been guilty of great laches.is On the other hand, as there are circumstances under which the application of such a statute would be inequitable, as for example, in barring actions for concealed fraud, other Federal equity cases have refused to be bound by local statutes of limitation. 1 9 [n] Matters within legislative power of Congress — decisions respecting the law of evidence. Congress has vmdoubted power to prescribe the rules of evidence that shall prevail in Federal courts. In trials at common law it has declared that the local rules of evidence shall prevail. i Under this enactment the decisions construing local statutes relating to evidence or declaring the local common law of evidence have been deemed binding in common law causes; 2 although some cases have asserted a right to disregard them. 3 Upon questions of title especially, the Federal court should receive the same evidence as the State court. -t The rule of the state courts as to the admissibility of the house journal to show that a bill had passed, has isElmendorf v. Taylor, 10 Wheat. Rep. 434; Johnston v. Roe, 1 Fed. 695, 176, 6 L. ed. 296; Lewis v. Marshall, 1 McCrary 162; Orendorf v. Budlong. 5 Pet. 470, 8 L. ed. 195; Tavlor v. 12 Fed. 26: Murrav v. Chicago, Benham, 5 How. 263, 12 L. ed. 145; etc. R. R. 62 Fed. '29. See also Phillipi V. Phillipi, 115 U. S. 159. 29 Brunswick, etc. Co. v. National L. ed. 340, 5 Sup. Ct. Rep. 1185; Bank, 88 Fed. 611, holding State Boone Co. v. Burlington, etc. R. R. decision not binding. Van Vleet v. 139 U. S. 692, 35 L. ed. 319, 11 Sup. Sledge, 45 Fed. 752, denying relief Ct. Rep. 687; Lansdale v. Smith, 106 for laches. U. S. 392, 27 L. ed. 219, 1 Sup. Ct. iSee post, § 12. Rep. 350; Harpending v. Reformed 2 Connecticut, etc. Ins. Co. v. Union Church, 16 Pet. 493, 10 L. ed. 1043; etc. Co. 112 U. S. 255, 28 L. ed. 708, Speidel v. Henrici, 120 U. S. 387, 30 5 Sup. Ct. Rep. 119; Remington v. L. ed. 720, 7 Sup. Ct. Rep. 612; Linthicum, 14 Pet. 91, 10 L. ed. 364; Amory v. Lawrence, 3 Cliff. 531, Fed. Bucher v. Cheshire R. R. 125 U. S. Cas. No. 336; Higgins, etc. Co. v. 583, 31 L. ed. 795, 8 Sup. Ct. Rep. Snow, 113 Fed. 433. 51 C. C. A. 267; 974; Hinds v. Keith, 57 Fed. 10, 6 United States v. Beebe, 17 Fed. 40; C. C. A. 231; Stewart v. Morris, 89 4 McCrary 12; Rice v. Martin, 8 Fed. Fed. 290, 32 C. C. A. 203; Union P. 480, 7 Sawy. 337 ; Norris v. Hag- Ry. v. Reed, SO Fed. 239, 25 C. C. A. gin, 28 Fed. 278; Robinson v. 389; Lonergan v. Mississippi Co. 5 Hook, 4 Mason, 151, Fed. Cas. No. Fed. 778, 2 McCrary 451; Albro v. 11,956; Scott v. Evans. 1 McLean, Manhattan, etc. In.s. Co. 119 Fed. 489, Fed. Cas. No. 12,529; Fussell v. 629; Belding v. Hebard, 103 Fed. Hughes. 8 Fed. 396; Cockrill v. But- 532, 43 C. C. A. 296; Parker v. ler, 78 Fed. 686; Tavlor v. Holmes, Moore, 111 Fed. 470. 14 Fed. 511; Miles v.'Vivian, 79 Fed. sSee Union Pac. Ry. v. Yates, 79 8'53, 25 C. C. A. 208; See cases col- Fed. 589, 25 C. C. A. 103; Shea v. Ifictcd Book II., U. S. Notes, p. Leisv. 85 Fed. 245. 401ff. 4Hinde v. Vattier, 5 Pet. 401, 8 L. isKirbj^ v. Lake Shore, etc. Ry. 120 ed. 170; Remington v. Linthicum, 14 U. S. 138, 30 L. ed. 573, 7 Sup. Ct. Pet. 91, 10 L. ed. 364. 91 § 10 [o] FEDERAL JURISDICTION IN GENERAL. [Code Fed^ been followed. 5 The local statute as to privileged communications has been followed and applied; 6 so also the local rule as to expert testimony in forgery cases. T In proceedings before the Court of Claims it has been held that in the absence of provision by Congress, common law rules shall be applied. « But the local law does not apply where in conflict with an act of Congress respecting the admission of evidence in Federal courts.9 Hence where Congress has provided the mode of proof in common law trials, laws conflicting therewith as respects the taking of depositionsio or examination of witnesses or parties in advance of trialu will not be followed. [o] Matters within legislative power of Congress — exemption laws. Under the statute making State laws the rule of decision in Federal courts, local homestead and exemption laws will be followed by the Fed- eral courts in the absence of legislation by Congress prescribing different rules respecting exemption of property from execution under Federal judg- ments. i^ The question whether the interest of a cestui que trust, or other equitable estate, is liable for debts of owner or beneficiary is one of local law. IB [p] Other matters within national legislative powers. Some of the cases asserting the existence of a general commercial law which Federal courts may administer in disregard of the local jurispru- dence, are concerned with matters which might very well be legislated upon by Congress.i^ The admiralty law and the Federal criminal law also clearly present matters properly within the law making powers of BComstock V. Tracey, 46 Fed. 170, .35 L. ed. 739, 11 Sup. Ct. Rep. 1003; Chicago, etc. Ry. v. Smyth, 103 Fed. Pierce v. Union P. Ky. Co. 47 Fed. 376. 709; Tabor v. Indianapolis, etc. Co. 6 Connecticut, etc. Co. v. Union, etc. 66 Fed. 423; Despeaux v. Pennsylva- Co. 112 U. S. 254, 28 L. ed. 708; 5 nia R. R. 81 Fed. 897; National" etc. Sup. Ct. Rep. 119; Dreier v. Ins. Co. Co. v. Leland, 94 Fed. 503. 37 C. C. 24 Fed. 072; Butler v. Fayerweather, A. 372. 91 Fed. 460, 33 C. C. A. 625; Mutual i^Nichols v. Levy, 5 Wall. 433, 18 Ben. etc. Ins. Co. v. Robison, 58 Fed. L. ed. 596; Fink v. O'Neil, 106 U. S. 731, 7 C. C. A. 444. 22 L.R.A. 331. 279, 27 L. ed. 196, 1 Sup. Ct. Rep. 7Richardson v. Green, 61 Fed. 432, 325; Spindle v. Shreve. Ill U. S. 9 C. C. A. 565. 542, 28 L. ed. 512, 4 Sup. Ct. Rep. sMoore v. United States, 91 U. S. 522; Green v. Root, 62 Fed. 194; 270. 23 L. ed. 346. First Nat. Bank v. uiass, 79 Fed. 708, 9Whitford v. Clark Co. 119 U. S. 25 C. C. A. 151; Thompson v. McCon- 525, 30 L. ed. 500. 7 Sup. Ct. Rep. nell, 107 Fed. 30, 46 C. C. A. 124; 306; Ex parte Fisk, 113 U. S. 719, Manufacturers etc. Bank v. Bayless, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724. 16 Fed. Cas. 664; Mason v. Beebee, lOTurner v. Shackman. 27 Fed. 184, 44 Fed. 558. Shellabarger v. Oliver, 64 Fed. 307; isPotter v. Couch, 141 U. S. 317, United States v. Fifty Boxes, 92 Fed. 35 L. ed. 732, 11 Sup. Ct. Rep. 1011; 603. In re Bandouiner, 96 Fed. 541 ; Ray- iiEx parte Fisk. 113 U. S. 719, 28 nolds v. Hanna, 55 Fed. 795. L. ed. 1117, 5 Sup. Ct. Rep. 724; Union i^See infra, note, [tt] Pac. R. R. V. Botsford, 141 U. S. 257, 92 Procedure] WHAT LAW ADMINISTERED. § 10 [q] the nation.is it is probable also that the rules of private international law, or the principles underlying the so called doctrine of conflict of laws might be prescribed for the Federal courts by Congress. Or if not within the power of Congress thej'^ may belong to that class of cases of which suits by States in the Supreme Court are an illustration, in which ques- tions of international law are or may be involved, as to which no legisla- tive body would have power to declare the rule of decision, and in which the courts must have recourse to accepted principles of the law of na- tions.19 It is obvious that there are many matters of national concern outside the law making power of the States, as to which Congress has not legis- lated or as to which its legislation is not full and exhaustive. There are yet other matters as to which even Congress has no power to legislate. In such cases the Federal courts may be called upon to administer the law mantime,20 or public or private international law,i or to affirm prin- •ciples of municipal law which may, aptly enough, be termed the common law of the United States.2 [q] Questions of conflict of laws. In cases involving what is often termed the doctrine of conflict of laws, it would seem that the Federal courts may be at liberty to ignore the local rule. As for instance in determining whether the law of the forum or of the place of contract is to be applied in construing and testing con- tracts involving intangible rights and not fixed and tangible property; or in determining whether by comity, a right of action given by another sovereignty shall be enforced. Over such matters of controversy the State has not plenary legislative power, and can do no more than declare the principle that shall control in its own courts. The question what law shall be applied or whether comity requires the recognition of a right given by foreign laws, ia one of private international law. In admiralty cases and in suits by States in the Supreme Court, the Federal courts are often called upon to administer a species of international law,* and there is a peculiar appropriateness in conceding to them an independent judg- ment in such cases. The Federal courts have in numerous cases laid down principles for determining the law that shall govern the obligation, va- lidity, or construction of a contract without referring to or assuming to be bound by the doctrines of the State courts on the subject. 5 They have held the contract of a Federal oflficer's bondsmen to be governed by com- mon law rules though the officer reside in Louisiana and the bond be sued isSee post, § 11. Boyle v. Zacharie, 6 Pet. 644. 8 L. i9See post, § 11. note, [f] ed.".527; Andrews v. Tond, 13 Pet. 20See post, § 11, note, [a] 78, 10 L. ed. 61; Bank of Augusta v. iSee infra, note; [q] post, § 11, Earle, 13 Pet. 580. 10 L. ed. 274; Os- note.m born v. Nicholson. 13 Wall. 056, 20 L. 2See post, § 13. ed. 680; Railroad v. Pennsvlvania. enson, 70 Fed. 594. 17 C. Bank Reg. 426, Fed. Cas. No. 10,288; C. A. 293; Forward v. Adams, 7 In re Eldridpre, 2 Hushes, 257, 12 N. Wend. 207; Campbell v. United Bk. Reg. 540, Fed. Cas. No. 4.331; States, 4 Fed. Cas. 1202; Mullers In re Cornwall. 9 Blatchf. 127, 6 N. Case, 17 Fed. Cas. 976; In re Dana, Bank Re'r. 318, Fed. Cas. No. 3.2.50. 68 Fed. 899: In re lasigi, 79 Fed. nin re Crissler, 136 Fed. 754, G9 752: United States v. Boyer, 85 Fed. C. C. A. 406. 103 § 12 [a] FEDERAL JURISDICTION IN GENERAL [Code Fed. rights and liabilities on commercial paper has been followed notwithstani ing that the Federal courts assume to disregard local decisions an ques- tions of commercial law. 12 [f J Suits to which a State is party in Supreme Court. The Constitution extends the Federal jurisdiction to controversies be- tween States and by States against foreign States, citizens, or aliens, and vests original jurisdiction in the Supreme Court. i* It does not however, declare the law applicable in the decision of such controversies. In such cases the Supreme Court is a sort of international tribunal and administers not only local and national law but also a species of international law,i5 where the rights to be measured and adjudged are not within the legisla- tive control of any State or of Congress. In such cases, while State cases and decisions would have no binding force they might be very material evidence as recognition by the litigants of the validity of general prin- ciples of law. And when both recognized the soundness of certain prin- ciples of general jurisprudence which if applied would control the deci- sion of the controversy, plainly such would be the law administerd by the Supreme Court unless repugnant to the fundamental law of the na- tion. It has been decided that the Supreme Court will not administer the penal laws of a State in a suit by it against citizens of other States, because under accepted principles of general jurisprudeueo, such laws can have no extra-territorial efi'ect.i6 § 12. — State laws as rules of decision. The laws of the several States,^'^^"'^'^^ except where the Constitu- tion, treaties, or statutes of the United States otherwise require or provide, 1^^^ shall be regarded as rules of decision in trials at com- mon law,t^^"f^^ in courts of the United States, in cases where they apply, f^^ R. S. § 721, U. S. Comp. Stat. 1001, p. 581. [aj The section in general. This section (originally the 34th section of the judiciary act of 1789) furnishes a rule to guide the court in the formation of its judgment. ^ It declares the rules by which rights in controversy are to be measured and adjudged, and not the mode in which the court is to proceed. It has no application to the practice of the court. 2 But questions may arise sub- i2In re Shelbourne, 21 Fed. Cas. nois, 200 U. S. 496, 26 Supt. Ct. Rep. 1,235, contra, see Fogg v. Stickney, 11 208; 50 L. ed. 572. Nat. Bank Reg. 108, Fed. Case No. 1 6 Wisconsin v. Pelican Ins. Co. 127 4,898; Tod v. Ky. Land Co. 57 Fed. U. S. 299, 32 L. ed. 246, 8 Sup. Ct. 65. Rep. 1374. See Huntinorton v. At- i4See ante, § 2. note;[o] post, § 35. trill, 146 U. S. 657, 36 L. ed. 1123, isMarriatt v. Silk, 11 Pet. 22, 23, 13 Sup. Ct. Rep. 224. 9 L. ed. 617; Kansas v. Colorado, iWayman v. Southard, 10 Wheat. IS15 U. S. 125, 46 L. ed. 838, 22 Sup. 24, 6 L. ed. 258. Ct. Rep. 552, 560; Missouri v. Illi- 2Wayman v. Southard, 10 Wheat. 104 Procedure] STATE LAWS AS RULES OF DECISION. § 1'- [b] sequeiitly, in a suit growing out of some form or mode of proceeding or matter of practice, in which the State or Federal law, must furnish the rule of decision according as the one or the other governed such mode of proceeding. 3 The legislature, making the state laws the rule of decision, for Federal courts, is largely declaratory of a principle that results in- dependently of any legislation, from the nature and constitution of our government.* But it is not altogether so. The local statutes of limitation and the local law as to property exempt from execution is adopted by this section. Congress was not, however, obliged to adopt them and might have legislated independently of the States. 5 The principles of law and the cases dealing with the question when the Federal courts are bound to administer State law and make it their rule of decision, and when they may disregard it, are discussed elsewhere at length.6 [b] Refers to statutory laws and not judicial decisions. lu an early case it was decided that the term '"laws" did not include the decisions of the local courts. Decisions, it was said, do not constitute laws but are at most evidence of what the laws are.s While the technical correctness of this conclusion may not be questioned, it by no means follows that settled principles of State law at to matters within the local law making power, may be disregarded by Federal courts because rest- ing solely in judicial decisions and not founded upon statutes. Rules of property and the settled interpretation of a State's common law or public policy, plainly disclosed in the decisions of the highest State court must be recognized and followed by the Federal court sitting within a State.9 In all cases where it is the duty of the Federal covirts to apply the local law they are as much boimd by that law when evidenced by judicial decisions as by statutory enactments. Yet as decisions are merely evidence of the local law the Federal courts may exercise an independent judgment as to the satisfactory nature of such evidence. Hence where there is no set- tled course of State decisions, or they are conflicting, or obviously un- sound, or not by the highest court, the Federal courts are no more bound by preceding adjudications than is the highest court of the State when it is Stftting.io The fact that the statute does not make State court deci- sions of binding authority has been deemed to justify the doctrine that the Federal courts may administer general principles of jurisprudence or commercial law in certain cases.n Unconstitutional State statutes are not laws or rules of decision within this section. 12 26, 6 L. ed. 259; Bank of United sSee ante. S 10, notes [1] [m] [o]. States V. Halstead, 10 Wlieat. 62, eSee ante. §§ 10, 11. 6 L. ed. 2G7. sSwift v. Tyson, 16 Pet. 8, 10 L. 3Wavman v. Southard, 10 Wheat, ed. 865: Ex parte Wadell, 28 Fed. 25, 6 L. ed. 258, 250. Compare Tul- Cas. 1312. lock V. Mulvane, 184 U. S. 514, 46 L. 9See ante, § 10. notes, [ff] [k] ed. 657, 22 bup. Ct. Rep. 372, and loSee ante, § 10, notes.[h]-[k] Fidelity, etc. Co. v ^uck Co. 189 U. uSee ante, § 10, note.M S. 135, 23 Sup. Gc. Rep. 582, 47 L. i2Poindexter v. Greenhorn, 114 U. ed. 744. S. 303. 29 L. ed. 185, 5 Sup. Ct. Rep. - 282, 46 L. ed. 911; 22 Sup. Ct. Rep. ^, ''See post, § 818; Excelsior Pipe 685': Atherton Mach. Co. v. Atwood \''- ]' ^'T'l %l l c^f ' Co. 102 Fed. 949. 43 C. C. A. 72. 1- ^d. 910, 22 Sup. Ct. Rep. 681. loWhite V. Rankin, 144 U. S. 628, i^'See post, § 2201. 36 L. ed. 509, 12 Sup. Ct. Rep. 768 leSee post, § 2200 et seq. (explaining earlier cases) ; Elgin, etc. 130 Procedure] COXCUBREXT AXD CONFLICTIXG JURISDICTION. § 16 vent an assignee in bankruptcy appearing in a State court in an action brought prior to the bankruptcy concerning the bankrupt's lands,i" and if he so appears and there litigates his rights, he cannot thereafter in the Federal court claim an immunity from such suit; is nor can other parties object if he does not.19 Judicial proceedings in other courts are not avoid- ed by the institution of bankruptcy proceedings, nor is the otherwise law ful jurisdiction of a state court over a suit thereby ousted. 20 The sec- tion here under consideration does not prevent a State court from decid- ing rights of property between a bankrupt or his assignee, and third per- sons.i State attachment proceedings not annulled by the bankrupt act, may be continued. 2 Where foreclosure in State court has commenced prior to mortgagor's bankruptcy the State court may proceed with the suit, de- creeing priority of liens and enforcing their satisfaction, and to that ex- tent infringe the bankrupt court's jurisdiction to administer the bank- rupt's estate; 3 the assignee must make himself a party if he would assert his rights. -i "Wliere a suit by the bankrupt is pending at the time of bankruptcy the assignee need not become party thereto, but is bound by the decree.5 He may, however, by leave of the bankrupt court continue such suits. 6 The exclusive Federal bankruptcy jurisdiction does not pre- vent bankrupt assignees from suing in a State court.7 In fact under the law of 1S98, the bankrupt court has no jurisdiction over independent suits by the trustee to assert a title to money or property as assets in bank- ruptcy unless by consent of the proposed defendant. « [m] Controversies where a State is party. This clause of the above section is identical with the declaration of the constitution and of R. S. § 687, which further vest the jurisdiction in the Supreme Court. 10 § 16. Concurrent and conflicting jurisdiction — personal actions plea of another action pending. In a large class of cases there is a concurrent Jurisdiction in Federal and State courts^, and often, even where there is no concur- 17 Winchester v. Heiskell, 119 U. S. Gibbs v. Logan, 22 W. Va. 212; In 453, 30 L. ed. 462, 7 Sup. Ct. Rep. re Ogles, 93 Fed. 437. 281. S.Jerome v. McCarter, 94 U. S. 737, isMays v. Fritton, 20 Wall. 414, 24 L. ed. 136. 22 L. ed. -389; Scott v. Kellv, 22 Wall. * Young v. Cardwell, 6 Lea, 172. 59, 22 L. ed. 730; Davis v. Friedlan- ^Thatcher v. Rockwell, 105 U. S. der, 104 U. S. 570. 2G L. ed. 818. 467. 26 L. ed. 949; Sullivan v. Rabb, isThatcher v. Rockwell, 105 U. S. 86 Ala. 440, 5 So. 749; Lancey v. 469, 26 L. ed. 950. Foss. 88 Me. 218, 33 Atl. 1072. 20Eyster v. Gaff, 91 U. S. 521, 23 sSee post, § 2202 et passim. L. ed. 403; Brackett v. Davton, 34 'Claflin v. Houseman, 93 U. S. 134, Minn. 221. 25 N. W. 349. " 23 L. ed. 837. iBurbank v. Bigelow, 92 U. S. 182. sBanlos v. Hawarden Bank, 178 U. 23L. ed. 542. S. 524, 44 L. ed. 1177, 20 Sup. Ct. 2Davis V. Friedlander, 104 U. S. Rep. 1000: see post, S 2204; Shoshone ."0, 26 L. ed. 818; .Mattocks v. Far- Min. Co. v. Rutter, 177 U. S. 505, rinirton. 2 Ileisk. 333, Fed. Cas. No. 20 Sup. Ct. Rep. 726. 44 L. ed. 864. 9.298; Crowe v. Reid, 57 Ala. 287; loSee post, § 35 131 § 16 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. rent power, tliere exists a possibility of conflict as a result of pro- ceedings drawing property into the custody of one or other court; or resulting from the action of a State in taking into custody a per- son who claims his detention to be in violation of some Federal right. Several rules have been adopted by the courts for the pur- pose of avoiding conflict in such cases and to insure harmony of action. These rules distinguish broadly between actions merely personal and those in which the litigation revolves about some prop- erty actually or constructively in custody. In merely personal ac- tions the general rule is that the court first acquiring jurisdiction is entitled to retain it to the exclusion of any other Court, until its jurisdiction is exhausted, f^^ But the courts have not been liberal in their interpretation of this rule, and it is of but limited applica- tion as between Federal and State courts. In fact the plea of a prior action pending is not available unless the two cases be the same as to subject matter and relief sought,^''^ and as to parties,^°^ and in the same jurisdiction.'^'*^ And the authorities further de- clare, though it is perhaps not finally settled, that the plea is not at all available as between Federal and State courts even if sitting in the same State"^*^^ though proceedings in the Federal action, where subsequently instituted will often be stayed. ^'^ Where the first action is dismissed it can no longer be pleaded in abate- ment. ^^^ The common law and maritime remedies are so different that the same right of action may be sued upon concurrently in com- mon law and admiralty courts. "^^ Author's section. [a] Priority gives right to retain cause until conclusion. It has been declared in many cases that as between courts having con- current jurisdiction, the one whose jurisdiction first attaches retains it to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted. i The jurisdiction thus attaching can- iSmith v. Mclver. 9 ^Vlieat. 535, Wadley, 172 U. S. 164, 43 L. ed. 390. 6 L. ed. 152; Wallace v. McConnell, 19 Sup. Ct. Rep. 119; Prout v. Starr, 13 Pet. 151, 10 L. ed. 95; Freeman v. 188 U. S. 537, 47 L. ed. 584, 23 Sup. Howe, 24 How. 455, IG L. ed. 749; Ct. Rep. 398; Sharon v. Hill, 13 Sawy. Buck V. Colbath. 3 Wall. 345, 18 L. 387, SG Fed. 337. 1 L.R.A. 572: Rod- ed. 257; Taylor v. Taintor, 16 Wall, gors v. Pitt. 96 Fed. 670 and cases 370, 21 L. ed. 287; Ex parte Crouch, cited. See Baltimore, etc. R. R. v. 112 U. S. 178. 28 L. ed. 692; 5 Sup. Wabash, R. R. 119 Fed. 678, holding Ct. Rep. 96; Rio Grande R. R. v. rule does not apply to actions strictly Gomila, 132 U. S. 478, 33 L. ed. 400, in i>ersonam. 10 Sup. Ct. Rep. 157: Harkrader v. 132 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 10 [b] not be arrested or taken away by proceedings in any other court.2 Xo other court of concurrent jurisdiction should entertain subsequent pro- ceedings tending to embarrass the administration of justice in the first, either by denying the litigant a right to prosecute his claim or by issuing its process in an attempt to remove property from its custody.3 Priority in personal actions is determined by the time that parties were served with process, and not by the date of filing the two actions. < The principle has a corollary in the rule that where Congress has taken jurisdiction and a matter is there pending the courts will not take it up and decide it. 5 [b] Second suit in concurrent jurisdiction not abated unless involving same matters and for same relief. The principle excluding action in a concurring jurisdiction is of but limited and precise application in suits in personam where there is no property in the custody of the law. It is well settled that when the plea of another or rather of a prior,? action pending is set up, the case must be the same as to parties rights asserted, and relief sought. s Where the relief sought is different, and the mode of proceeding difi'erent, the juris- diction of neither is aft'ected by the other's proceedings. » The pendency of equity proceedings will not abate later proceedings at law.io The pend- ing ease must be such that if already decided the adjudication could be 2Stout V. Lve, 103 U. S. 08, 26 L. ed. 428; In re Chetwood, 165 U. S. 460, 41 L. ed. 782, 17 Sup. Ct. Rep. 385. 3 Peck v. Jenness, 7 How. 624, 12 L. ed. 841; Orton v. Smith, 18 How. 266, 15 L. ed. 393: Tavlor v. Carrvl. 20 How. 596, 15 L. ed. 1028; Zim- merman V. So Relle, 80 Fed. 417, 25 C. C. A. 518. i, 133 U. 867, 13 Sup. Ct. Rep 906; Moran v. S. 257, 33 L. ed. 617, 10 Sup. Ct. Rep. Sturges, 154 U. S. 274, 38 L. ed. 981, 266, 269: Security T. Co. v. Union T. 14 Sup. Ct. Rep. 1019; In re Chet- Co. 134 Fed. 301. 140 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. S 17 [b] under mesne or final process of attachment,5 replevin,6 execution, or other- wiseJ It requires the Federal courts to respect the prior possession ot a State courts quite as much as it demands a respect by State courts for the prior possession of a Federal tribunal.!* When one coordinate court takes into custody a specific thing, it is withdrawn from the judicial power of the other. lo A marshal and sheriff cannot make a joint levy.n But the fact that a State court in a replevin suit has transferred certain personalty of a corporation from its vice president to the company, does not put the property in custodia legis so as to prevent a Federal court appointing a receiver of the corporate property and franchises in a suit to enforce a lien. 12 By R. S. § 934 property seized by a Federal officer under authority of a revenue law is irrepleviable and to be deemed in custodia legis.is If one court having obtained actual custody, ascertains that another is rightfully entitled, it has been said that it may hold the property until the latter through its proper officers requests and offers to receive it.i* [b] When court's exclusive possession deemed to attach. In cases involving a levy upon and actual seizure of property, priority of possession is not determined by ascertaining which action was first commenced,! 5 nor which writ was first issued,i6 but depends upon the time when possession or what the law deems a taking of dominion or pos- session has actually occurred.i^ If the property is capable of manual de- livery there must be a manual taking possession, and where both sheriff sCalhoun v. Lanaux. 127 U. S. 6.34, S. 409, 45 L. ed. 927, 21 Sup. Ct. 32 L. ed. 297, 8 Sup. Ct. Rep. 1345; Rep. 709. Shields v. Coleman, 157 U. S. 177, isSee post, § 1386. 39 L. ed. 660. 15 Sup. Ct. Rep. 570. i4Boatmen's Bank v. Fritzlen, 135 cMelvin v. Robinson, 31 Fed. 635, Fed. 650, 68 C. C. A. 288. Porter v. Davidson, 62 Fed. 627; Do- i^Wilmer v. Atlanta, etc. R. R. Co. mestic, etc. Co. v. Hinman, 13 Fed. 2 Woods, 426, Fed. Cas. No. 17,775; 161, 2 McCrary, 543; United States Heidritter v. Elizabeth, etc. Co. 112 V. Dantzler, 3 Woods, 719, Fed. Cas. U. S. 294, 28 L. ed. 729, 5 Sup. Ct. No. 14.017; First Nat. Bank V. Dunn, Rep. 135; East Tennessee, etc. R. 97 N. Y. 155, 49 Am. Rep. 518. R. v. Atlanta, etc. R. R. 49 Fed. 610, ^Prince v. Bartlett, 8 Cranch. 434, 611, 15 L.R.A. 109; Schaller v. Wick- 3 L. ed. 614; Coveli v. Ileynian, 111 ershan, 7 Coldw. 381; Longstreet v. U. S. 180, 28 L. ed. 390, 4 Sup. Ct. Hill, 11 Hei.sk. 56. Rep. 355. isWilmer v. Railroad, 2 Woods, sPrince v. Bartlett, 8 Cranch, 434, 428, Fed. Cas. No. 17,775; Corning v. 3 L. ed. 614; Borer v. Chapman, 119 Dreyfus. 20 Fed. 428; Hale v. Bugg, U. S. 600, 30 L. ed. 532; 7 Sup. Ct. 82 Fed. 37. Rep. 342. iTBrown v. Clarke, 4 How. 4, 11 9 Freeman v Howe, 24 How. 456, 16 L. ed. 850; Adler v. Roth, 5 Fed. 898; L. ed. 749; Kippendorf v. Hyde, 110 Langdon v. Brumbv. 7 Ala. 58; Metz- U. S. 280, 28 L. ed. 145, 4 Sup. Ct. ner v. Craham, 57"Mo. 410; Schaller Rep. 27; Coveli v. Hevman, 111 U. S. v. Wickershani, 7 Coldw. 381, Jame.s 185, 28 L. ed. 390, 4 Sup. Ct. Rep. 355. v. Kennedv, 10 Hei.sk. 611: Long- loCovell V. Hey man. Ill U. S. 182, street v. Hill, 11 Heisk. 59: Fountain 28 L. ed. 390, 4 Sup Ct. Rep. 355; v. 624 Pieces of Timber, 140 Fed. 381. Adler v. Roth, 5 Fed. 898. In personal actions the time of serv- ii.\dler V. Roth, 5 Fed. 898. ice of process determines priority. i2Put in Bay Co. v. Rvan, 181 U. See § 16.[a] 141 § 17 [c] FEDERAL JURISDICTION IN GENERAL. [Code Fed. and marshal failed in that on their first levy, the one who first makes a proper levy and takes possession thereafter, has the priority. is A marshal may levy upon a vessel to enforce a maritime lien so long as the custody of no other court has actually attached, even though a State court has appointed a receiver who has not yet given bond or assumed possession. 1 9 [c] When exclusive jurisdiction attaches on proceedings quasi in rem. There are two classes of cases to which the rule that accords exclusive jurisdiction over property to the court which makes the first actual seiz- ure does not fully apply. In the first property is deemed to be placed in gremio legis and beyond the reach of other courts, by certain facts, in the absence of either actual or constructive possession. Thus upon the filing of a voluntary petition in insolvency or bankruptcyi or for the dis- solution of a corporation, 2 it would seem proper to hold that the property involved, which is not then in the actual custody of some other court, 3 jjasses eo instanti, under the exclusive control or dominion of the court having jurisdiction of such proceedings. ■* The probate court acquires a similar custody upon the death of a decedent; 5 and the same rule should apply in any other case where the filing of a bill or petition might fairly be construed as a surrender of property into the custody of the law. The second class of cases to which the rule does not fully applys are cases in which the filing of a bill or petition contemplates the ultimate assertion of dominion over a subject matter although it does not of itself draw the property immediately into the custody of the law. In a recent decision dealing with cases of this type it was said that the principle which gives a court with possession of the res, exclusive jurisdiction, "often applies" in cases where no actual seizure or possession has occurred but the suit is brought "to enforce liens against specific property, to marshal assets, administer trusts or liquidate insolvent estates, and in suits of a similar nature where in the progress of the litigation the court may be com- pelled to assume the possession and control of the property to be affected."6i^ In that case the filing of a suit for foreclosure, by a trustee praying a receiver, was deemed to vest an exclusive jurisdiction in the Federal court in advance of service of process, so as to disable a State court from enter- taining a subsequent suit, in which process was served first, to enjoin the isAdler v. Roth, 5 Fed. 895. isMoran v. Sturges, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1027. iln re Vogel, 7 Blatchf. 19. Fed. Cas. No. 16.982. See infra, note [d]. 2 See Gaylord v. Ft. Wayne, etc. R. R. 6 Biss. 286, Fed. Oas. No. 5,284; Foster v. Bank of Abingdon, 68 Fed. 726. 3Rio Grande R. R. v. Gomila, 132 U. S. 481, 33 L. ed. 400, 10 Sup. Ct. Rep. 155; Peck v. -Jenness, 7 How. 612, 12 L. ed. 841; Mollison v. Eaton, 16 Minn. 4.30, 10 Am. Rep. 152: Parks V. AVilcox, 6 Colo. 490. 4 See opinion, Brewer, J., dissent- ing, Moran v. Sturges, 154 U. S. 256, 38 L. ed. 980, 14 Sup. Ct. Rep. 1029. 5See infra, note.le] 6 See however, Knott v. Evening P. Co. 124 Fed. 355, 356, holding it should to apply to such cases, re- versed, Louisville T. Co. v. Knott, 130 Fed. 820, 65 C. C. A. 158. 6'aFarmers L. & T. Co. v. Lake St. E. R. R. 177 U. S. 62, 44 L. ed. 671, 20 Sup. Ct. Rep. 566. See also. Lou- isville T. Co. V. Knott, 130 Fed. 820, C)o C. C. A. 158. 142 Procedure] COXCURREXT AXD COXFLICTIXG JURISDICTIOX. § 17 [c] trustee from maintaining such suit. Doubtless it is a salutary rule to declare that the filing of a suit quasi in rem contemplating an assumption of actual dominion over a subject matter, should prevent other courts from subsequently attempting to enjoin such proceedings,'? or from litigating matters concerning the enforcement of that particular right in rem. But it should not disable other courts from entertaining subsequent suits to foreclose other liens or enforce other rights in rem, and as between two such proceedings it does not seem safe to say that the second court is disabled from appointing a receiver because the first might some time do so. Either court should be at liberty to appoint a receiver, conceding to the first the prior right, s if the particular facts so require; and the con- trol and disposition of the subject matter should ultimately go to the re- ceivership tribunal. A suit to foreclose a mechanics lien and a suit to foreclose a mortgage may proceed against the same property in different courts at the same time. 9 Indeed it was held that diff"erent bondholders, or bondholders and the trustee, may sue for relief under the same mort- gage in different courts. lo The mere bringing of a foreclosiu-e suit should not be deemed to initiate an exclusive jurisdiction, where no actual pos- session of the property is sought by receivership or levy.n But the filing of a bill praying a receiver is a sufficient assumption of dominion over the property to withdraw it from reach of a subsequent levy or garnishment in another court, at least until it has been acted upon. 12 Where a re- ceiver is prayed in both covu"ts, it would seem a proper rule that the second court should stay its hand until the application in the first case is disposed of, and the appointment of a receiver by the first should ex- clude similar action by the second. is But if a receivership or possession is sought only in the second suit and the first does not seek to take the property into custody it would seem that the second might acquire an exclusive possession of the property through a receiver or sequestration. 1* In any case where property has actually been taken into custody prior to 7See also Phelps v. !Mutual, etc. Fed. Cas. No. 14,401; Gaylord v. Assn. 112 Fed. 453, 50 C. C. A. 339. Railway, 6 Biss. 286, Fed. Cas. No. &See Owens v. Ohio C. R. R. 20 5,284; Oohen v. Solomon, 66 Fed. 411. Fed. 10; Central T. Co. v. South, i2Riesner v. Gulf, etc. R. R. 89 etc. R. R. 57 Fed. 3; Sharon v. Terry, Tex. 660, 59 Am. St. Rep. 88, 36 S. 36 Fed. 337, 13 Sawy. 387, 1 L.R.A. W. 55, 33 L.R.A. 173; Perego v. Bone- 572. steel, 5 Biss. 69, Fed. Cas. No. 10,976. sNational F. & P. Works v. Oconto, is Adams v. JVlercantile T. Co. 66 etc. Co. 113 Fed. 793, 51 C. C. A. Fed. 617, 15 C. C. A. 1 ; Annleton W. 465. W. Co. V. Central T. Co. 93 Fed. 286, lOBrooks V. Vermont, etc. R. R. 35 C. C. A. 302; McKechney v. Weir, 14 Blatchf. 463, Fed. Cas. No. 1,964; 118 Fed. 805, 55 C. C. A. 417; Mc- Berkman v. Hudson, etc R. R. 35 Dowell v. McCormick, 121 Fed. 61. Fed. 3. 57 C. C. A. 401. iiCompton V. Jesup, 68 Fed. 283, i^Knott v. Evening Post Co. 124 15 C. C. A. 397: National F. Wks. Fed. 342; East. etc. R. R. v. Atlanta, V. Oconto, etc. Co. 113 Fed. 798, 51 etc. R. R. 49 Fed. 608, 15 L.R.A. 109; C. C. A. 465; National F. Wks. v. Pitt v. Rogers, 104 Fed. 387, 43 C. Oconto, etc. Co. 105 Wis. 48, 81 N. C. A. 600: Oliver v. Parlin, etc. Co. W. 125. Contra, see Union T. Co. 105 Fed. 272, 45 C. C. A. 200. V. Bockford. etc. R. R. 6 Biss. 197, 143 § 17 [d] FEDERAL JURISDICTION IN GENERAL. [Code Fed. the liling of a second suit quasi in rem, there is no reason why that shouhi not be paramount and exclusive so long as it continues. Thus where in the first suit an order to seize and sell on foreclosure has issued, this creates an exclusive dominion in the foreclosing court; 15 so also does a takin^i of possession by the sheriff. is [d] Bankruptcy and insolvency causes. The exclusive nature and extent of the Federal bankruptcy jurisdiction, and the effect of bankruptcy proceedings upon cases pending in State courts, are elsewhere considered.! The effect of a voluntary petition in bankruptcy or insolvency is to place the property in the custody of the court, disabling other courts from maintaining replevin therefor, or set- ting aside a homestead. 2 Although if the propertj^ was in the State court's possession previous to the bankruptcy that possession is not dis- turbed except as provided by the bankrupt law. 3 The Federal courts are without jurisdiction of State insolvency or assignment proceedings. 4 They may not disturb a State court's custody of insolvency assets 5 or seizi- such property under their own writs.6 But they may entertain suit to establish a claim where citizenship is diverse; 7 or a foreclosure suit, al- though the mortgagor has made a State statutory assignment; 8 or a suit to declare a mortgage invalid. 9 It seems that they may entertain suits to inqiiire into the validity of the assignment itself. 10 In short, where a controversy is within the Federal judicial power as defined by the Con- stitution and Congress, the Federal courts may take cognizance of it not- withstanding State insolvency proceedings, so long as their action does not interfere with or embarrass the administration of the estate in the State tribunal. The case is analogous to that of State probate proceed- ings.! 1 The State court should respect a lien or priority based upon pro- isHolland T. Co. v. International, Fed. 519; Chapman v. Brewer, 114 U. etc. Co. 85 Fed. 865, 29 C. C. A. 460; S. 173, 29 L. ed. 88, 5 Sup. Ct. Rop. Fox V. Hempfield R. R. 2 Abb. U. S. 806. 141, Fed. Cas. No. 5,011; Central N. * Adams v. Preston, 22 How. 473, Bank v. Hazard, 49 Fed. 295. 296. 10 L. ed. 273. i6Tefft V. Sternberg, 40 Fed. 3, 5 sThe J. G. Chapman, 02 Frtl. 940. L.R.A. 223. fiGeilinger v. Philippi, 133 U. S. iSee ante, § 15, note.Cn 257, 33 L. ed. 617, 10 Sup. Ct. Rep. 2ln re Cobb, 96 Fed. 823; In re 269; Tua v. Carrieri, 117 U. S. 201. Miller, 6 Biss. 34. Fed. Cas. No. 9,551 ; 29 L. ed. 855, Sup. Ct. Rep. oO.t : In re Litchfield. 13 Fed. 866; In re Milliken v. Barrow, 55 Fed. 1-IS. Askew, 3 N. B. R. 575, Fed. Cas. No. TGreen v. Creighton, 23 How. lO'i. 585; Chapman v. Brewer, 114 U. S. 16 L. ed. 419; Shelbv v. Bacon, 10 173, 29 L. ed. 88, 5, Sup. Ct. Rep. 806; How. 56. 13 L. ed. 326. In re Vogel, 7 Blatchf. 19, Fed. Cas. sEdwards v. Hill, 59 Fed. 721. S No. 16,982. But see Moran v. Sturges, C. C. A. 233. 154 U. S. 252, 38 L. ed. 981, 14 Sup. stRumsev v. Town. 20 Fe I. 503. Ct. Rep. 1019. Smith, etc. Co. v. McGro-.irity. 130 V sConner v. Long. 104 U. S. 234, 26 S. 240, 34 L. ed. 348, 10 Sup.' Ct. Rep. L. ed. 726; Johnson v. Bishop, Woolw. 1018. 327, Fed. Cas. No. 7,373; Townsend v. lORejall v. Greenwood, 60 Fed. 786: Leonard, 3 Dill. 371, Fed. Cas. No. 14,- Swofford Bros. v. Mills, 86 Fed. 559. 117; Southern L. Co. v. Benbow, 96 "See infra, note.le] 144 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 17 [e] ceedings in the Federal court prior to the insolvency. 12 An assignment for the benefit of creditors does not, in general, put the property in cus- todia legis.13 A creditor not party to a proceeding thereunder in the State court may maintain a bill in the Federal court upon failure of the assig-nee to act, to set aside a deed of the debtor which withdrew most of the assets from the assignment. 1* The extent to which proceedings in State courts are permissible, pending bankruptcy administration in the Federal court, is governed by statute and considered elsewhere.is [e] Probate proceedings. The Federal courts have no probate jurisdiction, yet they may take cognizance of a suit that arises in the course of probate, where between citizens of different States ;i so long as their action does not interfere with the possession of the State tribunal. They may render judgment against ;in estate on a claim although it may be collected only through the pro- ')ate court; 2 taking its place with other debts against the estate.3 Ex- ecutors may sue in the Federal court to enforce rights or claims of the estate.* Federal courts may entertain a foreclosure suit against a trustee of property in the custody of a probate court. 5 It is held that they may determine the status of aliens as heirs and their right to share in an es- tate; 6 and entertain a suit for partition and assignment of a widow's dow- er;'^ or suit for specific performances They may require an executor to account; 9 or entertain a suit by a legatee to establish his claim; 10 or set aside a receipt therefor, fraudulently obtained. n But they cannot en- tertain a proceeding to establish a will for probate; 12 or to construe it;i3 i2Claflin v. Lisso. IG Fed. 897, t Terrv v. Bank, 20 Fed. 775; Kitte- Woods, 252. redge v. Race, 92 U. S. 121, 23 L. ed. isBoltz V. Eagon, ;^4 Fed. -I'm; 490;Wickham v. Hull. 60 Fed. 330; Lehman v. Rosengarten. 23 Fed. 012; Briggs v. Stroud, 58 Fed. 720; In re Tne James Pvoy. 59 Fed. 785: Roth- Foley, 80 Fed. 951; Brown v. Ellis, child V. H-asBrouck, 65 Fed. 287; 86 Fed. 358. Powers V. Blue Grass B. & L. Assn. ^Griswold v. Central V. R. R. 9 86 Fed. 709; Hamilton, etc. Co. v. Fed. 799, 20 Blatchf. 212. Mercer, 84 Iowa, 539, 35 Am. St. Rep. sErwin v. Lowry, 7 How. 181, 12 332, 51 N. W. 416. L. ed. 665; Black v. Scott, 9 Fed. 191 ; nGould V. Mullanphv, etc. Co. 32 German Sav. Soc. v. Cannon, 65 Fed. Fed. 181. ^ 543. isSee post, § 20. sO'Callaghan v.0'Brien,116 Fed.934. iSee ante, § 2, noLcr^v] THolton v. Guinn. 76 Fed. 96. 2Williams v. Beneclicr.. S How. 112, sDavis v. Davis, 89 Fed. 537. 12 L. ed. 1007: Peale v. Phipps, 14 oPulliam v. Pulliam, 10 Fed. 30; How. 375, 14 L. ed. 4tV2; Kendall v. Van Bokkelen v. Cook, 5 SawA'. 589, Croighton, 23 How. 90. 16 L. ed. Fed. Oas. No. 16.831. 419; Conlev v. Lavender. 21 Wall. lOBrendel v. Charcli, 82 Fed. 263; 283, 284, 22 L. ed. 536; Bedford Q. Martin v. Fort, 83 Fed. 22, 27 C. C. Co. v. Thomlinson, 95 Fed. 210. 36 A. 428. C. C. A. 272; Continental X. Bank v. uPayne v. Hook, 7 Wall. 425. 19 Heilman, 81 Fed. 43: Security T. L. ed. 260; Cowen v. Adams, 78 Fed. Co. V. Dent, 104 Fed. 380. 43 C. C. A. 543, 24 C. C. A. 108. 594. i2ln re Cilley, 58 Fed. 990. sByers v. McAuley, 149 U. S. 620, isSecurity Co. v. Pratt, 05 Conn. 37 L. ed. 867, 13 Slip. Ct. Rep. 906; 177, 32 Atl. 398. Fed. Proc— 10. 145 § 17 [f] FEDERAL JURISDICTION IN GENERAL. [Code Fed. or to oust an administrator;!* or to enjoin a sale by a probate court; is And they can take cognizance of a suit to set aside a will only when it takes the form of a suit or controversy.! 6 They cannot entertain a suit to enforce an agreement of the testator to give his estate to complainant, since they cannot grant relief without taking the estate from tlie probate court; 17 nor a suit for recovery of property which the administrator is directed to turn over to some one else.is Nor have they power to appoint a receiver for the assets of an estate in course of probate on the ground of fraud and waste.! 9 Where property was conveyed by decedent in his lifetime and hence never was in possession of the probate court, a creditor's bill is maintainable in the Federal court to set aside such conveyance for fraud. 2 Where probate administration is complete and the assets have been distributed a Federal court may entertain suit in equity to subject such property to a debt of decedent.! And where a probate court's sale or decree in partition is attacked in a subsequent suit for fraud, or want of jurisdiction, there can be no reason for denying the Fedei-al court's jurisiliction to examine into such question so far as afl'ecting the rights of parties before it. 2 Where property of a debtor has been taken into cus- tody by a Federal court, the debtor's death and probate proceedings in the State court, do not oust that possession. 3 [f] Property taken on attachment or execution. Property taken and held under mesne or final process is in custodia legis and no other court may take it into custody; 6 nor is replevin to recover the same maintainable in another court.'? The first court's !4Lant V. Manley, 75 Fed. 634, 21 C. C. A. 457 ; Haines v. Carpenter, 1 Woods, 270, Fed. Cas. No. 5.905. !5Evans v. Gorman, 115 Fed. 399. 16 See ante. § 2.[w] imall V. Bridgeport T. Co. 123 Fed. 739. isMcPherson v. Mississippi V. T. Co. 122 Fed. 367, 58 C. C. A. 455. 19 Johnson v. Ford, 109 Fed. 501. But see Ball v. Thompkins, 41 Fed. 486. 2 0Hale V. Tyler, 115 Fed. 833. iChewett v. Moran, 17 Fed. 820; Hale V. Coffin, 114 Fed. 567. 2 Johnson V. Waters, 111 U. S. 667, 28 L. ed. 547, 4 Sup. Ct. Rep. 619; Arrowsmith v. Gleason, 129 U. S. 99, 32 L. ed. 634, 9 Sup. Ct. Rep. 241; Robinson v. Fair, 128 U. S. 86, 87. 32 L. ed. 415. 9 Sup. Ct. Rep. 35. 3Rio Grande R. R. v. Gormila, 132 U. S. 481, 33 L. ed. 400, 10 Sup. Ct. Rep. 155. BTavlor V. Carrji, 20 How. 583, 15 L. ed."l028; Moore v. Withenburg, 13 La. Ann. 23; Townsend v. Leonard, 3 Dill. 371. Fed. Cas. No. 14,117; Clarke v. Shaw, 28 Fed. 356: South- ern, etc. Bank v. Folsom, 75 Fed. 932, 21 C. C. A. 568: Namiiberg v. Hvatt, 24 Fed. 900; Lewis v. Dilhud. 76 Fed. 690, 22 C. C. A. 488; Fox v. Hemphekl. etc. R. R. 2 Abb. (U. S.) 155, Fed. Cas. No. 5,011; Milliken v. Barrow. 55 Fed. 149, 19 L.R.A. 403. ■i Freeman v. Howe, 24 How. 450, 16 L. od. 749; Covell v. Heyman, 111 U. S. 176, 28 L. ed. 390, 4 Sup. Ct. Rep. 355; Porter v. Davidson. 62 Fed. 627: Patterson v. Mater, 26 Fed. 31; Mel- vin V. Robinson, 31 Fed. 6.35: Pickett v. Filer, etc. Co. 40 Fed. 313: Krip- pendorf v. Hyde. 110 U. S. 280. 28 L. ed. 145, 4 Sup. Ct. Rep. 27; Hale v. Bugg, 82 Fed. 37: Munson v. Har- roon, 34 111. 424. 85 Am. Dec. 317; Senior v. Pierce, 31 Fed. 627; Fensier v. Lammon, 6 Nev. ^13. St. Paul, etc. Ry. V. Drake, 72 Fed. 949. 19 C. C. A. 252; Summers v. White, 71 Fed. 109. 17 C. C. A. 631. But replevin in the same court has been held maintain- able. Maddux v. Usher, 2 Hask. 267, 146 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 17 [fij possession must be permitted to continue until the purpose of tlie seizure is accomplished. 8 However, the process of other courts may be served upon the sheriff or marshal in possession by way of garnishment of the surplus, and the court which has possession may determine priorities and allow other claims against the surplus. » If the taking is alleged to be wrongful because another claims the property as his, he may make an ancillary application to the court under whose process the seizure was made 10 or may maintain trespass, trover or conversion for damages, or an action on the bond of the seizing officer in any competent court, since that action would not interfere with the possession of the property or provoke a conflict. n But he may not apply to another court to enjoin the execution sale.i2 if it transpire that the marshal's levy was invalid the Federal court may, on application by the person making ineffectual levy from the State court, charge the marshal as garnishee; is or order the proceeds to be paid over to an execution creditor in another court, i* Other courts cannot summon the marshal to appear before them as gar- nishee,! 5 nor arrest and imprison him for acts done under Federal process. 16 The levy of execution or attachment upon realty does not, under the law of most States, bring the property into the actual or constructive possession of the court, but merely establishes a lien against it, and another court may thereafter appoint a receiver.i'? [ff] Validity of execution sale. Where the liens of two judgments are co-ordinate, the court first ac- quiring possession by seizure imder execution may confer a good title i Fed. Cas. No. 8,936. See State au- 568; Central N. Bank v. Stevens, 160 thorities contra in 25 Am. St. Rep. U. S. 461, 42 L. ed. 817, 18 Sup. Ct. 259 note. Rep. 413. sRio Grande R. R. v. Gomila, 132 U. isGumbel v. Pitkin. 124 U. S. 132, S. 481. 33 L. ed. 400. 10 Sup. Ct. Rep. 31 L. ed. 374. 8 Sup. Ct. Rep. 379. 155. i4The Daniel Kaine, 35 Fed. 788, sGumbel v. Pitkin, 124 U. S. 150, 789. 31 L. ed. 374, 8 Sup. Ct. Rep. 379; isGumbel v. Pitkin. 124 U. S. 150, Bates V. Days, 17 Fed. 167, 5 Mc- 31 L. eu. 374, 8 Sup. Ct. Rep. 389. Crarj', 342; Bayard v. Bavard, Fed. leBeckett v. Sheriff, 21 Fed. 32. Cas. No. 1,129; Claflin v. Beaver, See Smith v. Bauer, 9 Colo. 381, 12 35 Fed. 261; Lackett v. Rumbaugh, Pac. 398, where Federal court con- 45 Fed. 39; Brooks v. Frv, 45 Fed. sonted to process against marshal. 778: The Daniel Kaine, 35 Fed. 788. inViswall v. Sampson, 14 How. 52, loSee ante. § 3. note.C ] 14 L. ed. 322; Georgia v. Jesup, 106 iiBusk v. Colbath 3 Wall. 334, 18 U. S. 458, 464. 27 L. ed. 216, 1 Sup. L. ed. 257: Lamnion v. Feusier. Ill Ct. Rep. 363; In re Hall, 73 Fed. 527; U. S. 17. 28 L. ed. 337, 4 Sup. Ct. Rep. Tngraham v. National Salt Co. 139 286; Dennv v. Bennett. 128 U. S. 500, Fed. 684. See Gates v. Bucki, 53 Fed. 32 L. ed. 495, 9 Sup. Ct. Rep. 135; 961, 4 C. C. A. 116, where there was Covell v. heyman. 111 U. S. 176, 28 a i-eceiver in the State court as well L. ed. .390, 4 Sup. Ct. Rep. 355; Evans as an attachment. Contra see Sonth- V. Pack, 2 Flip. 268, Fed. Cas. No. ern B. & T. Co. v. Folsom. 75 Fed. 4,500. 931. 21 C. C. A. 568. i2American Assn. v. Hurst, 59 Fed. iPulliam v. Osborne. 17 How. 475, 1, 7 C. C. A. 598; Southern, etc. Co. 15 L. ed. 154. V. Folsom, 75 Fed. 931, 21 C. C. A. 147 ;i IT u l''i!,DEKAL JURISDICTION IN (iKNliUAL. [Code Fed. even against a creditor recovering a judgment establishing a mechanic's lien against the property. 2 But a State court cannot acquire such a dominion over a vessel by seizure as to be able to sell the same on execu- tion, free of prior maritime liens, and as it is without jurisdiction to adjudicate such liens, the practical consequence is that the title of its purchaser is subject to the assertion of maritime liens in the admiralty court. 3 Sale under process of a court which has not acquired possession of the property is ineffective against a purchaser in the court which has acquired legal custody.* Sale under execution without consent of the court whoso receiver is in possession is void. 5 [g] Receivers. Property in possession of a receiver is in the custody of the law and of the court appointing him7 and may not be interfered with by any other court. 8 The Federal court has no power to order its receiver to take prop- erty from the lawfvil custody of a State court receiver,9 nor may a State court deprive a Federal received of possession. 10 The fact that a State coiu't dissolves a corporation whose assets are being administered by a Federal court through its receiver, cannot oust the Federal court's prior possession or impair its right to carry its own decrees into execution.i' Execution sale by another court, of property in a receiver's hands is void. 12 No other court has power to levy attachment or distress warrant on such property,! 3 or enjoin the proceedings in which the receiver was appointed. K It may not be sold for taxes,i5 nor on foreclosure in an- 2Heidritter v. Elizabeth, etc. Co. sWatson v. Jones. 13 Wall. 718, 112 U. S. 305, 28 L. ed. 729, 5 Sup. 719, 20 L. ed. 666; Shields v. Cole- Ct. Rep. 136. man, 1.57 U. S. 169, 39 L. ed. 660, 15 ^McAllister v. The Sam Kirkman, 1 Sup. Ct. Rep. 570; Missouri P. Rv. v. Bond, 384, Fed. Cas. No. 8.658; The Fitzgerald. 160 U. S. .^79. 40 L* (-■?. Elexena, 53 Fed. 361; Moran v. 536, 16 Sup. Ct. Rep. 389; Judd v. Sturges, 154 U. S. 256, 38 L. ed. 981, Bankers, etc. Co. 31 Fed. 182; 24 14 Sup. Ct. Rep. 1019. Blatchf. 420; In re Clark. 4 Ben. 88, *Taylor v. Carryl, 20 How. 596, Fed. Cas. No. 2,798. An allegation of 15 L. ed. 1032; Heidritter v. Eliza- fraud can make no difference. Attle- beth, etc. Co. 112 U. S. 304, 28 L. ed. borough, etc. Bank v. N. W. Mfg. Co. 733. 5 Sup. Ct. Rep. 139. 28 Fed. 114. 5Wiswall V. Sampson, 14 How. 52, lOCalhoun v. Lanaux, 127 U. S. 67, 14 L. ed. 322; Dugger v. Collins, 640, 32 L. ed. 297, 8 Sup. Ot. Rep. 69 Ala. 330. 1345. ■jPeale v. Phipps, 14 How. 374, 14 uLeadville Coal Co. v. McCreery, L. ed. 459; Wiswall v. Sampson, 14 141 U. S. 476, 35 L. ed. 824, 12 Sup. How. 65, 14 L. ed. 322; Baggs v. Mar- Ct. Rep. 28. tin, 179, Tj. S. 209, 45 L. ed. 156, 21 isWiswall v. Sampson, 14 How. Sup. Ct. Rep. 109. 67, 68, 14 L. ed. 322. 8 Young v. Montgomerv, etc. R. R. isPeople's Bank v. Calhoun. 102 U. 2 Woods, 606, Fed. Ca.s." No. 18,166; S. 256, 26 L. ed. 101; Malcomson v. Blake v. Alabama, etc. R. R. 6. Nat. Wappoo Mills, 85 Fed. 910; Memphis Bank Reg. .3-32, 3 Fed. Cas. 587: Sav. Bank v. Houchens, 115 Fed. 96, Bruce v. Manchester, etc. R. R. 19 Fed. 345; Adams v. Mercantile Trust C-o. 66 Fed. 621. 15 C. C. A. 1 ; Blake v. Alabama, etc. R. R. 3 Fed. Cas. No. 587. 148 52 C. C. A. 176. locates v. Bucki, 53 Fed. 961, 4 C. C. A. 116. 15 In re Tyler, 149 U. S. 181, 37 L. ed. 695, 13 Sup. Ct. Rep. 789; Ex pxiia Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 17 [h] other court.16 But another court may adjudicate claims against prop- erty in a receiver's hands, so long as it does not attempt to interfere with the possession; 17 so also, it may settle accounts.is Interference with the possession of a receiver is punishable as contempt,i9 and the general rule is that permission of the appointing court is a necessary condition preced- ent to suit against a receiver.20 It is for the court having possession through its receiver to determine how far it will permit any other court to interfere Avith that possession. 1 A court will not entertain a bill to enforce the operation of a road pending receivership, foreclosure and sale in another tribunal. 2 Where the first court accepts a bond in lieu of the property and dis- charges its receiver, the property is no longer in custodia legis and an- other court may appoint a receiver or otherwise take it into custody.s Nor will a new order setting aside the discharge of the receiver at- tempting to resume possession be efTective to oust an intervening pos- session of another court.* A receiver of a national bank appointed by the treasury officers is not an officer of a court but of the United States so that his possession does not place property in custodia legis. 5 [h] Admiralty causes. In admiralty cases the Federal courts have sometimes not adhered quite as closely as in other cases, to the rules determining priority and right to exclusive possession.'? Indeed weighty arguments Tiave been urged against the adoption of the rule that a common law court could acquire a custody over vessels excluding a court of admiralty from the dis- charge of its paramount and exclusive jurisdiction and the performance of its peculiar powers; 8 and the practical efficacy of the rule permitting State courts to take a vessel into custody is considerably impaired by the fact that although they may attach and sell a vessel they may not give Chamberlain, 55 Fed. 708; Virginia, 2Bruce v. Manchester, etc. R. R. 19 etc. Co. V. Bristol L. €0. 88 Fed. 139; Fed. 342. Lincoln v. Street Ry. 77 Fed. 6G0. sshields v. Coleman, 157 U. S. 169, isSutherland v. Railroad Co. 9 Nat. 39 L. ed. 660, 15 Sup. Ct. Rep. 574. Bank Reg. 311, 23 Fed. Cas. 464. 4.Shields v. Coleman, 157 U. S. 169, i^Gay V. Brierfield, etc. Co. 94 Ala. 39 l. ed. 660, 15 Suj). Ct. Rep. 574. 309, 33 Am. St. Rep. 127, 11 So. 355, But see Union T. Co. v. Rockford, 16 LR.A. 566. ^ , „ etc. R. R. 6 Biss. 197, Fed. Cas. No. isLogan v. Greenlaw, 12 Fed 19; ^^^^^ erroneously holding dismissal PI /ff'^oo ^""^''' ^ ^^^- ^^^' ■^ "f ''"it did not enable another court Ijlatcnf. 100. 1 65, S. Rep. 4 C. 2 0Porter v. Sabine, 149 U. S. 480, 81 Fed. 520. 37 L. ed. 815, 13 Sup. Ct. Rep. 1008; ^Moran v. Sturges, 154 U. S. 286, People's Bank v. Calhoun, 102 U. S. 38 L. ed. 981, 14 Sup. Ct. Rep. 1019, 256, 26 L. ed. 101. See post, § 1110 illustrates this, et soq. 8See dissenting opinion Taylor v. iPeople's Bank v. Calhoun, 102 U. Carryl, 20 How. 595, 15 L. ed. 1034. S. 256, 26 L. ed. 101. 149 § 17 [h] FEDERAL JURISDICTION IN GENERAL. [Code Fed. a marketable title free from maritime liens, nor enforce or satisfy those liens.9 However, it is well settled that both common law and admiralty courts may take a vessel into custody, and the general rule is applied that where one court has taken a vessel or res in controversy into custody, this prevents a proceeding in any other court interfering with that custody, or maintainable only by virtue of possession of such vessel or res. 10 If the State court has possession through its receiver or by attachment or replevin, the established rule now is that libel in rem cannot be prosecuted in admiralty, although the libel will not be dismissed, n Nor is libel in rem maintainable if the vessel be in a State court's custody through possession by an assignee in insolvencj\i2 It has been held that the question of prior custody is not determinable in favor of a State receiver as against a Federal marshal in admiralty by the date of the receiver's appointment; where the marshal took actual possession before the receiver had qualified and attempted to assume control, the ad- miralty court had power to enforce a lien. 1 3 Moreover, if a State court receiver permit a vessel to go into another jurisdiction libel in rem for subsequent accruing liens is there maintainable in admiralty.i* The filing of a bankruptcy petition does not prevent libel in admiralty for a prior lien if the vessel be in another district. 1 5 If a State court has not ac- quired actual custody by replevin, libel for salvage is maintainable in admiralty.! 6 So, if the court's possession be only nominal and no officer of the court be actually in control, subsequent liens may be enforced by libel.i'^ If an officer of a court be forcibly dispossessed by one from an- other court the former's right remains para mount, is A suit which does not affect or interfere with the possession of the res by another court but merely ascertains and adjudicates a claim, is not objectionable. 1 9 Where an admiralty court having satisfied all maritime liens, has money left 9 See supra, note, [ff] No. 11827; The Gazelle, 1 Spr. 378, lOTaylor V. Carryl, 20 How. 595. 1.5 Fed. Cas. No. 5,280; In re Certain L. ed. 1028; The Daniel Kaine, 35 Fed. Logs, 2 Sumn. 589, Fed. Cas. No. 788; The Robert Fulton, Paine, 620, 2,559.. Fed. Cas. No. 11,890. i2The J. G. Chapman, 62 Fed. 940. iiThe Celestine, 1 Biss. 1, Fed. But possession by an assignee for Cas No. 2,541 ; Anonymous, 37 Hunt, benefit of creditors, does not put Mer. Mag. 707, Fed. Oas. No. 452 ; property incustodia legis. The James Fisher v. The Plymouth, 2 Int. Rev. Roy, 59 Fed. 785. See infra, note. Rec. 109. Fed. Cas. No. 4,822; Lewis isMoran v. Sturges, 154 U. S. 286, V. The Orphens, 3 Ware, l43. Fed. 38 L. ed. 981, 14 Sup. Ct. Rep. 1019. Oas. No. 8.330; The Circassian, Fed. i^The Willamette Vallev. 66 Fed. Cas. No. 2.721, 1 Ben. 128; The E. L. 566, 13 C. C. A. 635; The' Resolute, Cain, 45 Fed. 369; In re Schuyler's, 108 U. S. 439, 42 L. ed. 533, 18 Sup. etc. Co. 136 N. Y. 174, 32 N. E. 625, Ct. Rep. 112. 20 L.R.A. 397; The Robert Fulton, 1 isThe Ironsides, 4 Biss. 521, Fed. Paine, 620, Fed. Cas. No. 11,890; The Cas. No. 7,069. Oliver Jordan, 2 Curt. 414, Fed. Cas. isScott v. Seventy-Five Tons of No. 10,503. Contra see: Wall v. The Iron, 23 Fed. 197. Royal Saxon, 2 Am. Law Reg. 324, I'^The Young America, 30 Fed. 791. Fed. Cas. No. 17,093; The Julia Ann, isThe Joseph Gorham, 7 Law Rep. 1 Spr. 382, Fed. Cas. No. 7.577 ; The 135, Fed. Cas. No. 7,537. John Richards, Newb. 73, Fed. Cas. isRussell v. Alvarez, 5 Cal. 48. 150 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 17 [i] in its registry, and the corporation owning the vessel is being wound up through a receivership in a State court, the court of admiralty should pay over such balance to the receiver rather than allow and pay other mari- time claims as to which no lien exists. 20 The fact of a pending State court proceeding to cancel a mortgage on a vessel, has been held not to prevent the admiralty court having the proceeds from the sale of such vessel in its registry, from passing on the question of the validity of the mortgage.2i Garnishment of freight money in admiralty does not pre- vent a second garnishment of the surplus by a State court as the property i>i not in the custody of the law.i It has been held that petitory suit in admiralty is maintainable against a sheriif for a vessel where his possession is claimed to be tortious and wrongful; 2 or where the law under which a State officer made a seizure is alleged to be invalid as a regulation of commerce. 3 After a court's possession is terminated other courts may proceed against the property. 4 Upon the discharge of a vessel from a State court's custody, libels in rem are then maintainable in admiralty to enforce mari- time liens or other maritime rights. 5 If a State court has sold a vessel under execution, it is subject in the hands of the purchaser to prior mari- time liens,6 even though the State law professes to give a title free of all liens.7 [i] Certain proceedings permissible notwithstanding possession of another court. As is elsewhere shown probate or insolvency proceedings s in one court do not absolutely prohibit actions or controversies concerning the sub- ject-matter in other courts. The same is true of admiralty proseedingss and receivership cases, 10 and indeed of all cases where property is taken into custody. It may be necessary sometimes to stay proceedings until the other court's custody is terminated. n But claims ultimately en- forceable out of, or liens upon, the property in custody, may be litigated without any stay, to the extent of ascertaining and preserving them, as such action has no tendency to disturb the other court's possession, or cause a conflict. 12 So also, a marshal or sheriff may be sued for a tortious taking of property in another court though it may not by replevin attempt 20The Liberty, 119 Fed. 539. 234, Fed. Cas. No. 12^218; The Caro- 2iThe Gordon Campbell, 131 Fed. line. 1 Low. 173. Fed. Cas. No. 2.419. 963. 6 McAllister v. The Sam Kirkman, iThe Olivia A. Carrigan, 7 Fed. 510. 1 Bond, 384. Fed. Ca-s. No. 8.658. 2The J. W. French, 13 Fed. 916, 7 The Eloxena, 53 Fed. 361. 920. sSee supra, notes. [d]-[e] sJervey v. The Carolina, 60 Fed. 9See supra, note.Eb] 1019. lOSee infra, note.[g] ■iMoran v. Sturges, 154 U. S. 279, nBoatmens Bank v. Fitzlen. 135 283. 38 L. ed. 981, 14 Sup. Ot. Rep. Fed. 650, 68 C. C. A. 288; Williams 1019; The Roslvn & Midland, 9 Ben. v. Neelv, 134 Fed. 1, 67 C. C. A. 171 119. Fed. Cas. No. 12,068. i2Williams v. Benedict, S How. 5The Bed Wing. 14 Fed. 869; The 107, 12 L. ed. 1007; Yonlev v. Laven- Roslyn, 9 Ben. 119, Fed. Cas. No. der, 21 Wall. 276, 22 L. ed. 53t) : lleid- 12.068; The Sailor Prince, 1 Ben. ritter v. Elizabeth, etc. Co. 112 U. S. 151 § IT [i] FEDERAL JURISDICTION IN GENERAL. [Code Fed. to dispossess such ofFicer.i3 A State court may entertain a suit against a county recorder for erasure of a mortgage, though the mortgagee cor- poration is in the hands of a receiver of a Federal court. 1 4 go also a Federal court may apj^oint a receiver of property held in trust undor administration of a State probate court. is The fact that a national bank is in a Federal receivei-'s hands does not prevent a suit in a State court to establish a claim against its assets; is or to determine and segregate a trust fund held by the receiver.i" The attachment of a fund by a Federal court does not prevent suit in a State court to try title thereto. is It has been held that foreclosure in the Federal court vpill prevent a State court from entertaining a suit to quiet title to the property. 1 9 Proceedings in a State court for the dissolution of a corporation do not deprive the Fed- eral court of power to adjudicate claims between it and a stockholder.20 A suit for damages for waste may proceed in a Federal court, notwith- standing foreclosure proceedings in a State court. 1 A suit to establish a right to one third of lands may preceed in a State while the Federal court is entertaining proceedings for its condemnation to the government.2 Pendency of Federal foreclosure proceedings will not prevent a State court from entertaining a bill by the mortgagor's creditors to have it declared fraudulent. 3 Criminal proceedings may be taken against officers of a company in the hands of a receiver, and possession of the res gives the Federaj court no power to enjoin such prosecution.'* The Federal couit ;!04, 28 L. ed. 733, 5 Sup. Ct. Rep. 140; Anglo, etc. Co. v. Cheshire, 124 Fed. 464; People's Bank v. Calhoun, 102 U. S. 256, 26 L. ed. 101; Gates V. Bucki, 53 Fed. 968. 4 C. C. A. 116; Clifton V. Foster 103 Mass. 233, 4 Am. Rep. 539 ; United States v. Eisen- beir, 112 Fed. 190, 50 C. C. A. 179; Levi V. Columbia L. I. Co. 1 Fed. 206, 1 McCrary, 34; Mercantile T. Co. V. Lamoille, etc. R. R. 16 Blatchf. 327, Fed. Cas. No. 9,432: Boatmen's Bank v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288. But suit to foreclose a lien will not lie where mortgage fore- closure is pending in State court. Security T. Co. v. Union T. Co. 134 Fed. 301. 13 See supra, note.[f] State courts have frequently asserted their right to maintain replevin. Wilde v. Rawles, 13 Colo. 586, 22 Pac. 898; Leighton v. Harwood, 111 ]\Iass. 71, 15 Am. Rep. 8; Carew v. Matthews, 41 Mich. 577, 2 N. W. 830. See 25 Am. St. Rep. 259 note. i-i Calhoun v. Lanaux, 127 U. S. 640, 32 L. ed. 297, 8 Sup. Ct. Rep. 1347, 1348. 1 SBall V. Tompkins, 41 Fed. 490. 16 First Xat. Bank v. Pahquioque Bank, 14 Wall. 383, 20 L. ed. 842. See Chemical N. Bank v. Bailev, 12 Blatchf. 483, Fed. Cas. No. 2,635. A receiver appointed by the comptroller is not an officer of the court at all. In re Chetwood, 165 U. S. 443, 41 L. ed. 782, 17 Sup. Ct. Rep. 385. iTFlint Co. V. Stephens, 32 Mo. App. 349. isMontgomery v. McDermott, 87 Fed. 374. 19 Cohen v. Solomon, 66 Fed. 413. 2 0Straine v. Bradford Sav. Bank, 88 Fed. 571. iHubinger v. Central T. Co. 94 Fed. 791, 36 C. C. A. 494. 2United States v. Eisenbeis, 112 Fed. 190, 50 C. C. A. 179. sGav V. Brierfield Coal Co. 94 Ala. .309, 33 Am. St. Rep. 127, 11 So. 355, 16 L.R.A. 567, the court intimated that it might not be able to grant full relief. 4Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119. See Anglo, etc. Co. v. Cheshire, etc. Inst. 134" Fed. 153. 152 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 17 [kj may stay execution on its judgment in any case where it might iuLorJ'eie with the State court's custody, or refuse to do so if it would not.5 [j] Discharge or termination of custody or possession. A right to proceed against or take property into custody attaches at once upon the termination of the possession or dominion of another court.* As is elsewhere shown the completion of probate administration," or o: admiralty proceedings,* enables other courts to reach the property that has been in custodia legis. The giving of a forthcoming bond for re- plevied property does not release it from custody,9 though a bond to pay a judgment rendered does release property levied upon.io Where a court has discharged property from its custody, it cannot thereafter resume pos- session if another court has meantime acquired an intervening custody. li The dismissal of the suit in one court leaves the other free to proceed.! 2 Sale and conveyance of a foreclosed railroad to the purchasers terminates the court's possession, which is not revived as against an intervening possession of another court, by proceedings to set aside the decree for fraud. 13 But where one of the conditions of a foreclosure sale is tiiat the purchaser pay certain liens against the road, the foreclosing court retains jurisdiction to enforce compliance with this condition; 14 and may enjoin a State proceeding to enforce against the purchaser, another liability for which the property in his hands is not properly liable. is Where a State court has decreed possession of property to certain persons without defining the character of that possession, the Federal court may entertain suit to establish it as fiduciary. 1 6 [k] Effect of unauthorized seizure and relief therefrom. It is always competent to show that the court was without jurisdiction of the cause in which it took property into custody, and a seizure under such cii(.; instances is illegal and relief may be had in the seizing court. i If the Federnl writ of attachment though not void, is illegally levied on Sunday, the marshal's possession thereunder is illegal and an attaching creditor from a State court may upon application to the Federal court have his prior right as garnishee of the marshal, declared. 2 It has been argued in a number of cases that where a marshal seizes the property of 6Buck v. Colbath, 3 Wall. 342, 18 uShields v. Coleman, 157 U. S. 183, L. ed. 257; Day v. Gallup, 2 Wall. 97, 39 L. ed. 660, 15 Sup. Ct. Rep. 570. 17 L. ed. 855; Moran v. Sturges. 154 i2Glenn v. Leggett. 47 Fed. 474. U. S. 279, 283. 38 L. ed. 981, 14 Sup. isCentral N. Bank v. Hazard, 49 Ct. Rep. 1010; Andrews v. Smith, Fed. 293. 5 Fed. 836. 19 Blatchf. 100. See 1 4 Stewart v. Wisconsin, etc. Ry. Boatmen's Bank v. Fritzlen, 135 117 Fed. 782. Fed. 650, 68 C. C. A. 288. isjulian v. Central T. Co. 193 U. "See supra, note.Ce] S. 93, 48 L. ed. 629; 24 Sup. Ct. Rep. 8See supra, note, [h] 399. 9Hagan v. Lucas, 10 Pet. 404, 9 L. isWatson v. Jones. 13 Wall. 720, 20 ed. 470; United States v. Dantzler, 3 L. ed. 600. Woods, 719, Fed. Cas. No. 14,917. iFreeman v. Howe, 24 How. 459, loShields v. Coleman, 157 U. S. 16 L. ed. 749. 183, 39 L. ed. 660, 15 Sup. Ct. Rep. 2Gumbel v. Pitkin. 124 U. S. 154, 570. 31 L. ed. 374, 8 Snp. Ct. Rep. 379. 153 § 17 [1] FEDERAL JURISDICTION IN GENERAL. [Code Fed. A 111)011 a writ against B, the property is not in custody of the Federal court because he has not obeyed the court's mandate, and hence that replevin in a State court would lie.3 But this contention was made in the leading case denying the right of replevin in a State court, and is there answered. ■! If want of jurisdiction is alleged or seizure of another's prop- erty, the seizing court should pass upon the question, and not some other tribunal, and relief should be sought in the court which has taken the property into its custody. 5 The Federal courts have not, how- ever, always adhered to this reasoning and have granted injunction against the taking of A's property upon process against B.6 So also they have entertained a petitory suit in admiralty against a sheriff for a vessel in his possession where alleged to be tortious and wrongful; 7 and where a law under which a State officer seized a vessel was claimed to be invalid as a regulation of commerce. s Wliere receivers have been appointed by different courts for the same property, it would seem proper to settle the right of possession between them, in the court whose receiver has actually obtained possession. 9 It Is generally true, also, that the court having possession will protect that possession by in- junction against proceedings elsewhere, notwithstanding the rule that neither Federal nor State court should enjoin proceedings in the other.io If a seizure by a marshal was wrongful, it does not become rightful by mere forcible continuance.!! If the appointment of a State receiver is in- valid because made by a judge in vacation, the property is not in fact in custodia legis and where taken into custody by the Federal court through a receiver subsequently appointed the latter's action will be upheld.! 2 An allegation that a receiver's appointment was obtained by fraud will not make his possession unauthorized or any the less the possession of the court.! 3 Nor will an allegation that a State court had no power to ap- point a receiver justify a Federal court in enjoining such receiver from proceeding to reduce certain assets to actual possession.!* 1^1] Effect of garnishment in one court of debtor sued in another. Garnishment does not place property strictly in the custody of the law.! 5 But there arises a necessity for comity where a debtor is garnished 3See 25 Am. St. Rep. 259 note. ^Shields v. Coleman, 157 U. S. 183, •iFreeman v. Howe, 24 How. 456, 39 L. ed. 660, 15 Sup. Ct. Rep. 570. 16 L. ed. 749. But see Cropper v. i^See Hammock v. Farmers L. & Coburn, 2 Curt. 465, Fed. Cas. >^o. T. Co. 105 U. S. 77, 26 L. ed. 1111. 3,416. See post, § 20[c] 21. 5See Senior v. Pierce. 31 Fed. 631, i^Shields v. Coleman, 157 U. S. Phelps V. M..tual. etc. Assn. 112 Fed. ^?^' ^^ L. ed. 660, 15 Sup. Ct. Rep. 468. 50 C. C. A. 339. 570. „ri r< X. o o A Aot; i2Hammock v. Farmers L. & T. Co. eCropper v. Coburn 2 Curt. 465 j^^ ^ g 77 26 L. ed. 1111. Fed_^Cas No. 3,416; Julian V. Central isAttleborough, etc. Bank v. N. T. Co. 115 Fed. 962, 963, 53 C. C. A. w, J^J;f„ Qq 28 Fed. 114. ^^^- !4Pirelps V. Mutual, etc. Assn. 112 7Tlie J. W. French, 13 Fed. 916. Fed. 467, 50 C. C. A. 339. s.Tervey v. The Carolina, 66 Fed. !5The Olivia A. Carrigan, 7 Fed. 1019. 510. 154 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 17 [1] in one court for part or all of the debt for which a suit by his creditor is then pending or is thereafter brouglit in another court, State or Federal, within the same State. 1 6 As between the suit on the debt and the garnish- ment suit tlie rule of priority prevails, determined by the time of service of process.i'' If the garnishment be subsequent to the suit on the debt, that suit will still proceed and a plea of abatement is not maintainable.! « Some courts have refused to entertain such subsequent garnishment.! 9 The State courts apply the rule as against subsequent garnishment by the Federal court.so If the garnishment precede a suit on the debt in the same State,! a plea of abatement in the latter will be sustained; and recovery in the garnishment proceeding against the defendant is a defense pro tanto to the suit on the debt. 2 In some jurisdictions judgment will be given in suit on the debt though subsequent to the garnishment, but with stay of execution until release from the garnishment. 3 After recovery of judgment on a debt in a Federal court, it is held that the judgment can- not be garnished by process out of the State court.* Nor can money pro- ceeds in hands of a court of admiralty be garnished by creditors of the owner on a State court judgment. 5 If a garnishee shows that notwith- standing his plea of the prior garnishment in a suit elsewhere on the debt he was compelled to pay, judgment will not be given against him in the garnishment proceeding.^ In admiralty it has been held that freight monej' may be ordered paid into court, thought the part}' owing it has previously been garnished in a common law action. 7 isThe rule does not apply to suit Somerville, 8 Md. 458; Minor v. in another State: Lancashire, etc. Co. Rogers C. C. 25 Mo. App. 81. But v. Corbetts, 165 111. 600. 56 Am. St. see Lvnch v. Hartford F. I. Co. 17 Rep. 281, 46 N. E. 633, 36 L.R.A. Fed. 627; Avery v. Boston, etc. Co. 043; Cole v. Flitcroft, 47 Md. 315. 72 Fed. 700; Barnsdall v. Walten- i^Xorth, etc. Co. v. First Nat. Bk. mever, 142 Fed. 415. 3 Tex. Civ. App. 295, 22 S. W. 992. sHowland v. Chicago, etc. R. R. !8Wa.llace v. McConnell, 13 Pet. 134 Mo. 482, 36 S. W. 31; Virginia, 151, 10 L. ed. 95; Campbell v. Emer- etc. Co. v. New York, etc. Co. 95 Va. son, 2 McLean, 33, Fed. Cas. No. 518, 28 S. E. 889, 40 L.R.A. 239, and 2,357 : Greenwood v. Rector. Hempst. cases cited. 708, Fed. Cas. No. 5,792;' Hauf v. 4Thomas v. Wooldridge, 2 Woods, Wilson, 31 Fed. 388; Blydenistein v. 667, Fed. Cas. No. 13,918 per Brad- N. Y. etc. Co. 59 Fed. 12; Mack v. ley, J.; Alabama, etc. Co. v. Gir- Winslow, 59 Fed. 319, 8 C. C. A. ardy, 9 Fed. 142; Henry v. Gold P. 134; Bingham v. Smith. 5 Ala. 652; Co. 15 Fed. 650, 5 McCrary 70; Hamill v. Peck. 11 Colo. App. 41, 52 Loomis v. Carrington, 18 Fed. 97; Pac. 217; American Bank v. R')llins, American Bank v. Snow, 9 R. I. 11, 99 Mass. 314: Miller v. Tavlor. 14 98 Am. Dec. 364. See Scott v. Roh- Tex. 541; Burke v. Hanco. 76 Tex. man, 43 Neb. 629, 47 Am. St. Rep. 81, 18 Am. St. Rep. 31, 13 S. W. 164. 775, 62 N. W. 49. !!' Perkins v. Guv, 2 :Mont. 21. sTlie Lottawanna. 20 Wall. 223. 22 2 0Arthur V. Batte, 42 Tex. 100. L. ed. 2.59; In re Forsyth, 78 Fed. !lt is no defence to suit in an- 302. other State, Deming v. Orient Ins. eyirginia, etc. Co. v. New York, Co. 78 Fed. 4. etc. Co. 95 Va. 518, 28 S. E. 889, nVabash. etc. R. R. v. Tourville, 40 L.R.A. 239. 179 U. S. 322, 45 L. ed. 210, 21 Sup. ^The Caroline, 1 Low. 173; Fed. •t. Rep. 113: Waallaee v. :McConnelI, Cas. No. 2,419. 13 Pot. 151, 10 L. ed. 102; Brown v. 155 § 18 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. § 18, — persons in custody — habeas corpus. While there often exists a conc'jirrent jurisdiction to jjunish an act because an offense against both State and Federal laws, no con- flict between State and Federal courts seems ever to have resulted therefrom. f^^ The Federal courts, however, have a power to re- lease on habeas corpus. State prisoners detained in violation of some Federal right, and this power, while it cannot create a conflict, has been deemed of so delicate a nature, as to require caution and temperate forbearance in its exercise. The Supreme Court has ac- cordingly laid down and follows several rules governing the issuance of the writ for the release of State prisoners. ^''^ Author's section. [a] Conflict of jurisdiction as to persons in custody. As is elsewhere shown, many acts constitute crimes against both State and nation, with a resulting concurrent power of punishment in State and Federal courts. i There seem to be no cases in which conflict has arisen from attempts to prosecute the same person concurrently in the State and Federal courts, although there are cases where an accused has sought to create embarrassment between the two courts. 2 In case of such conflict the right to proceed would, by analogy to civil cases of concurrent juris- diction, belong to the court in which proceedings looking to the appre- hension of the defendant were first taken, 3 or if arrest preceded the filing of information or complaint, then to the arresting court, if prior in time to the proceedings in the other court. [b] When habeas corpus will issue to release State prisoner. The cases calling for comity and forbearance between Federal and State tribunals are those in which habeas corpus is sought in one to free a per- son in custody of the other. State courts have no power upon habeas corpus to free a person in Federal custody and held by Federal author- ity. » But the Federal courts are empowered by habeas corpus to inquire into the detention of persons by a State in violation of the Federal Consti- tution and laws or for acts done or omitted pursuant to such laws or for acts done or omitted under any right or authority derived from a foreign power, and thereupon to deal with such person "as law and justice re- iSee ante, § IS.M Case, 13 AVall. 403, 20 L. ed. 599; sUnited States v. French, 1 Gall. Robb v. Connollv, 111 U. S. 639, 28 1, Fed. Cas. xVo. 15,165; Mackin v. L. ed. 547, 4 Sup. Ct. Rep. 544: Ex People, (111.) 8 N. E. 178; In re parte Royall, 117 U. S. 250. 29 L. ed. Fox, 51 Fed. 427. 8G8, 6 Sup. Ct. Rep. 739, Ex parte sSee In re Johnson, 167 U. S. 120, Kelly, 37 Ala. 476; In re Copen- 42 L. ed. 103, 17 Sup. Ct. Rep. 737. ha.ver, 118 jIo. 383, 40 Am. St. Rep. BDimcan v. Darst, 1 How. 308, 11 384. 24 S. W. 162; In re Johnson, 46 L. ed. 139; Ableman v. Booth, 21 Fed. 480. How. 523, 16 L. ed. 169; Tarble's 156 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 18 [b] quire."6 This gives the Federal courts a very important power of inter- ference in criminal proceedings in State courts. With a view to harmony and out of respect to the co-ordinate State tribunals, the Federal courts have declared that they have a right in their discretion, to decline to pass upon the Federal questions raised, by the writ of habeas corpus, and to leave them for settlement by tlie ordinary method of trial and appeal in the State courts and thereafter by writ of error in the Federal Supreme Court." Where a State imprisons for an act done or omitted under some Federal authority or under a right or authority derived from a foreign State, the operations of the Federal government and its relations to foreign nations are involved; and in such cases because of their urgency and im- portance, the summary process of habeas corpus may properly be resorted to in advance of trial in the State court.8 But urgency is not deemed to exist even in such cases, where the petitioner is not an officer of the United States and his authority to do the act is doubtful.9 Where the detention by State authority is claimed to be in violation of the Federal Constitution or laws the general rule is that a Federal court will not re- lease the prisoner on habeas corpus in advance of trial in the State court except under special circumstances requiring immediate action. i" The practice of thus passing upon a Federal question before it has been raised and decided in the State court is not to be encouraged. n After trial in the State court the Federal court will still exercise its discretion in deciding whether the accused shall be put to his writ of error from the highest court of the State, or whether by habeas corpus it will summarily determine the alleged violation of the Federal Constitu- 6See post, § 1670 et seq. See Ex parte Rocjers. 1.38 Fed. flOl. 7 Ex parte Rovall. 117 U. S. 253, 29 L. etl. 868, 6 Sup. Ct. Rep. 741; AVhitten v. Tomlinson, 100 U. S. 241, 40 L. ed. 406, 16 Sup. Ct. Rep. 297; Tinsley v. Anderson, 171 U. S. 105, 43 L. ed. 96, 18 Sup. Ct. Rep. 807? Minnesota v. Brundage, ISO U. S. 501, 45 L. ed. 640, 21 Sup. Ct. Rearte Cov. 32 Fed. 911; United States V. Fiscus. 42 Fed. 397 ; United States V. McAleese, 93 Fed. 656, 35 C. C. A. 529; In re Bradlev. 96 Fed. 970: Ex parte Glenn. 103 Fed. 947; Rogers v. Peek, 199 U. S. 425, 50 L. ed. 256, 26 Sup. Ct. Rep. 87. iiCook V. Hart, 146 U. S. 195. 36 L. ed. 934, 13 Sup. Ct. Rep. 40. At circuit these principles have not al- wavs been followed: In re Beine, 42 "Fed. 545; In re White, 43 Fed. 913. 11 1>.R.A. 284. 157 § 18 [b] FEDERAL JURISDICTION IN GENERAL. [Code Fed. tion and laws involved in his detention.12 Special circumstances making out a case of urgency must appear before the Federal court will interfere.is The same is true after decision in the State appellate court, and error is the proper mode of redress. 1 4 In deciding whether a particular case is so urgent as to demand the exercise of this summary power, before and after trial, the Federal court will take into consideration and its de- cision will be influenced by the ability of the accused to give bail, and the reasonableness of the bail exacted; is failure to raise the constitutional question in the State court;i6 the prospect of a speedy trial in the State court; 17 the absence of remedy by appeal of one convicted of contempt ;is the fact that no Federal indictment has been made in cases Avliere release is sought because the act is only an offense against the Federal govern- ment; 19 fact of want of diligence in the State courts; 20 the fact that the statute upon which the prosecution is founded, is admittedly valid ;i the fact that an ordinance is plainly invalid; 2 the fact that the offense is plainly beyond the jurisdiction of the State; 3 the existence of doubt as to the alleged violation of the Federal Constitution;* the fact that petitioner himself instigated the state proceedings against him. 5 But the fact that large interests affecting the business of many or the rights of the public are involved has recently been declared not a sufficient rea- son for discharge under the writ. 6 The principle of these cases applies i2Ex parte Royall, 117 U. S. 253, Gusnian v. Marrero, 180 U. S. SI, 45 29 L. ed. 868, 6 Sup. Ct. Rep. 741; L. ed. 43G, 21 Sup. Ct. Rep. 293. Duncan v. McCall, 139 U. S. 454, 35 L. ed. 222, 11 Sup. Ct. Rop. 573; Whitten v. Tomlinson. 100 U. S. 242, 40 L. ed. 406, 16 Sup. Ct. Rep. 297; In re Kin", 51 Fed. 434; Nesbit v. I'Ex narte Rovall. 117 J. S. 252, 29 L. ed. 868, 6 Saip. Ct. Rep. 742. isEx parte Strieker, 109 Fed. 145. isNew York v. Eno. 155 U. S. 98, 39 L. ed. 80. 15 Sup. Ct. Rep. 33; In Hert, 91 Fed. 123; Eaton v. West re Fox. 51 Fed. 427. Virginia, 91 Fed. 760, 34 C. C. A. 68; Ex parte McMinn. 110 Fed. 954. 20 Minnesota v. iJrundage, 180 U. S. 501. 45 L. ed. 640, 21 Sup. Ct. i3Ex parte Fonda, 117 U. S. 518, 29 Rep. 455. L. ed. 994, 6 Sup. Ct. Rep. 848; Reid iln re AVood. 140 U. S. 290, 35 L. V. Jones, 187 U. S. 153, 47 L. ed. IIG, ed. 505, 11 Sup. Ct. Rep. 738. 23 Sup. Ct. Rep. 89; Rogers v. Peck, 2ln re Ah Jow, 29 Fed. 181 : In re 199 U. S. 425, 50 L. ed. 256, 26 Sup. Christensen, 43 Fed. 243; Ex parte Ct. Rep. 87. Green, 114 Fed. 959. i4In re Wood, 140 U. S. 290, 35 L. sin re Lonev, 134 U. S. 372, 33 L. ed. 505, 11 Sup. Ct. Rep. 738; Whitten ed. 949, 10 Sup. Ct. Rep. 584; In re V. Tomliupon, 160 U. S. 242, 40 L. ed. Ladd. 74 Fed. 31. See in re Brad- 406, 16 Sup. Ct. Rep. 297 ; Tinsley v. ley, 96 Fed. 970. Anderson. 171 U. S. 104, 43 L. ed. 91, 4Ex parte Hanson, 28 Fed. 127. 18 Sup. Ct. Rep. 805; Reid v. Jones, 187 U. S. 153, 47 L. ed. 116, 23 Sup. Ct. Re--). 89. 5In re Alexander, 84 Fed. 633. SMinnesota v. Brundage, 180 U. S. 499, 21 Sup. Ct. Rep. 457, 45 L. i5Ex parte Royall, 117 U. S. 250, ed. 639, reversing circuit court. In 27 L. ed. 868, 6 'Sup. Ct. Rep. 739; re Brimdage, 96 "Fed. 963, 969. Con- Baker V. Gwice, 169 U. S. 293, 42 L. tra, see Ex parte Jervev, 66 Fed. 957; ed. 748. 18 Sun. Ct. Rep. 323; In re Minnesota v. Barber, 136 U. S. 313, Flinn, 57 Fed. 496. 34 L. ed. 455, 10 Sup. Ct. Rep. 862; isDavis V. Burke, 179 U. S. 399, Ex parte Kieffer, 40 Fed. 39. 45 L. ed. :i49, 21 Sup. Ct. Rep. 210: 158 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 19 to an attempt to review a State court's commitment for contempt." The commitment of persons to a State insane asylum is a matter for the States to regulate, and Federal courts will not generally interfere by habeas corpus. 8 § 19. — power of State or Federal court to vacate or relieve against the others judgment or decree. When and to what extent a Federal court may attack or relieve against a State court's judgment or decree, is not altogether clear. "^^^ Plainly inferior Federal courts have no supervisory or appel- late jurisdiction over State tribunals, except in the special case of habeas corpus; and the salutary doctrine of res adjudicata should apply with especial force between the co-ordinate State and Federal tribunals. Moreover, a Federal court's power to take cognizance of a proceeding attacking a State judgment or decree, is necessarily limited to such as may fairly be deemed independent and original, involving a new case and depending upon new facts, as dis- tinguished from proceedings ancillary and incidental, such as motion for new trial or bill of re\iew based upon irregularities or newly discovered evidence. The original jurisdiction and their juris- diction on removal is over suits,^^ and not over some incidental petition, motion or proceeding. Xotwithstanding these limitations, however, they have an undoubted power to relieve against the effect of State judgment on equitable grounds. There is a distinction which, it is conceived, is of controlling importance, between a direct attack on a judgment by proceeding to vacate or annul it, and an indirect attack which, without attempting to disturb such judgment, deprives the parties of the benefits thereof and restrains its enforcement. The latter power has been exercised by courts of equity since long prior to the foundation of our government; and has never been deemed an exercise of appellate power over courts of law. Hence a Federal proceeding in equity for this indirect relief against a State judgment at law, or even a State decree in equitj', is not to be deemed objectionable because an exercise of an appellate power. '^''^ It is true that anciently there was no occasion for seeking indirect rather than direct relief against a decree in equity. Yet if a party chooses relief against the effect of a State decree in equity, rather than its reformation or annulment, and can show 7Popke V. Cronan, 155 U. S. 101, 39 sin re Huse, 79 Fed. 305, 25 C. C. L. ed. 84, 15 Sup. Ct. Rep. 34; Ex A. 1; Hoadly v. Chase, 126 Fed. 818. parte Strieker, 109 Fed. 145. 159 § 19 [a] FEDERAL JURISDICTION IN GENERAL. [Code FeiJ. sufficient equitable grounds tiaerefor, it would seem permissible tbat he apply to the Federal court. "^"^^ Where, however, direct relief is sought against a judgment or decree, by annulling, vacating or sot- ting it aside, the rule is otherwise. Such relief is properly sought in the court making the judgment or decree, or else in an appellate court, and not in a court of co-ordinate jurisdiction. A proceeding therefore, in the Federal court to vacate a State judgment or decree would be objectionable because an exercise of appellate power and, where relief is sought for newly discovered evidence and not for fraud or want of jurisdiction, would be further objectionable be- cause merely ancillary and incidental. The only present modifica- tion of this general rule seems to be that a statutory proceeding to vacate a judgment for fraud, which in all essentials is an original inde];)endent suit, may be removed to the Federal court for trial. "^'^^ With respect to the power of State courts over the judgments and decrees of Federal courts, it is clear that they may not entertain any proceeding directly attacking them. Such proceedings must be in the Federal court, where they are permitted, as ancillary, and re- gardless of the citizenship of the parties. It is not so clear that they would be competent to entertain a suit in equit}^ for indirect relief against a Federal judgment upon equitable grounds.'^®^ Author's section. [a] The case of Barrow v. Hunton considered. Portions of the opinion in Barrow v. Hunton, 12 are responsible for the unsatisfactory condition of the authorities upon this subject. The cose held that a statutory proceeding to vacate a judgment for want of service was not removable to the Federal court. It was concerned therefore with a direct attack on a State judgment. A distinction was there drawn be- tween an attack on a State court's judgment by supplementary proceed- ing and by a separate suit. A supplementary proceeding to set aside a judgment for irregularity was declared to be ancillary and beyond the Federal court's jurisdiction on removal. "On the other hand" proceeded the court, "if the proceedings are tantamount to a bill in ecjuity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding and according to the doctrine laid down in Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524, the case might be within the cognizance of the Federal courts. The distinction between the two classes of cases may be somewhat nice, but it may be aflirmed to exist." But Gaines v. Fuentes was a case seeking relief, indirectly against the eU'eet iiPost. §§ 129, et seq. i2Barrow v. Hunton, 99 U. S. 80, 25 L. cd. 407. 160 Procedure] CONCURRENT AND CONFLICTING JURISDICTION. § 19 [b] of a State probate decree and sale; and the distinction between the two cases was not only that between an original and a supplementary pro- ceeding, but between a direct and an indirect attack upon a State decree. Other cases have similarly spoken of setting aside State decrees for fraud.13 But the more carefully considered opinions, including one by the same eminent judge in a later case, note the inaccuracy of this expression and declare that "the court does not act as a court of review, nor does it in- quire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties and if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will de- prive them of the benefit of it, and of any inequitable advantage they have derived under it."i4 ''While there are general expressions in some cases apparently asserting a contrary doctrine, the later decisions of this court show that the proper circuit court of the United States may, without con- trolling, supervising, or annulling the proceedings of State courts, give such relief ... as is consistent with the principles of equity."i5 in other cases the Supreme Court has expressly denied the power of the circuit court to set aside State court's decrees for fraud. is It is plain therefore that when subsequent cases have accepted the language of Barrow v. Hunton as furnishing a test of their power to vacate or relieve against State judg- ments they have been in danger of error.i'' There is nothing in the de- cision or in the opinion inconsistent with the theory that the Federal inferior courts cannot under any circumstances vacate a State court's judg- ment or decree. Yet the case is largely responsible for the later decision that a State statutory proceeding to annul a State court's judgment for fraud, is removable to the Federal court. is it would seem unsafe to de- clare that the doctrine of this later case will be extended so as to sustain the right to bring such a proceeding originally in the circuit court. [b] Federal court's power to relieve against effect of State court judg- ments. Equity has long possessed the power to relieve against the effect of the judgments of other courts, upon the ground of fraud, accident, mistake and the like. It acts upon the parties, and not upon the court rendering the judgment or decree, i This equitable power to relieve indirectly against the proceedings of other courts or proceedings upon the law side of the same i3See Young v. Sigler, 48 Fed. 182; vis Co. 73 Fed. 11, 12; Davenport v. Wonderly v. Lafavette Co. 150 Mo. Moore. 74 Fed. 949; Hunt v. Fisher. 635, 73 Am. St. Rep. 474. 51 S. W. 29 Fed. 801. 750, 45 L.R.A. 391. leRandaU v. Howard. 2 Black, 585. KJohnson v. Waters, 111 U. S. 17 L. cd. 269; Nougue v. Clapp, 101 G67, 28 L. ed. 556, 4 Sup. Ct. Rep. U. S. 551, 25 L. ed. 1026. 619. iTSee Sahlgard v. Kennedv, 2 Fed. isArrowsmith v. Gloason, 129 U. 295, 1 INIeCrarv, 291. S. 99, 32 L. ed. 635. 9 Sup. Ct. Rep. isCowley v. 'Northern Pac. Rv. 159 241. And see: Rhino v. Emerv, 72 U. S. 569, 40 L. ed. 263, 16 Sup. Ct. Feu. 386, 18 C. C. A. 600; De Neuf- Rep. 127. ville V. New York, etc. Rv. 81 Fed. i Johnson v. Waters, 111 U. S. 667. 13, 26 C. C. A. 306; Carver v. Jar- 28 L. ed. 556, 4 Sup. Ct. Rep. 619; Fed. Proc— 11. 161 § 19 [b] FEDERAL JURISDICTION IN GENERAL. [Code Fed. court pertains to the Federal circuit court sitting in equity,2 and may be exercised as respects proceedings and judgments of State courts where the jurisdictional diverse citizenship and value in dispute exist; and notwith- standing the fact that the State law provides a statutory mode of ob- taining relief in its own courts. 3 Hence in case of sales imder a probate court's decree procured and effected through fraud, the Federal court may deprive the parties of the benefit of such sales upon an original bill in equity maintained in such circuit court. ^ Where a divorce is fraudulently procured, the Federal court may relieve against the effect thereof so far as property rights are involved. 5 It may entertain a bill to set aside a sale of a ward's lands fraudulently procured by a guardian in a State court; 6 or a sale for taxes irregularly procured.'? It may enjoin enforcement of a State court's judgment obtained through accident or fraud, and which is therefore inequitable; 8 or enjoin foreclosure sale; 9 or set aside a partition sale fraudulently procured; lo or enjoin or set aside a sheriff's sale;ii or a sale in an action in which defendant's appearance was fraudulently en- tered.! 2 Where a Federal court of equity ordered concelation of a marriage contract as a forgery, and the State court in a suit brought after the Federal suit but proceeding concurrently therewith, found it valid and de- creed divorce and alimony, tlie Federal court enjoined the parties from pro- ceeding to enforce the State judgment. is AVhere the customary or statute law of a State permits a jjroceeding essentially equitable in nature to cancel a will and limit the enforcement of a decree admitting it to probate, such proceeding may be removed to the local Federal court which may exercise this supervisory equitable power equally with the State court.i* There would seem to be no objection to declaring the power of the Federal courts of equity as large as that exercised by State tribunals in giving relief indirectly against probate or other State proceedings. But equity has Arrowsmith v. Gleason, 129 U. S. '^De Forest v. Thompson, 40 Fed. 98, 9 L. ed. 237, 9 Sup. Ct. Rep. 240; 375. De Neufville v. New York. etc. R. R. sNational S. Co. v. State Bank. 120 SI Fed. 13, 26 C. C. A. 306; Hunt Fed. 593, 56 C. C. A. 657. 61 L.R.A. V. Fisher, 29 Fed. 801. 394; StacKhouse v. Zunts, 15 Fed. 2Se« Platt V. Threa-dgill, 80 Fed. 482, 4 Woods, 171: Marshall v. 195. Holmes, 141 U. S. 596, 35 L. ed. sNoyes v. Willard. 1 Wood. 187, 870, 12 Sup. Ct. Rep. 62. Fed. Cas. No. 10,374; National S. Co. sOarver v. Jarvis Co. 73 Fed. 9; V. State BanK of Humboldt. 120 Fed. Salilgard v. Kennedv, 2 Fed. 297. 593, 56 C. C. A. 657, 61 L.R.A. 394; lOHatch v. Ferguson, 52 Fed. 833. Davenport v. Moore. 74 Fed. 945. uMassie v. Buck, 128 Fed. 3i, 4 Johnson v. Waters, 111 IT. S. 640, 62 C. C. A. 535; Davenport v. Moore, 28 L. ed. 547, 4 Sup. Ct. Rep. 619; 74 Fed. 945; Northern Pac. Ry. v. Rhino V. Emery, 72 Fed. 382. 18 C. Kurtzmar, 82 Fed. 243. C. A. 600. ' i2Robb v. Vos, 155 U. S. 38, 39 L. 5Daniels v. Benedict, 50 Fed. 347. ed. 61, 15 Sup. Ct. Rep. 13. And see McNeil v. McNeill, 78 Fed. i3Sharon v. Terry, 36 Fed. 337, 1 834, holding it may annul a State L.R.A. 592, 13 Sawy. 429. divorce decree. 1 4 Gaines v. Fuentes, 92 U. S. 10, 23 sArrowsmith v. Gleason, 129 U. S. L. ed. 528. 86, 32 L. ed. 630, 9 Sup. Ct. Rep. 237. 162 Procedure] CONCUKRBXT AND CONFLICTING JURISDICTION. § 19 [c] no jurisdiction to set aside the probate of a will on the ground of forgery. is The Federal court will not interfere where the matters relied upon have; been urged upon the State court in seeking a new trial there.ie ^Vllere by mistake judgment in a cause is entered for less than the proper amount and it is too late to obtain relief by proceedings in that cause, a bill for relief in equity is maintainable and is so far original that it may be re- moved to the Federal court, i^ It is also competent for the Federal court to cancel a certificate of naturalization fraudulently procured from a State court. 18 Where a State court's judgment is void for want of jurisdiction the aggrieved party may often have relief without suing to restrain its enforcement, as a Federal court will refuse to recognize it either at law or in equity in any proceeding seeking to give it effect. 1 9 [cj Federal relief in equity against State equity decree. A few decisions of the Supreme Court in which parties seeking relief against State foreclosure decrees for fraud have been remitted to the State courts,! seem to suggest that the Federal courts will not relieve against State decrees in equity upon the ordinary equitable grounds, as tliey will against State proceedings at law. None of the cases however attempt to draw this distinction in terms. There are doubtless several equitable grounds apart from any question of the power of the Federal court for a refusal in most cases to entertain an application of such a complainant in another tribunal. There is a probability that his plea of fraud has been within issues already disposed of by the court of original cognizance and perhaps a propriety in compelling him to exhaust his remedies in a tribunal equally competent to afford relief. 2 The State de- cree may be interlocutory and open to review by the State court by petition or motion in the cause. 3 The nature and circumstances of the equity claimed may be such that the relief sought is purely ancillary and a supplemental bill or bill of review for newly discovered evidence presented to the State court the proper and only remedy.* These cases perhaps illustrate the necessity for proper grounds of equitable interference by and relief in another court, rather than a want of power in the circuit court to relieve parties from a decree vitiated by fraud or invalid for want of jurisdiction. 5 i5Case of Brodericks Will, 21 Wall. L. ed. 196, 6 Sup. Ct. Rep. 1018. See 503, 22 L. ed. 509. also; Furnald v. Glenn. 64 Fed. 54, ifiBailey V. Willeford, 126Fed. 807. 12 C. C. A. 27; Foote v. Glenn, 52 i"Pclzer Mfg. Co. v. Hamburg Ins. Fed. 5.30. Contra, see Sahlgard v. Co. 62 Fed. 2. Kennedy 2 Fed. 295, 1 McCrary, 291. isUnited States v. Norsch, 42 Fed. 2Xougue v. Clapp, 101 U. S. 551, 418; United States v. Gleason, 90 25 L. ed. 1026; Gmhani v. Boston, etc. Fed. 778. .33 C. C. A. 272. R. R. 118 U. S. 178. 30 L. ed. 196, isCooper v. Newell, 173 U. S. 555, 6 Sup. Ot. Rep. 1018: Pacific R. R. 43 L. eu. 808, 19 Sup. Ct. Rep. 506; v. Missouri V. R. R. Ill U. S 505, 28 First Nat. Bank v. Cunningham, 48 L. ed. 408, 4 Sup. Ct. Rep. 583. Fed. 510. sGraham v. Boston, etc. R. R. 118 iRandall v. Howard, 2 Black. 585, U. S. 178, 30 L. ed. 196, 6 Sup. Ct. 17 L. ed. 269; Nougue v. Clapp, 101 Rep. 1018. U. S. 551, 25 L. ed. 1026; Graham v. ^Graver v. Faurot. 64 Fed. 241. Boston, etc. R. R. 118 U. S. 178, 30 5See Carver v. Jarvis Co. 73 Fed. 9. 163 § 19 [d] FEDERAL JURISDICTION IN GENERAL. [Code Fed. [d] Federal court's power to vacate or annul State court judgments. The general rule is that a Federal court cannot annul or vacate a State court judgment for fraud or otherwise, since the inferior Federal courts have no appellate jurisdiction over State tribunals, and indeed are bound to give their judgments full faith and credit. « It is equally improper for tnem to set aside a satisfaction of a State court's judgment. 9 The proper court to vacate a judgment is the court rendering it,io and if it be a Federal decree the application for relief is maintainable in the Federal court as ancillary and regardless of citizenship.n In a few cases, seek- ing relief against State judgments, for want of jurisdiction, a distinction is drawn between a latent defect and a want of jurisdiction apparent upon the face of the record.! 2 But this would seem to have reference to the propriety and necessity for interference by a court of equity, and not to the question of the power of a Federal court over a State court's decree. In one case at circuit the right to maintain a bill in the Federal court to annul a State court's divorce decree for want of service, was recog- nized. 1 3 The law of many States now provides a statutory mode for vacating a judgment upon application to the court rendering the same. If this statutory proceeding is merely a supplemental or ancillary application in the original cause, e. g., a motion to set aside a default judgment for want of seiwice, it is not removable to the Federal court. i^ But where a statutory application to vacate a judgment for fraud virtually constitutes an original proceeding, the Supreme Court has held that it may be re- moved to the Federal court. ib [e] State courts' power to relieve against Federal judgments. It belongs to the Federal, and not to the State courts to revise and sNougue v. Glapp. 101 U. S. 551, i2Little Rock, etc. Ry. v. Burke, G6 25L. ed. 1026; Graham v. Boston, etc. Fed. 83, 13 C. C. A. 341; Blythe v. R. R. 118 h. S. 177, 30 L. ed. 204, Hinckley, 84 Fed. 246; Bledsoe v. Er- 6 Sup. Ct. Rep. 1018; Hendrickson v. win, 33 La. Ann. 617. Bradley, 85 Fed. 515, 29 C. C. A. .S03; isMcNeil v. McNeil, 78 Fed. 834. Amory v. Amory, 3 Biss. 266, Fed. The Federal court may undoubtedly Cas. No. 334; Barrow v. Hunton, 99 relieve against a divorce decree upon U. S. 80, 25 L. ed. 407; Robinson v. equitable grounds, so far as respects Fair, 128 U. S. 86, 87. 32 L. ed. 415, alimony, Sharon v. Terry, 36 Fed. 9 Suip. Ct. Rep. 30: Elder v. Rich- 337, 1 L.R.A. 592, 13 Sawy. 429; or mond M. Co. 58 Fed. 540, 7 C. C. A. other property rights, Daniels v. Ben- 354. But see ilcNeil v. McNeil, 78 edict. 50 Fed. 347. Fea. 834; Sahlgard v. Kennedy, 2 i4Barrow v. Hunton, 99 U. S. 80, Fed. 295. 25 L. ed. 407 ; Edwards Mfg. Co. v. sLauderdale Co. v. Foster, 23 Fed. Sprague, 76 Me. 61; Smith v. Schwed, 516. 9 Fed. 483. loRandall v. Howard, 2 Black, 585, loCowley v. Northern P. R. R. 17 L. ed. 269; Nogue v. Clapp, 101 159 U. S. 579. 40 L. ed. 266, 16 Sup. U. S. 551, 25 L. ed. 1026; Amory v. Ct. Rep. 129; Graver v. Paurot, 76 Amorv, 2 Biss. 266, Fed. Oas. No. 334. Fed. 257. 22 C. C. A. 156; In re Iowa, See Hendryx v. Perkins, 114 Fed. 801, etc. Co. 10 Fed. 402. See supra, 52 C. C. A. 435. note.M 11 See ante, § 3. 164 Procedure] INJUNCTION AGAINST STATE PROCEEDINGS. § 20 [a] correct proceedings of inferior Federal courts. i The State tribunals have no power to enjoin proceedings in a Federal court. 2 An aggrieved party seeking relief directly or indirectly against a Federal judgment or decree should apply to the Federal court, which will entertain his application regardless of citizenship. 3 It has sometimes been declared that a State court of equity maj' relieve indirectly and upon equitable grounds against the enforcement of an unconscionable Federal judgment by depriving parties of the benefit thereof, just as the Federal courts will relieve against a State judgment.! But it is not altogether clear that they have this power and the reasoning of many cases is against it. 5 The grant of jurisdiction for diverse citizenship which compels the Federal court to as- sume the power to relieve against State judgments, already considered, is wanting in the case of the State courts. And while they may refuse to allow a plea of res adjudicata where a Federal judgment was removed with- out jurisdiction and to that extent relieve against it, it would seem a prop- er rule of comity, even if no more fundamental considerations require it, that they compel one seeking relief against a Federal judgment to resort to the Federal court. § 20. — Federal injunction to stay proceedings in State courts. The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State/^^""^^^ except in cases where such injunction may be authorized by any law 7'elating to proceedings in bankruptcy. "^^ Rev. Stats. § 720, U. S. Comp. Stats. 1901, p. 581. [aj Federal injunction against State court proceedings. The first portion of the foregoing section was enacted in 1793. The exception of bankruptcj' cases was added upon the adoption of the re- vised statutes and is to be read in connection with § 11 of the banknipt act of 1898.10 The section is also to be read in connection with R. S. § 716,11 authorizing the Federal courts to issue all v>-rits necessary to the exercise of their respective jurisdictions; and in connection with R. S. § 646,12 as to injunctions granted before removal of a cause from a State court. But it is not affected by R. S. § 1979, respecting civil rights. is Notwithstanding the clear and unequivocal language of the section and the frequency with which its mandate has been reiterated by the courts,i* lAbleman v. Booth. 21 How. 52G, lOSee post. § 2201 et seq. 16 L. ed. 169: Semple v. Hagar. 27 nFisk v. Railwav Co. 10 Blatchf. Cal. 170. 520. Fed. Cas. No. "4.830: Sharon v. 2See post, § 21. Terry, 36 Fed. 30(5. 1 L.R.A. 572, 13 3See ante, § 3, note.Fe] Sawv. 429. Sec post, § 841. ^Ralston v. Sharon, 51 Fed. 707; i2Perry v. Sharpc, 8 Fed. 24. Wonderlv v. Lafavette Co. 150 Mo. See post, § 1153. (•.53. 73 Am. St. Rep. 474, 51 S. W. isilemslev v. Mvers. 45 Fcl. 283. 750. 45 L.R.A. 391. See Central Nat. i4Diggs v. Wolcott. 4 Cranch, 170, Bank v. Hazard, 49 Fed. 296. 2 L. ed. 587: Haines v. Carpenter. 91 5See post, § 21. U. S. 257, 23 L. ed. 345: Dial v. Rey- 165 § 20 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. the task of reconciling the decided cases with its provisions, involves a resort to many nice distinctions, and a recognition of the fact that ju- dicial exposition has robbed it of much of its force. Doubtless one of the chief purposes of its enactment was to forbid an exercise of supervisory or appellate power over State court proceedings through the agency of the writ of injunction, and it has been effective to that end. It has been ef- fective in preventing injunction directly against a court, and, generally, against its officers. In cases where the writ issues to stay State court proceedings, it is directed to the parties and seeks only to control their acts, although it is conceded in other cases that an injunction to restrain jiroceedings in another court is no less objectionable because directed to the parties, and not to the court.is It has been effective also in prevent- ing the maintenance of Federal suits for the express purpose of enjoining proceedings begun in State courts, and where the injunction was not merely an incident to other relief sought. is The difficulty with giving the latitude and scope to the operation of this section warranted by its language, is that strong equitable reasons often exist for protecting rightful Federal jurisdiction in this summary way rather than by the tedious and circuitous remedy of writ of error to the highest State court.i'^ The use of injunction for the purpose of rendering Federal jurisdiction effective, often prevents the enjoined party from in- stituting vexatious proceedings in the State tribunals. is Equally strong equitable reasons sometimes exist for injunction against proceedings which are objectionable, not because prosecuted in a State court but because in a court of law, and which are or will be rendered useless or vexatious by the decision of some paramount and controlling issue in the court of chan- cery. 1 9 Another circumstance which has contributed to the creation of precedents antagonistic to the mandate of R. S. § 720, is the fact that nolds, 96 U. S. 340, 24 L. ed. 644; Ex parte Schwab. 98 U. S. 241, 2v) L. ed. 105; In re Sawver, 124 U. S. 219, 31 L. ed. 402, 8 Sup. Ct. Rep. 482; Peck v. Jenness, 7 How. 625, 12 L. ed. 841 ; Moran v. Sturges, 154 U. 'S. 268. 38 L. ed. 981, 14 Sup. Ct. Rep. 1019; United States v. Park- hurst-Davis Ck). 176 U. S. 320. 44 L. ed. 486, 20 Sup. Ct. Rep. 423; Dillon V. Kansas, C. R. R. 43 Fed. Ill; Mo- loney V. Massachusetts, etc. Assn. 53 Fed. 209; Guaranty T. Co. v. North, etc. R. R. 130 Fed. 801, 65 C. C. A. 65; Securitv T. Co. v. Union & Co. 134 Fed. 301. isPeck v. Jenness, 7 How. 625, 12 L. ed. 841 ; Haines v. Carpenter. 91 U. 8. 254. 23 L. ed. 345; Dial v. V. i- olds, 96 U. S. 340, 24 L. ed. 644: r.x parte Chetwood. I(i5 U. S. 443, 41 L. ed. 782, 17 Sup. Ct. Pi«p. 385; Yick Wo V. Crowley, 26 Fed. 207 ; Coeur D'- Alene Ry. v. Spalding, 93 Fed. 280, 35 C. C. A. 295; Security T. Co. v. Union T. Co. 134 Fed. 301. The Fed- eral Court may enjoin trespass not- withstanding proceedings by the tres- passer in the State court to condemn a right of way: Colorado, etc. Ry. V. Chicago, etc. Ry. 141 Fed. 898. isGarner v. Second Nat. Bank, 67 Fed. 833, 16 C. C. A. 86; Central T. Co. V. St. Louis, etc. Ry. 59 Fed. 385; Terre H. R. R. v. Peoria, etc. R. R. 82 Fed. 943; Massie v. Buck. 128 Fed. 31. 62 C. C. A. 535. IT See Julian v. Central T. Co. 193 U. S. 93, 48 L. ed. 629, 24 Sup. Ct. Rep. 399. isFisk V. Union Pac. Rv. Co. 10 Blatchf. 520. Fed. Cas. ISSo. 4,830; Texas & P. Ry. v. Kuteman, 54 Fed. 551, 4 C. C. A. 503. i9See for example, Hamilton v. Walsh, 23 Fed. 420. 166 I'rocedure] INJUNCTION AGAINST STATE PROCEEDINGS. § 20 [bl where the enjoined proceeding was one from which the partj' ought prop- erly to desist, no right of his is injured by the court's improper issuance of the writ, and hence no wrong done for which relief is obtainable on appeal. The injunction stands not because of the propriety of its issuance, but because the thing it commands is proper. The word "proceedings" in the section includes all steps taken in a suit from its inception to final process. 2 Yet i.. has been said that injunction against a levy by a sheriff upon the property of some one other than the defendant in the writ does not interfere with a State court proceeding but merely with a trespass by an officer outside the scope of that proceeding;! although State courts have declined to enjoin levy by a marshal upon exempt property, or the property of a third person. 2 It has been decided and very plausibly, that "proceedings" refers to such as are existing when the injunction is sought; and that where the injunction merely seeks to restrain the subsequent bringing of an ac- tion in the State court, it is not deemed to be within the prohibition of R. S. § 720.3 The further holding of many cases that the section only forbids injunction against State proceedings commenced prior to the Fed- eral suit, 4 finds less support in the wording of the section though it is often strongly justified by the necessity for protecting a prior and exclusive Federal jurisdiction. 5 Election commissioners are not a State court with- in this provision. 6 Any process or order though not strictly an injunction, regardless of its form, would be objectionable if its office was to stay State court proceedings. 7 But a sale by an officer under a chattel mort- gage in Vermont, is not a court proceeding.^ [b] Cases where injunction refused. Under this section Federal courts have refused to enjoin State criminal proceedings; 9 or proceedings to collect back taxes; 10 or probate proceed- 2 0United States v. Collins, 4 v. Union P. R. R. 10 Blatchf. 518, Blatchf. 142, Fed. Cas. Xo. 14,834. Fed. Cas. Xo. 4.830: Lanning v. Os- iCropper v. Coburn, 2 Curt. 465, borne, 79 Fed. 659. Fed. axs. No. 3.416; Julian v. Ceu- SBowdoin Coll. v. Merritt, 59 Fed. tral T. Co. 115 Fed. 962, 963, 53 C. 6; In re Whitelaw, 71 Fed. 733; Ham- C. A. 438. Contra, see Watson v. iltony. Walsh, 23 Fed. 420; Whitney Bondurant, 2 Woods 160, Fed. Cas. ^'- ^^^l*^^""' ^^ ^'"^- ^5^' ^ ^- ^- ^^ No. 17,278; Perrv v. Sharpe, 8 Fed. ^^% . .,, , , , ._ ^ , ^_. ,„ ., 00 -n^i^ cu \.;ff 1 wT^r^A. ^■^K ^Busch v. Webb, 122 Fed. 65d; Well f'', n ^XT f..^ ' ' ' ^'- Calhoun, 25 Fed. 865. ,„ ; --X ; n . T. 1 "ExparteSchulenberg,25Fed. 211, 2Prugh v. Portsmouth, etc. Bank, .^j^ "^ 48 Neb. 418, 67 N. W. 311; Chapin " .Carpenter v. Talbot, 33 Fed. 539. V. James, 11 R. I. 86, 23 Am. Rep. i^Harkrader v. Wadlev, 172 U. S. "^1-- 148, 43 L. ed. 399, 19 jiup. Ct. Rep. ^Transportation Co. v. Parkers- 126; Fitts v. McOliee, 172 U. S. 531, burg, 107 U. S. 695, 27 L. ed. 584, 43 L. ed. 535, 19 Sup. Ct. Rep. 269; 2 Sup. «.t. Rep. 732; Glucose R. Co. Yick Wo v. Crowley, 26 Fed. 207; V. Chicago, 138 Fed. 209; Palatka W. Suess v. Noble, 31* Fed. 855. See Wks. v. Palatka, 127 Fed. 163. See Louisiana Lottery v. Frtzpatrick, 3 Statelor v. California Nat. Bank, 77 Woods, 222, Fed. Cas. No. 8.541. 1">J- 43. lOAultman v. Brumfield, 102 Fed. 4Hale V. Bugg, 82 Fed. 36; Fisk, 7; Douglas Co. v. Stone, 110 Fed. 812. 167 S 20 [c] FEDERAL JURISDICTION IN GENERAL. [Code I'ed. ingsjii or attacluucnt proceedings upon a Federal bill of interpleader; 12 or to enjoin the prosecution of a suit in a State court whose jurisdiction was prior to that of the Federal court; 13 or which has already made a decree; 1* or to enjoin execution sale by a sheriff of property rightfully in his possession; 15 or of property claimed by a third person; is or of prop- erty sold by a bankrupt ;i" or to enjoin a bankrupt assignee from paying a dividend imder a garnishment against a creditor of the bankrupt.! s They have refused to enjoin a State court from satisfying judgments prior to bankruptcy, out of proceeds of execution sale;i9 to enjoin State court suit against a marshal for wrongful levy; 20 to enjoin State pro- ceedings not really conflicting with a prior Federal custody; 21 to enjoin suits brought against Indians in the State courts ;i to enjoin ejectment proceedings in a State court; 2 or entry on land pending condemnation proceedings in a State court ;3 or a proceeding under a law claimed to be invalid;* to issue an injunction which would have the effect of settling a title in litigation between the parties in an equitable State action; 5 to enjoin the proceedings in a State court to enforce a State court's judg- ment ;•> or restrain a State garnishment proceeding served on a party while a witness before a Federal court." [c] Injunction to protect lawful exercise of Federal jurisdiction. As already stated, R. S. § 720, must be construed in connection with R. S. § 716,10 empowering Federal courts to issue all writs necessary to the exercise of their jurisdiction.! 1 Most of the cases where injunction has issued notwithstanding this section, are those where it was expressly or impliedly authorized by Congress as necessary to the effectual exercise of lawful jurisdiction; 12 or a mere incident to a cause seeking other re- 11 Hall V. Bridgeport T. Co. 123 Fed. 739; Whitney v. Wilder, 54 Fed. 554, 4 C. C. A. 510. i2McWhirter v. Halstead, 24 Fed. 828. isHale V. Bugg, 82 Fed. 36; Hamil- ton V. Walsh, 23 Fed. 420. See infra, note.[c] KChaffin V. St. Louis, 4 Dill, 23, Fed. Cas. No. 2,572. isRuggles V. Simonton, 3 Biss. 329, Fed. Cas. No. 12,120. 16 Watson V. Bondurant, 2 Woods, 175, Fed. Cas. No. 17,278; Perry v. Sharpe, 8 Fed. 23; American Ass'n. V. Hurst, 59 Fed. I, 7 C. C. A. 598. 1" Sargent v. Helton, 115 U. S. 348, 29 L. ed. 412, 6 Sup. Ct. Rep. 78. isGilbert v. Lynch, 1 Fed. 114, 17 Blatchf. 402. inCampbell's Case, 1 Abb. U. S. 189, Fed. Cas. No. 2,349. 2 0FA'ans v. Pack, 2 Flipp. 274, Fed. Cas. No. 4,566. 2iGuaranty T. Co. v. North, etc. R. R. 130 Fed. 801, 65 C. C. A. 65. 1 United States v. Parkhurst-Davis Co. 176 U. S. 320, 44 L. ed. 486, 20 Sup. Ct. Rep. 423. 2Dial v. Reynolds, 96 U. S. 340, 24 L. ed. 644. sDillon V. Kansas City R. R. 43 Fed. 109. 4Rennselaer, etc. R. R. v. Benning- ton, etc. R. R. 18 Fed. 618. 5 Or ton V. Smith, 18 How. 263, 15 L. ed. 393. 6Louisville & Co. v. Cincinnati, 73 Fed. 716. 'i'Ex parte, Schulenberg, 25 Fed. 211. loSee post, § 841. iiFisk V. Railway Co. 10 Blatchf. 520, Fed. Cas. No. 4.830; Sharon v. Terry, 36 Fed. 366. 1 L.R.A. 572, 13 Sawy. 429. 12'Moran v. Sturges. 154 U. S. 270, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019; 168 i-rocedure] INJUNCTION AGAINST STATE PROCEEDINGS ^ 20 |.e] lief and necessary to protect the court's jurisdiction or enforce its de- crees. is Thus the law limiting liability of ships impliedly authorizes injunction against damage suits in other courts after proceedings for lim- iting liability have been instituted, i* After removal of a case from a State court injunction is often deemed justifiable to prevent a continuance of the litigation in the State tribunal. 1 5 So where a Federal court by priority or possession of the res in controversy, has acquired exclusive pow- er to proceed, it will restrain the parties from proceedings in the State court. 16 If the State court has priority, under principles elsewhere con- sidered,i7 it will refuse to issue injunctionis and much more will it re- fuse if the State court has already made a decree. 1 9 If neither has ac- quired exclusive jurisdiction, and both suits may proceed concurrently with- out conflict, injunction will be refused. 20 If the Federal court did not have power to protect this prior jurisdiction vexatious proceedings might be maintained in the State tribunals. 21 But while the Federal courts may thus protect their jurisdiction and their decrees they may not en- join State proceedings upon the theory that their own decision concludes the issues therein as res adjudicata;i though it is held that a Federal court pending an appeal from its decision may restrain a suitor before it, over whom it has jurisdiction from vexatiously bringing another suit for the same cause in another State. 2 Stewart v. Wisconsin C. Ry. 117 Fed. 387, 43 C. C. A. GOO; State T. 782. Co. v. Kansas City K. R. 110 Fed. 10; i3Garner v. Bank, 67 Fed. 836, 16 Union, etc. Co. v. Riggs, 123 Fed. 312. C. C. A. 86; ierre Haute, etc. R. R. But see Guarantv T. Co. v. North. V. Peoria, etc. R. R. 82 Fed. 943; etc. R. R. 1.30 Fed. 801, 65 C. C. A. Massie v. Buck, 128 Fed. 31, 62 C. C. 65. A. 535; Chicago, etc. R. R. v. St. Jos- iTgee ante S 16 eph, etc. Co. 92 Fed. 25. , o^m- 't. i- i. /-. mr t. j ^4Providence. etc. Co. v. Hill Mfg. .^'^l^^'^'" ""■ ^t Inn t^ r Co. 109 U. S. 578. 27 L. ed. 1038, 3 ^'^' 4a C. a A. 200: E^^ns v. Gor- Sup. Ct. Rep. 379; The Tolchester, J"'^"- ^^^ ^ed. 399; Hamilton v. 42 Fed. 184; In re Whitelaw, 71 Fed. ^^ alsh, 23 Fed. 420; Gates v. Bucki, 735. 53 Fed. 969, 4 C. C. A. 116; Chicago, i^See infra, note.td] T. Co. v. Bentz, 59 Fed. 647: Whit- is.Iulian v. Central T. Co. 193 U. ney v. Wilder, 54 Fed. 554. 4 C. C. S. 93, 48 L. ed. 629, 24 Sup. Ct. Rep. A. 510. Sec Orton v. Smith, 18 How. 399; Mercantile T. Co. v. Roanoke, 263, 15 L. ed. 393. etc. Ry. 109 Fed. 3; Central T. Co. laChafiin v. St. Louis, 4 Dill. 23, V. Western N. C. R. R. 112 Fed. 471; Fed. Cas. No. 2,572. Fisk v. Railroad. 10 Blatchf. 520. 20Benjamin v. Brooklyn, U. E. R. Fed. Cas^ No. 4,830; Lanning y. us- r. 12O Fed. 428; Copeland v. Brun- borne, 79 Fed 6.37; Missouri etc. j 127 ^^^ 550 03 c. c. A. 435. R. R. V. Scott, 13 Fed. /9o, 4 ^^ oods, tn- i t- • t. ti /-. ir> 386; Terre Haute, etc. R. R.V.Peoria, ,,, ^'f J,"^ ^"'7 ?'• ^^ X,l etc. R.R. 82 Fed. 943; Hutchinson V. Bl^tcht. 520, Fed. Cas. No. 4.8.W; Green, 6 Fed. 838, 2 iMcCrarv, 471 ; ^^^^^ ^ ^- ^y- ^'- I^ut«man, 54 Fed. Fidelity, etc. Co. v. Norfolk, etc. Co. ^51, 4 C. C. A. 503. 88 Fed. 815; Iron M. R. R. v. Mem- iChicago, etc. R. R. v. St. .Joseph, phi.s, 96 Fed. 113, 37 C. C. A. 410: etc. Co. 92 Fed. 25, 26. Starr v. Cliicago, etc. R. R. 110 2Cochran v. Childs, 111 Fed. 433, Fed. 3; Pitt V. Rodgers, 104 Fed. 49 C. C. A. 421. 169 S -U LtiJ I'EJJEUAL JUKlSDlCXlOiS' IN GENERAL. [Code Fed. [dj Federal injunction against State court proceedings after removal. The removal laws expressly provide that an injunction granted by a State court prior to removal may be continued by the Federal court.s A number of cases have affirmed the power of the Federal courts to protect the jurisdiction acquired by removal from subsequent interference, or ])roceedings in the State court, upon the ground that the relief is merely ancillary to a jurisdiction, lawfully acquired and necessary to give elfect to its own judgment. 6 Hence, if a party is suing in another State upon a judgment which the Federal court has set aside after removal, itijuiic- lion may issue to restrain him. 7 Suit on a replevin bond in a State court may be restrained where the judgment went for plaintiff in the Federal court after removal of the replevin suits, the State court having wrongfully disregarded the removal and proceeded to judgment for de- fendant. 8 But injunction has been refused where no right to remove in fact existed; 9 or where the removal was not perfected; lo or the right not clear; 11 or the proceeding sought to be removed merely ancillary; 12 or where the removed cause was dismissed and a second State action in- stituted for an amount smaller than that required by the removal laws.13 [ej Federal injunction upon ordinary equitable grounds against State court proceedings. Equity has long exercised a right to enjoin proceedings at law; and, where the parties are within its jurisdiction, will even enjoin actions by them in other States. ig It would seem that the Federal court sitting in equity, possesses this power; i^ though it should not be exercised as against a court of competent jurisdiction having power to decide all ques- tions that may arise and to entertain and give full weight to the equitable defense; 18 nor where there exists a full and adequate defense available in the legal action. 1 9 Such a proceeding in equity may be brought before or during a suit at law, or after its decision, and is a separate action in- 5See post, § 1153; Perry v. Sharpe, Frishman v. Insurance Co. 41 Fed. 8 Fed. 24; Hunt v. Fisher, 29 Fed. 449. SOI. i2Mutual Res. F. L. Assn. v. 6French v. Hay, 22 Wall. 250, 22 Phelps, 190 U. S. 147, 47 L. ed. 9S7, L. ed. 857; Wagner v. Drake, 31 Fed. 23 Sun. Ct. Rep. 707. 849; Baltimore, etc. R. R. v. Ford. isTexas, etc. Ck). v. Starnes, 128 35 Fed. 173; Abeel v. Culberson. 56 Fed. 183. Fed. 333; President, etc. v. Menitt, isSee Cole v. Cimningham, 133 U. 59 Fed. 7; Banning v. Osborne, 79 S. 107, 10 Sup. Ct. Rep. 2G9. 33 L. Fed. 662. ed. 539; Allen v. Buchanan, 97 Ala.. ^French v. Hay, 22 Wall. 250, 22 403, 38 Am. St. Rep. 191, 11 Su. L. ed. 857. 778; uage v. Riverside T. Co. S'i sDietzsch v. Huidekoper, 103 U. S. Fed. 998; French v. Hav, 22 Wall. 494, 26 L. ed. 354. 250, 22 L. ed. 857 ; Pickatt v. Fevgu- sBertha, etc. Co. v. Oarico, 61 Fed. son. 45 Ark. 189, 55 Am. Rep. 549. 132. iTFisher v. Lord, 6 West. L. J. 137, loCeonr D'Alene Ry. v. Spalding, Fed. Cas. No. 4,821. 93 Fed. 280, 35 C. C. A. 295. is^Vilson v. Lambert, 168 U. S. iiRailroad Co. v. Scott, 13 Fed. 618, 42 L. ed. 599, 18 Sup. Ct. Rep. 217. 793; Wagner v. Drake, 31 Fed. 849; isDeweese v. Reinhard. 165 U. S. 170 I Procedure] INJUNCTION AGAINST STATE PROCEEDINGS. § 20 [e] stituted by the filing of an original bill. 20 The Federal court in equity has thus interfered in several recent cases to enjoin actions at law in both State and Federal courts on insurance policies, pending the determination of a bill in equity for cancellation for fraud. 1 The State courts have similarly enjoined Federal actions at law. 2 Injunction against threatened State proceedings may sometimes issue to prevent a multiplicity of suits, 3 though this ground of equitable interference has been deemed insufficient to take the case out of the terms of R. S. § 720, where the State court .suits were already pending.'* So also because of the inadequacy of legal remedy or to prevent multiplicity of suits, injunction is often granted to restrain the enforcement of invalid laws or ordinances or unjust schedules of water, gas or railroad rates and in like cases. If the proper equitable grounds of interference exist it would seem to be no objection to the re- lief that the institution of proceedings in the State courts is prevented l)y the Federal writs or even that existing proceedings are stayed; 6 so long as the suit is not in effect one against the State itself, prohibited by the Eleventh Amendment. 7 After judgment has been obtained in a .State court, the Federal court may, as is elsewhere shown, s relieve against the effect thereof for fraud, accident or mistake, or upon other equitable grounds. It m.ay be necessary to effective relief that proceedings to en- force such judgments be stayed and injunction has issued as an incident to the relief in such cases. 9 Some of these were cases removed from the State courts. 10 389, 41 L. ed. 757, 17 Sup. Ct. Rep. No. 8.541; Gunter v. Atlantic, etc. R. MO; Freeman v. Timanns, 12 Fla. R. 200 U. S. 273. 50 L. ed. 477. 20 410. Sup. Ct. Rep. 252. 2 0Parker V. Judges, 12 Wheat. 5G4, eTuchman v. Welch, 42 Fed. 553; 6 L. ed. 729. Iron M. R. R. v. ilemphis. 96 Fed. iHome Ins. Co. v. \ irginia, C. Co. 113, 37 C. C. A. 410. But see Renss- 109 Fed. 681, 113 Fed. 1, 51 C. C. A. elaer, etc. R. R. v. Bennington, etc. 22; Rochester, etc. Ins. Co. v. R. R. 18 Fed. 618. Schmidt, 126 Fed. 998. See Hamil- nn re Avers, 123 U. S. 443, 31 L. ton V. Walsh, 23 Fed. 420. ed. 216. 8 Sup. Ct. Rep. 164; Fitts 2 See Insurance Co. v. Howell 24 v. McGhee, 172 U. S. 529, 45 L. ed. N. J. Eq. 238— quoted approvingly 535, 19 Sup. Ct. Rep. 209. in Moran v. Sturges, 154 U. S. 256, sSee ante, § 19.[b] 38 L. ed. 981, 14 Sup.. Ct. Rep. 1023. sStackhouse v. Zunts, 15 Fed. 481, sTexas & P. Ry. v. Kuteman, 54 4 Woods, 171 ; Sahlgard v. Kennedy, Fed. 547, 4 C. C. A. 503. 2 Fed. 295, 1 McCrary, 291; Car- 4Haines v. Carpenter, 91 U. S. 254, ver v. Jarvis Co. 73 Fed. 9: North- 23 L. ed. 345. ern P. Ry. v. Kurtzman, 82 Fed. 241; 5See Transportation Co. v. Parkers- Nation:/," S. Co. v. State Bank, 120 burg, 107 U. S. 695, 27 L. ed. 584, Fed. 593, 56 C. C. A. 657, 61 L.R.A. 2 Sup. Ct. Rep. 732; Allen v. Balti- 394; ^Marshall v. Holmes, 141 U. S. more, etc. R. R. 114 U. S. 316. 29 596, 35 L. ed. 870, 12 Sup. Ct. Rep. 62; L. ed. 201. 5 Sup. Ct. Rep. 927; Wil- Lehman v. Graham, 135 Fed. 39, 67 son V. Lambert, 168 U. S. 618, 42 L. C. C. A. 513. ("d. 599, 18 Sup. Ct. Rep. 217; Palatka lOMarshall v. Holmes, 141 U. S. W. Works V. Palatka, 127 Fea. 163 ; 596, 35 L. ed. 870, 12 Sup. Ct. Rep. Moore v. Holliday, 4 Dill. 52, Fed. 62; Stackhouse v. Zunts, 15 Fed. 481, Cas. No. 9,765; Louisiitima S. Lotterv 4 Woods. 171; Carver v. Jarvis Co. v. Fitznatrick, 3 Woods, 222, Fed. Cas. 73 Fed. 9. 171 § 21 [a] FEDERAL JURISDICTION IN GENERAL, [Code Fed. ff] Injunction in bankruptcy cases. The proviso authorizing injunction against State court proceedings in bankruptcy cases Avas added upon the adoption of the Revised Statutes, aj)pt«ently in deference to prior decisions of the courts affirming the necessity and the existence of such power in courts of bankruptcy. 12 Under former bankrupt law^s many cases arose involving applications for injunction against State court proceedings some of which were allowed and some refused. is The present bankrupt law equally requires the use of injunction to protect the paramount powers of a court of bankruptcy in its possession and administration of the bankrupt estate.i^ Section 11 authorizes its issuance to stay proceedings under certain circumstances.is § 21. — State writ to restrain or control Federal proceeding's. The State courts have no appellate power over Federal courts ; nor is it competent for them to restrain or impair in any way the jurisdiction conferred by the Constitution upon the Federal trib- unals.^ They may not release a Federal prisoner on habeas corpus.- They may not issue mandamus to an officer of the United States; and are as much restrained from using injunction to supervise the acts or proceedings of the Federal courts, as are the latter by the provisions of R. S. § 720,^ from issuing injunction against State court proceedings. 1^^^ Author's section. [a] Power of State court to enjoin proceedings in Federal Court. State and Federal courts are independent of one another and within their respective spheres of action, it is said, the process issued by one is i2See Ex parte Christv, 3 How. 115 U. S. 350, 29 L. ed. 413. 6 Sup. 292. 318; 11 L. ed. 003. Ct. Rep. 80: In re Davis, 1 Sawy. isChapman v. Brewer, 114 U. S. 260, Fed. Cas. No. 3,620; In re Mal- 158, 29 L. ed. 83, 5 Sup. Ct. Rep. 799; lory, I Sawy. 88, Fed. Cas. No. 8,991 ; Irving V. Hughes, 7 Am. Law Reg. 209, In re Ladv Bryan Co. 6 N. B. R. 252, Fed. Cas. No. 7.076; In re Schnepf, Fed. Cas.' No. 7,980; In re Clark, 9 2 Ben. 72, Fed. Cas. No. 12,471; In re Blatchf. 372, Fed. Cas. No. 2,801: Bernstein, 2 Ben. 44, Fed. Cas. No. Markson v. Haney, 1 Dill. 497, Fed. 1,350; Pennington v. Lowenstein. 1 Cas. No. 9,098: In re Atkinson, 3 N. B. R. 570, Fed. Cas. No. 10,938; Pittsb. Rep. 423, Fed. Cas. No. 600; In re Bowie, 1 Am. L. 1. Rep. 97, In re Ulrich, 6 Ben. 483, Fed. Cas. Fed. Cas. No. 1,728; Jones v. Leach, No. 14,328; In re Dillard, 2 Hughes, 1 N. B. R. 595, Fed. Cas. No. 7,475; 190. Fed. Cas. No. 3,912; Hudson v. In re Wallace, Deady, 433, Fed. Cas. Schwab, 18 N. B. R. 480, Fed. Cas. No. 17,094; In re Kerosene Oil Co. 3 No. 6,835, and cases cited. Ben. 35, Fed. Cas. No. 7.725; In re i^Lea v. Geo. West Co. 91 Fed. 237; Fuller, 1 Sawy. 243. Fed. Cas. No. In re Pittelkow, 92 Fed. 903. 5,148; In re Campbell. 1 Abb. U. S. isSee post, § 2201. 185. Fed. Cas. No. 2,349; Ex parte iSee ante, § 5. Schwab, 98 U. S. 240, 25 L. ed. 105; 2See ante. § 18.[b) In re Burns. 1 N. B. R. 174; Fed. 3Ante, § 20. Cas. No. 2,182; Sargent v. Helton, 172 Procedure] STATE RESTRAINT ON FEDERAL PROCEEDINGS. § 21 [a] as far beyond the reach of the other as if the line of division between them was traced by landmarks and monuments visible to the eye.* State courts have no appellate power over the Federal tribunals. It be- longs to the Federal courts and not to State tribunals to revise and cor- rect proceedings of inferior Federal courts.5 It was early decided that a state court has no jurisdiction to issue a writ of mandamus to a Federal officers and that it has no power to stay execution or otherwise enjoin proceedings upon a Federal judgment;" or interfere with the enforcement bf a Federal decree.^ The proper mode of relief against a Federal judg- ment is by ancillary application upon the equitj^ side of the Federal court rendering the same.9 It is also an established rule that State courts have no power to enjoin proceedings in a Federal court, before judgment any more than proceedings thereafter, lo If Federal court by mandamus has ordered performance of an act, injunction from a State court forbidding it is inoperative and no excuse for non-performance; n nor is the fact that the State injunction has already issued an obstacle to the granting of Federal mandamus.12 "Whore an injunction issued by a State court does not restrain Federal proceedings, but merely certain acts of a Federal suitor, comity usually requires that the Federal court refuse a counter injunction, though if proper, it will protect its suitor by an order authoriz- ing the enjoined act. is In cases of concurrent State and Federal juris- diction where the State court has acquired priority or an exclusive posses- ^Riggs v. Johnson Co. 6 Wall. 166, sWoods v. Root, 123 Fed. 402, 59 18 L. cd. 77G; Ableman v. Booth. 21 C. C. A. 206. How. 510. 16 L. ed. 773; Peck v. .Jen- 9See ante, § 3. ness, 7 How. 625. 12 L. ed. 841; i^iSchuvler v. Pelissier, 3 Edw. Ch. Taylor v. Carryl, 20 How. 597, 15 L. 193; Central X. Bank v. Hazard, 49 ed. 1028; Supervisors v. Durant, 9 Fed. 293; Ex parte Holman, 28 Iowa Wall. 418, 19 L. ed. 732; Matter of 105. 4 Am. Rep. 168; Mead v. Merritt, Farrand, 1 Abb. (U. S.) 145, Fed. 2 Paige, 404; Kendall v. Winsor, 6 Cas. No. 4,678. R. I. 462; City of Opelika v. Daniel, s.Vbleman v. Booth, 21 How. 526, 59 Ala. 216; Central Nat. Bank v. 16 L. ed. 169: Semple v. Hagar, 27 Stevens, 169 U. S. 432, 42 L. ed. 80?, Cal. 170. 18 Sup. Ct. Rep. 403; New Jersey 6McClung V. Silliman, 2 Wheat. Zinc Co. v. Franklin I. Co. 29 N. J. 370. 4 L. "d. 263, WTieat. 604, 5 L. Eq. 431 ; Minchin v. Second Nat. ed. 340; Sheriff v. Turner, 119 Fed. Bank. 36 N. J. Eq. 443. 231. iiRiggs V. Johnson Co. 6 Wall. 194, 'McKim V. Voorhies, 7 Cranch. 281. 18 L. ed. 776; United States v. Keo- 3 L. ed. 342; Riggs v. Johnson Co. 6 kuk. Wall. 517. 18 L. ed. 934; Wall. 195. 18 L. ed. 768; Weber v. Mavor v. Lord, 9 Wall. 414. 19 L. ed. Lee Co. 6 Wall. 213. 18 L. ed. 781; 707^ Supervisors v. Durant, 9 WaU. United States v. Keokuk, 6 Wall. 417. 19 L. ed. 733; Supervisors v. 517, 18 L. ed. 933: Dorr v. Rohr. 82 Durant, 9 Wall. 417. 19 L. cd. 733: Va. 359, 3 Am. St. Rep. 106; Stozier Army v. Supervisors, 11 Wall, 138, 20 V. Howes. 30 Ga. 579; Chapin v. L. ed. 102; Holt Co. v. National, etc. James, 11 R. L 89, 23 Am. Rep. 415; Co. 80 Fed. 691, 25 C. C. A. 469: Hill Central, etc. Bank v. Hagard, 49 Fed. v. Scotland Co. Court. 32 Fed. 717: 295; Reinach v. Atlantic, etc. Co. 58 United States v. King, 74 Fed. 498, Fed. 44; Royal T. Co. v. Washburn, 499; Gaines v. Springer, 46 Ark. 507. etc. R. R. 113 Fed. 531; Central T. i2Clews v. Lee, 2 Woods, 476, Fed. Co. V. Western, etc. R. R. 89 Fed. 27; Cas. No. 2,892. Freeman v. Timanus, 12 Fla. 411. isGreen v. Porter, 123 Fed. 351. 173 § 22 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. sion of the res in controversy under the principles elsewhere discussed, i'' it will, just as would the Federal court, is protect its exclusive jurisdiction by enjoining parties amenable to its process, from proceedings in other courts tending to embarrass or disturb it. is The Federal cases do not seem to concede the right to do so.it But if in fact the State court is entitled to proceed and the Federal court bound to stay its hand, the command of the injunction merely accords with the rule of comity which the Federal courts should observe. There is no mode for adjudging the action of the State court improper unless by contempt proceedings, be-' cause no legal right is impaired thereby. If the Federal court has priority of jurisdiction, injunction against its proceedings in the State court is such error as may be relieved against by the Supreme Court on writ of error.i* § 22. — comity between different Federal courts. The conflicts of jurisdiction which result from the fact that Federal and State courts have a large concurrent jurisdiction, and exercise it within the same territory, do not result as between co- ordinate Federal tribunals in different States, since their territorial jurisdictions are separate and distinct. Certain rules of comity are, however, observed where the same matter creates a right of action in different districts. ^^^ Author's section. [aj Comity between Federal courts in different States. Since the plea of prior action pending is not available where the two actions are in courts of different States, i a suit in one circuit court is not a bar to suit in another district situate in another State, though the second court will, as matter of comity, often suspend action until the first suit is terminated. 2 The principle that given the court having pos- session of person or property exclusive jurisdiction, applies to Federal courts of different districts having co-ordinate jurisdiction. 3 Where pro- ceedings are instituted affecting the propertj'^ of a corporation such as a railroad doing business and having property in several States comity re- i4gee ante, § 16. i^Central Nat. Bank v. Stevens, iBSee ante, § 20, note.W] 169 U. S. 432, 4-2 L. ed. 807, 18 Sup. i6Home Insurance Co. v. Howell, Ct. Rep. 403. 24 N. J. Eq. 238; Yick Wo v. Crow- isCentral Na.t. Bank v. Stevens. 169 ley, 26 Fed. 207; Cole v. Cunning- U. S. 463, 42 L. ed. 807, 18 Sup. Ct. ham, 133 U. S. 107. 33 L. ed. .538, 10 Rep. 403; Farmers' L. & T. Co. v. Sup. Ct. Rep. 2G9; Hines v. Rawson, Lake St. etc. R. R. 177 U. S. 61, 44 40 Ga. 356, 2 Am. Rep. 581; Ingra- L. ed. 671, 20 Sup. Ct. Rep. 564. ham V. National Salt Co. 139 Fed. iSee ante, § I6.m 684; In Moran v. Sturges, 154 U. S. 2Rvan v. Seaboard R. R. 89 Fed. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 397. ' 1019, the priority of the State court 3ln re Johnson, 167 U. S. 125, 42 was denied and its injunction there- L. ed. 103, 17 Sup. Ct. Rep. 737. fore held invalid. 174 Procedure] SUITS BY ASSIGNEES. § 23 [a] quires the Federal courts appealed to in the different States, to respect a prior decision of the matters in controversy rendered in another circuit. * So, upon application for a receiver, the one appointed by the court where the company's principal office is situate, will usually by comity be ap- pointed in the other juri.sdictions.5 A Federal court will restrain the marshal of another district and State from levying a void process within its jurisdiction. 6 § 23. Suits by assigmees and colorable transfers to obtain or defeat Federal jurisdiction. Nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange/^^ to recover the contents of any promissory note or other chose in action"^"^^ in favor of any assignee/*'^ or of any subsequent holder if such instrument be pay- able to bearer and be not made by any corporation,^'^^ unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made."^®^ Part of § 1 of act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended Aug. 13, 1888, c. 866, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 508. [a] History of prohibition against suits by assignees. Originally, by § 11 of the judiciary act of 1789, and R. S. § 629, only suits by an assignee of a foreign bill of exchange were excepted from the prohibition against suits bj' assignees where the assig-nor was incompetent to sue in the Federal court. The decisions under tbe law of 1789 made two further exceptions. The first was that an indorsee of a note might sue his immediate indorser if diverse citizenship existed between them, since the indorsee did not claim against his immediate indorser by assignment, but by virtue of a new contract between them.io The sec- ond was that if an instrument was payable to bearer, or to a named person or bearer, the holder could sue the maker if diverse citizenship existed between them, regardless of prior holders' citizenship, because his title did not come by assignment, but bj' delivery merely. n The act of s v. Preston. Bonnafer v. Williams, 3 How. 577, 11 5 How. 290. 12 L. ed. 152; Superior L. ed. 732; Lexington v. Butler, 14 175 § 23 [b] FEDERAL JURISDICTION IN GENERAL. [Code Fed. Mar. 3, 1875, § 1, excepted from the prohibition of suits by assignees "cases of promissory notes negotiable by the law merchant and bills of ex change."! 2 The present law permits an assignee to sue the original obligor if citizen of another State, regardless of the citizenship of his assignor or other intermediate parties, (1) where the obligation is based on a foreign bill of exchange; (2) where it is based on a promissory note or other chose in action, made by a corporation and payable to bearer :i3 (3) where the assignment is not of a "promissory note or other chose in action."! 4 The decisions under the act of 1875 are, for the most part, of no authority under the present law, and should be carefully discriTninated. The obvious purpose of the enactment was to prevent the bringing of suits in Federal courts not actually involving controversies between citi- zens of different States through the device of assignments.! 5 It is not in- consistent with the Constitution.! 6 Any bill of exchange drawn in one State upon a person in another is a foreign bill.! 7 Biit a check is not strictly a bill of exchange.! s It is a well settled rule of pleading in Fed- eral practice, that in cases within this enactment, the citizenship of an assignor must affirmatively appear.! 9 [b] Suits for contents of choses in action within this proviso. Wliile assignable paper was doubtless the "chose in action" that Con- gress had specifically in view, the term is not to be restricted to choses of that character.! It is of comprehensive import and "includes the in- finite variety of contracts, covenants, and promises which confer on one party a right to recover a personal chattel or a sum of money from an- other by action."2 The act of 1875 substituted the phrase "claims founded on contract" but the present law restored the earlier expression. The ad- ditional clause of the present law "if such instrument be payable to bearer and be not made by any corporation" does not limit the comprehen- siveness of "chose in action" as previously understood,3 though in this Congress again has in view assignable paper. Nor is the word "contents" in speaking of a promissory note or other chose in action, of such plain Wall. 293. 20 L. ed. 809; Chickamin-? ed. 1147. But see Bullard v. Bell, 1 V. Carpenter, 106 U. S. 666, 27 L. ed. Mason. 251, Fed. Cas. No. 2,121. 307, 1 Sup. Ct. Rep. 620: Manufa«- !7Townslev v. Sumrall, 2 Pet. 179, turing Co. v. Bradlev, 105 U. S. 180, 7 L. ed. 386: BucKner v. Finlay, 2 Pet. 26 L. ed. 1036; Codman v. Vermont 590, 7 L. ed. 528; Dickins v. Beal, 10 & C. R. R. 17 Blatchf. 1, Fed. Cas. Pet. 579. 9 L. ed. 538; Armstrong v. No. 2,936. American, etc. Bank. 133 U. S. 453. !218 St. 470, c. 137, § 1. 33 L. ed. 747, 10 Sup. Ct. Rep. 450. isSee Parker v. Ormsby, 141 U. S. !SBull v. Bank of Kasson, 123 U. 81, 35 L. ed. 654, 11 Sup. Ct. Rep. 913, S. 105, 31 L. ed. 98, 8 Sup. Ct. Rep. reviewing the legislation on the sub- 63. ject. Wilson v. Knox Co. 43 Fed. !9See ante, § 9.[d] 481. !Sere v. Pilot, 6 Cranch, 335, 3 L. !4See infra, note.Cb] ed. 241. !5Bushnell v. Kennedv, 9 Wall. 392, sSheldon v. Sill, 8 How. 441, 449, 19 L. ed. 738; Holmes 'v. Goldsmith, 12 L. ed. 1147. 147 U. S. 160, 37 L. ed. 118, 13 Sup. sMexican N. R. R. v. Davidson. Ct. Rep. 288. 157 U. S. 206, 39 L. ed. 672, 15 Sup. ! 6 Sheldon v. Sill, 8 How. 449, 12 L. Ct. Rep. 565. 176 4 Procedure] SUITS BY ASSIGNEES. § 23 [b] import that it can be deemed to limit the meaning of chose in action.'' An inland bill of exchange is within the terms of the prohibition. 5 Promis- sory notes payable to order have likewise always been deemed within its terms; 6 and it makes no difference that they are past due.T Since the adoption of the law as it now exists, instiviments payable to bearer are only suable by a transferee without regard to the citizenship of prior holders, where they are executed by a corporation.s A right to an account of the proceeds of sale of mortgaged property is a chose in action. 9 Mer- chant's accounts and unliquidated claims are choses in action and an as- signee in insolvency cannot sue thereon in the Federal court unless the in- solvent might have done so.io Judgments are claims "founded upon con- tract" and by the act of 1875 an assignee could not sue in a Federal court unless his assignor might have done so.n It does not seem to have been decided in any case that a judgment could be regarded as a chose in action within the present law or the law of 1789.12 A suit to enforce specific performance of a contract or its obligation is a suit to recover the contents of a chose in action; is as also a suit to enforce payment out of a specific fund provided by agreement to meet that and other debts.i^ A non-negotiable note is within this enactment; 15 as also an oral con- tract, is A mortgage note is a chose in action; 17 and unless made by a corpora- tion and payable to bearer,i8 it would seem plain under the present law as well as under the act of 1789, that an assignee cannot sue thereon and for foreclosure in the Federal court unless his assignor might have done 4Sere v. Pitot, G Craiich, 335, 3 L. 8 Sup. Ct. Rep. GS6: Plant Tnv. Co. ed. 240. V. Jacksonville, etc. R. R. 152 U. S. sMorgan v. Gay, 19 Wall. 82, 22 77, 38 L. ed. 358, 14 Sup. Ct. Rep. L. ed. 100. 483. STurner v. Bank of N. A. 4 Dall. i •'Mexican N. R. R. v. Davidson, 157 11, 1 L. ed. 718; Parker v. Ormsby, U. S. 206, 39 L. ed. 672, 15 Sup. Ct. 141 L. S. 85, 35 L. ed. 654, 11 Sup. Rep. 565. Ct. Rep. 912; Steel v. Rathbun, 42 isGeorge v. Wallace, 135 Fed. 286, Fed. 390. 68 C. C. A. 40. TCross V. Allen, 141 U. S. 533, 35 isUtah-Xevada Co. v. DeLamar, L. ed. 843, 12 Sup. Ct. Rep. 67. 133 Fed. 113, 66 C. C. A. 179. 8 See infra, note.Cd] 1 7 Sere v. Pitot, 6 Cranch, 336, 3 L. 9 Wilkinson v. Wilkinson, 2 Curt. ed. 241; Sheldon v. Sill, 8 How. 441. 582, Fed. Gas. No. 17.677. 12 L. ed. 1147. See Kolze v. Hoad- loSere v. Pitot, 6 Cranch, 335, 3 L. ley, 200 U. S. 76, 50 L. ed. 377, 26 ed. 241. Sup. Ct. Rep. 220, holding same as to 11 Walker v. Powers, 104 U. S. 248, deed of trust. 26 L. ed. 729; Mississippi Mills v. iSSee infra, note-[d] It is doubt- Cohn, 150 U. S. 208, 37 L. ed. 1052, ful whether the accompanying moit- 14 Sup. Ct. Rep. 75; Metcalf v. Wa- gage mav be foreclosed in the Fed- tertown, 128 U. S. 587, 32 L. ed. 543, eral court even then. See Hill v. 9 Sup. Ct. Rep. 173. Winne, 1 Biss. 277, Fed. Cas. No. i2See Bean v. Smith, 2 Mason, 252, 6,503. But compare the reasoning of Fed. Cas. No. 1.174. Treadwav v. Sanger. 107 U. S. 324, 27 isCorbin v. Blackhawk Co. 105 U. L. ed. 582. 2 Sup. Ct. Rep. 691, under S. 659, 26 L. ed. 1136; Sihoecraft v. the act of 1875. Bloxham, 124 U. S. 730, 31 L. ed. 574, Fed. Proc— 12. 177 § 23 [b] FEDERAL JURISDICTION IN GENERAL. [Code Fed. so. 19 Whether the mortgage itself is a chose in action20 or a mere in- cident to the debtji a suit for possession thereunder is not one to re- cover the "contents" of a chose in action. Hence where an assignee has obtained judgment in a State court on the mortgage note, he may en- force an equitable mortgage lien incident thereto in the Federal court regardless of the mortgagee's citizenship.2 Similarly ejectment at law lias been upheld where prosecuted by the assignee of a mortgagee, though the latter and mortgagor were citizens of the same State ;3 also a statu- tory action for possession by the assignee of a mortgagee.* Similarly the assignee of a note secured by chattel mortgage may replevin the property from a third person in a Federal court regardless of the rule against suits by assignees.5 A suit to foreclose a trust deed is one to recover the contents of a chose in action. 6 VVhile the term chose in action is very broad and has in this enactment Iieen liberally construed, the context prescribes certain limitations thereon. The phrase "promissory note or other chose in action" would seem plainly to require application of the rule ejusdem generis to its interpretation and to mean other choses in action akin to promissory notes. Furthermore the word "contents" although it has been criticized as inapt and ambig- uous,'? confines the meaning of "other chose in action" to such as may fairly be said to have contents. "Contents" it is said, means the rights conveyed by an instrument capable of enforcement by suit.s It would seem that "chose in action" should be limited to rights growing out of contracts which are either unilateral in their inception or which have l>ecome so by performance of the consideration by one of the parties. If a bilateral contract is transferred to another by assignment and novation, a chose in action subsequently arising thereunder is original in the as- signee, and therefore he is not assignee of such chose in action although assignee of the contract. 9 The word "contents" refers, aptly enough, to rights of action founded on contracts containing within themselves some promise or duty to be per- formed, but not to rights of action founded on some wrongful act or isHill V. Winne. 1 Biss. 277. Fed. 20ber v. Gallagher, 93 U. S. 205, Cas. No. 6,503; Sheldon v. Sill, 8 23 L. ed. 829. How. 441, 12 L. ed. 1147. But see sSmith v. Keniochen, 7 How. 199, Dundas v. Bowler, 3 ]\IcLean. 204, 12 L. ed. 666. Fed. Cas. No. 4,140; Seckel v. Back- 4 whiting v. Wellington, 10 Fed. bans, 7 Biss. 354, Fed. Cas. No. glO 12,599. The law of 1875 permitted sBuckingham v. Dake, 112 Fed. suit on an assigned mortgage note 353, 50 C. C. A. 402. if negotiable, regardless ot the as- ^' , ^^ ., „„„ ^^ „ _. _„ signo^s' citizenship. Tredwav v. , ^I\«l-,t7- Hoadley, 200 U. S 76, 50 Sanger, 107 U. S 324, 27 L. ed. ^- ^^^ ^^7, 26 Sup. Ct. Rep. 220. 582. 2 Sup. Ct. Rep. 091; Mersman v. ''Sere v. Pitot, 6 Cranch, 335, 3 L. Wero-es, 112 U. S. 143, 28 L. ed. 641 ^^- 241; Shoecroft v. Bloxham, 124 5 Sup. Ct. Rep. 65; Whiting v. Well- U. S. 735, 31 L. ed. 574, 8 Sup. Ct. ington, 10 Fed. S15. ^ep. 680. 2 0Hill V. Winne, 1 Biss. 277, Fed. sshoecraft v. Bloxham. 124 U. S. Cas. No. 6.503. 735, 31 L. ed. 574, 8 Sup. Ct. Rep. 686. iSheldon v. Sill, 8 How. 441, 12 L. sSee infra, note.M ed. 1147. 178 Procedure] SUITS BY ASSIGNEES. § 23 [c] some neglect of duty to which the law attaches damages.io An action for trespass by tortiously cutting logs could not be deemed to be for the contents of a chose in action, and Federal jurisdiction over such an ac- tion may arise from an assignment regardless of assignor's citizenship. n The act of 1875 referred to choses "founded on contract," thus expressly excluding those arising from tort; 12 but the effect of the present law would seem to be the same. A suit against a bank for negligence in fail- ing to protest a draft is not for the contents of a chose in action and Fed- eral jurisdiction may be created by assignment. 1 3 So an action to recover possession of a thing even though it be a promissory note,i4 or damages for its wrongful detention is not an action to recover the "contents" of a chose in action; neither is an action to obtain possession though based upon rights under a mortgage.is An action between indorsers upon an agreement to pay half the loss is not for the contents of a chose in action. 16 The transfer of land is very plainly not an assignment or transfer of a chose in action within this section. i" And it has been held at circuit that a Federal bail bond assigned to plaintiff was not taken from the an- cillary jurisdiction of the Federal court by this provision;is and that it does not apply to suits brought by the United States on bonds.is [c] Assignees and assignments — indorsement. This section refers only to suits in favor of an assignee and not to suits by an original party such as lessor, against one to whom his lessee has assigned;! or a mortgagee suing the assignee of his mortgagor.2 Nor does it apply to a suit brought on the relation of the assignee of a note, on the official bond of a township trustee, for illegally executing the note.s An assignee in the sense here intended, is anyone who by virtue of a transfer to him can claim the beneficial interest of a contract.* It makes no difference that the assignment is by operation of law, and an assignee in insolvency is included; 5 one buying a parish warrant payable to A loDeshler v. Dodge, 16 How. 631, 16 Sup. Ct. Rep. 307; Dickerman v. 14 L. ed. 1088; Bushnell v. Kennedy. Xorthern T. Co. 176 U. S. 192, 44 L. Wall. 387. 19 L. ed. 736: Ambler v. ed. 431, 20 Sup. Ct. Ren. 31 1; Briggs Eppinger, 137 U. S. 480, 34 L. ed. 765, v. French, 2 Sum. 251. Fed. Gas. No. 11 Sup. Ct. Rep. 173. 1,871. 11 Ambler v. Eppinger, 137 U. S. isBobyshall v. Oppenheimer, 4 480. 34 L. ed. 765, 11 Sup. Ct. Rep. Wash. C. C. 482. Fed. Cas. No. 1.592. 173. laUnited States v. Greene. 4 i2Va.n Bokkelen v. Cook, 5 Sawy. Mason, 427, Fed. Cas. No. 15.258. 587, Fed. Cas. No. 16,831. 1 Adams v. Shirk, 105 Fed. 659. 44 isBarnev v. Globe Bank, 5 Blatchf. C. C. A. 653: Brooks v. Laurent, 98 107. Fed. Cas. No. 1.031. Fed. 647, 39 C. C. A. 201. uDeshler v. Dodge, 16 How. 631, 2Edwards v. Hill, 59 Fed. 723, 8 14 L. ed. 1088. C. C. A. 235. isSmith V. Kernochen, 7 How. 198, 3lndiana v. Glover, 155 U. S. 513, 12 L. ed. 666; Whiting v. Wellington, 39 L. od. 243, 15 Sup. Ct. Rep. 186. 10 Fed. SIO, SI 3. 4riant Inv. Co. v. Jacksonville, etc. isPliillips V. Preston, 5 How. 278, Ry. 152 U. S. 77, 38 L. ed. 358, 14 12 L. ed. 152. Sup. Ct. Rep. 483. 1 "Jones V. League. 18 How. 81, 15 sSere v. Pitot. 6 Cranch. 335, 3 L. L. ed. 263; beliigh Min. etc. Co. v. od. 241. Doubted in Bushnell v. Ken- Kellv, 160 U. S.^336, 40 L. ed. 444, nedv, 9 Wall. 387, 19 L. ed. 73!). But 179 § 23 [c] FEDERAL JURISDICTION IN GENERAL. [Code Fed. or order at probate sale of A's estate is an assignee and does not take title by legal adjudication in rein.^ But an executor or administrator is not an assignee;" nor, it seems, is a receiver^ A pledgee of stock has been held an assignee and bound by the stockholders citizenship as to suit in the Federal court. 9 The power conferred upon the trustee in a water company's mortgage, to collect rentals due the company under certain circumstances, has been held to make him an assignee and debar suit by him in the Federal court where the water company could not there sue.i" A water company's mortgage covering rentals due under contracts with a city is no more than an assignment of such contract rights.n A deed of trust in the nature of a mortgage which, after setting forth the mort- gagor's rights to certain lands under a certain contract, deeded all the mortgagor's rights "in or to" the said l?nds is virtually an assignment of a contract within this provision.12 Equitable as well as legal assign- ments are included. is A partner suing on a firm cause of action, in his own right and as assignee of his partner must show that his assignor's citizenship is such that he could have maintained the suit.i* But one sub- rogated to the rights of another is not an assignee even although the right is also assigned.! ^ A stockholder suing for a corporation is not an assignee. 16 To constitute one an assignee of a chose in action, it is plain that the chose must have previously existed in some other, from whom the as- signee must have derived it. If the liability sued on is not derivative but orignates in favor of plaintiff and had no previous existence in another, it cannot be within the rule against suits by assignees, even though the in- strument to which this new liability attaches and out of which it has arisen subsequent to the assignment, has been assigned or transferred to plaintiff by another. A continuing contract for furnishing water to a mu- nicipality by a water company, may be transferred or assigned without as- signing also the claim for water already furnished.i'? In such a case and in all other cases where a new contract virtually arises as the basis of the right sued on, plaintiff cannot be said to be an assignee. So where a new reaffirmed in Glass v. Police Jurv. 176 n American W. Works Co. v. Home U. S. 2i0, 44 L. ed. 436, 20 Sup! Ct. W. Co. 115 Fed. 171. Rep. 347. See also United States Nat. i2Shoecraft v. BloxLam, 124 U. S. Bank v. McNair, 56 Fed. 323. 7.30. 31 L. ed. 574, 8 Sup. Ct. Rep. 686. eGlass v. Police Jury, 176 U. S. See Boston, etc. Co. v. Plattsmouth, 210, 44 L. ed. 436, 20 Sup. Ct. Rep. 76 Fed. 881. 346. „ „ , , ^ isCorbin v. Blackhawk Co. 105 U. vMayer v. Foulkrod, 4 Wash. C. C. g. 066, 26 L. ed. 1136. 349, Fed. Cas_ No. 9,341 ,,g^^ ^, Columbia S. Ry. 117 Fed. sPaige V. Rochester, 137 Fed. 663; q, r^s r r A dn~ Davies v. Lathrop, 12 Fed. 353, 20 '^ 'J* )^\ ^ . ,„„..„ Blatchf. 397. But see Bradford v. J-'^pw OrleaiLs v. Games, 138 U. S. Jenks, 2 McLean, 130. Fed. Cas. No. ^^^' ^^ L. ed. 1102, 11 Sup. Ct. Rep. 1,769; Thompson v. Pool, 70 Fed. 431. 725. ifiConsumers' G. T. Co. v. Quinby, sGorman W. Co. v. Wright, 1^4 137 Fed. 882, 70 C. C. A. 220. Fed. 365, 67 C. C. A. 345. i^See Portage C. W. Co. v. Portage, lOEau Claire v. Payson, 107 Fed. 102 Fed. 772. 552, 46 C. C. A. 466. 180 Procedure] SL'ITS BY ASSIGNEES. § 23 [c] corporation succeeds to the rights of an old concern upon a contract with a superintendent and continues the employment, it may acquire a chose in action under the assigned contract which is nevertheless original in its favor and not within the rule.is And where breach of a continuing con- tract first occurs after its assignment, the chose in action arising from such breach is not an assigned one although the contract is an assigned contract.19 Nor is this merely true of continuing bilateral contracts such as the foregoing, but a new contract unilateral in character, may arise at the time of a transfer of a chose in action and new rights may accrue to an assignee. Thus it was settled under the old law that an indorsee suing his immediate indorser, was not an assignee, but sued upon the new contract between them which the law merchant implies from the indorsement; 20 and this Avould seem to be still the rule.i So where a note is made for the accommodation of the payee his citizenship is imma- terial in suit by his indorsee against the maker, since he has really assigned nothing and the contract on which the liability is based la a new one.2 And a suit by a first indorser against a second upon an agree- ment that the latter should pay half the loss, is clearly upon a new sepa- rate contract between them, and not within the statute. 3 So also is a suit by the payee of an order against the drawee and acceptor, since the acceptance creates a new contract directly between acceptor and payee.* Wliere transferees of an inland bill of exchange sued to impose individual liability on the stockholders of the drawee corporation it was held that their suit is not founded on the assignment of the bill. 5 A suit by an assignee of a judgment to vacate satisfaction entered thereon, for failure of consideration, has been held not a suit on an assigned chose but on the implied contract of the corporation to make the judgment good if the con- sideration failed. 6 So a corporation suing on the common money counts for coal sold and delivered is not barred by the fact that its agent took a note therefor, and assigned same to the corporation." And where requisite diverse citizenship exists between parties to a suit to secure the fruits of a prior judgment by setting aside fraudulent conveyances of the judg- ment debtor, it makes no difference that the original judgment could not have been obtained in the Federal court because based on an assigned iSAmerican Colortvpe Co. v. Con- of an accommodation indorser: Shu- tinental C. Co. 188 U. S. 104. 47 L. ford v. Cain. 1 Abb. U. S. 302. Fed. ed. 404, 2.3 Sup. Ct. Rep. 26.5. Cas. No. 12,82.3; Small v. King, 5 Mc- i9Eau Claire v. Pavson, 109 Fed. Lean, 147, Fed. Cas. No. "12.000; 676, 48 C. C. A. 608. ' Noell v. Mitchell, 4 Biss. 346, Fed. 20See supra, note.M Cas. No. 10.287. iSuperior v. Riplov. 138 T". S. 06, spliiHips v. Preston, 5 IIow. 278, 34 L. ed. 914, 11 Sup Ct. Rep. 288, 12 L. ed. 152. 289. 4Superior v. Riplev, 138 U. S. 96, zHolmes v. Goldsmith. 147 U. S. 34 L. ed. 914, 11 Sup. Ct. Rep. 288. 160. 37 L. ed. 118, 13 Sup. Ct. Rep. sBarlinsr v. Bank of B. N. A. 50 288: Blnir v. Cnicago, 201 V. S. 400. Fed. 260, "l C. C. A. 510. 50 L. ed. 801. 26 Sup. Ct. Rep. 427; cHav v. Alexandria, etc. R. R. 20 Waoluisett Nat. Bank v. Sioux Citv Fed. 15. S. Works, 56 Fed. 321. But this Tlleckscher v. Binney, 3 Woodb. & reasoning does not apply to the case M. 333, Fed. Cas. No. 6,316 181 § 23 [d] FEDERAL JURISDICTION IN GENERAL. [Code Fed. chose in action. The suit to enforce such judgment is not on the original chose in action. s A New York corporation may sue an Illinois corporation on its notes, though indorsed by an Illinois citizen as treasurer before negotiation. ^ [d] Instrument payable to bearer and not made by a corporation. This new proviso first found in the legislation that is now in force, does not limit the meaning of "chose in action," n but refers to the words "any subsequent holder," 12 and is directed against the early rule under the act of 1789 and R. S. § 629, as to suits on instruments payable to bearer.i3 The effect of these words is that the old rule permitting the holder of paper payable to bearer, or to A or bearer, to sue regardless of the citizenship of prior holders, now obtains only where the instrument is made by a corporation.! 4 A bill of exchange drawn by a corporation in favor of itself and by it indorsed in blank has been held payable to bearer.15 A municipality is a corporation within this clause. is And suits on township, county and other municipal bonds, certificates and coupons when payable to beareriT as they usually are, may be sued on by a citizen of another State in a Federal court regardless of the citizenship of intermediate holders.is Bonds payable to " or order" and is- sued without the insertion of any name are in legal effect payable to bearer within this rule. 1 9 If detached coupons are payable to bearer it makes no difference that the bonds themselves are not. 20 The fact that the payee indorses a bond in blank does not make it an instrument pay- snean v. Smith, 2 Mason, 252, Fed. isThompson v. Perrine, lOG U. S. Cas. No. 1.174; Dexter v. Smith, 2 589, 592, 27 L. ed. 208, 1 Sup. Ct. Rep. Mason, 303, Fed. Cas. No. 3.800. 564; Loeb v. Columbia Twp. 179 U. 9Blair v. Chicago, 201 U. S. 400, 50 S. 486, 45 L. ed. 288, 21 Sup. Ct. L. ed. 801, 26 Sup. Ct. Rep. 427. Rep. 174; Lake Co. Com'rs. v. Dudley iiJViexican N. R. R. v. Davidson, 173 u. S. 250, 43 L. ed. 684, 19 Sup. 157 U. S. 206, 39 L. ed. 672, 15 Sup. ct. Rep. 398; New Orleans v. Quin- Ct. Rep. 565. Ian, 173 U. S. 192, 43 L. ed. 664, 19 i2Skmner v. Barr, 77 Fed. 816. ^ ^t. Rep. 329; Independent School i3See supra note.Ca] p ^, ^^^ ^^^ P^^ ^ 49 ^ ^ ^_ ^^S^ F d 357 ^' ^'''■^'"^' ^ 55 L.R.A. 364; McLean v. Valley Co. ^sBanic of B. N. A. v. Barling, 46 '^. ^y:, 389. Negotiability defer- red. 357. This conforms to ruTings ^"^"ed the right to sue on municipal under the act of 1789. Towne v. obi 'gation« under the act of 18/ o. Smith, 1 Woodb. & M. 115, Fed. Cas. A«kley School D. v. Hall, 113 U. S. No. 14,115. 141, 28 L. ed. 954, 5 Sup. Ct. Rep. 371; iGLo'eb V. Columbia Twp. 179 U. Ne^^ Providence v. Halsey, 117 U. S. S. 486, 45 L. ed. 288, 21 Sup. Ct. Rep. ^38, 29 L. ed. 904, 6 Sup. Ct. Rep. 174. 764: Blacklock v. Small. 127 U. S. iTBut not otherwise: King. etc. 103, 32 L. ed. 70, 8 Sup. Ct. Rep. 1096. Co. v. Otoe Co. 120 U. S. 227, 30 isLvon Co. v. Keene, etc. Bank, 100 L. ed. 623, 7 Sup. Ct. Rep. 552; Fed. 337. 40 C. C. A. 391. New Orleans v. Benjamin, 153 U. S. 20Revnclds v. Lyon Co. 97 Fed. 435, 38 L. ed. 764, 14 Sup. Ct. Rep. 155. But .©e Clarke v. Janesville, 1 905; White v. Vermont, etc. R. R. Biss. 98, Fed. aos. No. 2,854. 21 i.aw Rep. 469, Fed. Cas. No. 17,- 559. 182 Procedure] SUITS BY ASSIGNEES. § 23 [f ] able to bearer. 1 But a warrant payable to "A, B or bearer" is legally pay- able to bearer. 2 [e] Where suit could have been brought if no assignment made. The question whether the assignor might have sued is tested as of the time suit by the assignee is brought.* It is determined by ascertain- ing the citizenship of plaintiff, the original payee, and defendant and not the citizenship of intermediate parties; 5 although it was early de- clared that in suit by an indorsee against a remote indorser he must establish the requisite citizenship in intermediate indorsers.s The fact that an intermediate holder who assigned to plaintiff could have sued does not help plaintiff if the original payee had not the requisite citizen- ship.'^ The section refers to the citizenship of the assignor as affecting Federal jurisdiction, and not to the amount in controversy. Hence it is the rule that an assignee is not barred from the Federal court because his assignor was barred by lack of the jurisdictional amount in his claim where such assignor had the requisite diverse citizenship. 8 [f] Right of removal in suit on assigned cause of action. Under the original removal law, it was held that where a suit on an assigned cause was removed to the Federal court want of jurisdiction under this prohibition against suits by assignees could not be set up.io The same conclusion was reached under the act of 1875.1 1 But the law of 1888 only permits removal of suits "of which the circuit courts of the United States are given original jurisdiction by the preceding section."i2 iThomson v. Elton, 100 Fed. 145. Fed. Cas. No. 17,803; Portage City SThompson v. Searcv Co. 57 Fed. W. Co. v. Portage, 102 Fed. 769. 1030, 6 C. C. A. 674; Kearnev Co. sMollan v. Torrance, 9 Wheat. 537, Comrs. V. McMaster, 68 Fed. 177, 15 6 L. ed. 154. This holding seems to C. C. A. 353; Rollins v. Chaffee Co. ^^ ^^^^^^ J" question by Emshemier 34 Fed 91 ^'- ^^^^^ Orleans, ISO U. S. 33, 46 L. ed. ^Chamberlain v. Eckort. 2 Bi«s. 126, 1042. 22 Sup. Ct. Rep. 775. An in- Fed. Cas. No. 2,577; Thaxter v. dorser s contract is with all subse- TT i. u /> -»T T /.o T-i T r^ XT quent holders and his liability is not Hatch, 6 McLean. 68, Fed. Cas No. ^^^^j ^^ ^^^ ^^^^ succeeding holder. !of tt' o oo Tt"" ""; ?^7. ^?o"'' ^United "states Nat. Bank v. Mc- 186 U. S. 33, 46 L. ed. 1042, 22 Sup. Xair, 56 Fed. 323. Ct. Rep. 770; White v. Leahy, 3 Dill. sRernheim v. Birnbaum, 30 Fed. 378, Fed. Cas. No. 17,551; Jones v. 885; Chase v Slieldon R. M. Co. 56 Shapera, 57 Fed. 457, 6 C. C. A. 423; Fed. 625; Bowden v. Burnham, 59 Brainard v. Williams. 4 McLean. 122, Fed. 752, 8 C. C. A. 248; Bergman v. Fed. Cas. No. 1,804; Noves v. Craw- Inman, 91 Fed. 293. ford, 133 Fed. 790. But see Rogers i^Green v. Custard, 23 How. 484, v. Linn, 2 McLea,n, 126, Fed. Cas. No. i^,^^-,r'.;af Va ?"^V"-L''- ^^^""^^J'' ,„„,- ' 9 Wall. 387, 19 L. ed. 738. ^'^'^^^^ iiClnflin V. Insurance Co. 110 U. S. sMilledollar v. Bell, 2 Wall, Jr. gi^ 28 L. ed. 76, 3 Sup. Ct. Rep. 507: 334, Fed. Cas. No. 9,.549: Emsheimer Delaware Co. Comrs. v. Diebold S. & V. New Orleans, 116 Fed. 893, 180 U. L. Co. 133 U. S. 473, 33 L. ed. 674, S. 33, 46 L. ed. 1042, 22 Sup. Ct. Rep. 10 Sup. Ct. Rep. 399^ 775; Wilson v. Fisher, Baldw. 133, 12 See oost, § 133, et seq. 183 8 23 [g] FEDERAL JURISDICTION IN GENERAL. [Code Fed. This makes the provision here under consideration fully applicable to removed causes, and a defect of Federal jurisdiction arising from the fact that the plaintiff is an assignee of a chose in action is not waived by defendant's petition for removal to the Federal court.13 [g] Colorable transfers to defeat or confer Federal jurisdiction. Apart from the provisions of this section the courts have held a merely colorable transfer made to confer jurisdiction to be a fraud on the court, and will dismiss such cases. 1 5 The principle has been applied to a color- able transfer of lands; i6 or bonds; it or coupons. is But if a transfer of land be actual it makes no difference that the intent was thereby to ob- tain a Federal tribunal.i9 The motive with which Federal jurisdiction is invoked is immaterial. i So also the real owner of coupons may sue in the Federal court though he purchased for that sole purpose; 2 or the actual purchaser of bonds. 3 A corporation created for the express purpose of suing in the Federal court is not therefor debarred.* An assignment for value, of a mortgage thoiigh to oust State court's jurisdiction is not in- valid where knowledge of such purpose is not brought home to the as- signee. ^ A merely colorable or fictitious assignment to confer a right of removal is nugatory and the case will be remanded. « But an assign- ment which defeats a right of removal will not be disregarded by a Federal court because made with that avowed intent. 7 It has been held isMexican N. R. R. v. Davirtson, 157 U. S. 207, 39 L. ed. 675. 15 Sup. Ct. Rep. 565. isBarnev v. Baltimore, 6 Wall. 288, 18 L. ed. 825; Woodside v. Vasey, 142 Fed. 617; Cushman v. Atnador, etc. Co. 118 U. S. 58. ,30 L. ed. 72, 6 Sup. Ct. Rep. 926; Lehigh M. Co. v. Kelly, 160 U. S. 336, 40 L. ed. 444, 16 Sup. Ct. Rep. 307; Lake Co. Comrs. v. Dudley, 173 U. S. 250, 43 L. ed. 684, 19 Sup. Ct. Rep. 398; Crawford v. Neal, 144 U. S. 593, 36 L. ed. 552, 12 Sup. Ct. Rep. 759. 16 Jones V. League, 18 How. 81. 15 L. ed. 263. mVilliams v. Nottawa, 104 U. S. 211, 26 L. ed. 720; Bernards Twp. v. Stebbens, 109 U. S. 354, 27 L. ed. 961, 3 Sup. Ct. Rep. 261. isFountain v. Angelica, 12 Fed. 9. 20 Bliitchf. 448. ifljones V. League, 18 How. 81, 15 L. od. 263; Crawford v. Neal, 144 U. S. 593. 36 L. 552. 12 Sup. Ct. Rep. 759; Lehigh M. Co. v. Kelly, 160 U. S. 336, 40 L. ed. 444, 16 Sup. Ct. Rep. 307; Dickerman v. Northern T. Co. 176 U. S. 192, 44 L. ed. 431, 20 Sup. Ct. Rep. 311; De Laveaga v. Williams, 5 Sawy. 575, Fed. Cas. No. 3,759; Neal v. Foster, 36 Fed. 41, 13 Sawy. 236; Alkire Gro. Co. v. Richesin 91 Fed. 84; Willitt v. Baker, 133 Fed. 937; Cole V. Philadelphia, etc. Ry. 140 Fed. 944; Slaughter v. Mallett, 141 Fed. 282. 1 Blair v. Ohioago, 201 U. S. 400. 50 L. ed. 801, 26 Sup. Ct. Rep. 427. 2Foote v. Hancock, 15 Blatchf. 346, Fed. Cas. No. 4,911; McCall v. Han- cock, 10 Fed. 8, 20 Blatchf. 344. sBlackburn v. Selina, etc. R. R. 2 Flipp. 538. Fed. Cas. No. 1,467; Ash- ley V. Board of Superv. 83 Fed. 537, 27 C. C. A. 587. 4Irvine Co. v. Bond, 74 Fed. 854. 5 Smith V. Kernochen, 7 How. 215, 12 L. ed. 666. GFarmington v. PilUbury. 114 U. S. 143, 29 L. ed. 116, 5 Sup. Ct. Rep. 809; Lehigh M. & M. Co. v. Kelly, 160 U. S. 335, 40 L. ed. 447, 16 Sup. Ct. Rep. 311; Mattocks v. Baker, 2 Fed. 457 ; Hawley v. Kepp, 2 Flipp. 178. Fod. Cas. No. 6.249. ^Provident Sav. Soc. v. Ford, 114 U. S. 641, 29 L. ed. 261, 5 Sup. Ct. Rep. 1104: Oakley v. Goodnow. 118 C. S. 44, 30 L. od. 6h 6 Sup. Ct. Rep. 944 ; I-eather, etc. Bank v. Cooper. 120 U. S. 781, 30 L. ed. 816. 7 Sup. Ct. Rep. 777 ; 184 Procedure] CITIZENSHIP OF NATIONAL BANKS. § 24 [a] recently that the joinder of an obviously sham party to defeat a right of removal will not be permitted to accomplish that result. » The existence of an agreement to reconvey is evidence of the fictitious character of a transfer.9 A change of residence without intent to change domicil per- manently is evidence of merely colorable scheme to impose upon Federal jurisdiction.! But if a change of residence is bona fide, Federal juris- diction is not defeated by the fact that it was for the very purpose of creating that jurisdiction.! i To show a stockholder's suit on behalf of a corporation collusive, some agreement to that end, direct or inferential, must be proved.12 § 24. National banks regarded as citizens of State for jurisdic- tional purposes. All national banking associations established under the laws of the United States shall, for the purpose of all 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 ; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citi- zens of the same State. "^^^ The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.f^J Act of Aug. 13, 18S8, § 4, 25 Stat. 436, U. S. Comp. Stat. 1901, p. 514. [a] Denial of jurisdiction of circuit and district courts. This law in effect repeals the provisions of R. S. § 563, par. 15, giving jurisdiction of actions by and against national banks to the district courts and of R. S. § 629, par. 10, giving similar jurisdiction to the cir- cuit courts. It also supersedes the provision of the earlier law of 1882,i5 imposing somewhat the same limitation on Federal jurisdiction. The venue of suits by national banks against the comptroller is provided by Carson v. Dunham, 121 U. S. 426, 30 3458. That law provided that juris- L. ed. 992, 7 Sup. Ct. Rep. 1030. diction of suits by or against na- SBoatmen's Bank v. Fritzlen, 135 tional banks "except suits between Fed. 650, 68 C. C. A. 288. them and the United States, its of- sCoffin V. Haggin, 11 Fed. 224, 7 ficers and agents, shall be the same Sawy. 509. as. and not other than, the juris- 10 Alabama, etc. R. R. v. Carroll, diction for suits by or against banks 84 Fed. 780, 28 C. C. A. 207. not organized under any law of the iiWeiner v. Louisville W. Co. 1.30 United States which do or might do Fed. 244. banking business where such national I2]\lill3 v. Chicago, 143 Fed. 430. banking association may be doing 15 Act July 12, i882, c. 290, § 4, 22 business when such suits may be be- Stat. 163, U. S. Comp. Stat. 1901, p. gun." See Union Xat. Bank v. Mil- 185 § 24 [a] FEDERAL JURISDICTION IN GENERAL. [Code Fed. another enactment. is The enactment does not affect diverse citizenship as a ground of Federal jurisdiction, but still permits a national bank lo- cated in one State to sue a citizen of another, although the phrase "be- tween individual citizens of the same State" is not happily chosen to ex- press that intent. 1" The object was to place national banks in the same position as citizens of the State where located, as respects Federal juris- diction. Previously, by virtue of their Federal charter, actions to which they were parties were deemed to arise under the Federal laws and t(y be Federally cognizable originally, and by removal,i8 and regardless of the amount involved. is But this is no longer true.20 Since jurisdiction in a suit between a national bank and a citizen of another State now rests upon diverse citizenship, judgment in the circuit court of appeals thereon is final. 1 B'Jt where a suit is incident to the winding up of a national bank or brought by the United States or its officer under the latter portion of the above law, jurisdiction exists because the case is one arising under Federal law and appeal lies to the Supreme Court. 2 Of course if an ac- tion to which a national bank is party is one arising under the Federal Constitution treaties and laws, it is of Federal cognizance, just as much as though between other parties. ^ Suits against receivers respecting the administration of his trust are deemed suits arising under the Federal laws and of Federal cognizance either originally,* or by removal. 5 Under this section a State court may issue mandamus to allow a stockholder access to a national bank's books. 6 National banks may be sued in the local State courts^ even though a receiver has been appointed by the comptroller. 8 But by R. S. § 5242, no attachment, injunction or execution ler, 15 Fed. 703; Whittemore v. Amoskeag Nat. Bank, 134 U. S. 527, 33 L. ed. 1002, 10 Sup. Ct. Rep. 592. 16 See post, § 415. 1 'Petri V. Commercial Nat. Bank, 142 U. S. 651 ; 35 L. ed. 1144, 12 Sup. Ct. Rep. 325; Whittemore v. Amos- keag Bank, 134 U. S. 529, 33 L. ed. 1002. 10 Sup. Ct. Rep. 592; First Nat. Bank v. Forrest, 40 Fed. 705 ; Osborn V. Bank of United States, 9 Wheat. 825, 6 L. ed. 204; Cummings v. Nat. Bank, 101 U. S. 155, 25 L. ed. 903. isPacific Rv. Removal Case^, 115 U. S. 1, 29 L. 'ed. 319. 5 Sup. Ct. Rep. 1113. ifl Wilson Co. v. National Bank. 103 U. S. 776, 26 L. ed. 488. 20Ex parte Jones, 164 U. S. 693, 41 L. ed. 602, 17 Sup. Ct. Rep. 223; Wichita Nat. Bank v. Smith. 72 Fed. 508, 19 C. C. A. 42: Leather Mfg. Bank v. Cooper, 120 U. S. 781, 30 L. ed. 816; 7 Sup. Ct. Rep. 777; Danahy v. Nat. Bank, 64 Fed. 148, 12 C. C. A. 75. lEx parte Jones, 104 U. S. 693, 41 L. ed. 602, 17 Sup. Ct. Rep. 223. 2Auten V. United States Nat. Bank, 174 U. S. 125, 43 L. ed. 920, 19 Sup. Ct. Rep. 628. 3Walker v. Winsor Nat. Bank. 56 Fed. 76, 5 C. C. A. 421; Auburn Sav. Bank v. Haves, 61 Fed. 911; National Bank of Com. v. Wade, 84 Fed. 10; Union Nat. Bank v. Miller, 15 Fed. 703. ■iGrant v. Spokane Nat. Bank, 47 Fed. 673; Gilbert v. McNulta, 96 Fed. 83; Bartley v. Ilayden, 74 Fed. 913. See Wardens, etc. v. Sowles, 51 Fed. 609. sGuthrie v. Harkness, 199 U. S. 148, 50 L. ed. 130, 26 Sup. Ct. Rpp. 4. 6Hot Springs School Dist. v. First Nat. Bank, 01 Fed. 417. TCasey v. Adams, 102 U. S. 67, 26 L. ed. 52. sBank of Bethel v. Pahquio(]ue Bank, 14 Wall. 395, 20 L. ed. 840; Calhoun v. Lanaux, 127 U. S. 639, 32 L. ed. 297, 8 Sup. Ct. Ren. 1345. 186 Procedure] TERRITORIAL LIMITS AND EXTENT. § 25 shall be issued against them or their property before final judgment in any suit, action or proceeding in any State, county or municipal court.9 [b] Suits by United States or its officers or for winding up bank's af- fairs. The Federal jurisdiction reserved by the present law is perhaps broader than under the act of 1882 which excepted suits between national banks and the United States, its officers and agents.n This jurisdiction is at least concurrent in the Federal court. 12 Suits by receivers to enforce a stockholders liability are Federally cognizable under the present law be- cause they are suits commenced by direction of an officer of the United States as well as because they are cases for winding up the affairs of a national bank.is So also are other suits to recover assets by such re- ceiver.14 Suits against such receiver in the execution of his duties, are deemed suits arising under the Federal laws and therefore of Federal cognizance.15 The amount in controversy does not effect the jurisdic- tion.! ^ The Federal courts have the same jurisdiction as respects the statutory agents as against statutory receivers.iT The jurisdiction of Federal courts over a creditor's bill to reach assets conferred by act of 18761S is not inpaired by this enactment. 1 9 § 25. Territorial limits and extent of Federal jurisdiction. Within the several States, the jurisdiction possessed by the nation is limited, though it is also paramount, extending to all persons; therein and ever}' foot of soil."^^^ As respects other places and territories within the dominion of the United States, Federal juri.s- diction is plenary and entire as well as paramount. Sovereignty is not divided between State and nation, but is complete in the nation; and legislative power is not limited to that delegated by the States, but is plenary as well as exclusive. Places within ex- clusive Federal jurisdiction fall into several classes. In the first are those whose acquisition the Constituton directly contemplates 9See § 907. isGilbert v. McNulta. 06 Fed. 83: iiSupra, note. [a] Grant v. Spokane Nat. Bank, 47 Fed. l2Lake Nat. Bank v. Wolfeborough 673. See also supra, note. [a] Sav. Bank, 78 Fed. 517, 24 C. C. A. leMyers v. Hettinger, 94 Fed. .370. 195. 37 C. C. A. 369: Brown v. Smith, 8S 13 Armstrong v. Trautman, 30 Fed. Fed. 50.5. See Thompson v. German 270; Stephens v. Bernavs. 44 Fed. Ins Co. 70 Fed. 892; Rankin v. Herod, 642; Yardlcv v. Dickson, 47 Fed. 835; 130 Fed. 390. Fisher v. Yoder, 53 Fed. 505; Mc- i^McConville v. Gilmour, 30 Fed. Cartnov v. Earle, 115 Fed. 403, 53 C. 277, 1 L.R.A. 498; Snohomisli Co. v. C. A. .392. Puget Cound Nat. Bank. 81 Fed. 518. i4Shore v. Hepburn. 75 Fed. 113, isPost, § 90t. 21 C. O. A. 252; Thompson v. Pool, isQeorge v. Walla , c!+„+« on Tonri r,n^ OS United States v. Meagher, 37 Fed. i9Exum V. btate, 90 ienn. oUl, zo t.t 1 00 xt , om «o A o<. T>„« 7n/i 17 Q w 107 1^; 875; State v. Mack, 23 Nev. 359, 62 L.R:a'^8T %lSkVv'p:;;ue?N35 Am St. Rep. 816, 47 Pac. 764; United N. Y. 336, 31 Am. St. Rep. 835. 31 ^^^J^' ^^^''^ii^'^/t,^;^;,?-^- K E. 1017, 17 L.R.A. 720: United 'J" -^/^q. V ? •" m v^ States V. Cornell, 2 Mason, GO; Fed. „„ United States v. Lewis, 111 Fed. Cas. No 14,867; Com^ v. Clary, 8 ^'[-^^^ ^ g^^^^_ ^^ ^^^^ 25 ??f • Jl' T P'"T .°/ ^ltT-,r^ Am. St. Rep. 700,' 17 S. W. 108, 15 Mete. 580; In re Ladd, ^4 Fed. 35; j^ j^ ^ 33.7 ^ oo'^'" li ?>*''*'oof iT'^w^^opf^' '^Te^rito^ry v. Burgess, 8 Mont. 67, 28 Am. St. Rep. 922, 17 S. ^\ . 1064. ^g ^^^ ^^^^^ L.R.A. 810. 20Martin v. House, 39 Fed. 695. sQpinion of the Justices, 1 Mete. iBannon v. Burnes, 39 Fed. 897. 58O. 2 United States v. Cornell, 2 sArmorv at Harpers Ferry, 6 Op. Mason, 60, Fed. Cas. No. 14,867; Attvs. Gen. 577; The New York Post- Corn. V. Clary, 8 Mass. 72; Mitchell v. office Site, 10 Ops. Attys. Gen. 35. 196 Procedure] TERRITORIAL LIMITS AND EXTENT. § 26 [e] against the contiguous municipality or under its ordinances, lo The civil laws of the State governing the use and enjoyment of property and not in conflict with the Federal laws, continue in force in the ceded place imtil displaced by the new sovereign, just as in the case of a cession of lands by a foreign power, n This does not include a State liquor law penal in character.! 2 [dd] Cession to State of jurisdiction over Federal immigrant stations. The legislation of Congress shows at least one instance of a cession of jurisdiction to the several States. The alien immigrant law of 1891 provides "that for the preservation of the peace and in order that arrests may be made for crimes under the laws of the States where the various United States immigrant stations are located, the oflBcials in charge of such stations as occasion may require shall admit therein the proper State and municipal officers charged with the enforcement of such laws, and for the purposes of this section the jurisdiction of such officers and of the local courts shall extend over such stations."i3 [e] Purposes for which exclusive jurisdiction has been acquired and ceded. There are many cases in which the Federal government has acquired lands and a cession of jurisdiction thereover, for the purpose of erecting forts,i6 magazines and arsenals.i7 armories,i8 dockyards or navy yards.is Among "other needful buildings," to accommodate which exclusive jurisdiction has been acquired are, places for an asylum for disabled volunteers,2 for a postoffice,! for an appraiser's building,2 for postoffice, Federal courts, in temal revenue offices, etc., 3 for maintenance of locks and dams.* The Con- stitution creates an exclusive jurisdiction on purchase Avith legislative con- sent only where the purchase is for the purposes enumerated in the constitu- tion. Hence it has been held that purchase by legislative consent, for a sol- diers' home, would not, ipso facto, create exclusive jurisdiction, though the power of the State to grant such a jurisdiction is conceded. 5 Other authori- loUnited States v. American W. 298; Barrett v. PaJmer, 135 N. Y. Works Co. 37 Fed. 748. 340, 31 Am. St. Rep. 837, 31 N. E. iiChicago, etc. R. R. v. McGlinn, 1018, 17 L.R.A. 723. 114 U. S. .546. 29 L. ed. 270, 5 Sup. Ct. 2 0See Sinks v Reese, 19 Ohio St. Rep. lOOG: In re Ladd, 74 Fed. 40; 306, 2 Am. Rep. 397. But jurisdic- Crook V. Old Point, etc. Co. 54 Fed. tion of this Ohio site was afterwards 609; Barnett v. Barnett, 9 N. Mex. relinquished. See in re Kelly. 71 212, 50 Pac. 338; Barrett v. Palmer, Fed. 545; Ohio v. Thomas, 173 U. S. 135 N. Y. 340, 31 Am. St. Rep. 837, 282, 43 L. ed. 701, 19 Sup. Ct. Rep. 31 N. E. 1018, 17 L.R.A. 723; Crook 455. V. Old Point, etc. Co. 54 Fed. 608. iSee New York Postoffice Site, 10 i2Tn re Ladd, 74 Fed. 40. Op. Attys. Gen. 35. 13 Section 9. act March 3, 1891, c. 2 Sharon v. Hill, 24 Fed. 731, 11 551, 26 Stat. 1086, U. S. Comp. Stat. Sawy. 130. 1901, p. 1299. 3Martin v. House, 39 Fed. 694; isSee United States v. Cornell, 2 State v. Mack. 23 Nev. 365, 62 Am. Mason, 60, Fed. Cas. Xo. 14.867. St. Rep. 815, 47 Pac. 764. i7See Com. v. Clary, 8 Mass. 72. ^United States v. Tucker, 122 Fed. i^Sec Armory at Harpers Ferry, 6 518. Op. Atty. Gen.' 577. sSee In re Kelly, 71 Fed. 545: In re i9See Mitchell v. Tibbits, 17 Pick. O'Connor, 37 Wis. 379. In Foley v. 197 S 26 [f] FEDERAL JURISDICTION IN GENERAL. [Code Fed. ties, however, do not seem to have applied the rule ejusdem generis, to the construction of "other needful buildings," but have given the phrase a liberal interpretation, and a late case maintains that land for locks and dams on a canal is within the phrase.6 So also Congress in its legisla- tion has gone upon the theory that jurisdiction might be acquired over lands for national cemeteries under this clause of the constitution, though that is a far cry from lands for "needful public building." It has de- clared that upon payment of the purchase price of lands acquired for that purpose exclusive Federal juri-?diction shall arise thereover; 7 and that after the assent of a State has been obtained, complete Federal jurisdiction shall vest as provided in the clause of the Constitution here under con- sideration, s So long as the State's assent to a purchase is accompanied by a cession of jurisdiction it is immaterial that the land is not acquired for "other needful buildings," in any proper sense of that term. But there is no authoritative decision that lands purchased by consent for cemeteries, or for locks and dams without any cession of jurisdiction, pass to the exclusive jurisdiction of the nation, [f] Retrocession of ceded lands. States have often accompanied a cession of jurisdiction over lands or places acquired by the United States with the condition that it .shall con- tinue only while the United States shall be and continue the owner,io or continue to use the same.n It would seem that in cases of a cession of jurisdiction, the ceded jurisdiction necessarily terminates when the place ceases to be used for the granted purpose. 12 But where the exclusive jurisdiction is only to continue while the premises are iised for the des- ignated purpose, State jurisdiction reattaches when that use terminates, e. g., where the government leases the land for market purposes, is or for a hotel.i* .In one case Congress relinquished the jurisdiction ceded for a soldiers' home.is The retrocession of Alexandria county ceded by Vir- ginia as part of the District of Columbia has already been referred to.is § 27. Federal jurisdiction over crimes on great lakes. Every person who shall, upon any vessel registered or enrolled under the laws of the United States, and being on a voyage upon Shriver, 81 Va. .572. and Sinkes v. Palmer v. Barrett, 162 U. S. 402, 40 Reese, 19 Ohio St. 306, 2 Am. Rep. L. ed. 1016, 16 Sup. Ct. Rep. 837; 397, it was held that exclusive Fed- Crook v. Old Point, etc. Co. 54 Fed. eral jurisdiction was granted bv the 606; United States v. Carter, 84 Fed. State. 623. eUnited States v. Tucker, 122 Fed. i2Chicago, etc. R. R. v. McGlinn, 522. 114 U. S. 545, 29 L. ed. 271, 5 Sup. Ct. 7See R. S. § 4872, U. S. Comp. Stat. Rep. 1006. 1901, p. 3376, 14 Stat. 400. 1 "Palmer v. Barrett. 162 U. S. 403, sSee R. S. § 4882. U. S. Comp. Stat. 40 L. ed. 1016, 16 Sup. Ct. Rep. 837. 1901. p. 3379, 16 Stat. 188. See In re i4Crook v. Old Point, etc. Co. 54 Kellv. 71 Fed. 551. discussing this. Fed. 604. loMartin v. House, 39 Fed". 694; In 1516 Stat. 399. See In re Kelly, re Ladd, 74 Fed. 35. 71 Fea. 551. HBannon v. Burnes, 39 Fed. 897; leSupra, note.Eal 198 Procedure] LOCAL LAW AS TO REMEDIES. S 28 the waters of any of the great lakes, namely, Lake Superior, Lake Michigan, Lake Huron, Lake Saint Clair, Lake Erie, Lake Ontario, or any of the waters connecting any of the said lakes, commit or be guilty of any of the acts, neglects, or omissions, respectively, men- tioned in chapter three of title seventy of the Eevised Statutes of the United States [defining and punishing crimes arising within the maritime and territorial jurisdiction of the United States], shall upon conviction thereof be punished with the same punishments in the said title and chapter, respectively, affixed to the same offenses therein mentioned, respectively. § 1 of act Sept. 4, 1890, c. 874, 26 Stat. 424, U. S. Cbmp. Stat. 1901, p. 3629. At the time of this enactment a case was pending and afterwards de- cided by the Supreme Courti holding that Federal jurisdiction existed to punish an offense upon one of the great lakes within the territorial juris- diction of the Dominion of Canada, by virtue of E,. S. § 5346, punishing offenses on the "high seas, ... or in any river . . . within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular state" on board an American vessel. This was upon the theory that the great lakes may be deemed "high seas" under the power to regulate commerce with foreign nations. Congress has power to punish offenses on American vessels on navigable waters though within the territorial limits of a foreign nation, 2 and this enactment of 1890 which was probably suggested by observations contained in an opinion of Mr. Justice Brown at circuit, 3 is valid. The Federal jurisdiction of crimes on the great lakes and connecting waters is concurrent with the jurisdiction of Canada when committed within portions thereof upon the Canadian side of the boundary, and with the different States, upon the American side.* Another section of the act of 1890 gives jurisdiction over such offenses to the circuit and district court. 5 § 28. Local law as to remedies for improvements applies to Fed- eral occupants. When an occupant of land, having color of title, in good faith has made valuable improvements thereon, and is, in the proper action, found not to be the rightful owner thereof, such occupant lUnited States v. Rogers, 150 U. United States v. Coombs, 12 Pet. 72, S. 249, 37 L. ed. 1071, 14 Sup. Ct. 9 L- ed. 1004. Rep. 110. Contra, see Ex parte ^E^' P^^**^ B-^'^''^' ^2 Fed. 410. 3;B.£U,w . N.kerson^70^Fed. 116, 2Ex parte Byers, 32 Fed. 407; sSee post, § 157. 199 S 29 FEDERAL JURISDICTION IN GENERAL. [Code Fed. shall be entitled in the Federal courts to all the rights and remedies, and, upon instituting 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 may have been granted by the United States after said improve- ments were so made. Act June 1, 1874, c. 200, 18 Stat. 50, U. S. Comp. Stat. 1901, p. 581. § 29. The law applied in civil rights cases. The jurisdiction in civil and criminal matters conferred on the district and circuit court by the provisions of this title [i. e.. Title 13, covering "The Judiciary"], and of title "Civil Rights," and of title "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 Unit- ed States, shall be extended to and govern the said courts in the trial and disposition of the cause, and if it is of a criminal nature, in the infliction of punishment on the party found guilty. R. S. § 722, U. S. Comp. Stat. 1901, p. 582. This provision was originally part of the civil rights statutes of 1866, 1870.7 It has been said that it does not attempt to prescribe the rule of decision but merely the forms of process and remedy; 8 and that the court is at liberty to adopt the State practice as to challenges to grand jurors.9 The section has been criticized as an incongruous and meaningless jumble.io Congress has undoubted power to prescribe the procedure of Federal courts both civil and criminal, n and to adopt the punishment for offenses against 7Act, April 9, 1866, c. 31, § 31, 14 sUnited States v. Eagan, 30 Fed. Stat. 27; Act, May 31, 1870, c. 114, 008. § 18, 16 Stat. 144. loper Clifford, J., dissenting in sin re Stupp, 12 Blatchf. 501, Fed. Tennessee v. Davis, 100 U. S. 299, Cas. No. 13,563. 25 L. ed. 663. iiPost, § 579. 200 I Procedure] THE LAW APPLIED IN CIVIL CASES. § 29 Federal laws, that is prescribed by the States in like cases. But if the section is an attempt to provide the substantive law to be administered or the rule of decision in the cases referred to, it would seem ineffective in denying the general principles by which the Federal courts must be governed. 12 "Ante, § 10. 201 CHAPTER 2. THE SUPREME COURT. § 31. References to code sections not herein included. § 32. Number of justices. § 33. Precedence of associate justices. § 34. Vacancy in the office of chief justice. § 35. Original and appellate jurisdiction of Supreme Court declared. § 36. When original jursidiction exclusive and when not. § 37. Appellate jurisdiction. § 38. On writ of error to State courts. § 39. From circuit court of appeals. § 40. Questions certified up by circuit court of appeals for instruction. § 41. Review by certiorari of decisions made final in the circuit court of appeals. § 42. Appeals from circuit and district courts direct to Supreme Court. § 43. Anti-trust cases appealable direct from circuit to Supreme Court. § 44. Anti-trust cases certified to Supreme Court on division of opinion. § 45. Appeal from coiirt of appeals of District of Columbia. § 46. Certiorari from Supreme Court to court of appeals of District of Columbia. § 47. Appeal in cases relating to highways in the District of Columbia, § 48. From supreme court of Territories. § 49. When a Territory becomes a State after judgment in Territorial court. § 50. Review of judgments of district courts in cases transferred from Territorial courts. § 51. Appeals from Indian Territory direct to Supreme Court. § 52. From Alaska district court. § 53. Question certified in Alaska cases on which instructions desired. § 54. Appeals from Territory of Hawaii. § 55. Appeals from Porto Rico supreme and district courts. § 56. Error and appeal from Supreme Court of Philippines. § 57. Appeal from Oklahoma supreme court. § 58. Appeals from Court of Claims. § 59. Writ of error on conviction of capital crime. § GO. Direct appeal in suits for failure to alter bridge obstructing navi- gation. § 61. Appeal in bankrupt cases. § 62. Appeal in proceedings under name of Commerce Commission. 202 Procedure] PRECEDENCE OF ASSOCIATE JUSTICES. § 33 § 63. — in proceedings by petition to enforce Commerce Commission's orders. § 64- — in suits against the Commission to suspend orders, etc. § 65. Certiorari in trademark cases. § 66. Appeals in cases from court in China. § 31. References to code sections not herein included. Elsewhere in this code will be found provisions respecting the allotment of justices of the Supreme Court to different circuits;^ the appointment, tenure and salaries of judges.^ The matter of appellate procedure in general;^ the determination of a cause and execution of mandate,^ and other kindred subjects, are contained in subsequent chapters. Elsewhere also is discussed the power of the Supreme Court to issue mandamus and prohibition f to make rules for equity admiralty and bankruptcy practice, etc.,^ and issue writs.'' The clerks, marshals, reporters and other officers of the Supreme Court are referred to in subsequent chapters.* The law as to appeal from the court of private land claims is omitted because temporary in character, and because the work of that court is now virtually completed. Author's section. § 32. Number of Justices. The Supreme Court of the United States shall consist of a chief justice and eight associate justices, any six of whom shall constitute a quorum. R. S. § 673, U. S. Corap. Stat. 1901, p. 558. As originally constituted the Supreme Court consisted of seven members, but § 1 of an act of April 10, 18G9,2o which became R. S. § 673, supra, in- creased the number to nine. Another section provides for adjournment in case a quorum is not presenti but a quorum has all the powers of a full bench. Hence a minority of the court may constitute a majority of a quorum and and render a binding decision. § 33. Precedence of Associate Justices. The associate justices shall have precedence according to the dates iPost, § 101. ePost, § 802, 803. 2Post, §§ 467, 469. 7Post, § 841. sPost, § 1886, et seq. sPost, § 558, et seq; § 613. ^^t seq. *Post, § 2105, et seq. 20C. 22, 16 Stat. 44. sPost, § 844. iSee Post § 305. 203 § 34 THE SUrilEME COURT. [Code Fed. of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. R. S. § 674, U. S. Comp. Stat. 1901, p. 558. This was part of § 1 of the original judiciary act.2 § 34. Vacancy in the office of Chief Justice. In case of a vacancy in the office of chief justice, or of his in- ability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another chief justice is appointed and duly qualified. This provision shall apply to every associate justice Avho succeeds to the office of chief justice. R. S. § 675, U. S. Comp. Stat. 1901, p. 558. This was part of § 1 of the original judiciary acts and also of § 1 of an act of 1868.4 § 35. Original and appellate jurisdiction of Supreme Court de- clared. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction.^^^ In all the other cases before mentioned,® the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.'^''^ U. S. Const. Art. III., § 2, cl. 2. [a] Original jurisdiction — not exclusive, but may not be enlarged. This clause does not in terms make the original jurisdiction exclusive, and it is settled that Congress may confer jurisdiction on inferior courts over the cases above enumerated and then appellate jurisdiction on the Supreme Court. 7 In other words a mere affirmative grant of original jurisdiction does not make it exclusive, or negative a right in Congress to confer appellate jurisdiction. s Nor does it negative the existence of 2Act, Sept. 24, 1789, c. 20, 1 Stat. 447; Gittings v. Crawford, Taney, 73. Dec. 1, Fed. Cas. No. 5,465. See ante, 3Act Sept. 24, 1789, c. 20, 1 Stat. § 2.[n 73. sThe contrary was declared in Mar- 4Act June 25, 1868, c. 81, 15 Stat, bury v. Madison, 1 Cranch, 173-176, 80. 2 L. ed. 60. But its dictum has been 6Ante, § 2. qualified by later cases: Cohens v. 7 Burs V. Preston, 111 U.S. 256, 277, Virginia. 6 Wheat. 397, 5 L. ed. 289; 260, 28 L. ed. 421, 4 Sup. Ct. Rep. United States v. Ortega, 11 Wheat. 407, 419: Ames v. Kansas, 111 U. S. 472, 6 L. ed. .523. See U. S. Notes, 469, 28 L. ed. 490, 4 Sup. Ct. Rep. Book I. p. 123. 204 Procedure] ORIGINAL AND APPELLATE JURISDICTION. § 35 [b] jurisdiction in a State court.9 It is equally well settled that the original jurisdiction of the Supreme Court as defined by the Constitution, may not be enlarged by Congress. The affirmative grant of original jurisdiction in certain cases negatives its existence in all other eases.io Hence, as the Supreme Court has no original prize jurisdiction,! i intervenors, not parties below, cannot come in there, 12 and a claim cannot be interposed there for the first time.13 The enumeration of cases affecting ambassadors, etc., and cases to which a State is party, has reference to the grant of jurisdic- tion over such cases contained in the preceding clause of the same section,i4 and does not enlarge that grant. [b] Appellate jurisdiction regulated by Congress. Whether appellate jurisdiction could have been exercised by the Supreme Court in the absence of any legislation of Congress conferring power,i6 has never been a practical question, since Congress has legislated very fully upon the subject ever since the judiciary act of 1789. Any enumeration by Congress of cases within the Supreme Courts appellate jurisdiction is the equivalent of excepting non-enumerated cases therefrom.iT Hence it is true that. Congress having legislated, the Supreme Court has appel- late power only in the cases provided for by Congress ; 1 8 and that where the act conferring jurisdiction of particular cases has expired, the jurisdic- tion ceases.! 9 While the appellate jurisdiction is derived from the Constitii- tion, yet the power to regulate and limit it is in Congress and, having been assumed by Congress that body must declare the right of appeal in a given case or the right does not exist. 20 The Constitution must confer capacity to take jurisdiction and an act of Congress must supply the requisite au- thority.i The power of Congress to confer appellate jurisdiction is not re- sDelafield v. Illinois, 26 Wend. 215, States v. American B. T. Co. 159 2 Hill, 168. U. S. 549, 40 L. ed. 255. 16 Sup. Ct. lOMarburv v. Madison, 1 Cranch, Rep. 69; Ex parte McCardle, 7 Wall. 173, 2 L. ed. 60; Cohens v. Virginia, 513, 19 L. ed. 264. 6 Wheat. 396, 5 L. ed. 257; United isUnited States v. Moore, 3 Cranch, States v. Ferriera, 13 How. 49, 14 L. 173, 2 L. ed. 397; United States v. ed. 42; United States v. Old Settlers, Young. 94 U. S. 259. 24 L. ed. 153; 148 U. S. 466, 37 L. ed. 509, 13 Sup. United States v. Sanges, 144 U. S. Ct. Rep. 650; California v. Southern 319, 30 L. ed. 445. 12 Sup. Ct. Rep. Pac. Co. 157 IT. S. 261, 39 L. ed. 683, 609; National Exch. Bank v. Peters. 15 Sup. Ct. Rep. 501 ; Ex parte Yerg- 144 U. S. 572, 36 L. ed. 545, 12 Sup. er, 8 Wall. 98, 19 L. ed. 332. Ct. Rep. 767; Colorado, etc. M. Co. uThe Alicia, 7 Wall. 571, 19 L. ed. v. Turck, 150 U. S. 141, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35. 84. i2The William Bagaley, 5 Wall. 1 s United States v. Boisdore, 8 How. 412, 18 L. ed. 591. 121, 12 L. ed. 1009. isWalden v. Gratz, 1 Wheat. 300, 2 0Durousseau v. United States, 6 4 L. ed. 94. Cranch. 314. 3 L. ed. 232; Ex parte i. L. ed. 164. 727; Clarke v. Pensylvania. 128 U. 211 § 38 [c] THE SUPREME COURT. [Code Fed. and its judgment to the lower court where it remains, the writ may prop- erly be directed to such lower court. 6 The same is true of Massachusetts cases under a form of review whereby only certain questions are taken to the highest court and the record remains in the Superior Court. ^ It has been said that it would probably be no ground for dismissal that the writ had issued to the highest court in such a case, since that tribunal might possibly obtain and send the record. 8 But in cases from States like New York and Massachusetts the Supreme Court will probably take notice of the local procedure, so that it would be the better practice to issue the writ in the first instance to the lower court which has the record in its custody. Where the highest court is the custodian of its own records and the record is obtainable there, the writ must be directed to that court. » [c] Necessity that Federal right be claimed or drawn in question. In every case it must appear that the Federal claim or right was inter- posed in the State court. Plaintiff in error must bring the case within the letter and spirit of the law allowing the writ. 12 There is no juris- diction to review State decisions which do not raise Federal questions ;13 even though similar questions under State constitutional provisions are litigated;!* and the writ must be dismissed. is The mere fact that a tax deed was based upon a Federal law does not give a right of review in the absence of any question growing out of that law;i6 nor does the fact that a Federal receiver is a party; i" nor that an award recovered by an attor- ney who is sued therefor by the client, was an award for the United States. 18 The validity of a statute is not drawn in question every time rights claimed thereunder are controverted, nor the validity of an author- ty, every time an act done by such authority is disputed; there must be direct resulting injury from a denial of their existence, constitutionality or legality.i9 Cases merely affecting construction do not question the eCelston v. Hoyt, 3 Wheat. 246, 4 is Walker v. Sanvenet, 92 U. S. 92, L ed. 396; Green v. Van Buskirk, 3 23 L. ed. 678; McQuade v. Trenton, Wall 450, 18 L. ed. 245: Atlierton v. 172 U. S. 639, 43 L. ed. 581, 19 Sup. Fowler, 91 U. S. 146, 23 L. ed. 265; Ct. Rep. 292. Wurts V. Hoagland, 105 U. S. 702,26 i^Howard v. Fleming, 191 U. S. L. ed. 1109. 126. 48 L. ed. 121, 24 Sup. Ct. Eep. TMcGuire v. Com. 3 Wall. 382, 18 49. L. ed. 164; McDonald v. Com. 180 U. is Santa Cruz Co. v. Santa Cruz R. S. 311, 45 L. ed. 542. 21 Sup. Ct. Rep. R. Ill U. S. 362, 28 L. ed. 456, 4 Sup. 389; Rothschild v. Knight. 184 U. S. Ct. Rep. 474; Chapin v. Fve, 179 U. 339, 46 L. ed. 573. 22 Sup. Ct. Rep. S. 129, 45 L. ed. 121, 21 Sup. Ct. Rep. 393. 71. sAtherton v. Fowler, 91 U. S. 146, isMcBride v. Hoey, 11 Pet. 172, 9 23 L. ed. 2bo. L. ed. 673. SAtherton v. Fowler, 91 U. S. 146, i^Bausuran v. Dixon, 173 U. S. 23 L. ed. 265, disapproving dictum in 115, 43 L. ed. 633, 19 Sup. Ct. Rep. Gelston v. Hoyt, supra, that tne writ 316. may be directed to any court having isSherman v. Grinnell, 144 U. S. the" record. " 202, 36 L. ed. 403, 12 Sup. Ct. Rep. l2!^cott v. Jones, 5 How. 375, i^ 574. L. ed. 181; Home Ins. Co. v. City laUnited States v. Lynch, 137 U. Council, 93 U. S. 116, 23 L. ed. 825. S. 285, 34 L. ed. 700, 11 Sup. Ct. Rep. 212 Procedure] ON WRIT OF ERROR TO STATE COURTS. § 38 [cc] validity of a law or treaty. 20 A suit to try adverse title to a mining claim under R. S. 2326, does not necessarily involve a Federal question.21 Questions of comity are in general not Federal.22 [cc] Decisions upon matters of purely local law. Where the questions sought to be presented in a case as Federal, fall entirely within the powers of a State, and pertain to matters outside the legislative powers of Congress and outside the limitations and restrictions of the Constitution, it is obvious that there can be no jurisdiction to re- view the decision of the State court under R. S. § 709.1 The highest State court may administer the common law according to its understanding thereof. 2 In the cases denying a right to review State decisions on error because no Federal question existed and in cases admitting a right of re- view, but confining it to the Federal question raised, the Supreme Court has frequently observed that a matter decided by the State court was one of purely local law which it would not re-examine. Some of these cases in which a re-examination of questions of local law has been refused are col- lected in a footnote. 3 Many of them deal with questions of local practice 114; ]\ruse v. Arlington H. Co. 168 U. S. 435, 42 L. ed. 533, 18 Sup. Ct. Rep. Ill; Cook Co. v. Calumet, etc. Co. 138 U. S. 653, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; Bushnell v. Crooke, etc. Co. 148 U. S. 689, 37 L. ed. 610, 13 Sup. Ct. Rep. 771; Miller v. Cornwall R. R. 168 U. S. 133, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Keenard v. Nebraska, 186 U. S. 308, 46 L. ed. 1175, 22 Sup. Ct. Rep. 879. soSouth Carolina v. Seymour, lo3 U. S. 358, 38 L. ed. 742, 14 Sup. Ct. Rep. 871; Kennard v. Nebraska, 186 U. S. 308, 46 L. ed. 1175, 22 Sup. Ct. Rep. 879; Missouri P. Ry. v. Fitzger- ald, 160 U. S. 576, 40 L. ed. 536, 16 Sup. Ct. Rep. 389 ; Southern R. R. Co. v. Carson, 194 U. S. 136, 48 L. ed. 907, 24 Sup. Ct. Rep. 609. 2iMcMillen v. Ferrum M. Co. 197 U. S. 433, 49 L. ed. 784, 25 Sup. Ct. Rep. 553. 2 2 Allen v. Allegheny Co. 196 U. S. 458, 49 L. ed. 551, 25 Sup. Ct. Rep. 311. iDavis V. Texas. 139 U. S. 652, 657, 35 L. ed. 300, 11 Sup. Ct. Rep. 675. 2Pennsylvani'a R. R. v. Huglies, 191 U. S. 477, 49 L. ed. 268, 24 Sup. Ct. Rep. 132. 3Strader v. Graham, 10 How. 93, 13 L. ed. 337, as to status of slaves taken to free States; Robertson v. Coulter. 16 How. 113, 14 L. ed. 865, j)owors of tru^ite? under local statute; 21 Young V. Steamslhip Co. 105 U. S. 44, 26 L. ed. 966, as to repayment of fees by commissioner; Susquehanna B. Co. V. West Branch Boom Co. 110 U. S. 58, 28 L. ed. 69, 3 Sup. Ct. Rep. 438, as to corporate powers; Colt v. Colt, 111 U. S. 578, 28 L. ed. 520, 4 Sup. Ct. Rep. 553, competency of guardian ad litem; Shreveport v. Cole, 129 U. S. 41, 32 L. ed. 589, 9 Sup. Ct. Rep. 210, auction to recover balance on contract; Beattv v. Ben- ton, 135 U. S. 254, 34 L. ed. 124, 10 Sup. Ct. Rep. 747. rights under trust deed and State statute; McNulta v. Lochridge, 141 U. S. 329, 35 L. ed. 796, 12 Sup. Ct. Rep. 11, liability of receiver for predecessors' acts; Dela- ware City Co. V. Reybold, 142 U. S. 641, 35 L. ed. 1141, 12 Sup. Ct. Rep. 200, claim for legal services; Mis- souri V. Harris, 144 U. S. 211, 36 L. ed. 407, 12 Sup. Ct. Rep. 838, validity of assent to municipal stock subscrip- tion; O'Neil V. Vermont. 144 U. S. 332, 36 L. ed. 450, 12 Sup. Ct. Rep. 693, what constitutes a .'^le under liquor statute; Nortliern Pac. R. R. V. Ellis, 144 U. S. 464, 30 L. ed. 504, 12 Sup. Ct. Rep. 724; Yazoo, etc. R. R. Co. V Adams. 180 U. S. 20. 45 L. ed. 409, 21 Sup. Ct. Rep. 282; and Adams v. Louisiana Bd. of Liq. 144 TJ. S. 653, 36 L. ed. 578. 12 Sup. Ct. Rep. 756, former judgment as res adjudicata or estoppel, and wlint 3 § 38 [cc] THE SUPREME COURT. [Code Fed. which are in no respect of a Federal character; 4 and with questions of pleading; 5 and evidence and variance; 6 and competency of witnesses." State taxation is primarily a matter of local law only and many decisions in tax matters have been held not reviewable on error,? though others constitutes sale of bonds; Bier V. Mc- 1055, when action deemed com- Gehee, 148 U. S. 141, 37 L. ed. 397, 13 menced; Germania Ins. Co. v. Wis- Sup. Ct. Rep. 580, rescission of sale consin, 119 U. S. 476, 30 L. ed. 461, of bond; Snell v. Chicago. 152 U. S. 7 Sup. Ct. Rep. 260, as to proper 198, 38 L. ed. 408, 14 Sup. Ct. Rep. service of process; Thonington v. 489, rights of heirs ot vender in fran- Montgomerv, 147 U. S. 494, 37 L. chise; Israel v. Arthur, 152 U. S. ed. 252, 13* Sup. Ct. Rep. 394, as to 362, 38 L. ed. 474, 14 Sup. Ct. Rep. exclusion of depositions ; Brown v. 583, second marriage as estopping Massachusetts, 144 U. S. 580, 36 L. right to avoid divorce; Wailes v. ed. 546, 12 Sup. Ct. Rep. 757; and Smith, 157 U. S. 275, 39 L. ed. 698, Gibson v. Mississippi, 162 U. S. 591, 15 Sup. Ct. Rep. 624, state comp- 40 L. ed. 1075, 16 Sup. Ct. Rep. 904, troller's duty in drawing warrants; as to objections to and impaneling New York v. Roberts, 171 U. S. 663, of jurors; Loeber v. Schroeder, 149 U. 43 L. ed. 325, 19 Sup. Ct. Rep. 58, S. 585, 37 L. ed. 856, 13 Sup. Ct. Rep. in determining corporate stock used 934, as to remedy in law or equity; in State; Wilson v. North Carolina, St. Louis, etc. Ry. v. Missouri, 15() 169 U. S. 593, 42 L. ed. 865, 18 Sup. U. S. 484, 39 L. cd. 502, 15 Sup. Ct. Ct. Rep. 435; Rae v. Homestead L. Rep. 443, prohibition to inferior Stat.-; Co. 176 U. S. 126, 44 L. ed. 399, 20 court; Moore v. Jilissouri, 159 U. S. Sup. Ct. Rep. 341, as to decree for 680, 40 L. ed. 301, 16 Sup. Ct. Rep. (niyment in lawful money: Weyer- 179, failure to give hearing in bank: hauesser v. Minnesota, 176 U. S. 559, Seneca Nation v. Christy, 162 U. S. 44 L. ed. 587, 20 Sup. Ct. Rep. 485, 288, 40 L. ed. 970, 16 Sup. Ct. Rep. as to law estoppel; Gundliiig v. Chi- 828. as to bar of statute of liiiiilr,- cago, 177 U. S. 188, 44 L. ed. 729, tions; Beaupre v. Noyes, 138 U. S. 20 Sup. Ct. Rep. 633, as to powers 402, 34 L. ed. 991, 11 Sup. Ct. Rt-p. of mayor; Forsyth v. Vehmeyer, 177 296, and Davis v. Texas, 139 U. S. U. S. 'l80, 44 L. ed. 724, 20 Sup. Ct. 653, 35 L. ed. 300, 11 Sup. Ct. Rep. Rep. 623, as to what constitutes 675, as to motion for new trial, fraud; New Orleans, etc. Co. v. Louis- sRuena Vista Co. v. lown, etc. Co. iana, 180 J. S. 330, 45 L. ed. 556, 21 112 U. S. 177, 28 L. ed. 680^ 5 Sup. Sup. Ct. Rep. 378. validity of incor- Ct. Rep. 84; Grand Rapids, etc. R. poration under Federal laws; Hale R. v. Butler. 159 V. S. 91, 41 L. ed. V. Lewis, 181 U. S. 480, 45 L. ed. 963, 85. 15 Sup. Ct. Rep. 991; Abbott v. 21 Sup. Ct. Rep. 677, as to estoppel to Tacoma Bank, 175 U. S. 413, 44 L. question validity of statute; New Or- ed. 217, 20 Sup. Ct. Rep. 153; Yazoo, leans W. W. Co. v. Louisiana, 185 etc. Ry. v. Adams, 180 U. S. 9, 4.5 L. U. S. 353, 46 L. ed. 936, 22 Sup. Ct. ed. 402, 21 Sup. Ct. Rep. 240; Na- Rep. 691, whether bondholders neces- tional F. Co. v. Oconoto, etc. Co. 183 sary parties to quo warranto to for V. S. 237, 46 L. ed. 157. 22 Sup. Ct. feit charter; Smitli V. Adsit, 23 Wall. Rep. Ill; Allen v. Allegheny Co. 373, 23 L. ed. 114, what constitutes 196 U. S. 458, 49 L. ed. 551, 25 Sup. a trust; Lange v. Benedict, 99 U. S. Ct. Rep. 311. 71, 25 L. ed. 469, personal liability of sMartin v. Marks, 97 U. S. 348, judge; Forsj'th v. Hammond, 166 U. 24 L. ed. 940; California Nat. Bank S. 518, 41 L. ed. 1095, 17 Sup. Ct. v. Thomas, 171 U. S. 446, 43 L. ed. Rep. 665. and McCain v. Des Moines, 231, 19 Sup. Ct. Rep. 6; Brooks v. 174 U. S. 181, 43 L. ed. 936, 19 Sup. Missouri, 124 U. S. 395, 31 L. ed. 454, Ct. Rep. 644, as to boundaries and 8 Sup. Ct. Rep. 443. powers of municipalitv. 'i'Spies v. Illinois, 123 U. S. 180, .^1 ■iRichmond M. Co. v. Rose, 114 U. L. ed. 80, 8 Sup. Ct. Rep. 21, 22. S. 583, 29 L. ed. 273, 5 Sup. Ct. Rep. sSee Bardon v. Land, etc. Co. 157 U. 214 Procedure] ON WUIT OF ERKOU TO STATE COURTS. § 3S [cc] presenting questions of State laws impairing contracts, or denying the equal protection of the laws, etc., are reviewable where the Federal consti- tutional right is adversely decided. » Others are concerned with questions arising in criminal cases, and it is uniformly decided that errors in ad- ministration! o of State criminal laws, or in the interpretation of the State guaranties to the accused are not of themselves sufficient to justify review on error in the Supreme Court.n There must be a denial of some Federal right; 12 and as the first ten amendments do not apply to the States 1 3 the Fourteenth Amendment is the commonest basis for the asserted Federal right. Decisions as to the validity of acts compelled by the Con- federate government, or of payments in Confederate money or insurance losses ^ue to Confederate acts, do not raise a Federal question; i* nor is a S. 332, 39 L. ed. 719, 15 Sup. Ct. Rep. 46 L. ed. 872, 22 Sup. Ct. Rep. 616, 650: kirtland v. Hotchkiss. 100 U. as to continuance, respite and mo- S. 498. 25 L. ed. 558; Louisiana v. tion in arrest: Kohl v. Lehlback. 160 New Orleans, 108 U. S. 569, 27 L. U. S. 298, 40 L. ed. 432, 16 Sup. Ct. ed. 823, 2 Sup. Ct. Rep. 955; Chap- Rep. 304, right of appeal in State man v. Goodnow, 123 U. S. 547, 31 court; Wilson v. North Carolina, 169 L. ed. 235, 8 Sup. Ct. Rep. 211 ; Wells U. S. 595. 42 L. ed. 865, 18 Sup. Ct. V. Goodnow, 150 U. S. 84, 37 L. ed. Rep. 435, refusal of jury trial; 1007, 14 Sup. Ct. Rep. 22; Tyler v. O'Neil v. Vermont. 144 U". S. 327, 36 Cass Co. 142 U. S. 290, 35 L. ed. 1016, L. ed. 450, 12 Sup. Ct. Rep. 693; 12 Sup. Ct. Rep. 225; Orr v. Gil- consolidation of offenses in one com- man, 183 U. S. 288, 46 L. ed. 196, 22 plaint; Lambert v. Barrett. 157 U. Sup. Ct. Rep. 213; Central P. R. R. S. 699, 39 L. ed. 865, 15 Sup. Ct. V. Nevada, 162 U. S. 523, 40 L. ed. Rep. 722; power of reprieve; In re 1057. 16 Sup. Ct. Rep. 885; Western Kemmler, 136 U. S. 447, 34 L. ed. 519, U. T. Co. V. Indinna, 165 U. S. 307, 10 Sup. Ct. Rep. 930, validity of elec- 41 L. ed. 725, 17 Sup. Ct. Rep. 345. trocution : Davis v. Burke, 179 U. 9See infra, note.[m] S. 404, 45 L. ed. 252, 21 Sup. Ct. lOGibson v. Mississippi, 162 U. S. Rep. 210. place of execution. 591. 40 L. ed. 1075, 16 Sup. Ct. Rep. isWilliams v. Mississippi, 170 U. 904. S. 213. 42 L. ed. 1012. 18 Sup. Ct. iiBrooks V. Missouri. 124 U. S. Rep. 583. 395, 31 L. ed. 4.54, 8 Sup. Ct. Rep. i^So the writ should be denied or 443; Caldwell v. Texas, 137 U. S. 698, if granted, dismissed where the one 34 L. ed. 816, 11 Sup. Ct. Rep. 224; seeking review claims some act of Moore v. Missouri, 159 U. S. 678, 40 the State to be in violation of any of L. ed. 301, 16 Sup. Ct. Rep. 179; these ten amendments. In re Kemm- O'Neil V. Vermont, 144 U. S. 327, 36 ler, 136 U. S. 447, 34 L. ed. 519. 10 L. ed. 4.50, 12 Sup. Ct. Rep. 693; and Sup. Ct. Rep. 930; O'Neil v. Ver- McDonald v. Massachusetts. 180 U. mont, 144 U. S. .331. 36 L. ed. 450. S. 313. 45 L. ed. 547. 21 Sup. Ct. 12 Sup. Ct. Rep. 693, as to cruel and Rep. 389. all dealing witli ques- unusual punishment. See Winous, tions under indictment or com- etc. v. Casperson, 193 U. S. 189, 49 plaint; Baldwin v. Kansas, 129 U. S. L. ed. 675, 24 Sup. Ct. Rep. 431. 57, 32 L. ed. 6.^0. 9 Sup. Ct. Rep. 193, i4Rockhold v. Rockhold. 92 L^. S. as to oath of jurv; Davis v. Texas, 130. 23 L. ed. 507; Grame v. Mutual 139 U. S. 651, "35 L. ed. 300, 11 Sup. Ins. Co. 112 U. S. 275, 28 L. etl. 716, Ct. Rep. 675: Storti v. :\Iassachu- 5 Sup. Ct. Rep. 150: Dugger v. setts. 183 V. S. 142, 46 I,, el. 120, Bocock, 104 U. S. 601. 26 L. ed. 846; 22 Sup. Ct. Rep. 72, and St. Luais Kennev v. Effenger. 115 U. S. 577, 29 C. C. Co. V. Illinois, 185 L'. S. 206, L. ed. 498, 6 Sup. Ct. Rep. 185. 215 § 38 [d] THE SUPREME COURT. [Code Fed. decision as to insufficiency of notice to indorser within the Confederate lines at the time. IB A State court cannot, however, defeat the right of review in the Supreme Court by resting decision on a non-Federal ground, where a Federal claim is duly set up and, if allowed, would have required a different judgment.16 [d] Claim must be made in timely and specific manner. The record must show that the Federal question was set up at the proper time and in the pi"oper way.is The requirement of R. S. § 709 is specific on this point, especially in cases where a Federal right title or privilege is set up. The party claiming a Federal right must do so in clear terms ;19 though no particular form of words is necessary. 20 It must appear that the attention of the State court was called to the particular clause of the Constitution on which a party relies. 1 Objection that evidence is incom- petent and irrelevant will not raise a Federal question. 2 The alleged in- validity of a law under the Federal Constitution must be distinctly stated.3 Objection that act is "unconstitutional and void'" raises ques- tion of validity under State, and not under Federal Constitution. 4 Objection that an act is in contravention of the Federal Constitution, treaties and laws is insufficient. 5 Objection that court acted without jurisdiction or color of authority, is too vague to raise the question of due process of law.6 So also is an allegation that some of parties to decree were dead, and others not duly served. 7 An assignment of error that a State decision is against the Fourteenth Amendment is too vague ;« so also is an alle- gation on motion for new trial, that judgment is "contrary to law." 9 isBank v. McVeigh, 98 U. S. 33.3, Chicago. 202 U. S. 275, 50 L. ed. 1026. 25 L. ed. 110; Allen v. McVeigh, 107 26 Sup. Ct. Rep. 617. U. S. 435, 27 L. ed. 572, 2 Sup. Ct. 2Farney v. Towle, 1 Black, 3.50, 17 Rep. 558. L. ed. 216; Hoyt v. Sheldon, 1 Black, leChicago, etc. Ry. v. Illinois, 200 521. 17 L. ed. 65; Brooks v. Missouri, U. S. 561, 50 L. ed. 596, 26 Sup. Ct. 124 U. S. 395, 31 L. ed. 454, 8 Sup. Rep. 341. See infra, note [jl. Ct. Rep. 443. But see Bridge Prop. isTexas, etc. Rv. v. Southern P. v. Hoboken Co. 1 Wall 142, 17 L. ed. Co. 137 U. S. 53,^34 L. ed. 614, 11 571. Sup. Ct. Rep. 10; Schuvler Nat. Bank 3Le\^ v. Superior Court, 167 U. S. V. Bollong, 150 U. S.' 90, 37 L. ed. 177, 42 L. ed. 126, 17 Sup. Ct. Rep. 1010, 14 Sup. Ct. Rep. 24; Bobb v. 769: Harding v. Illinois, 196 h. S. Jamison, 155 U. S. 416, 39 L. ed. 206, 78, 49 L. ed. 394, 25 Sup. Ct. Rep. 176. 15 Sup. Ct. Rep. 357: Sayward v. 4Porter v. Foley, 24 How. 420, 16 Denny, 158 U. S. 183, 39 L. ed. 941, L. ed. 740; Miller v. Cornwall R. 15 Sup. Ct. Rep. 777. R. 168 L. S. 134, 42 L. ed. 409, 18 i9Union Mut. L. I. Co. v. Kirkshoff, Sup. Ct. Rep. 34. 169 U. S. 107, 42 L. ed. 677, 18 Sup. sMessenger v. Mason, 10 Wall. 510, Ct. Rep. 260. 19 L. ed. 1028. 20Creen Bay, etc. Co. v. Patten P. eHanford v. Davies. 163 U. S. 279, Co. 172 U. S. 67, 43 L. ed. 364, 19 41 L. ed. 157, 16 Sup.' Ct. Rep. 1051. Sup. Ct. Rep. 97. "Oxley S. Co. v. Butler Co. 106 U. lOxlev Stave Co. v. Butler Co. 166 S. 660, 41 L. ed. 1149, 17 Sup. Ct. U. S. 655, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709. Rep. 709;Coiunibia Water P. Co. v. sciark v. McDade, 165 U. S. 172, Street Ry. Co. 172 U. S. 480. 43 L. ed. 41 L. ed. 673, 17 Sup. Ct. Rep. 284. 521. 19 Sup. Ct. Rep. 247; Hulbert v. sCapitol Bank v. Cadiz Bank, 172 216 m Procedure] ON WRIT OF ERROR TO STATE COURTS. S 38 [dl The question may be raised in the pleadings, or in a petition for re- moval; lo or in motion to set aside an order sustaining a demurrer; n or in a request for instructions.! 2 it is enough if the record clearly shows that trial court clearly understood that the unsuccessful party was relying on a Federal claim is Where the Federal question is first raised in the State trial court after remand from the highest State court, and is a attempt to relitigate ques- tions concluded by the appeal and not permissible imder the State prac- tice, the Supreme Court will also hold it to be too late and dismiss writ of error presented to the State judgment on the second appeal. 1* But in many cases the Federal question may be first raised in the appel- late State court, and where it is there decided adversely, error will lie;i5 even though by reason of the State practice in States like New York and Massachusetts, the writ is directed to a lower court which has the record and in which the Federal question may not have been raised.16 It must however, be raised before final judgment. 1 7. It is too late when first raised in the petition for writ of error.is It is too late when first raised in petition for rehearing, if the petition is not granted, and there is no denial of the contention in the refusal to grant it.is It is too late when raised after denial of rehearing in application for oral argument,2 or in motion for transfer to court in bank.i But where the State court in grant- U. S. 431, 43 L. ed. 502, 19 Sup. Ct. Fowler v. Lamson, 164 U. S. 255, 41 Rep. 202. L. ed. 424, 17 Sup. Ct. Rep. 112; lOGibson v. Mississippi, 102 U. S. California Nat. Bank v. Stateler, 171 587, 40 L. ed. 1075, 16 Sup. Ct. Rep. U. S. 446, 43 L. ed. 233, 19 Sup. Ct. 904. Rep. 6; Scudder v. Comptroller of iiMeyer v. Richmond. 172 U. S. 91, N. Y. 175 U. S. -36, 44 L. ed. 62, 20 43 L. ed. 374, 19 Sup. Ct. Rep. 106. Sup. Ct. Rep. 26. i2National Bldg. etc. Assoc, v. isLeeper v. Texas, 139 U. S. 407, Braham, 193 U. S. 635. 49 L. ed. 823, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; 24 Sup. Ct. Rep. 532. California P. Works v. Davis, 151 U. iSLavaguino v. Uhlig, 198 U. S. S. 393, 38 L. ed. 206, 14 Sup. Ct. Rep. 443, 49 L. ed. 1119, 25 Sup. Ct. Rep. 350; Wabash R. R. v. Flannigan, 192 716. U. S. 29, 49 L. ed. 328, 24 Sup. Ct. nUnion M. L. I. Co. v. Kirchoff, Rep. 224; Mulbert v. Chicago, 202 U. 169 U. S. 103, 42 L. ed. 677, 18 Sup. S. 275, 50 L. ed. 1026, 26 Sup. Ct. Ct. Rep. 200; Yazoo & ]\I. V. R. R. Rep. 617. v. Adams, 180 U. S. 8. 45 L. ed. 401, is Susquehanna B. Co. v. Branch B. 21 Sup. Ct. Rep. 240; Northern P. R. Co. 110 U. S. 58, 28 L. ed. 69, 3 Sup. Co. V. Ellis, 144 U. S. 458, 36 L. ed. Ct. Rep. 438; Texas, etc. Rv. v. 504, 12 Sup. Ct. Rep. 724. Southern P. Co. 137 U. S. 54, 34 L. isSully v. American Nat. Bank, ed. 614, 11 Sup. Ct. Rep. 10; Loeber 178 U. S. 298, 44 L. ed. 1076, 20 Sup. v. Schroeder, 149 U. S. 585, 37 L. ed. a. Rep. 935. 856, 13 Sup. Ct. Rep. 934; Turner v. isRothschild V. Knight, 184 U. S. Richardson, 180 U. S. 92. 45 L. ed. 339, 46 L. ed. 573, 22 Sup. Ct. Rep. 440, 21 Sup. Ct. Rep. 295; lieus of 391. See supra, note.tb] Poydras v. Treasurer of La. 18 How. iTBoller V. Nebraska, 176 U. S. 92, 196, 15 L. ed. 350; McMillen v. Fer- 44 L. ed. 385, 20 Sup. Ct. Rep. 287; rum M. Co. 197 U. S. 343, 49 L. ed. Simraerman v. Nebraska, 116 U. S. 784, 25 Sup. Ct. Rep. 533. 54, 29 L. ed. 535, 6 Sup. Ct. Rep. 333; 20Butler v. Gage. 138 U. S. 61, 34 Morrison v. Watson, 154 U. S. 115, L. ed. 869, 11 Sup. Ct. Rep. 235. 38 L. ed. 927, 14 Sup. Ct. Rep. 995; iDuncan v. Missouri, 152 U. S. 217 § 38 [e] THE SUPREME COURT. [Code Fed. ing or denying the rehearing actually passes adversely on the Federal con- tention, error may lie.2 Where the Federal question involves some action of the trial court in the admission of evidence or general conduct of the trial it must have been set up in the trial court, and by familiar rules cannot be first raised on appeal.3 As is elsewhere seen a State decision that a party has lost his right to have a question passed upon by failure to except or appeal, is not reviewable.* Where the Federal question is first raised after decision in an intermediate appellate court, but the final State court ignores it, it must affirmativelj' appear that this was not due to the failure to raise it earlier. 5 The Supreme Court decides for itself, uncontrolled by the opinion of the State court, whether the Federal question was sufficiently pleaded or brought to the State court's attention. 6 [e] Certificate of State chief justice that Federal question raised. In the absence of anythirig in the record to show that a Federal ques- tion was raised, the certificate of the chief justice of the State court that it was, is insufficient evidence-S It cannot supply a want of evidence to that effect in the record and of itself give jurisdiction. 9 The judgment of the State court, and not the certificate determines the tiuestion;io al- though the latter is entitled to great weight in case of doubt. n Its pur- pose is to make more certain that which is too general or indefinite in the record 'and not to originate the question or to overthrow a conclusion ob- vious from the face of the record. 12 In the absence of an opinion it may be resorted to, to show that a law alleged to impair contracts was up- held,! s though it cannot give jurisdiction when failing to state the statute 80 questioned. 14 It is not a technical part of the record; is and it does not 383, 38 L. ed. 485. U Sup. Ct. Eep. 570. 2jViallett V. North Carolina, 181 U. 'J Felix V. Schamweber. 125 U. S. 59, 31 L. ed. 687, 8 Sup. Ct. Rep. 759; Sayward v. Denny, 158 U. S. 183, 39 S. 592, 45 L. ed. 1018, 21 Sup. Ct. L. ed. 941, 15 Sup. Ct. Rep. 777. Rep. 730; Missouri, etc. Ry. v. Elliott, loPowell v. Brunswick Co. 150 U. 184 U. S. 534, 46 L. ed. 673, 22 Sup. S. 439. 37 L. ed. 1134, 14 Sup. Ct. Ct. Rep. 446; Leigh v. Green, 193 U. Rep. 166. S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. nCaperton v. Bowyer, 14 Wall. 390. 234, 20 L. ed. 882; Rector v. City sSpies V. Illinois, 123 U. S. 181, Dep. Bank. 200 U. S. 405, 50 L. ed. 31 L. ed. 80, 8 Sup. Ct. Rep. 21, 22. 527, 26 Sup. Ct. Rep. 289. 4Infra, note.[h]-[i] i2Dibhle v. Bellingham Bay, etc. sChicago, etc. R. R. v. McGuire, Co. 163 U. S. 70, 41 L. ed. 72, 16 Sup. 196 U. S. 129, 49 L. ed. 413, 25 Sup. Ct. Rep. 939. Ct. Rep. 200. isGulf, etc. R. R. v. Hewes, 183 U. 6Erie R. R. v. Purdy, 185 U. S. 152, S. 69, 46 L. ed. 86. 22 Sup. Ct. Rep. 46 L. ed. 847, 22 Sup. Ct. Rep. 605. 26. See Armstrong v. Athens Co. 16 sHome for Incurables v. New York. Pet. 286, 10 L. ed. 965. i4Lawler v. Walker, 14 How. 152, 14 L. ed. 364; Yazoo, etc.' R. R. v. \dams, 180 U. S. 48, 45 L. ed. 418, 187 U. S. 155, 47 L. ed. 117, 23 Sup Ct. Rep. 84, and cases cited. Rail road Co. v. Rock, 4 Wall. 180, 18 L ed. 381; Lawler v. Walker, 14 How. 21 Sup. Ct. R«p. 256 154, 14 L. ed. 364; Henkel v. Ciincin- isHome for Incurables v. New nati, 177 U. S. 171, 44 L. ed. 721, 20 York, 187 U. S. 155, 47 L. ed. 117, 23 Sup. Ct. Rep. 573. Sup. Ct. Rep. 84. 218 Procedure! ON WRIT OF ERROR TO STATE COURTS. § 38 [gl restrict the Supreme Court's power to determine for itself whether a Fed- eral question was involved.is A certificate by an associate State justice, not shown to be acting chief justice, is valueless. if A certificate by the whole court would seem to be subject to the same rules.is [f] Federal question raised must not be wholly fictitious or without merit. Since the adoption of the Fourteenth Amendment it has been possible to raise a plausible Federal question in a very large number of State cases, and the Supreme Court has endeavored to guard against the practice of invoking its jurisdiction merely for purposes of delay. Hence the rule that the bare averment of a Federal question is not in all cases sufficient. It must be at least colorable and not wholly without merit. i It must be real and not fictitious. 2 It must be such that its mere mention does not show it to be destitute of merit. 3 If the claim be wholly without merit the writ will be dismissed. It must be some question, not explicitly fore- closed by prior Federal decisions.* [g] Party must make Federal claim on his own behalf. A party setting up a Federal riglit or title must do so on his own behalf in order to obtain a review of an adverse State decision thereon. 5 Hence it does not bring a case within R. S. § 709 where a party in ejectment alleges an outstanding title in a third person which is based upon Federal treaty or laws; 6 or an outstanding title in the United States. 7 The set- ting up of a Federal right or title in a third person under whom plaintiff in error does not claim, will not confer a right of review.s To entitle isNewport'L. Co. v. Newport, 151 U. S. 536. 38 L. ed. 259, 14 Sup. Ct. Rep. 429 ; Dibble v. Bellingham B. Co. 103 U. S. 69, 41 L. ed. 72, 16 Sup. Ct. Rep. 939. imavnor v. Xow York. 170 U. S. 409, 411, 42 L. ed. 1087, 18 Sup. Ct. Rep. 631. isRector v. City Dep. Bank, 200 U. S. 405. 50 L. ed. 527, 26 Sup. Ct. Rep. 239. iMiUingar v. Hartupee, 6 Wall. 258. 18 L. ed. 829; New Orleans v. Water Works, 142 U. S. 79. 87. 35 T.. ed. 946. 12 Sup. Ct. Rep. 142: Wil- son v. North Carolina, 169 l^ S. 595, 42 L. ed. 865, 18 Sup. Ct. Rep. 435; Illinois C. R. R. v. Chicago. 176 U. S. 656. 44 L. ed. 626. 20 Sup. Ct. Ren. 509; Sawver v. Piper. 189 U. S. 157, 47 L. ed. 759, 23 Sup. Ct. Rep. 033. 2TTaml)lin v. Western L. Co. 147 C. S. 532, 37 L. ed. 267. 13 Sup. Ct. Rep. 353: St. Louis, etc. Ry. v. Mis- souri, 156 U. S. 483. 39 L. ed. 502, 15 Sup. Ct. Rep. 443; St. Joseph, etc. R. R. V. Steele, 167 U. S. 662, 42 L. ed. 315, 17 Sup. Ct. Rep. 925. 3I\ew Orleans Works v. Louisiana. 185 U. S. 345. 46 L. ed. 936. 22 Sup. Ct. Rep. 691. ■^Leonard v. Vicksburg, etc. R. R. 198 U. S. 416. 49 L. ed. 1108, 25 Sup. Ct. Rep. 750. 5W>nn V. Morris, 20 How. 5. 15 L. ed. 800. sowings V. Norwood, 5 Cranch, 348. 3 L. ed. 120; Verden v. Coleman, 1 Black.474, 17L. ed. 161 ; Henderson V. Tennessee, 10 How. 323. 13 L. ed. 434. TLong V. Lonverse, 91 U. S. 114, 23 L. ed. 233; Miller v. Lancaster Bank. 106 U. S. 544, 27 L. ed. 289, 1 Sup. Ct. Rep. 536; Giles v. Little. 134 U. S. 045, 33 L. ed. 1062, 10 Sup. Ct. Rep. 623; Ludeling v. Chalfer. 143 U. S. 305, 36 L. ed. 313. 12 Sun. Ct. Rep. 439; Texas, etc. Rv- v. .Jolinson. 151 U. S. 98, 38 L. ed. 81, 14 Sup. Ct. Rep. 250. 8 Hale V. Gaines, 22 How. 160, 16 L. ed. 264. >19 § 38 [h] THE SUPREME COURT. [Code Fed. a party to review the Federal title or right denied must be directly in issue affecting plaintiff in error and not a third person only. 9 One not privy to a contract cannot assert its impairment so as to give the Supreme Court jurisdiction on error.io A party having actual notice is not en- titled to writ of error to review a statute claimed to work a deprivation by providing only constructive notice. n [h] Necessity that State decision be adverse to the Federal claim or right set up. A State decision sustaining a Federal right, title or exemption is not re- viewable,i2 nor one sustaining a claim under the ordinance of 1787 ;i3 or sustaining a tax exemption ;i4 or sustaining an avithority exercised by an officer of land or treasury department ; 1 5 or sustaining validity of bank- ruptcy proceedings; 16 or dismissing a claim attacking a Federal right. 1 7 Where plaintiff in error is the one denying the validity of a Federal law, his suit will be dismissed.! 8 A decision that a State law is invalid upon Fed- eral grounds is not reviewable; 19 neither is a decision that a Federal law is valid; 20 nor a State decision upholding the jurisdiction of a provost court;! nor one evading a decision of the point that a later law attempted to alter an earlier contract; 2 nor a decision in favor of a title resting upon an act of Congress; 3 nor a decision in favor of the right of the court of Alabama claims to disbar an attorney. * A decision sustaining a conten- tion that a contract violated the interstate commerce law is not review- able in the Supreme Court.5 As appears plainly from the wording of R. S. § 709, the Federal statute, authority, right or title, must not only be drawn in question, but the decision must be against the right claimed. 6 9Conde v. York, 168 U. S. 648, 42 isCongdon. etc. Co. v. Goodman, L. ed. Gil, 18 Sup. Ct. Rep. 234. 2 Black, 575, 17 L. ed. 257. loPinney v. Sheppard, etc. Trus- is Bank of Kentucky v. Griffith, 14 tees, 177 U. S. 170, 44 L. ed. 720, 20 Pet. 58, 10 L. ed. 352. Sup. Ct. Rep. 573. 2 0Roosevelt v. Mever, 1 Wall. 517, iiTyler v. Judges, 179 U. S. 405, 45 12 L. ed. 500. L. ed. 252, 21 Sup. Ct. Rep. 206. iMechanics' Bank v. Union Bank, i2Missouri v. Andriano, 138 U. S. 22 Wall. 297, 22 L. ed. 871. 499, 34 L. ed. 1012, 11 Sup. Ct. Rep. 2Kreiger v. Shelby R. Co. 125 U. 385; Gordon v. Coldcluegh, 3 Cranch, S. 46, 31 L. ed. 675, 8 Sup. Ct. Rep. 269, 2 L. ed. 436; Strader v. Bald- 752. win, 9 How. 262, 13 L. ed. 130; sFulton v. McAffee, 16 Pet. 152, Swope V. Leffingwell, 105 U. S. 4, 26 10 L. ed. 918; Burke v. Gaines, 19 L. ed. 9.39. How. 390, 15 L. ed. 055; Scott v isMenard v. Aspasia, 5 Pet. 517, Jones, 5 How 375, 12 L. ed. 181; 8 L. ed. 207. Verden v. Coleman, 1 Black, 474, 17 i4Tyler v. Cass Co. 142 U. S. 290, L. ed. 161. 35 L. ed. 1016, 12 Sup. Ct. Rep. 225. 4Manning'v. French, 133 U. S. 192, i5Hale V. Gaines, 22 How. 160. 16 33 L. ed. 582, 10 Sup. Ct. Rep. 258. L. ed. 264; Bartlett v. Lockwood. 100 sKizer v. Texarkana, etc. Ry. 179 U. S. 308, 40 L. ed. 455, 16 Sup. Ct. U. S. 201, 45 L. ed. 152, 21 Sup. Ct. Rep. 334. Rep. 100. i6Linton v. Stanton, 12 How. 426, cFulton v. McAffee, 16 Pet. 152, 10 13 L. ed. 1050. L. ed. 918; Brown v. Colorado, 106 iTReddall v. Bryan, 24 How. 422, U. S. 97, 27 L. ed. 132, 1 Sup. Ct. 16 L. ed. 740. Rep. 175; Winter v. City Council of 220 Procedure] ON WRIT OP ERROR TO STATE COURTS. § 38 [h] It need not appear that that decision was erroneous to enable the Supreme Court to take jurisdiction, though of course it must be shown erroneous to justify a reversal.^ A decision that a matter became res adjudicata in a State court prior to a Federal decree does not deny effect to that decree. 8 Where a State decision does not deal with a question of evidence as a Federal question the Supreme Court will not do so. 9 But it is not always necessary that the State court refer to the Federal contention if they necessarily have decided against it.n It is not essen- tial that the State court should specifically notice the Federal contention in its opinion.i2 It must appear either that a Federal question was decid- ed, or that judgment as rendered could not have been given without de- ciding it.13 .An adverse decision of the Federal question must have been necessarily involved in the adjudication.! * The test is: could the judg- ment as rendered, have been given without deciding a Federal quest ion. is It is not every decision against a party raising a Federal question that is reviewable, for the decision may go against the party on many groimds without touching the merits of the Federal question raised. Thus the appellate State court may rest its affirmance of the judgment below on some queston of practice or pleading or may dismiss the suit for want of jurisdiction and such a decision is not adverse to a Federal right or claim. 16 Or it may find that the party has waived the right to set up the Federal claim ;!■? or it may decide that judgment should go against Montgomery, 156 U. S. 386, 30 L. ed. 114 U. S. 136, 29 L. ed. 118. 5 Sup. 460, 15 Sup. Ct. Rep. 049; Call- Ct. Rep. 811; Marrow v. Brinkiey, fornia v. Holladay, 159 U. S. 417, 129 U. S. 181, 32 L. ed. 654, 9 Sup. 40 L. ed. 202, 10 Sup. Ct. Rep. Ct. Rep. 207; Hagar v. California, 53; Harrison v. Morton. 171 U. S. 47, 154 U. S. 639, 24 L. ed. 1044, 14 Sup. 43 L. ed. 63, 18 Sup. Ct, Rep. 742; Ct. Rep. 1186; Chicago, etc. Ry. v. Weatberly v. Bowie. 131 U. S. cerv. Illinoie. 200 U. S. 561, 50 L. ed. 596, 25 L. ed. 606; Powell v. Brunswick 26 Sup. Ct. Rep. 341. Co. 150 U. S. 440, 37 L. ed. 1134, 14 i^Chicago, etc. Ins. Co. v. Needles, Sup. Ct. Rep. 166; Avery v. Popper, 113 U. S. 579, 28 L. ed. 1084, 5 Sup. 17!) U. S. 314, 45 L. ed. 207, 21 Sup. Ct. Rep. 681; Williams v. Bruffy, 96 Ct. Rep. 94. U. S. 184. 24 L. ed. 716. TFurman v. Nichol, 8 Wall. 56, 19 15 Walter A. Wood Co. v. Skinner, L. ed. 370. 139 U. S. 295, 35 L. ed. 193, 11 Sup. SNorthem P. R. R. v. Ellis, 144 U. Ct. Rep. 528. S. 465, 36 L. ed. 504, 12 Sup. Ct. Rep. leMatheson v. Bank of INIobile. 7 724. How. 261, 12 L. ed. 692; Sample v. sMallett V. North Carolina, 181 U. Hagar. 4 Wall. 434, 18 L. ed. 402; S. 601, 45 L. ed. 1020, 21 Sup. Ct. Chippell Chem. Co. v. Sulphur, etc. Rep. 730. Co. 172 U. S. 473, 43 L. ed. 520, 19 iiYazoo, etc. Ry. v. Adams, 180 U. Sup. Ct. Rep. 268; Semple v. Hagar, S. 15, 45 L. ed. 404. 21 Sup. Ct. Kep. 4 Wall. 434. 18 L. ed. 402; Smith v. 240; Railroad v. Maryland, 21 Wall. Adsit. 16 Wall. 188, 21 L. ed. 310: 469, 22 L. ed. 678. Commercial Bank v. Rochester, 15 i2Arrow8mith v. Harmoning, 118 Wall. 042, 21 L. ed. 117; Chouteau v. U. S. 195, 30 L. ed. 243, 6 Sup. Ct. Gibson, 111 U. S. 201, 28 L. ed. 400, licit. 1023. 4 Sup. Ct. Rep. 340, isBrown v. Atwell, 92 U. S. 329, iTInfra, note.Cil 23 L. cd. 511 ; Detroit Ry. v. Guthard, 221 § 38 [i] THE SUPREME COURT. [Code Fed. the party on the merits upon broad principles of law which do not involve any consideration of the Federal question. is LiJ State decision that right to raise Federal question is lost by estoppel, waiver, or defect of procedure. In a number of cases decision has gone against a party raising a Federal (juestion, not because the contention was itself deemed without merit but because the party was, for technical reasons, not competent to raise it and procure a decision on the merits. Such a decision is not adverse to the Federal question but merely to the power of the party to raise it. Hence a decision that a party is estopped to question the validity of a statute on Federal grounds, or has waived a Federal right, is not a de- cision denying a Federal claim or right, and is not reviewable.! Neither is a decision that a party is estopped to deny the validity of a mining- location. 2 Where a party has claimed a right of. removal to the Federal court, and the trial court has decided adversely he will not have a right of writ of error to the highest State court where he fails to take a proper and timely appeal; 3 or where the appellate court finds that he failed to note an exception to the adverse ruling and so loses a right to have it reviewed.* When the State court treats the Federal contention as abandoned by the party raising it, there is no right of review. 5 A failure to except to refusal to allow amendment of pleading will forfeit a right to review. 6 A State decision declining to pass upon a Federal question be- cause not properly raised below, is not reviewable. v When by the settled State practice the State supreme court is justified in refusing to pass on a Federal question either because not assigned or not argued or urged, there is no right to writ of error.s [j] State decision sustainable on non-Federal ground not reviewable. Since it is a decision against the Federal right or claim and not against the party raising it, that is reviewable, writ of error will not lie where the State decision is sustainable upon non-Federal grounds. Hence where the record shows a Federal and a non-Federal question, and the case was disposed of below on the latter there is no right of review; 9 or if it might isinfra, note.lH sTripp v. Santa Rosa St. R. R. lEustis V. Bolles. 150 U. S. 3G9, 144 IT. s. 130, 36 L. ed. 372. 12 Sup. 37 L. ed. 1111. 14 Sup. Ct. Rep. 131; Ct. Rep. 655. Electric Co. v. Dow, 166 U. S. 492, 4Fashnacht v. Frank, 23 Wall. 419. 41 L. ed. 1088, 17 Sup. Ct. Rep. 645; 23 L. ed. 81. Pierce v. Somerset Rv. 171 U. S. 648, sWeatherbv v. Bowie, 131 U. S. 43 L. ed. 316, 19 Sup. Ct. Rep. 64; ccxv. 25 L. ed. 606. Hale V. Lewis, 181 U. S. 480, 4.5 L. ed. eRiplev v. Illinois, 170 U. 8. 187. 963, 21 Sup. Ct. Rep. 677; Western 42 L. ed.'998, 18 Sup. Ct. Rep. 550. E. Co. V. Abbeville, etc. Co. 197 U. S. 7Erie R. R. v. Purdy, 185 U. S. 154. 299, 49 L. ed. 765, 25 Sup. Ct. Rep. 46 L. ed. 847, 22 Sup. Ct. Rep. 605. 481. SHulbert v. Chicago, 202 U. S. 275, 2Lowry v. Silver City :\I. Co. 179 50 L. ed. 1026, 26 Sup. Ct. Rep. 617. U. S. 198, 45 L. ed. 152, 21 Sup. Ct. sKennebec v. Portland R. R. 14 Rep. 104. Wall. 26, 20 L. ed. 850; Adams Co. v. 222 Procedure] ON WRIT OF ERROR TO STATE COURTS. § 38 Lj] have been so disposed of.io Moreover if the record does not show that the decision below was on the non-Federal ground yet error will not lie if a non-Federal ground is apparent upon which the decision might be rested; 11 so that the decision would have been the same if no Federal question had been raised. 12 The cases go even further and hold that where the decision rests on grounds broad enough to sustain judgment irrespec- tive of the Federal question the Supreme Court will not take jurisdiction though the Federal question was wrongly decided.is And if a decision sustains a State laAv questioned on Federal grounds, error will not lie if the judgment in fact went on another ground which left the statute in- applicable. 1* A hypothetical discussion and adverse opinion on a Federal (juestion give no right to writ of error.is Other cases extract from these ])rinciples the rule that where it does not appear that the case was nec- essarily decided in the State court on the question of Federal cognizance, or that the proposition was essential to the judgment, error will not lie.ifi It results that where there are grounds of local law upon which the State court rests its opinions, the case is not reviewable on error even although the losing party has set up some Federal right or claim.is. So where the State court rests its decision upon general principles of law iiroad enough to determine the case, quite apart from any consideration of the Federal right claimed, there is no such adver.se decision of a Federal Burlington, etc. R. R. 112 U. S. 128, 28 L. ed. 078. 5 Sup. Ct. Rep. 77; Hammond v. Johnston, 142 U. S. 78, 35 L. ed. 941. 12 Sup. Ct. Rep. 141: Dower v. Richards. 151 U. S. 666. 3S L. ed. 305, 14 Sup. Ct. Rep. 452; -Moran v. Horskv. 178 U. S. 208. 44 L. ed. 1039. 20 \Sup. Ct. Rep. 856; Hale V. Lewis. 181 U. S. 484, 45 L. ed. 963, 21 Sup. Ct. Rep. 677: Giles V. Teaslev, 193 V. S. 146. 48 L. ed. 655, 24 Sup. Ct. Rep. 3.59; Leonard V. Vicksburg, etc. R. R. 198 U. S. 416, 49 L. ed. 1108, 25 Sup. Ct. Rep. 750. lOAUen v. Arguimbau, 198 U. S. 149, 49 L. ed. 990. 25 Sup. Ct. Rep. 622. iiRailroad Co. v. Rock. 4 Wall. 181, 18 L. ed. 381; Klinger v. Mis- souri Co. 13 Wall. 263, 20 L. ed. 635: Steines v. Franklin Co. 14 Wall. 23, 20 L. ed. 846: Johnson v. Risk, 137 U. S. 307, 34 L. ed. 683. 11 Sup. Ct. Rep. Ill; Walter A. Wood Co. v. Skinner. 139 U. S. 297, 35 L. ed. 193, 11 Sup. Ct. Rep. 528. i^Williams v. Oliver, 12 How. 125, 13 L. ed. 915. 'SHale V. Akers, 132 U. S. 564, 33 L. ed. 442. 10 Sup. Ct. Rep. 171 : Dela- ware City Co. V. Revbold, 142 U. S. 643, 35 L. ed. 1141, 12 Sup. Ct. Rep. 290; California P. Works v. Davis, 151 U. S. 393, .38 L. ed. 206, 14 Sup. Ct. Rep. 350 ; Pierce v. Somerset Rv. 171 U. S. 648, 43 L. ed. 316. 19 Sup. Ct. Rep. 64; Chappell Chem. C-o. v. Sulphur, etc. Co. 172 U. S. 471, 43 L. ed. 517, 19 Sup. Ct. Rep. 265; Eagan v. Hart. 165 U. S. 191, 41 L. ed. 680. 17 Sup. Ct. Rep. 300. n Missouri, etc. Rv. v. Ferris. 179 U. S. 605. 45 L. ed. 339, 21 Sup. Ct. Rep. 231. i5Central P. R. R. v. California, 162 U. S. 115, 40 L. ed. 903, 10 Sup. Ct. Rep. 766; Smith v. Adsit, 23 Wall. 373, 23 L. ed. 114. isGibson v. Chouteau, 8 Wall. 318. 19 L. ed. 317; Boiling v. Lersner, 91 U. S. 595, 23 L. ed. 366 : Chapman v. Goodnow, 123 U. S. 548. 31 L. ed. 235, 8 Sup. Ct. Rep. 211 ; Powell v. Bruns- wick Co. 1.50 U. S. 440. 37 L. ed. 1134, 14 Sup. Ct. Rep. 100: California P. Works V. Davis. 151 U. S. 393, 38 L. ed. 206, 14 Sup. tt. Rep. 350; Allen v. Arguimbau. 198 U. S. 149, 49 L. ed. 990. 25 Sup. Ct. Rep. 622; Amer- ican Exp. Co. V. Iowa. 196 U. S. 133, 49 L. ed. 417. 25 Sup. Ct. Rep. 1S2. i^Matheson v. Bank of :Mol)ile. 7 How. 261. 12 L. ed. 692; Hender.son 223 § 38 [k] THE SUPREME COURT. [Code Fed. right or claim as will give a right to review on error ;19 even upon the theory that there is a want of due process of law. 20 A State decision rest- ing upon general principles of State public policy as respects a contract is not reviewable;! and it is said that the application by a State court of principles of public policy and estoppel is not reviewable. 2 [k] State decision against validity of Federal treaty or statute. If the State decision upholds the Federal law, writ of error will not lie.* Nor if it merely applies or construes a law without questioning it.s validity. 5 But a State decision against the validity of an act of Congress is reviewable.6 A decision that a state of facts does not bving a party within the terms of an act of Congress, does not deny its vadidity;" nor does a decision which misconstrues it.s An agreement between two States, sanctioned by act of Congress is not a Federal statute in this sense.9 [1] State decision against validity of an authority exercised under the United States. This has generally been deemed to refer to an authority exercised by a public officer of the United States; and the word "authority" is inap- plicable as describing water rights arising upon the public domain, upon compliance with R. S. § 23.39; n or an implied license to occupj'^ public mineral lands. 12 A State decision against the validity of an authority B. Co. V. Henderson, 141 U. S. 689, sisreal v. Arthur, 152 U. S. 362, 38 35 L. ed. 900, 12 Sup. Ct. Rep. 114; L. ed. 474. 14 Sup. Ct. Rep. 583. Chever v. Horner, 142 U. S. 127, 35 ^Roosevelt v. Meyer, 1 Wall. 517. L. ed. 959, 12 Sup. Ct. Rep. 184; 17 L. ed. 500. Yesler v. Washington H. L. Comrs. sCameron v. United States, 146 U. 146 U. S. 657, 36 L. ed. 1119, 13 Sup. S. 536, 36 L. ed. 1077, 13 Sup. Ct. Ct. Rep. 190; Remington P. Co. v. Rep. 184; Kennard v. Nebraska, 186 Watson, 173 U. S. 451. 43 L. ed. 762, U. S. .304, 46 L. ed. 1175, 22 Sup. Ct. 19 Sup. Ct. Rep. 456. See also supra. Rep. 879; Missouri Pac. R. v. Fit<- note.Ccc] gerald, 160 U. S. 576, 40 L. ed. 536. 1 9 West Tennessee Bank V. Citizens' 16 Sup. Ct. Rep. 389. Bank, 13 Wall. 433, 20 L. ed. 514; Ten- ePickering v. Lomax, 145 U. S. nessee Bank v. Bank of Louisiana, 14 314, 36 L. ed. 716, 12 Sup. Ct. Rep. Wall. 10, 20 L. ed. 514; New York 860; Trebilcock v. Wilson, 12 Wall. L. I. Co. V. Hendren. 92 U. S. 287, 692, 20 L. ed. 460. 23 L. ed. 709; United States v. ^Crary v. Devlin. 154 U. S. 619. 23 Thompson, 93 U. S. 589, 23 L. ed. L. ed. 510, 14 Sup. Ct. Rep. 1190. 982; New Orleans v. New Orleans sMontgomerv v. Hernandez, 12 W. Works, 142 U. S. 84, 35 L. ed. 943, Wheat. 132, 6L. ed. 575. 12 Sup. Ct. Rep. 142; Gillis V. Shirch- apeople v. Central, etc. R. R. 12 field, 159 U. S. 600, 40 L. ed. 295, 16 Wall. 456, 20 L. ed. 458. But see as Sup. Ct. Rep. 131. to Virginia compact and act of ad- ?oMarrow v. Brinklev, 129 U. S. mission of Kentucky. Wedding v. 181, 32 L. ed. 654. 9 S\ip. Ct. Rep. Meyler, 192 U. S. 573, 48 L. ed. 570, 267; Sayward v. Denny. 158 U. S. 24 Sup. Ct. Rep. 322. 186, 39 L. ed. 941, 15 Sup. Ct. Rep. uTelluride P. T. Co. v. Rio Grande 777. W. Co. 175 U. S. 645, 44 L. ed. 305, iDelmas v. Insurance Co. 14 Wall. 20 >:5up. Ct. Rep. 247. 066, 20 L. ed. 757; Tarver v. Keach, i2Mining Co. v. Boggs, 3 Wall. 15 Wall. 68, 21 L. ed. 82. 310, 18 L. ed. 245. 224 Procedure J ON WRIT OF ERROR TO STATE COURTS. § 38 [m] derived from the secretary of the treasury is within this clause; is or denying the authority of government ofiicers sued as trespassers on land.i* A State decision against a right to sell liquor under Federal license, is re- viewable on error; 15 so is a State decision against the claim of a United States marshal to property taken from his possession. 1 6 Where a marshal is sued for trespass arising from improper levy of process and justifies under the Federal writ of attachment, decision against that defense is reviewable under this section.!" Admission of land entry in evidence, over objection that it was cancelled by department, does not question de- partmental authority.is But a decision against a deed of Indian lands approved by the President, questions the validity of a Federal authority,! ^ so also a decision against the authority of the Federal district court to make a particular order.2 The act of 1867, which first introduced the provision, found in the present law, as to a right, title or privilege claimed under an "authority exercised under the United States," i broadened the scope of the statute considerably and probably made cases reviewable on error which had been held outside the scope of the clause as to denial of the validity of a Federal authority. 2 The old law did not permit review where the mere existence and not the validity of a Federal authority was denied. 3 There is a plain distinction between a denial of a Federal author- ity and of a right, title, privilege or immunity claimed under it.4 [m] State decisions upholding State law or authority questioned upon Federal grounds. It is well settled that, on error to a State court, the Supreme Court will not adjudge the repugnancy of a State law to the State constitution. 6 The decision of the State court as to the validity of a law under the State constitution, and as to its proper meaning, application and construction.' isNeilson v. Logan. 7 How. 775, zoQ'Brien v. Weld, 92 U. S. 85, 23 12 L. ed. 90S. L. ed. 675. ^Stanley v. Schwalby. 147 U. S. Unfra, note.m 519, 37 L. ed. 269, 13 Sup. Ct. Rep. ^E. g. Mining Co. v. Boggs, 3 Wall. 418. 310, 18 L. ed. 245. isMcGuire v. Cx)m. 3 Wall. 385, 18 „,PpJ^;"g^^ Z' Hartupee, 6 Wall. L. ed. 164. -^-' 1^ L. ed. 829. icni i. T> M -LT Ana ■! Baltimore, etc. R. R. v. Hopkins, leClements v. Berry, 11 How. 408, jg^ ^ g ^j^. 923, 32 L. ed. 913, 9 .r^ '. ., ,u X. o TXT „ o.n ,o Sup. Ct. Rep. 503; Abbotc v. Tacoma ivBuck V. Colbath, 3 Wall. 340 18 ^/^ Bank, 175 U. S. 413, 44 L. ed. L. ed. 257; Ethendge v. S-perry, 139 217, 20 Sup. Ct. Rep. 154. 155 U. S. 267, 35 L. ed. 171, 11 Sup. Ct. eCalder v. Bull, 3 Bail. 392, 1 L. Rep. 565. But there is no review p^ g4g. Pennsvlvania College Cases, wlipre the authoraty of a marshal to 13 Wall. 212 20 L. ed 550- Amey make levy is not questioned. Day v. ^ Mavor, 24 How. 375, 16 L. ed. 614; Oallup, 2 Wall. 106. 17 L. ed. 855. filler v. Cornwall R. R. 168 U. S. isOook Co. V. Calumet, etc. Co. 138 134, 42 L. ed. 409, 18 Sup. Ct. Rep. U. S. 652, 34 L. ed. 1110, 11 Sup. Ct. 34. Rep. 435. 'Commercial Bank v. Buckingham, laPickering v. Lomax, 145 U. S. 5 How. .342, 12 L, ed. 169; Louis-villo. 314, 36 L. ed. 716. 12 Sup. Ct. Rep. etc. R. R. v. Louisville, 166 U. S. 715, 860. 41 L. ed. 1173, 17 Sup. Ct. Rep. 725. Fed. Proc— 15. 225 LuiJ iiK SUl'UKMK COUUT. [Code Fed. will be accepted by the Federal Supreme Court. « R. S. § 709 requires that the validity of the law be challenged upon Federal grounds and that the State decision be adverse to the Federal claim. 9 It will not do to show merely that the statute may be so construed as to violate the constitution.! o If the State court sustain the Federal claim and declare the statute void, no writ of error lies;ii neither will it lie if the State court declines to pass upon the Federal question because not properly raised below, i^ i5ut the fact that the State court was correct in overruling the Federal claim does not defeat the writ.i3 When the invalidity is alleged and directly involved the State court is bound to pass thereon and decision against the contention is reviewable.i* The writ lies in criminal cases challenging a State statute, as well as in civil.is Any State enactment though not by the State legislature, enforced as law in a State, is a law within R. S. § 709 giving writ of error where upheld though challenged on Federal grounds.ifi A confederate enactment adopted and enforced is such a law.i^ But the State law questioned must be an enactment of one of the States of the Union. Territorial laws are not comprehended by the act; is nor the alleged laws of a body not organ- ized or admitted to the Union.is An objection that a legislature is not organized under acts of Congress and the Constitution, is not an objection to the validity of a State law on Federal grounds. 20 A decision upholding a State election law challenged on Federal grounds is reviewable on error; 1 so also is a decision upholding a railroad law com- pelling trains to stop at coiuity seats, when challenged as interference with the transmission of mails; 2 and a decision denying a contention that sNesmitn v. Sheldon, 7 How. 818, 12 L. ed. 925; Gill v. Oliver, 11 How. 546, 13 L. ed. 799; Marshall v. Ladd, 1.31 U. S. xc, 19 L. ed. 153; Glenn V. Garth, 147 U. S. 369. 37 L. ed. 203, 13 Sup. Ct. Rep. 350; Powell v. Brunswick Co. 1.50 U. S 442, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Bacon v. Texas, 163 U. S. 225. 41 L. ed. 132, 16 Sup. Ct. Rep. 1023. See ante, § 12.[h] sWeston v. Citv Council. 2 Pet. 464, 7 L. ed. 481 ; "McKinnev v. Car- roll, 12 Pet. 70, 9 L. cd. 1002; Mc- Pherson v. Blacker, 146 U. S. 23, 36 L. ed. 869, 13 Sup. Ct. Rep. 3. 10 Castillo v. McConnieo. 168 V. S. 680, 42 L. ed. 622, 18 Sup. Ct. Rep. 229. 11 Walker v. Taylor, 5 How. 68, 12 L. ed. 52; Boyd v. Alabama, 94 U. S. 649, 24 L. ea. 302. i2Erie R. R. v. Purdy, 185 U. S. 154, 46 L. ed. 847, 22 Sup. Ct. Rep. 605. 13 Chicago, etc. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681. i4Railroad v. Maryland, 21 Wall. 469, 22 L. ed. 678. i5\vard V. Maryland, 12 Wall. 423, 20 L. ed. 449. 16 Williams v. Bruffv. 96 U. S. 183, 24 L. ed. 716. 17 Ford v. Surget, 97 U. S. 603, 24 L. ed. 1018. isMiners Bank of Dubuque v. Iowa, 12 How. 7, 13 L. ed. 867. ftiate decision upholding territorial law is not covered by R. S. § 709; Mason v. Messenger, 10 Wall. 510, 19 L. ed. 1028. i9Scott V. Jones, 5 How. 378, 12 L. ed. 181. 20 Scott V. Jones, 5 How. 376, 12 L. ed. 181. iMcPherson v. Blacker, 146 U. S. 23, 36 L. ed. 869, 13 Sup. Ct. Rep. 3. 2lllinois C. R. R. v. Illinois. 163 226 ■ Procedure] ON WRIT OF ERROR TO STATE COURTS. § 38 [mm] a State legislature has no power to regulate the duties of a national bank cashier.3 The Fourteenth Amendment has been the basis of a Federal claim in many cases challenging a State law a-s invalid thereunder,* as well as in cases alleging that some proceeding or action of a State or its officers other than a statute, has denied rights arising therefrom.s A State decision that a statute providing ex parte court proceedings in organizing irrigation districts is not a deprivation of property under that Amendment is re- viewable. 6 There seem to be no cases in which review on error has been sought respecting a State decision sustaining an authority exercised imder a State, questioned upon Federal grounds. It has been held that the author- itj^ of a State court to determine its cases is not the authority here re- ferred to. 7 [mm] — statutes alleged to impair obligation of contracts. In many cases claim uas been made in a State court that a statute violat- ed some prior contract right of the party, and the writ will lie if the claim is denied.* although the State court justifies vmder some general rule of law, 9 or declares there never was any valid contract, or any con- tract at all, 10 or that the statute in question has not the effect of violating it.n The impairment must be by some law, not merely by a State decision; 12 and mere refusal of State to perform its contract or dec- U. S. 153, 41 L. ed. 107, 16 Sup. Ct. hamton Bridge, 3 Wall. 72, 18 L. ed. Rep. 1096. 137 ; Home Ins. Co. v. City Council, sWaite v. Dowley, 94 U. S. 532, 93 U. S. 121, 23 L. ed. 825; Williams 24 L. ed. 181. v. Bruffy, 96 U. S. 183. 24 L. ed. ■»Yesler v. W\ishington Harbor L. 716; Illinois C. R. A. v. Chicago, 176 Comrs. 146 U. S. 656, 36 L. ed. 1119, U. S. 656, 44 L. ed. 626, 20 Sup. Ct. 13 Sup. Ct. Rep. 190 ; Covington, etc. Rep. 509; Yazoo, etc. R. R. v. Co. V. Sandford, 164 U. S. 580, 41 L. Thomas, 132 U. S. 184, 33 L. ed. ed. 560, 17 Sup. Ct. Rep. 198; Wheel- 302, 10 Sup. Ct. Rep. 68; New Or- er V. New York, etc. R. R. 178 U. S. leans v. Benjamin, 153 U. S. 424. 38 323, 44 L. ed. 1086, 20 Sup. Ct. Rep. L. ed. 764, 14 Sup. Ct. Rep. 905. 949; Spencer v. Merchant, 125 U. sGiven v. Wright, 117 U. S. 656, S. 358, 31 L. ed. 763, 8 Sup. Ct. Rep. 29 L. ed. 1021. e'^Sup. Ct. Rep. 907; 921; Walston v. Nevin. 128 U. S. lOColumbia Water Power Co. v. 583, 32 L. ed. 544, 9 Sup. Ct. Rep. Street Ry. 172, U. S. 489, 43 L. 192; Tregla v. Undesto Irrig. Dist. ed. 521, 19 Sup. Ct. Rep. 247: 164 U. S. 185, 41 L. ed. 395, 17 Sup. Wilson v. Standefer, 184 U. S. Ct. Rep. 52. 411, 46 L. ed. 612. 22 Sup. Ct. Rap. sinfra, note.[n] 384; Walsh v. Columbus, etc. R. R. «Trogea v. Undesto Irrig. Dist. 164 176 U. S. 476. 44 L. ed. 452. 20 Sup. U. S. 186, 41 L. ed. 395, 17 Sup. Ct. Ct. Rep. 393; University v. People. 99 Rep. 52. U. S. 321, 25 L. ed. 387: [Mobile, etc. 'Betihel v. Demaret, 10 Wall. 540, R. R. v. Tennessee, 153 U. S. -U15, 19 L. ed. 1007. 38 L. ed. 793, 14 Sup. Ct. Rep. \)6S. ^Richmond, etc. R. R. v. Louisiana But see Bacon v. Texas, 163 U. S. R. R. 13 How. 80, 14 L. ed. 55; Piqua 219, 41 L. ed. 1.32. 16 Sup. Ct. 1023. Bank v. Knoop. 16 How. 391, 14 L. uSee ante, S 12.[i] ed. 977: Delmas v. Insurance Co. 14 isRailroad Co. v. Rock, 4 Wall. Wall. 667, 20 L. ed. 757; The Bing- 181, 18 L. ed. 381; Winona, etc. R. R. 227 § 38 [n] THE SUPREME COURT. [Code Fed. laration of intent to violate it, without any actual impairment thereof, is not reviewable.! 3 Where a State decision denies the existence of any con- tract obligation upon grounds independent of the law claimed to impair the same, there is no right to writ of error.i* A State decision at variance with construction given to law by earlier case is not therefore reviewa- ble. 15 A decision admitting the validity of charter tax exemption, but declaring certain property not within the intent of the law, is not re- viewable.! 6 And where the State decision holds no contract ever existed because of failure to comply with original statute, and gives judgment without reference to the alleged impairing contract, error will not lie.i'^ It must appear that the State court gave effect to an impairing statute; i* and has not merely misconstrued an admittedly valid statute. 1 9 But a decision may be actvially in support of an impairing statute and there- fore reviewable without referring to it. 20 ^Vhere there is no impairing statute subsequent to the time the alleged contract arose, there can be no right to writ of error. 1 A decision against the claim that a constitu- tional amendment,2 or a grant of a franchise^ impaired a contract is deemed one upholding a statute challenged on Federal grounds. [n] State decision against a title, right, privilege or immunity claimed under Federal Constitution, treaties or laws — in general. The act of 1867 introduced a change in this clause by substituting the word "immunity" for "exemption."5 In some cases both parties to a suit may claim title under Federal law, and in others what one claims as a right under Federal law may in the converse be asserted by the other as an immunity under that same law. Hence it follows that there V. Plainview, 143 U. S. 39.'?, 30 L. isKreiger v. Shelbv R. R. 125 U. ed. 191. 12 Sup. Ct. Rep. 530; Knox S. 44, 31 L. ed. 675, 8 Sup. Ct. Hep. v. Exchange Bank, 12 Wall. 3S3, 20 752; Bacon v. Texas, 163 'J. S. 219, L. ed. 414; Lehigh W. Co. y. Easton, 41 L. ed. 132, 10 Sup. Ct. Rep. 1023. 121 U. S. 392, 30 L. ed. 1059, 7 Sup. isCentral L. Co. v. Laidley. 159 U. Ct. Rep. 916; St. Paul, etc. Ry. v. S. 109, 40 L. ed. 91, 16 Sup. Ct. Rep. Todd Co. 142 U. S. 287, 35 L. ed. 80. 1014, 12 Sup. Ct. Rep. 281. soMcCullough v. Virginia, 172 U. isBrown v. Colorado, 106 U. S. 98, S. 116, 43 L. ed. 382, 19 Sup. Ct. Rep. 27 L. ed. 132, 1 Sup. Ct. Rep. 175; 134, Plouston, etc. R. R. v. Texas, St. Paul Gas Co. v. St. Paul. 181 U. 177 U. S. 77, 44 L. ed. 680, 20 Sup. S. 151, 45 L. ed. 793, 21 Sup. Ct. Rep. Ct. Rep. 545. 575. iTurner v. Wilkes Co. 173 U. S. i4New Orleans Works v. tiDuisiana, 463, 43 L. ed. 768, 19 Sup. Ct. Rep. S. Co. 125 U. S. 38, 31 L. ed. 607, 8 464. Sup. Ct. Rep. 741. 2Wil]ianis v. Louisiana, 103 U. S. iBHopkins v. McLure, 133 U. S. 380, 639, 26 L. ed. 595. 33 L. ed. 660, 10 Sup. Ct. Rep. 407; sWright v. Nagle, 101 U. S. 794, Bacon v. Texas, 163 U. S. 220, 40 25 L. od. 921. L. ed. 132, 16 Sup. Ct. Rep. 1023. 5 See Murdock v. Memphis, 20 Wall. i6St. Paul, etc. Ry. v. Torld Co. 590. 22 L. ed. 437, where thf nets of 142 U. S. 287, 35 L. ed. 1014, 12 Sup. 1789 and 1867 are compared as to Ct. Rep. 281. this section. iTBacon v. Texas, 163 U. S. 219, 41 L. ed. 132, 16 Sup. Ct. Rep. 1023. 228 Procedure] ON WRIT OF ERROR TO STATE COURTS. § 38 [u] are many case^ under this clause of R. S. § 709, which are reviewable in the Supreme Ckjurt no matter which way the State court decides. 6 In cither event it decides against a Federal right or immunity, and the Supreme Court is enabled to insure a uniform construction of Federal laws. 7 It was early decided that a State case where both parties claim title under an act of Congress is reviewable in the Supreme Court, s The same is true where both parties claim a right under an act of Congress. s Allegation that State decision of an election contest violates guaranty of republican government, gives no right to writ of error where all departments of State government are peacefully operating according to fundamental law.io A State decision that an assessor is not personally liable for damages for erroneous assess- ment of national bank stock raises no Federal question. n It is held also that state injunction against suit in a Federal court involves no Federal ()uestion.i2 Error will not lie to State disbarment decision based upon vituperative language used in a Federal court pleading.is Where the con- tention is that the Federal Constitution, or a Federal treaty, or law, is violated otherwise than by a State law, as, for instance by a contract,i* or court proceeding,! 5 or by some threatened State or municipal acts,i6 the right to review depends upon this clause and not upon the clause re- specting State decisions upholding State laws. 1 7 Where a State court de- nies a Federal right by excluding Africans from a jury, writ of error will lie; 18 as also where a proceeding for street assessment is claimed to be without due process; 1 9 or a State tax on telegraph messages is claimed to 6See McCormick v. Market Nat. Bank, 165 U. S. 538, 40 L. ed. 817, 17 Sup. Ct. Rep. 433. So a State decision sustaining a Federal author- ity may reject a Federal title; Ma- guire V. Tyler, 1 Black, 203, 17 L. ed. 137. A State decision that a carrier has the right to sliift the burden of the war tax to a customer denies the right of the ciistomer under the law t-o have the carrier pav. Amer. Exp. Co. V. Mavnard. 177 U. S. 407, 44 L. ed. 824, 20 Sup. Ct. Rep. 005. ^Matthews v. Zane. 4 Cranch. 383, 2 L. ed. 654. sMatthews v. Zane. 4 Cranch, 383, 2 L. ed. 654; Ross v. Barland, 1 Pet. 664, 7 L. ed. 302; .Mobile v. Eslava, 16 Pet. 242, 10 L. ed. 943; Silver v. Ladd. 6 Wall. 440. 18 L. ed. 828; Wallace v. Parker, 6 Pet. 687, 8 L. ed. 543. 9Buel V. Van Ness. 8 Wheat. 324, 5 L. ed. 624. lOTaylor v. Beckham, 178 U. S. 580, 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009. 11 Williams v. Weaver. 100 V. S. 548. 25 L. ed. 708. i2ln re Craft, 124 U. S. 374, 31 L. 0(1. 449, 8 Sup. Ct. Rep. 509. i3ln re Green, 141 U. S. 326, 35 L. ed. 765, 12 Sup. Ct. Rep. 11. i4Railroad v. Richmond. 15 Wall. 7. 21 L. ed. 118. isHanford v. Da%nes, 163 U. S. 279, 41 L. ed. 157, 16 Sup. Ct. Rep. 1051 : Backus V. Fort Street, etc. Co. 169 U. S. 575, 42 L. ed. 853, 18 Sup. Ct. Rep. 445; Bohanan v. Nebraska, 118 U. S. 231, 30 L. ed. 71, 6 Sup. Ct. Hep. 1049. 16 Walla Walla v. Water Co. 172 U. S. 11, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Taylor v. Beckham, 178 U. S. 575, 44 L. ed. 1199, 20 Sup. Ct. Rep. 890, 1009. 1 "Supra, note.[ni] isNeal V. Delaware. 103 U. S. 393. 20 L. ed. 567. isBellingliam Bav, etc. Co. v. New Whatcom, l/:i U. S."317, 43 L. ed. 460, 19 Sup. Ct. Rep. 873. 229 § 38 [nn] THE SUPREME COURT. [Code Fed. violate a Federal law. 20 Writ of error has also been held allowable where the decision was adverse to contentions based upon the Federal commerce power; 1 or upon the war power and its exercise; 2 or adverse to a right of removal claimed; 3 or adverse to a claim of Federal citizenship.^ [nn] Decisions against Federal light privilege or immunity, in general. A State decision adverse to a right to sell liquor asserted under Federal revenue license is against a Federal right and reviewable on error; 6 so also is a decision against an immunity conferred by act of Congress;'' and adverse to an exemption from liability claimed under the Federal Constitu- tion ;S and against a right derived from act of Congress and the decision of the land department; 9 and adverse to a Federal receiver's contention that he is privileged from suit in the State court; 10 and adverse to the conten- tion that United States obligations are not taxable.n Rights and immu- nities claimed under revenue laws and denied by a State decsion create a right to writ of error. 12 A State decision against a right to damages for libelous matter in a Federal court pleading, is reviewable because against a Federal right, where the decision is claimed to be a deprivation of plain- tiff's property right to his reputation. 1 3 A State decision that a munici- pality authorized to borrow "money" exceeded its powers by promising to pay "in gold coin of the United States," has been held to deny a right claimed undt" the Federal Constitution and laws.i* A decision denying riparian rights under a Federal grant is reviewable on error.is A State 20 Western U. T. Co. v. Alabama, to be a citizen of a certain State. 132 U. S. 473, 33 L. ed. 409. 10 Sup. Hunt v. Hunt, 131 U. S. CLXVI, 24 Ct. Rep. 161. L. ed. 1109. iHennington v. Georgia, 163 U. S. cMcGuire v. Com. 3 Wall. 385, U 302. 41 L. ed. 106, 16 Sup. Ct. Rep. L. ed. 164. 1086: Edwards v. Elliott. 21 Wall. ^Stewart v. Kahn, llWall. 502, 20 550. 22 L. ed. 487. L. ed. 176. 2 Mathews v. MeStea, 20 Wall. 649, sDaniels v. Tearney, 102 U. S. 22 L. ed. 448; Bond v. Moore, 93 U. 418, 26 L. ed. 187. S. 594, 23 L. ed. 983. sCunningliam v. Ashley, 14 How. sKanouse v. IMartin, 14 How. 24, 389, 14 L. ed. 462. 14 L. ed. 310; Oaklev v. Goodnow, 118 lOMcNulta v. Loekridge. 141 U. S. U. S. 44, 30 L. ed. 61, 6 Sup. Ct. Rep. 331. 35 L. ed. 796, 12 Sup. Ct. Rep. 11. 944; Missouri P. Ry. v. Fitzgerald, nBanKS v. Mayor, 7 Wall. 22, 19 160 U. S. 582, 40 L. ed. 536, 16 Sup. L. ed. 57. Ct. Rep. 389; Missouri, etc. Ry. v. i2The Collector v. Hubbard, 12 Commissioners, 183 U. S. 58. 46 L. Wall. 9. 20 L. ed. 272; Hall v. Jordan, ed. 78, 22 Sup. Ct. Rep. 18. But 15 Wall. 395, 21 L. ed. 72; Ruckman error will not lie where adverse rul- v. Bergholz, 131 U. S. CXLIV., 23 ing not excepted to; Fashracht v. L. ed. 1008. Frank, 23 Wall. 419, 9S L. ed. 81; isAbbott v. Tacoma Nat. Bank. 175 or where no appeal to the State su- U. S. 413, 44 L. ed. 217, 20 Sup. Ct. preme court was prosecuted. Tripp Rep. 153. V. Santa Rosa St. R. R. 144 U. S. 1 4 Woodruff v. Mississippi. 162 U. 130. 36 L. ed. 372, 12 Sup. Ct. Rep. S. 299, 40 L. ed. 973, 16 Sup. Ct. Rep. 655. 820. 4Boyd V. Nebraska. 143 U. S. 161, is French-Glenn Co. v. Springer, 36 L. ed. 103, 12 Sup. Ct. Rep. 375. 185 U. S. 53, 46 L. ed. 800, 22 Sup. But not where State decides a party Ct. Rep. 563. 230 Procedure] ON WRIT OF ERROR TO STATE COURTS. § 3S [o] decision is reviewable if adverse to the sufficiency of Federal confiscation proceedings ; 1 'i' and against a water right claimed under act of Congress and contract with government ; i « and against a right of action or defense based upon an act of Congress ;i9 or a claim depending upon an act of Con- gress; 20 or a mortgage priority by recording lien against vessel; 21 or a right based on contract with the United States. 2 2 A State decision con- forming to a compromise of the parties, but contrary to the Supreme Court's decision on error will not be deemed a denial of a Federal right. 2 3 Discretionary refusal of liquor license violates no Federal right. 2 4 Refusal of State court to acquiesce in circuit court decision, is no ground for er- ror. 2 5 One alleging himself the owner of land for thirty years does not set up any Federal title, right, privilege or immunity.2 6 A State court deciding against a corporation created under Federal laws does not nec- essarily decide against a Federal right or immunity.i Construction of an agreement to procure a railroad right of way over public lands does not involve a decision against a Federal right. 2 [0] Decisions denying full faith and credit. In a number of cases the Federal right claimed and denied in the State court has been based on the clause requiring State courts to accord full faith and credit to judgments of sister States.* Error will not lie where the State judgment does not deny full faith and credit; 5 or where the judgment set up is that of a foreign country; 6 or where the decision merely iTPhoenix Bank v. Risley, 111 U. 146 U. S. 054. 36 L. ed. 1119, 13 Sup. S. 126, 28 L. ed. 374. 4 Sup. Ct. Rep. Ct. Rep. 190. 322. iTexas, etc. Ry. v. Johnson, 151 isGreen Bav, etc. Co. v. Potter P. U. S. 98, 38 L. ed. 81, 14 Sup. Ct. Co. 172 U. S.' 66, 43 L. ed. 304, 19 Rep. 250. Sup. Ct. Rep. 97. 2]\li.ssouri Pac. R. R. v. Fitzgerald, isAnderson v. Carkins. 135 U. S. 160 U. S. 577. 40 L. ed. 536, 16 Sup. 486, 34 L. ed. 272, 10 Sup. Ct. Rep. Ct. Rep. 389. 905. 4 Green v. Van Buskirk, 5 Wall. 20Talbot V. First Nat. Bank, 185 310, 18 L. ed. 599; Carpenter v. U. S. 180, 46 L. ed. 857, 22 Sup. Ct. Strange, 141 U. S. 103, 35 L. ed. 640, Rep. 612. 11 Sup. Ct. Rep. 960; Winona, etc. 21 Walton V. Cotton. 19 How. 356, R. R. v. Plainview, 143 U. S. 390, 15 L. ed. 658; Aldrich v. Aetna Ins. 36 L. ed. 191, 12 Sup. Ct. Rep. 530; Co. 8 Wall. 495, 19 L. ed. 473. Huntington v. Attrill, 146 U. S. 606, 22Green Bav Co. v. Patten P. Co. 36 L. ed. 1123, 13 Sup. Ct. Rep. 224; 172 U. S. 66, '43 L. ed. 364, 19 Sup. Hancock Xat. Bank v. Farnum. 176 Ct. Rep. 97. U. S. 642, 44 L. ed. 620, 20 Sup. Ct. 23Mills Co. v. Chicago, etc. R. R. Rep. 506; Jacobs v. :\larks, 182 U. S. Co. 107 U. S. 567, 27 L. ed. 578, 2 587, 45 L. ed. 1244. 21 Sup. Ct. Rep. Sup. Ct. Rep. 654. 865: Hollander v. Feckhein:er, 162 U. 24Crowley v. Christensen, 137 U. S. 325, 40 L. ed. 985. 10 Sup. Ct. Rep. S. 94, 34 L. ed. 620, 11 Sup. Ct. Rep. 795; Crapo v. Kelly, 10 Wall. 021, 21 13. L. ed. 430. 25Winona, etc. R. R. v. Plainview, sLynde v. Lvnde, 181 U. S. 186, 143 U. S. 390, 36 L. ed. 191, 12 Sup. 45 K ed. 814, 21 Sup. Ct. Rep. 555. Ct. Rep. 530. 6Roth v. Ehman, 107 U. S. 319, 27 26Yesler v. Washington H. L. Com. L. ed. 499, 2 Sup. Ct. Rep. 312. 231 § 38 [p] THE SUPREME COURT. [Code Fed. construes and does not denyJ No Federal law or constitutional right is aliected by a State court's decision as to the conclusiveness of a prior judg- ment in the same State. « Where a State court fails to give effect to a valid Federal judgment, error will lie.9 But there is no right of review where the State decision is in favor of the circuit court's jurisdiction in another case;lo or where the Federal judgment was not between the same parties.il A decision that a matter was first res adjudicata in the State court does not deny effect to a Federal decree. 12 [p] — decision against Federal titles. In many cases writ of error has been allowed to review State decisions adverse to land titles claimed under United States patent;i* or adverse to entry of land allowed by land department; is or against the title of the United States as proprietor; I6 or against title conferred by Federal government; 17 or adverse to other rights claimed under Federal land laws.is But State decisions respecting titles derived from Mexican grants, where no Federal law is involved; are not reviewable.! 9 A State decision adverse to title to personalty derived from Federal execution sale; 20 or TBa.n'holzor v. New York L. I. Co. 178 U. S. 40G, 44 L. ed. 1126, 20 Sup. Ct. Rep. 972. sSan Francisco v. It^J'^U. 133 U. S. 6fi, 33 L. ed. 570, 10 Sup. Ct. Rej. 241 ; California v. Holladay, 159 U. S. 417, 40 L. ed. 202, 16 Sup. Ct. Rep. 53 ; Phenix F. Ins. Co. v. Tennessee. 161 U. S. 184, 40 L. ed. 660, 16 Sup. Ct. Rep. 471 ; Newport L. Co. v. New- port, 151 U. S. 539, 38 L. ed. 259, 14 Sup. Ct. Rep. 429. 9Embry v. Palmer, 107 U. S. 9, 27 L. ed. 346, 2 Sup. Ct. Rep. 25; Crescent L. S. Co. v. Butchers Union, etc. Co. 120 U. S. 146, 31 L. ed. 614, 7 Sup. Ct. Rep. 472; Central Nat. Bank v. Stevens, 169 U. S. 460. 42 L. ed. 807, 18 Sup. Ct. Rep. 403; Pen- dleton V. Russell, 144 U. S. 644, 36 L. ed. 574, 12 Sup. Ct. Rep. 743; Dowell V. Applegate, 152 U. S. 346, 38 L. ed. 463, 14 Sup. Ct. Eep. 611; Werlein v. New Oneans, 177 U. S. 396, 44 L. ed. 817, 20 Sup. Ct. Rep. 682. 10 Abbott V. Tacoma Bank of Com- merce, 175 U. S. 412, 44 L. ed. 217, 20 Sup. Ct. Rep. 153. iiGiles V. _bittle. 134 U. S. 649, 33 L. ed. 1062, 10 Sup. Ct. Rep. 623. i2Northern Pac. R. R. v. Ellis, 144 U. S. 465, 36 L. ed. 504, 12 Sup. Ct. Rep. 724. 14 Bell V. Hearne, 19 How. 263, 15 L. ed. 614; Cousin v. Labatut, 19 How. 207, 15 L. ed. 601; Reicliart V. Felps, 6 Wall. 165, 18 L. ed. 849; Johnson v. Trosley, 13 Wall. 80, 20 L. ed. 485; Baldwin v. Stark, 107 U. S. 464, 27 L. ed. 526, 2 Sup. Ct. Rep. 473; Doolan v. Carr, 125 U. S. 620, 31 L. ed. 844, 8 Sup. Ct. Rep. 1228; Shively v. Bowlby, 152 U. S. 9; 38 L. ed. 331, 14 Sup. Ct. Rep. 548. isLytle V. Arkansas, 22 How. 203, 16 L. ed. 306. lestanley v. Schwalby, 162 U. S. 278, 40 L. ed. 960, 16 Sup. Ct. Rep. 754. i"Berthold v. McDonald, 22 How. 339, 16 L. ed. 318. isMoore v. Robbins, 96 U. S. 531, 24 L. ed. 848; Hussman v. Durham, 105 U. S. 147, 41 L. ed. 664, 17 Sup. Ct. Rep. 253; Minnesota v. Bachilder, 1 Wall. 116, 17 L. ed. 551; Northern Pac. R. R. V. Colburn, 164 U. S. 386, 41 L. ed. 479, 17 Sup. Ct. Rep. 98. isKennedy v. Hunt, 7 How. 593, 12 L. ed. 829 ; San Francisco v. Scott, 111 U. S. 769. 28 L. ed. 593, 4 Sup. Ct. Rep. 6S8; Phillips v. Mound uity Assn. 124 U. S. 611, 31 L. ed. 588, 8 Sup. Ct. Rep. 657; California Pow- der Wks. v. Davis, 151 J. S. 395, 38 L. ed. 206, 14 Sup. Ct. Rep. 350. 2 0Gregorv v. McVeigh, 23 Wall. 307, 23 L. ed. 156. 232 il Procedure] ON WRIT OF ERROR TO STATE COURTS. § -.iS Ipl depending upon act of Congress,2i is reviewable. It is immaterial whether a State denies validity to a Federal title upon a question of fact or one of law.2 2 If a title set up under Federal laws is rejected, the writ will lie, even though the decision rejecting the title does so by sustaining an authority exercised by the surveyor general.2 3 A State decision deny- ing riparian rights under a Federal grant gives right to wTit of error.2 4 A State decision upon land titles involving only the State land laws is not reviewable.! Neither is a decision in an action to correct a name in a Fed- eral confirmation of title. 2 A State decision against a particular survey is not against a Federal grant where the act of Congress respecting the grants recognized their validity but not the validity of any particular survey.s A decision refusing prohibition against State harbor commis- sioners improperly locating harbor lines, is not against any Federal right or title or littoral owners. < The crop raised on land by pre-emptors' labor and expense does not affect a que.stion of title. 5 Decision that the statute of limitations runs from accrual of right to patent and not from issuance violates no Federal right or title; 6 neither does the converse holding." The question whether a Federal survey would constitute a technical evic- tion so as to justify suit, is not Federal. s No Federal question can be deemed involved in a suit to recover purchase price paid at tax sale, from fact that exemption of such property from taxation is of Federal origin.!" A partition suit between parties who have taken patent from the United States as tenants in common, is not reviewable; lo nor a boundary dispute between patentees.il Nor is a controversy between parties claiming from a common grantor whose title from the United States is not disputed.i2 And a State decision refusing to aid either of two claimants to land which the Supreme Court has declared belongs to the United States, is not review - 2iAtherton v. Fowler, 91 U. S. 145, sMartin v. Thompson, 120 U. S. 23 L. ed. 2G5. 376, 30 L. ed. 679, 7 Sup. Ct. Rep. 2 2Lytle V. Arkansas, 22 How. 193, 586. 16 L. 'ed. 306. eDibble v. Bellingham Bay, etc. Co. 23Maguire v. Tyler, 1 Black, 203, 163 U. S. 73, 41 L. ed. 72, 16 Sup. Ct. 17 L. ed. 1.37. Rep. 939. 2 < French-Glenn Co. v. Springer, 185 ^Carothers v. Mayer, 164 U. S. U. S. 53, 46 L. ed. 800, 22 Sup. Ct. .327, 41 L. ed. 453, 17 Sup. Ct. Rep. Rep. 563. 106. iGalvp«ton, etc. Rv. v. Texas, 170 sReene v. Clark, 10 Pet. 292. 9 L. U. S. 241, 42 L. ed. 1017, 18 Sup. (^t. ed. 429. Rep. 603; Michigan v. Flint, etc. R. sTyler v. Cass Co. 142 U. S. 291, R. 152 U. S. 368, 38 L. ed. 478, 14 35 L. ed. 1016, 12 Sup. Ct. Rep. 225. Sup. Ct. Rep. 586: Shaffer v. Sard- loDownes v. Scott, 4 How. 502, 11 day, 19 How. 21, 15 L. ed. 592: Cook L. ed. 1075. Co. V. Calumet, etc. Co. 138 U. S. 651, nMoreland v. Page, 20 How. 523, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435. 15 L. ed. 1009: Lanfcar v. Hunley, 4 2Carpentcr v. vVilliams, 9 Wall. Wall. 209, 18 L. ed. 325: Sweringen 780. 19 L. ed. 827. v. St. Louis, 185 U. S. 45, 4<3 L. ^ed. 3McDonough v. Millandon, 3 How. 795. 22 Sup. Ct. Rep. 569. 707, 11 L. ed. 787. i2Romie v. Casanova, 91 U. S. 381, or against any other claim si-t up under the baakrupt lawjH or against a title based on such law;i2 oj against a claim of immunity set up by a bankrupt under his discharge.is But the legal effect of a new promise to pay after discharge,! 5 or of pre- sentation of a check as an equitable transfer two months before bank- ruptcy; is or the question whether a bankrupt is really trustee for a client as to certain property,!" or has no title to property in question,i8 have all been held to give no right to review on error to a State court. is A State court's decision as to what should be deemed sufficient evidence of fraud in a conveyance or its application of the rule laid down to the facts of the case at hand, gives no right to Federal review where no Fed- eral right, title or privilege is denied.2 A decision in favor of the im- munity claimed under a bankruptcy discharge is not reviewable.2i A State decision refusing to set aside a bankruptcy discharge because of laches, does not deny a Federal right. 2 2 [t] — under patent laws. A State decision merely construing and enforcing a contract respecting U. S. 468, 37 L. ed. 509. 13 Sup. Ct. S. 453, 30 L. ed. 462, 7 Sup. Ct. Rep. 650. Rep. 281; Palmer v. Hussev, 119 U. sSeneca Nation v. Christv, 162 U. S. 98. 30 L. ed. 362. 7 Sup.' Ct. Rep. S. 289. 40 L. ed. 970, 16 "Sup. Ct. 158; Robv v. Colehorn, 146 U. S. 160, Rep. 828. 36 L. ed' 922, 13 Sup. Ct. Rep. 47. fiCiill V. Oliver, 11 How. 547, 13 But see Smallev v. Langomour, 19o L. ed. 799. U. S. 93, 49 L.'ed. 400, 25 Sup. Ct. 7McDonough v. Willandon, 3 How. Rep. 216. 707, 11 L. ed; 787. i5Linton v Stanton, 12 How. 426, loSharpe v. Doyle, 102 U. S. 688, 13 L. ed. 1050. 26 L. ed. 277; Factors Ins. Co. v. leBoatmans Bank v. State Sav. Murphy. Ill U. S. 741. 28 L. ed. 582, Assn. 114 U. S. 268, 29 L. ed. 174, 4 Sup. Ct. Rep. 679. 5 Sup. Ct. Rep. 878. uMays V. Fritton. 131 U. S. CXV., iTRoby v. Colehour, 146 U. S. 21 L. ed. 127; Williams v. Heard, 140 161, 30 L. ed. 922, 13 Sup. Ct. Rep. U. S. 535, 35 L. ed. 550, 11 Sup. Ct. 47. Rep. 885; Dushane v. Beall. 161 U. isScott v. Kellv, 22 Wall. 59, 22 S. 518. 40 L. ed. 791, 16 Sup. Ct. Rep. L. ed. 729. 637; Jenkins v. Loewenthal, 110 U. i9MeKerina v. Simpson, 129 U. S. S. 222. 28 L. ed. 129. 3 Sup. Ct. Rep. ,511, 32 L. ed. 771, 9 Sup. Ct. Rep. 638; Trallo v. Clews, 115 U. S. 534, 365. 29 L. ed. 467, 6 Sup. Ct. Rep. 155. 2 0Strader v. Baldwin, 9 How. 262, i2New Orleans, etc. R. 11. v. Dela- 13 L. ed. 130. ware. 114 U. S. 506. 29 L. ed. 244 2iSee vSmallev v. Langcnour, 196 5 Sup. Ct. Rep. 1009. U. S. 93, 49 L.' ed. 400, 25 Sup. Ct. isDiniock v. Revere C. Co. 117 U. Rep. 216, also note. 20. S. 564. 29 L. ed. 994, 6 Sup. Ct. Rep. 2 2Calcote v. Stanton, 18 How. 245, 8.55; Winchester v. Heiskell, 119 U. 15 L. ed. 348. 235 § 38 [u] THE SUPREME COURT. [Code Fed. a patent, 1 or rescinding such a contract,2 or deciding between two claim- ants to ownership of a patent and that one of them is estopped,3 is not reviewable on error where no question is made of any right, title or im- munity under the patent laws. 4 The question when a case is deemed to arise under the patent laws is elsewhere discussed. 5 [u] — decisions under national bank laws. A State court's decision that the making of a lease was not permissible *.s an incidental preliminary matter which a national bank is authorized V) do before receiving its authorization to do business from the comp- troller, is reviewable on error.T So also is a decision where powers of a national bank are called in question; 8 or an exemption claimed under the national bank law; 9 or a liability to pay notes issued while national bank was a State bank;!") or a liability to pay assessment on savings bank stock on ground of ultra vires, n But there is no right to writ of error to review a decision allowing an exemption claimed; 12 nor where a case involves merely questions gov- erned by the laws of a State and no right, title or immunity under the national bank laws, such, for instance, as the validity of gift of bank shares; 13 or whether funds in a bank's hands belong to plaintiff; l* or whether transferee of shares is liable for failure to fill in an indorsement in blank of the shares. 1 5 A State decision refusing to en- force a usurious contract of a national bank involves no Federal ques- tion; is nor one holding that claim for breach of lease is an existing claim against a bank at time of insolvency.!'? iMarsh v. Nichols, 140 U. S. 354, lOMetropolitan Nat. Bank v. Clag- 35 L. ed. 417, 11 Sup. Ct. Rep. 798. get, 141 U. S. 526, 35 L. ed. 841, 2Wade v. Lawder. 165 U. S. 627, 12 Sup. Ct. Rep. 60. 41 L. ed. 851, 17 Sup. Ct. Rep. 425. nCalifornda Nat. Bank v. Kenne- sPittsburgh, etc. Co. v. Cleveland, dy, 167 U. S. 300, 42 L. ed. 198, 17 etc. Co. 178 U. S. 279, 44 L. ed. 1068, Sup. Ct. Rep. 831. 20 Sup. Ct. Rep. 931. i2Bank of Commerce v. Tennessee, nVade V. Lawder, 165 U. S. 627, 161 U. S. 145, 40 L. ed. 645, 16 Sup. 41 L. ed. 851, 17 Sup. Ct. Rep. 425; Ct. Rep. 456. Pratt V. Paris Gas Co. 168 U. S. 259, isLeyson v. Davis, 170 U. S. 39, 42 L. ed. 458, 18 Sup. Ct. Rep. 62. 42 L. ed. 939, 18 Sup. Ct. Rep. 500. 5 See ante § 15; post § 120. k Capital Bank v. First Nat. Bank nicCormick v. Market Nat. Bank, of Cadiz. 172 U. «. 432, 43 L. ed. 502, 165 U. S. 538, 41 L. ed. 817, 17 .sup. 19 Sup. Ct. Rep. 202. Ct. Rep. 433; Seeberger v. McCor- isLe Sassier v. Keimedy, 123 U. S. mick, 175 U. S. 278, ^4 L. ed. 161, 524, 31 L. ed. 262, 8 Sup. Ct. Rep. 20 Sup. Ct. Rep. 128. 244. sSwope V. Leffingwell, 105 U. S. leUnion Nat. Bank v. Louisville, 4, 26 L. ed. 939; California Nat. Bank etc. Ry. 163 U. S. 331, 41 L. ed. 177, V. Kennedy, 167 U. S. 365, 42 L. ed. 16 Sup. Ct. Rep. 1039. 198. 17 Sup. Ct. Rep. 831. 1 7 Chemical Bank v. Hartford, etc. 9Logan Co. Bank v. Townsend, 139 Co. 161 U. S. 10, 40 L. ed. 595, 16 U. S. 72, 35 L. ed. 107, 11 Sup. Ct. Sup. Ct. Rep. 439. Rep. 496. 236 Procedure] FROM CIRCUIT COURT OF APPEALS. S 39 [a] [v] State decision against a title, right, privilege or immunity claimed under a Federal commission or authority. The act of 1867 substituted the word '•immunity" for '-exemption" in this clause, and added after "commission" the words "or authority exer- cised under" the United States.20 A State decision declaring a liability for attorney's fees on Federal injunction bond is reviewable on error, where it is contended that by the Federal practice an attorney fee is not an ele- ment of damages. 21 Denial by a State court of a claim that a proceeding was barred by an order of the circuit court, is reviewable on error. 2 2 But it is not a denial of a Federal right for a State court to proceed with a cause over which the circuit court has refused jurisdiction. 2 3 Where a Federal attachment suit has been abandoned, a State court's decision that it had control of the property garnished, involves no Federal question.2 4 A decision against a claim that Federal foreclosure proeeedings had dis- charged a lien, is against a right claimed under Federal authority; 25 so also is a decision against the validity of Federal execution sale.2 6 § 39. From circuit court of appeals. In all cases not hereinbefore, in this section, made final [i. e. in cases appealable to the circuit court of appeals other than 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, and other than cases arising under the patent laws, under the revenue laws, and under the criminal laws, and other than admiralty cases ^] there shall be of right an appeal or writ of error or review of the case by the Su- preme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs. Part of § 6 act March 3, 1891, c. 517, 26 Stat. 828, U. S. Comp. Stat. 1901, p. 550. [a] Cross references to other parts of the section. Other portions of § 6 confer upon the circuit court of appeals a certain appellate jurisdiction over district and circuit courts; 3 authorize the cer- 20Oompare the two in Murdock v. 160 U. S. 582, 40 L. ed. 536, 16 Sup. Memphis, 20 Wall. 590, 22L. ed. 437. Ct. Kep. 389. 2iTullock v. Mulvane, 184 U. S. s^Iissouri Pac. Ry. v. Fitzgerald, 504, 46 L. ed. 663, 22 Sup. Ct. Rep. 160 U- S. 578, 40 L. ed. 536, 16 Sup. 372; Missouri, etc. Ry. v. Elliott, Ct. Rep. 389. 184 U. S. 539, 46 L. ed. 673, 22 Sup. , "^^"So'f^'c^^^A^-^'.,^; ""-^ /,«• Ct Rpn dxa ' f ^^^ Q^ J 72 U. S. 507, 43 L. ed. 528. ■ ^^' 19 Sup. Ct. Rep. 238. 2 2Texas, etc. Ry. v. Johnson, 151 2 6Erwin v. Lowry, 7 How. 179, 12 U. S. 99, 38 L. ed. 81, 14 Sup. Ct. l_ ed. 655. I^«P- 250. 1 See post, § 77. 2»Missouri Pac. Ry, v. Fitzgerald, sPost, § 77. 237 § 39 [b] THE SUPREME COURT. [Code Fed. tifying of questions to the Supreme Court ;^ and provide for review of the circuit court of appeals decisions by certiorari from the Supreme CJourt at the discretion of the latter. 5 [b] Scope of appellate jurisdiction under this section. It is obvious that appellate jurisdiction conferred on the Supreme Court by this section is to be determined by ascertaining the extent of the ap- pellate jurisdiction granted to the circuit court of appealss and eliminating therefrom the cases made final in that court. f Cases arising under laws of the United States other than the patent, revenue, admiralty or criminal laws, involving the construction but not the validity of such laws, would seem to be the chief class of cases in which an appeal lies to the Supreme Court from the circuit court of appeal, s There are certain cases in which the aggrieved party has a choice of appeal to the circuit court of ap- peals or to the Supreme Court direct. 9 As cases to which a Federal corporation is party are deemed to arise under the Federal laws, they are appealable from the circuit court of appeals to the Supreme 'Coui't, although in no other respect involving a Federal question or law.io So an action to which a national bank re- ceiver appointed by the comptroller, is party, is one arising under Federal laws and thus cognizable in the Supreme Court ; 1 1 and an action against a Federal marshal for acts officially done by him, even though other parties were joined as to whom jurisdiction rested upon diverse citizenship ;12 and an action for infringement of a trademark under the act of 1881. u Appeal lies to the Supreme Court from the circuit court of appeals in an action involving the interpretation of "mineral lands" excepted from a railroad land grant ;i* also in a suit to cancel a patent as that is not deemed to arise under the patent laws or to be therefore finally cognizable in the circuit court of appeals. is But an action upon common law right of literary property and not under the copyright laws is not appealable from the circuit court of appeals. 1 6 Even though a suit is one arising under the patent or revenue laws and ordinarily final in the circuit court* of appeals, yet if, in plaintiff's original statement of his case, it also shows a constitutional question of the kind appealable direct from the circuit to the Supreme Court,!^ the circuit court of appeals judgment may * 4Post, § 40. i2Sonnentheil v. Christian, etc. Co. BPost, § 41. 172 U. S. 401, 43 L. ed. 492, 19 Sup. ePost, § 77. Ct. Rep. 233. 7Post, § 77.[&] isWarnerv. Searle, etc. Co. 191 U. ^Florida, etc. R. R. v. Bell. 176 U. S. 195, 48 L. ed. 145, 24 Sup. Ct. S. 327, 44 L. ed. 490, 20 Sup. Ct. Rep. Rep. 79. 399. i^Northern Pac. Ry. v. Soderberg. 9 See post, § 42.[d]-[dd] 188 U. S. 526. 47 "L. ed. 575, 23 lONorthern Pac. R. R. v. Amato, Sup. Ct. Ren. 365. 144 U. S. 472. 36 L. ed. 506, 12 Sup. i5United States v. American B. T. Ct. Rep. 740; Union Pac. Ry. V. Har- Co. 159 U. S. 554, 40 L. ed. 255, Tis, 158 U. S. 327, 39 L. ed. 1003, 16 Sup. Ct. Rep. 69. 15 Sup. Ct. Rep. 843. isPress Port Co. v. Monroe, 164 iiAuten V. United States Nat. U. S. 105, 41 L. ed, 367, 17 Sup. Ct. Bank, 174 U. S. 141. 43 L. ed. 920, Rep. 40. 19 Sup. Ct. Rep. 628. ivPost, § 42. 238 Procedure] FROM CIRCUIT COURT OF APPEALS. § ;;:i [i : be appealed to the Supreme Court.is This is only so, however, if the con- stitutional question relied on to sustain the second appeal is decided against appellant and not in his favor.is A controversj'^ between a citizen and a foreign state not being made final in the circuit court of the United States, may go to the Supreme Court.20. A habeas corpus case is not one in which the matter in controversy has a money value ;i and where the case is such that appeal j^roperly lay from the circuit court to the circuit court of appeals, it is not again appealable to the Supreme Court. 2 Suits against the United States brought in the circuit court are in the absence of special constitutional or jurisdictional questions, of the class appealable first to the circuit court of appeals. 3 LcJ Cases made final in the circuit court of appeals. A suit to limit liability of shipowners is deemed an admiralty cause and final in the circuit couit of appeals; 6 so also is a suit to review an appraiser's decision, because arising under the revenue laws." If, originally as shown by the original pleadings, the jurisdiction depended entirely on diverse citizenship, no api>eal can lie from the circuit court of appeals to the Supreme Court, s In such a case if a constitutional question arose at the trial permitting appeal direct to the Supreme Court, yet if the party has elected to go to the circuit court of appeals its decision is final, and he cannot then appeal on the constitutional question to the Supreme Court.!> And where the Federal question arising is not such as to permit a direct ap- peal from the circuit to the Supreme Cotirt judgment is final in the circuit court of appeals notwithstanding the Fetleral question. 10 Where plaintiff relied on general principles of law and nowhere asserts a right that would isSpreckels S. R. Co. v. McClain, eQregon R. R. Co. v. Balfour, 179 192 U. S. 409, 48 L. ed. 499, 24 Sup. U. S. 56, 45 L. ed. 84; 21 Sup. Ct. Ct. Rep. 376. Rep. 28. isEmpire. etc. Co. v. Hanley, 198 "Anglo California Bank v. United U. S. 292. 49 L. ed. 1056, 25 Sup. States, 175 U. S. 37, 44 L. ed. 64, 20 Ct. Rep. 691. Sup. Ct. Rep. 19. 20Columbia v. Cauca Co. 190 U. S. *Ex parte Jones, 164 U. S. 691, 524, 47 L. ed. 1159, 23 Sup. Ct. Rep. ^ L. ed. 601, 17 Sup. Ct. Rep. 222; 704 Pope V. Louisviiie, etc. Rv. 173 U. licrf, .r Tvr^ffiff n- TT Q ^«7 S. 573, 43 L. ed. 814, 19 Sup. Ct. iKurtz V. MofBtt, 11» U. S. 48/, ' p , , x ' p 4, , 29 L. ed. 458, 6 Sup. Ct. Rep. 148; f-^■^Jl.,ooo■^r^^nin^l Whitney V. Dick. 202 U. S. 132, 50 L. ^^^ ^r, r, ' ?^ \ ' ed.963,'26Sup. Ct.Rep.584. f,T ?-o ?t% fn'« ^nT™T'ioQ- !)T r. T> ri \ A <^4. ^ lAi Idler, lo9 U. S. 408, 40 L. ed. 199, .^\^\9\f^^\^]^'^'\ff^''' If;^ 16 Sup. Ct. Rep. 34; Spencer v. Du- U. S. 4^, 36 L. ed. 344. 12 Sup. Ct. j^^ 5*5,^ Co. 191 U. S. 526, 48 L. ed. Rep. o\i. See infra, note.M 287. 24 Sup. Ct. Rep. 174. See also 30gden v. United Stj^tes, 148 U. S. § 77. [p} 390, 37 L. ed. 493, 13 Sup. Ct. Rep. !>Carv Mfg. Co. v. Acme, etc. Co. 602; United States v. Coundert, 73 i87 U.'S. 427, 47 L. ed, 244, 23 Sup. Fed. 505, 19 C. C. A. 543; United ct. Rep. 211. States V. Harsha, 172 U. S. 567, 43 lOThinl St. Ry. v. Lewis, 173 U. L. ed. 556, 19 Sup. Ct. Rep. 294; S. 457, 43 L. ed. 766, 19 Sup. Ct. United States v. American B. Tel. Co. Rep. 451 ; Avres v. Polsdorfer, 187 159 U. S. 548, 40 L. ed. 255, 16 Sup. U. S. 585, 47 L. ed. 314, 23 Sup. Ct. Ct. Rep. 69. Rep. 196. See also § 77. [&1 239 S ^9 [lij Tiiij SUPREME COURT. [Code Fed. be sustained by one construction of the Federal Ck>nstitution or laws and defeated by another, the jurisdiction of the circuit court of appeals must be deemed to have rested upon diverse citizenship.il Where jurisdiction of a case rests upon the fact that it is ancillary to another case in which Federal jurisdiction rests upon diverse citizenship, decision in the ancillary suit is also final in the circuit court of appeals. 12 Where citizens of different states claim under land grants of ditferent states the jurisdiction rests on diverse citizenship exclusively. The same is true where a cause is removed for local prejudice; is or where a suit brought by a nation- al bank, rests on diverse citizenship. 1 4 An affirmance by the circuit court of appeals of a judgment dismissing an assignee's suit for failure to show assignor's citizenship is final and non-appealable. 15 [d] Only final judgments reviewable — certified questions. Interlocutory orders or decrees are not appealable to the Supreme Court; 1'? but the judgment must be final.is A decree reversing and specific- ally directing the decree which the circuit court is to enter, is final; i9 but a reversal with directions to the circuit court to remand a removed case to the State court is not a final judgment, but merely a refusal to ad- judge.2 Reversal for further proceedings below is not final.i [e] Necessity for $1,000 value in dispute. A clause conferring appellate jurisdiction only where a certain value is in dispute is uniformly recognized as a denial of appellate jurisdiction over certain classes of cases where the matter is in dispute is not sus- ceptible of pecuniary measurement. Thus on habeas corpus, where the dis- pute is a question of individual freedom, or even whether a fine shall be paid, or a question of both fine and imprisonment there is no value in dis- pute and no right of appeal under this section.2 This matter is also discussed in the annotation of other similar provisions.3 iiBankers, etc. Co. v. Minneapolis, isMacLeod v. Graven, 79 Fed. 84, etc. R. R. 192 U. S. 371, 48 L. ed. 24 C. C. A. 449. 484, 24 Sup. Ct. Rep. 325. See also isMerrill v. National Bank, 173 U. Arbuckle v. Blackburn. 191 U. S. 405, S. 134, 43 L. ed. 640, 19 Sup. Ct. 48 L.ed. 239, 24 Sup. Ct. Rep. 148. Rep. 3G0. i2Stevenson v. Fain, 195 U. S. 1C5, 2 0German Nat. Bank v. Speckert, 49 L. ed. 142, 25 Sup. Ct. Rep. G. 181 U. S. 409, 45 L. ed. 927, 21 Sup. See ante. § 3.[i] Ct. Rep. 688. isCocliran v. Montgomery Co. 199 lUnited States v. Krall, 174 U. S. U. S. 260. 50 L. ed. 182, 26 Sup. 385, 43 L. ed. 1017, 19 Sup. Ct. Ct. Rep. 58. Rep. 712. i4 0ontinental Nat. Bank v.Buford, 2Kurtz v. Moffitt, 115 U. S. 487, 191 U. S. 119, 48 L. ed. 119, 24 Sup. 29 L. ed. 458, 6 Sup. Ct. Rep. 148; Ct. Rep. 54. \Miitney v Dick. 202 U. S. 132, isBenjamin v. New Orleans. 169 U. 50 L. ed. 963, 26 Sup. Ct. Rep. 584; S. 161, 42 L. ed. 700. 18 Sup. Ct. Rep. Law Ow Bew v. United States, 144 298. U. S. 47, 36 L. ed. 344, 12 Sup. Ct. iTKirwan v. Murphy, 170 U. S. Rep. 517. 208, 42 L. ed. 1009, 18 Sun. Ct. Rep. sPost, § 45, [c] ; 48 [c]. 592. 240 Procedure] QUESTIONS CERTIFIED. S 40 [b] § 40. Questions certified up by circuit court of appeals for in- struction. In every such subject within its appellate jurisdiction [i, e., in every case in which the judgment or decree of the circuit court of appeals is made final]/ 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 in- struction of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the ques- tions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause may be sent up to it for its considera- tion, and thereupon shall decide the whole matter in controversy in the same maimer as if it had been brought there for review by writ of error or appeal. ^^^'^''^ Part of § 6 of act Mar. 3, 1891, chap. 517, 26 Stat. 828, U. S. Comp. Stat. 1901, p. 550. [a] Other parts of section and cross-references. The other portions of § 6 of the act of 1891, and their place in the text are stated elsewhere. s [bj Construction of clause as to certifying questions. It is said that the foregoing clause is to be interpreted in the light of similar provisions in earlier laws regarding certified questions from the circuit court. 9 The questions certified must each contain a definite in- dependent point of law clearly stated and without an admixture of facts.io Each question must be stated as a distinct point, answerable without reference to other issues of law in the case and a certificate which neces- sitates an answer to questions not propounded must be dismissed. n Only questions of gravity and importance should be sent up.2 And if the cause is appealable, the circuit court of appeals has no power to certify questions. 3 A question certified may be answered although the certificate 7See post. § 77. S. 600, 42 L. ed. 614, 18 Sup. Ct. Rep. sAnte, § 39 [a]. 242. sGraver v. Paurot. 162 U. S. 437, nUnited States v. Union Pae. Rv. 40 L.ed. 10.30, 10 Sup. Ct. Rep. 799. 168 U. S. 512, 42 L. ed. 559, 18 Sup. lOEmsheimer v. New Orleans. 186 Ct. Rep. 167. n. S. 46, 46 L. ed. 1042, 22 Sup. Ct. 2Lau Ow Bew, Petitioner, 141 U. S. Rep. 770; Felsenheld V. United States, 587, 35 L. ed. 868, 12 Sup. Ct. Rep. 186 U. S. 134, 46 L. ed. 1085, 22 Sup. 43. Ct. Rep. 740; Graver v. Faurot, 162 sTexas & P. Ry. v. Gentry, 57 Fed. U. S. 437, '0 L. ed. 1030, 16 Sup. Ct. 422, 6 C. C. A. -tl3. Rep. 799; McHenry v. Alford, 168 U. Fed. Proc— 16. 241 § 40 [b] THE SUPREME COURT. [Code Fed. has been recalled where the result in any event is the dismissal of a writ of error from the circuit court of appeals.* The circuit court of appeals has refused a certificate where the ques- tions of law and fact were not new and were so mixed that the former could not be segregated without sending up the whole case; 5 and has re- fused merely because a proposed question was novel; 6 or because a supreme court decision of the only point seemed ill-considered.^ It will certify only when in doubt and upon its own motion. s Where the circuit court of appeals certifies the question of jurisdiction to the Supreme Court, it should suspend decision upon the merits until the jurisdictional question is determined; 9 but perhaps will not generally withhold a decision if another question is sent up.io The whole case must not be brought up by splitting it into questions.12 Nor is a general question which is capable of being separated into specific queries, a proper one.is The certificate should contain a sufficient statement of the facts on which the questions depend and not merely refer to the rec- ord, i* The court must not be compelled to search all through the record. is Less than a quorum of the court cannot certify a question. 1 6 The certifi- cate must further show that an answer to the questions is necessary to a decision because the judges are in doubt or diff'er in their opinions there- on.i7 Hence a certificate prior to argument in the circuit court of appeals is properly refused. is So also a certificate which shows that the judges are unanimous in their opinion but differ from the views and decision in another circuit must be dismissed.is A certificate reciting a conflict between prior decisions of the Supreme Court and asking ad- 4Good Shot V. United States, 179 Ct. Rep. 733; German Ins. Co. v. U. S. 87, 45 L. ed. 101, 21 Sup. Ct. Hearne, 118 Fed. 134, 55 C. C. A. 84; Rep. 33. Warner v. New Orleans, 167 U. S. 5Fabre v. Cunard, etc. Co. 59 Fed. 4G7, 42 L.ed. 239, 17 Sup. Ct. Rep. 500. 8 C. C. A. 199. 892. 6The Majestic, 69 Fed. 844, 13 C. isMcFenry v. Alford, 168 U. S. C. A. 676. 660, 42 L. ed. 614, 18 Sup. Ct. Rep. 7Lau Ow Bew V. United States, 144 242. U. S. 47, 36 L. ed. 344, 12 Sup. Ct. i4Cincinnati, etc. R. R. v. McKeen, Rep. 517. 149 U. S. 261, 37 L. ed. 725, 13 Sup. ^Andrews v. National, etc. Co. 77 Ct. Rep. 840. This means the funda- Fed. 774, 23 C. C. A. 454. The cer- mental and not the evidential facts: tifying of a question is discretionary Sigafus v. Porter, 85 Fed. 689, 29 C. and cannot be demanded as of right; C. A. 391. Cella V. Brown, 144 Fed. 742, (C. isFelsenheld v. United States. 186 C. A.) . U. S. 134, 46 L. ed. 1085, 22 Sup. Ct. 9 United States v. Jahn, 155 U. S. Rep. 740. 114, 39 L. ed. 87, 15 Sup. Ct. Rep. 1 6 Cincinnati, etc. R. R. v. McKeen, 39. 149 U. S. 261, 37 L.ed. 725, 13 Sup. 10 Sigafus v. Porter, 84 Fed. 430, Ct. R«p. 840. 28 C. C. A. 443. iTGerman Ins. Co. v. Hearne. 118 i2Del Monte M. Co. v. Last Chance Fed. 134, 55 C. C. A. 84. Co. 171 U. S. 55, 43 L. ed. 72, 18 Sup. isLouisville, etc. Ry. v. Pope, 74 Ct. Rop. 895;Emsheimer v. New Or- Fed. 1, 20 C. C. A. 253. leans, ISO U. S. 42, 46 L. ed. 1042, 22 laColumbus W. Co. v. Robbins, Sup. Ct. Rep. 770; Cross v. Evans, 148 U. S. 269, 37 L. ed. 445, 13 Sup. 167 U. S. 62, 42 L. ed. 77, 17 Sup. Ct. Rep. 594. 242 Procedure] REVIEW BY CERTIORARI. § 41 [bl vice as to which to follow is not good and will be dismissed. 20 The same is true of a question asking whether a certain prior case is applicable to the one in hand.i § 41. Review by certiorari of decisions made final in the cir- cuit court of appeals. In any such case as is hereinbefore made final in the circuit court of appeals [i, e., cases in which the jurisdiction is dependent en- tirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States, or citizens of different States, cases arising under patent, revenue and criminal laws, and admiralty cases^^]^'^^''^'^^ it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court. Part of § 6, act Mar. 3, 1891, chap. 517, 26 Stat. 826, U. S. Comp. Stat. 1901, p. 550. [a] Other parts of section and cross-references. The other portions of § 6 of the act of 1891 and their place in the text, are stated elsewhere.12 When questions are certified up by the circuit court of appeals the Supreme Court may issue certiorari to bring up the whole record.13 R. S. § 716, empowers the Federal courts to issue certio- rari in aid of their jurisdiction.!* [b] Issuance of writ. The power to bring up final decrees for review by certiorari "or other- wise" means other writs similar thereto, and does not include appeals.is The power to issue certiorari is entirely discretionary, and the Supreme court has declared that it should be exercised only in cases of gravity and importance, or in order to secure uniformity of decision.16 It is an 20Graver v. Eaurot, 162 U. S. 438, isAmerican Const. Co. v. Jackson- 40 L. ed. 1030, 16 Sup. Gt. Rep. 799. ville, Tampa & Key West, 148 U. iWarner v. City of New Orleans, S. 372, 37 L. ed. 486, 13 Sup. Ct. 167 U. S. 467, 42 L. ed. 239, 17 Sup. Rep. 758; Forsythe v. Haraond, 166 Ct. Rep. 892. U. S. 506, 41 L. ed. 1095, 17 Sup. Ct. iiPost 8 77 Rep. 665; United States v. Three i2Ant;, § 39:[a] Friends, 166 U. S. 1 41 L. ed. 897, i,A iJ e An 17 Sup. Ct. Rep. 49a; In re John 13 Ante, ^ 40. Woods. 143 U. S.. 202, 36 L. ed. 125, i^Post, § 841. 12 Sup. Ct. Rep. 417; Lau Ow Bew isHuguley Mfg. Co. v. Galeton C. v. United SUtes, 144 U. S. 47, 36 L. Mills, 184 U. S. 294, 40 L. ed. 546, ed. 340, 12 Sup. Ct. Rep. 517; 22 Sup. Ct. Rep. 452, refusing to use Sniitli v. \'ulcan Iron Works. 1G5 U. it to perfect a defective record in a 513, 41 L. ed. 810, 17 Sup. Ct. Rep. case not properly appealable. 407. 243 § 41 [c] THE SUPREME COURT. [Code Fed. appropriate remedy if the lower court erred or its judgment is void.i'' This power may be exercised regardless of the status of the case in the circuit court of appeals,is at any stage of the proceedings and in advance of judgment ;19 though ordinarily, not until after final judgment.20 It may issue after the mandate has gone down, if a transcript of the record is still in the circuit court of appeals. 1 But it will not issue to require sending up of case over which circuit court of appeals has no jurisdiction, where it has not rendered a decision. 2 Certiorari sought near- ly three years after the judgment below, has been refused. 3 Error in dis- solving receivershij),'* or in dismissing instead of affirming an appeal, 5 and decisions on questions of local State law,<> do not warrant issuance of the writ. But questions of national or international importance do.^ Where the record is before the Supreme Court on return to rule on petition for man- damus, or otherwise, the court will, if it decides that certiorari is proper, issue the writ and let the record sent up in response to the rule, stand as a return to the certiorari, s It is only cases made final in the circuit court of appeals that may be taken up on certiorari. » Habeas corpus cases which involve no question giving a right of direct appeal from the circuit to the Supreme Court and which are therefore appealed to the circuit court of appeals belong to the class of cases made final there and may be taken by certiorari to the Supreme Court. 10 It seems that the writ may be applied for any time within one year of the judgment below, by analogy to the time allowed for writ of error.n [c] Effect of writ and scope of review. The awarding of certiorari suspends action in the circuit court of ap- I'^In the majority of cases the writ is refused. At the October term 1900, 76 applications were refused and 27 granted. 18 Aspen M. Co. v. Billings, 150 U. S. 37, 37 L. ed. 986, 14 Sup. Ct. Rep. 4. isForsyth v. Hammond, 166 U. S. 513, 41 L. ed. 1095, 17 Sup. Ct. Rep. 665. 2 0United States v. The Three Friends, 166 U. S. 1, 41 L. ed. 897, 17 Sup. Ct. Rep. 495; American C. Co. V. Jacksonville, etc. Ry. 148 U. S. 383, 37 L. ed. 486, 13 Sup. Ct. Rep. 758. It has been refused where the judgment below was not final. Chi- cago, etc. Ry. V. Osborne, 146 U. S. 354, 3G L. ed. 1002, 13 Sup. Ct. Rep. 281. iThe Conqueror. 166 U. S. 113, 41 L. ed. 937, 17 Sup. Ct. Rep. 510. 2Goodshot V. United States, 179 U. S. 89, 45 L. ed. 101, 21 Sup. Ct. Kep. 33. sBonin v. Gulf Co. 198 U. S. 115, 49 L. ed. 970, 25 Sup. Ct. Rep. 608. ^American Con. Co. v. Jacksonville, etc. Ry. 148 U. S. 385. 37 L. ed. 486, 13 Sup. Ct. Rep. 758. 5 Smith V. Vulcan I. Works, 165 U. S. 526, 41 L. ed. 810, 17 Sup. Ct. Rep. 407. 6 In re Woods, 143 U. S. 206, 36 L. ed. 125, 12 Sup. Ct. Rep. 417. "United States v. Three Friends, 166 U. S. 1, 41 L. ed. 897, 17 Sup. Ct. Rep. 495. sAmeiiican S. R. Co. v. New Or- leans, 181 U. S. 283, 45 L. ed. 862. 21 Sup. Ct. Rep. 646. sUnited States v. The Three Friends, 166 U. S. 1, 41 L. ed. 897, 17 Sup. Ct. Rep. 495. lOLau Ow Bew v. United States, 144 U. S. 47, 36 L. ed. 344, 12 Sup. Ct. Rep. 517. iiThe Conqueror, 166 U. S. 110, 41 L. ed. 937, 17 Sup. Ct. Rep. 510, 244 Procedure] APPEALS FROM CIRCUIT AND DISTRICT COURTS. § 42 [aj peals; but where that court's mandate has ah'eady gone to the trial court, the latter has no power to set aside orders made in obedience to that mandate.i2 The Supreme Court has power to examine the entire ease on certiorari including the action of the circuit court of appeals on a former appeal; 13 but it will confine itself to the errors assigned by petitioner.i* § 42. Appeals from circuit and district courts direct to Su- preme Court. Appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court in the following cases 'M^ In any case in which the jurisdiction of the court is in issue ;^^^ in such cases the question of jurisdiction alone'^''^ shall be certified to the Supreme Court from the court below for decision.'^*^^"^'^^ From the final sentences and decrees in prize causes. ^^^ In cases of conviction of a capital crime, i^'^ In any case that involves the construction or application of the Constitution of the United States. ^^^ In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question. "^^^^ 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."! § 5 of act Mar. 3, 1891, chap. 517, 26 Stat. 827, as amended, 29 Stat. 492, U. S. Comp. Stat. 1901, p. 549. [a] Cross-references and enactments repealed or superseded by above. Other cases are appealable to tlie circuit court of appeals. i The general effect of the circuit court of appeals act on Federal appellate jurisdiction is elsewhere considered. 2 A right of direct appeal also exists in a few other cases. 3 A previous act of Feb. 25, 1889,4 governing appeals from the circuit court is superseded by the act of 1891. So also R. S. § 695, as to ap- peal in prize cases from the district to the Supreme Court, is superseded. R. S. § 651 and § 698, as to certificates of division of opinion in the circuit court are superseded by this section. 5 The provision of the commerce act of 1887 giving an appeal from the circuit to the Supreme Court is also super- i2Louisvilie. etc. Ry. v. Trust Co. iPost, § 77. 78 Fed. Go9. 2Ante, § 37. i3Panama R. R. v. Napier, etc. 3Post, §§ 60. 62. Co. 166 U. S. 284, 41 L. ed. 1004, 17 425 Stat. 693. Sup. Ct. Rep. 572. ^United States v. Rider, 163 U. S. i4Hubbard v. Tod, 171 U. S. 494, 139, 41 L. ed. 101, 16 Sup. Ct. Rep. 43 L. etl. 246, 19 Sup. Ct. Rep. 14. 983. 245 § 42 [bj THE SUPREME COURT. [Code Fed. seded,6 though afterwards restored.^ The time for taking an appeal or writ of error under this section, and the procedure on appeals are dis- cussed elsewhere. [b] When circuit courts' jurisdiction deemed in issue. The meaning of this clause has frequently been misunderstood. It ia necessary to distinguish between power to take jurisdiction, and its exer- cise; between power in the court under admitted facts, and whether cer- tain facts create a case within admitted powers. The lower Federal courts possess only the jui'isdiction granted by Congress, and the purpose of the provision here under consideration would seem to be to afford a speedy and authoritative construction of such Congressional grant. It is not de- signed to permit review of questions of the propriety of relief given or de- nied in the exercise of jurisdiction, or questions of the existence or non- existence of facts, which, when once established, leave no room for doubt as to the powers of the court. The jurisdictional question must be one arising in the pending suit and not a question of the courts jurisdiction to render a decree in a prior cause. 9 It must be a question of the circuit or district court's power as a Federal court, and not merely the question whether any court of equity would have the power challenged or denied, lo The ques- tion whether a state court or the circuit court had priority of possession and the resulting right of exclusive control is not a question of jurisdic- tional power which may be certified.^! The question of a district court's power to punish for contempt where it had admitted jurisdiction over party and subject-matter is one of the merits, and not jurisdictional; 12 and the same is true of its determination respecting bankruptcy exemp- tions.! 3 Dismissal of a removed case for want of jurisdiction in the State court does not involve a jurisdictional question that may be certified.!-! Questions of the power of a circuit or district court as a Federal court may involve questions of the competency of parties und&r the Federal laws,i6 or of the existence of a subject-matter of Federal cognizance,i7 6 Interstate Commerce Com. v. At- S. 89, 49 L. ed. 398, 25 Sup. Ct. Rep. chison, etc. Rv. 149 U. S. 264, 37 L. 208. ed 727, 13 Sup. Ct. Rep. 837. !iLouisville T. Co. v. Knott, 191 7Post §§ 62, 63. U. S. 225, 48 L. ed. 159, 24 »up. Ct. sPost § 1902, et seq. Rep. 119. sQarey v. Houston v. T. C. R. R. !20'Neal v. United States, 190 U. 150 U. S. 170, 37 L. ed. 1041, 14 Sup. S. 36, 47 L. ed. 946, 23 Sup. Ct. Rep. Ct. Rep. 63. 776. loSmith V. McKay, 161 U. S. 355, isLucius v. Cawthon-C. Co. 196 40 L. ed. 731, 16 Sup. Ct. Rep. 490: U. S. 149, 49 L. ed. 425, 25 Sup. Blythe v. Hinckley, 173 U. S. 501, 43 Ct. Rep. 214. L. ed. 783, 19 Sup. Ct. Rep. 497; i4Courtnev v. Pradt, 196 U. S. 89, Mexican C. R. R. v. Eckman. 187 U. 49 L. ed. 398^, 25 Sup. Ct. Rep. 208. S. 432, 47 L. ed. 247, 23 Sup. Ct. Rep. leE. g. Mexican C. R. R. v. Eck- 211; Louisville T. Co. v. Knott, 191 man, 187 U. S. 432, 47 L. ed. 247, 23 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Sup. Ct. Rep. 211. Rep. 119; Schweer v. Brown. 195 U. !7E. g. Excelsior W. P. Co. v. Pa- S. 171, 49 L. ed. 144, 25 Sup. Ct. cific B. Co. 185 U. S. 284, 46 L. ed. Rep. 15; Courtney v. Pradt, 196 U. 913. 22 Sup. Ct. Rep. 681. 246 Procedure] APPEALS FROM CIRCUIT AND DISTRICT COURTS. § 42 [b] within the meaning of those laws. But where there is no question of the competency of parties or sufficiency of subject-matter, under the Federal laws, the jurisdiction attaches, and a judgment of dismissal for want of equity or otherwise is one in the exercise of jurisdiction and does not authorize direct appeal. It is not a denial of power to take cognizance, but an exercise of that power.is So a dismissal of a petition in bank- ruptcy because petitioner is a farmer not entitled to the benefits of the law is not a denial of jurisdictional power, but an exercise thereof.19 In passing upon an objection to suit by a stockholder on a corporation's behalf because the matters required by the 94th equity rule have not been complied with, the court is exercising jurisdiction and does not pass upon a question of jurisdictional power. 20 The right of direct appeal because of a jurisdictional question is in the party aggrieved by its decision. Hence if the decision below is in favor of the jurisdiction, the plaintiff cannot take the case to the Supreme Court on that question but must go to the circuit court of appeals. 1 A question whether the jurisdictional value in dispute required by act of 1891 existed; 2 or whether a separate controversy existed removable under the Federal statute ;3 or whether the summons whereby jurisdiction over defendant was claimed was validly framed or served ;4 or whether the citizenship of the guardian or of the ward is controlling,^ all go to the juri.sdictional power of the court and may be certified. So also is the ques- tion whether a given case is one arising under the patent laws ; 6 or whether a Federal district court had power to decree in rem against a vessel in a State court receiver's possession, for a maritime lien.7 The "World's Col. Exp. v. U. S. 56 169 U. S. 97, 42 L. ed. 674, 18 Sup. Fed. 654, 6 C. C. A. 58: Smith v. Ct. Rep. 264. McKav, 161 U. S. 355, 40 L. ed. 731, 4Remington v. Central P. R. R. 16 Sup. Ct. Rep. 490; Blythev. 198 U. S. 95, 49 L. ed. 959, 25 Sup. Ct. Hinckley, 173 U. S. 501, 43 L. ed. Rep. 577; Shepard v. Adams. 108 U. 783, 19 Sup. Ct. Rep. 497; Buildinn; S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. & L. Assn. V. Price, 169 U. S. 46, 42 214: St. Louis C. C. Co. v. American L. ed. 655, 18 Sup. Ct. Rep. 251; C. Co. 125 Fed. 199. 60 C. C. A. 80: Courtnev v. Pradt, 196 U. S. 89, 49 Conlev v. Mathieson A. Works, 190 L. ed. 398, 25 Sup. Ct. Rep. 208. U. S."406, 47 L. ed. 1113. 23 Sup. Ct. isDenver First Nat. Bank v. Rep. 728; Chicago Bd. of T. v. Ham- Klug, 186 U. S. 202, 46 L. ed. 1127, mend E. Co. 198 U. S. 424, 49 L. ed. 22 Sup. Ct. Rep. 899. 1111, 25 Sup. Ct. Rep. 740: Ken lall 201Ilinois, etc. R. R. v. Adams, 180 v. American A. L. Co. 198 U. S. 477, U. S. M, 45 L. ed. 412, 21 Sup. Ct. 49 L. ed. 1133, 25 Sup. Ct. Rep. 768. Rep. 251. SMexican C. R. R. v. Eckman, 187 lUnited States v. Jahn, 155 U. S. U. S. 429, 47 L. ed. 245, 23 Sup. Ct. 112, .39 L. ed. 88, 15 Sup. Ct. Rep. Rep. 211. 39; Evans Co. v. McCaskill, 101 Fed. eExcelsior W. P. Co. v. Pacific B. 658, 41 C. C. A. 577. Co. 185 U. S. 284, 46 L. ed. 913, 22 2Wetmore v. Rvmer, 169 U. S. 118, Sup. Ct. Rep. 681. 42 L. ed. 682, 18 Sup. Ct. Rep. 293. 7The Resolute, 168 U. S. 440, 42 sPowers v. Chesapeake & O. R. R. L. ed. 533, 18 Sup. Ct. Rep. 112. 247 § 42 [c] THE SUPREME COURT. [Code Fed. clause authorizes the review of a jurisdictional question on certificate, only after final judgment, s and not before a decision. » [cj Necessity for, and sufficiency of certificate. The statute requires that the jurisdictional question be certified up, and nothing else. 12 Except in cases where the only question involved and decided is one of jurisdiction,! 3 it is necessary that a certificate of the jurisdictional question be made and otherwise the appeal will be dis- missed. 1 4 The word certify need not be formally used; but there must be a plain declaration that the single matter which is by the record sent up to the Supreme Court, is a question of jurisdiction, and no mere sug- gestion of that fact will answer.is Where a question of former adjudica- tion as well as of jurisdiction is raised by a demurrer, it is not a case involving only jurisdiction and dispensing with a certificate.! 6 Prayer for appeal though stating that it is on jurisdiction, is insufficient as a certificate, where it specifies no jurisdictional question; 1 7 and gives no hint of the specific objection to the jurisdiction.! 8 An assignment of errors after term, but filed nunc pro tunc, is insufficient as a certificate.! 9 But prayer for appeal upon the ground that court erred in taking jurisdiction, and asking that that question be certified is sufficient where the certificate is given. 20 The absence of a certificate cannot be helped out by resort sGates v. Bucki, 53 Fed. 961, 4 C. C. A. 116; United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Hep. 983. sMcLish V. RofT, 141 U. S. 668. 35 L. ed. 893, 12 Sup. Ct. Rep. 120; Bardes v. Ha warden Bank, 178 U. S. 526, 44 L. ed. 1177. 20 Sup. Ct. Rep. 1000. i2Blythe v. Hinckley, 173 U. S. 501, 43 L. ed. 783, 19 Sup. Ct. Rep. 497; Shields v. Coleman, 157 U. S. 177, 39 L. ed. 663, 15 Sup. Ct. Rep. 570. !3ln such cases the record and de- cree below showing such fact are sTiflicient without formal certificate. Excelsior W. P. Co. v. Pacific B. Co. 185 U. S. 284, 46 L. ed. 913, 22 Sup. Ct. Rep. 681; Petri v. Creelman L. Co. 199 U. S. 487, 50 L. ed. 281, 26 Sup. Ct. Rep. 133; Huntington v. Laidley, 176 U. S. 668, 44 L.^ed. 630, 20 Sup. Ct. Rep. 526; Cliappell v. United States, 160 U. S. 507, 40 L. ed. 512, 16 Sup. Ct. Rep. 397; Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660, 15 Sup. Ct. Rep. 570; In re Le- high M. Co. 156 U. S. 327, 30 L. ed. 438, 15 Sup. Ct. Rep. 375; Interior C. Co. V. Gibney, 160 U. S. 219. 40 L. ed. 401, 16 Sup. Ct. Rep. 272. !4MaYnard v. Hecht, 151 U. S. 328, 38 L. ed. 179, 14 Sup. Ct. Rep. 353; Chappell V. United States, 160 U. S. 509, 40 L. ed. 510, 16 Sup. Ct Rep. 397; Moran v. Hagerman, 151 U. S. 333, 38 L. ed. 181, 14 Sup. Ct. Rep. 354; Davis v. Geissler, 162 U. S. 291, 40 L. ed. 972, 16 Sup. Ct. Rep. 796; United States v. Jahn, 155 U. S. 112, 39 L. ed. 87, 15 Sup. Ct. Rep. 39. !5Shields v. Coleman, 157 U. S. 177, 39 L. ed. 660, 15 Sup. Ct. Rep. 570; Arkansas v. Schlierholz, 179 U. S. 598, 45 L. ed. 335, 21 Sup. Ct. Rep. 229; Van Wagenon v. Sewall, 160 U. S. 373, 40 L. ed. 460, 16 Sup. Ct. Rep. 370; Huntington v. Laidley, 176 U. S. 676, 44 L. ed. 634, 20 Sup. Ct. Rep. 526. !6Van Wagene v. Sewall, 160 U. S. S. 373, 40 L. ed. 460, 16 Sup. Ct. Rep. 370. !7The Bayoune, 159 U. S. 693, 40 L. ed. 306, 16 Sup. Ct. Rep. 185. !8McHenry v. Alford, 168 U. S. 651. 42 L. ed. 614, 18 Sup. Ct. Rep. 242. !9The Bavovme, 159 U. S. 693, 40 L. ed. 306, 16 Sup. Ct. Rep. 185. 20 Smith V. McKay, 161 U. S. 357, 40 L. ed. 731, 16 Sup. Ct. Rep. 490. 248 Procedure] APPEALS FROM CIRCLIT AND DISTRICT COURTS. § 42 [d] to the petition for the writ of error, or the assignment of error.i Where other than jurisdictional questions are also involved the party electing to appeal to the Supreme Court on the jurisdictional question must do so during the term. 2 But if there is nothing else involved, an appeal may be taken any time within two years. s It is said that the certificate required by this clause, as well as that from the circuit court of appeals,4 is governed by the rules as to the form of certificates of division, formerly allowed. 5 [d] Effect of electing forum of appeal on jurisdictional questions. Where a cause contains other questions'? besides that of jurisdiction, the party aggrieved by the circuit or district court's decision has an election of remedies. He may go to the Supreme Court on the jurisdictional ques- tion alone, as already shown; or he may go to the circuit court of appeals with the entire case. If the latter, that court has power to decide the jurisdictional questions as well as the others ;8 and in the cases made final in the circuit court of appeals, the jurisdictional question cannot be further reviewed9 unless the circuit court of appeals certify it for in- structions,! or the Supreme Court issue certiorari.il The aggrieved party cannot have two appeals, one to the circuit court of appeals and the other to the Supreme Court, and the latter will be dismissed if taken while the other is pending. 12 But if an appeal is first taken to the Su- preme court on a jurisdictional or constitutional question, the circuit court of appeals will not dismiss a subsequent appeal taken to it, be- cause the other is pending; but will hold it in abeyance that the party may not lose all right of review in case the Supreme Court decide that the case is not one directly appealable and dismiss the first appeal. 1 4 iMavnard v. Hecht, 151 U. S. 324, United States v. Jahn, 155 U. S. 109, 38 L. ed. 180, 14 Sup. Ct. Rep. 353. 39 L. ed. 87, 15 Sup. Ct. Rep. 39; 2Colvin V. Jacksonville. 158 U. S. Wirgman v. Persons, 126 Fed. 455, 457, 39 L. ed. 1053, 15 Sup. Ct. Rep. 62 C. C. A. 63; Robinson- v. Caldwell, 866. 165 U. S. 359, 41 L. ed. 745., 17 Sup. sExcelsior W. P. Co. v. Pacific B. Ct. Rep. 343. Contra see United Co. 185 U. S. 285, 46 L. ed. 913, 22 States v. Lee Yen Tai, 113 Fed. 465, Sup. Ct. Rep. 681. 51 C. C. A. 299; Sun P. Co. v. Ed- 4 Ante, § 40. [b] wards, 121 Fed. 826, 58 C. C. A. ^United States v. Rider, 163 U. S. 162; Fisheries Co. v. Lennen, 130 139, 41 L. ed. 101, 16 Sup. Ct. Rep. Fed. 534, 65 C. C. A. 79; Halpin 983. v. American, 138 Fed. 548. 7But if the jurisdictional question sLoeb v. Columbia Twp. 179 U. S. is the only oiie he must go to the 478, 45 L. ed. 285, 21 Sup. Ct. Rep. supreme court. Excelsior P. W. Co. 174. V. Pacific B. Co. 109 Fed. 497, 48 C. lOAnte, § 40. In the second cir- C. A. 349. cuit this course is pursued. Sun P. sKing v. McLean Asvlum, 64 Fed. Co. v. Edwards, 121 Fed. 826, 58 C. 325, 12 C. C. A. 139; Evans, etc. Co. C. A. 162. V. McOaskill, 101 Fed. 058, 41 C. C. nAnte, § 41. A. 577; McLish v. Roff, 141 U. S. i2Columbus C. Co. v. Crane Co. 668, 35 L. ed. 893, 12 Sup. Ct. Rep. 174 U. S. 601. 43 L. ed. 1102, 19 Sup. 118; MaATiard v. Hecht, 151 U. S. 326, Ct. Rep. 721. 38 L. ed. 179, 14 Sup. Ct. Rep. 353; i^See Pullman's P. P. Co. v. Cen- 249 § 42 [dd] THE SUPREME COURT. [Code Fed. It would be improper for it to hear and determine such appeal while the one to the Supi'eme Court is pending.is Where the trial court decides in favor of its jurisdiction and then against plaintiff on the merits, he is not aggrieved by the decision on the jurisdictional point and cannot because it is in the record take an appeal to the Supreme Court. 1 6 [ddj Election of forum of appeal in other cases. There are also other cases in which an appellant has an election between the circuit coirt of appeals and the Supreme Court. Cases under the rev- enue and patent laws, etc., are appealable to the circuit court of appeals and its decision is final. is But if in such cases plaintiff's statement of his case, also shows a constitutional question then the case is also ap- pealable direct to the Supreme Court. 1 9 An election of appeal to the cir- cuit court of appeals would preclude subsequent appeal direct from the circuit to the Supreme Court, 20 but it would not preclude appeal from the circuit court of appeals to the Supreme Court. 1 If a party first appeals to the Supreme Court on a constitutional or jurisdictional question he may then take an appeal to the circuit court of appeals which will be held in abeyance until the other is decided. 2 In cases other than of conviction of a capital crime there is a similar right of election where a constitu- tional question is involved.3 [e] Prize cases. R. S. § 695 as to appeals in prize cases is superseded by this enact- ment. Appeal lies to the Supreme Court from the final sentences and decrees in prize causes regardless of the amount in dispute and without any certificate of the district judges as to the importance of the particular case. 5 [f] Cases of conviction of a capital crime. As enacted in 1891 this clause read "In cases of conviction of a capital of otherwise infamous crime" the amendment making the section read as above was enacted by law of 1897.6 The present clause means cases of conviction of crime the punishment of which by law is, or may be, death. tral T. Co. 76 Fed. 401, 22 C. C. A. 192 U. S. 407, 48 L. ed. 499, 24 Sup. 246; Evans, etc. Co. v. MeCaskill, Ct. Rep. 376. 101 Fed. 658, 41 C. C. A. 577. 20ibid. isUnion & P. Bank v. Memphis, ilbid. 189 U. S. 71, 47 L. ed, 712, 23 Sup. 2See Pullman's P. P. Co. v. Cen- Ct. Rep. 604. tral T. Co. 76 Fed. 401, 22 C. C. A. leEvans S. B. Co. v. MeCaskill, 240; Evans, etc. Co. v. MeCaskill, 101 Fed. 658, 41 C. C. A, 577. See 101 Fed. 658, 41 C. C. A. 577. also Field v. Barber Ashp. Co. 194 sMotes v. United States, 178 U. U. S. 620, 48 L. ed. 1153, 24 Sup. Ct. S. 466, 44 L. ed. 1153, 20 Sup. Ct. Rep. 784; United States v. Jahn, Rep. 993. 155 U. S. 109, 39 L. ed. 87, 15 Sup. 5The Paquete Habana, 175 U. S. Ct. Rep. 39. 677, 44 L. ed. 320, 20 Sup. Ct. Rop. isPost, § 77. 290. isSpreckels S. R. Co. v, McClain, 6 Act Jan. 20, 1897, c. 68. 250 Procedure] APPEALS PROM CIRCUIT AND DISTRICT COURTS. § 42 [g] The test is not always the punishment imposed, but the punishment which may be imposed.^ Hence verdict of g-uilty of murder is no less a con- viction of a capital crime where qualified with the proviso "without capi- tal punishment."? Yet the law does not specify cases of indictment for a capital crime but cases of conviction ;» and it would seem that one con- victed of murder in the second degree the extreme punishment for which by law is life imprisonment is not convicted of a capital crime. Review in criminal cases under this clause must always be by error, and not ap- peal. lo Where a criminal case involves the construction or application of the Constitution there is the same right of direct appeal to the Su- preme Court under the next clause of the above section, as in other cases. n [gj Cases involving construction or application of Federal Constitution. A habeas corpus case in which it is claimed that the Constitution for- bids deprivation of liberty luider a mere executive department order, comes within this clause. is So also does a case involving a right to vote for member of Congress, as that is a right derived under the Constitution.! 4 A criminal case maj' come within this clause.is A question of the privi- lege from arrest of a United States Senator involves the construction and application of the Constitution.! 6 A case may be said to involve the con- struction or application of the Constitution where a right, title, privilege or immunity!" is claimed under that instrument. It must be really and substantially involved. A definite issue in respect to the possession of the right must be distinctly deducible from the record, before the judgment of the court below can be reversed on the ground of error in the disposal of such a claim by its decision.! s An attack upon the legality of contempt fin re Claasen. 140 U. S. 205, 35 701; and see McKane v. Durston, 153 L. ed. 411, 11 Sup. Ct. Rep. 737; Ex U. S. 684, 38 L. ed. 807. 14 Sup. Ct. parte Wilson, 114 U. S. 426. 29 L. ed. Rep. 913; Davis v. Burke, 97 Fed. 92, 5 Sup. Ct. Rep. 935; Fitzpatrick 501, 38 C. C. A. 299. v. Umterl States. 178 U. S. 307, 44 !4Wilev v. Sinkler. 179 U. S. 61, 45 L. ed. 1080, 20 Sup. Ct. Rep. 944. L. ed. 87,' 21 Sup. Ct. Rep. 17. SFit/patrick v. United States, 178 isMotes v. United States, 178 U. U. S. 307, 44 L. ed. 1080. 20 Sup. Ct. S. 466, 44 L. ed. 1153, 20 Sup. Ct. Rep. 944; Goodshot v. United States, Rep. 993. 179 U. S. 88, 45 L. ed. 101, 21 Sup. leBurton v. United States. 196 u. Ct. Rep. 33. S. 283, 49 L. ed. 482, 25 Sup. Ct. 9The difterence is ilhistrated by Rep. 243. Davis V. Thiit-^d States, 107 Fed. 753, iTQne clause of the provision as to 46 C. C. A. 619. error to State courts is so worded. loBucklin v. United States. 159 U. See ante, § 38. S. 681. 40 L. ed. 304. 16 Sup. Ct. Rep. isAnsbro v. United States, 159 U. 182; Bessette v. W. B. Conkev Co. 196 S. 698, 40 L. ed. 310, 16 Sup. Ct. Rep. U. S. 638, 49 L. ed. 630, 25* Sup. Ct. 187; Western U. T. Co. v. Ann Rep. 793. Arbor Co. 178 U. S. 239. 44 L. ed. iiMotcs v. United States, 178 U. 1052. 20 Sup. Ct. Rep. 867; Muse v. S. 460. 44 L. ed. 1153, 20 Sup. Ct. Arlington Hotel Co. 168 U. S. 435. Rep. 993. So on habeas corpus. 42 L. ed. 531. 18 Sup. Ct. Rop. 109; Davis V. Burke, 97 Fed. 501, 38 C. Filhiol v. Maurice, 185 U. S. 110, 46 C. A. 299. L. ed. 827, 22 Sup. Ct. Rep. 560; !3Boske V. Comingore, 177 U. S. Lawpasas v. Bell, ISO U. S. 276, 45 465, 44 L. ed. 849, 20 Sup. Ct. Rep. L. ed. 527, 21 Sup. Ct. Rep. 308. 251 § 42 [h] THE SUPREME COURT. [Code Fed. proceedings,! 9 or upon the validity of a foreclosure decree collaterally in- volved2o for want of jurisdiction or upon the mode of service of process,i does not raise a constitutional question in the sense here intended, upon the theory that there is a denial of due process of law. The fact that the court below directed a verict does not raise a constitutional question of deprivation of right of jury trial. 2 Where a case is tried below upon the theory that its correct decision depends upon a question of chancery prac- tice, it cannot be claimed that there is a right of direct appeal on a con- stitutional question. 3 A question whether a foreign judgment is given due force and effect may merely present a question of construction of acts of Congress, and not of the constitutional provision. •* A plea seeking the dismissal of a suit for collusive joinder of parties, does not raise a question under the Constitution ; 5 nor does a contention as to legality of service upon the alleged agent of a foreign corporation. 6 And where plaintiff in ejectment declares that he will rely on a treaty with France and the Fifth Amendment, but does not assert any right, title, privilige or immunity de- rived from either, there is no direct right of appeal. 7 It makes no differ- ence whether the right is sustained or denied; a right of direct appeal exists in either case in favor of the party aggrieved by the decision be- low upon that point ;S though not in favor of one aggrieved by the de- cision of other issues but who prevailed below upon the constitutional question. 9 The judge of the lower court is not authorized to certify the existence of a constitutional question in the record, and such certificate is of no weight. 10 [h] Cases involving constitutionality of Federal law or validity or con- struction of treaty. Where the validity of a Federal law is drawn in question direct appeal lies to the Supreme Court. 12 a suit to establish a land claim under Spanish i9In re Lennon, 150 U. S. 393, 37 193 U. S. 4(i0, 48 L. ed. 749, 24 Sup. L. ed. 1120, 14 Sup. Ct. Rep. 123. Ct. Rep. 489. 20 Carey v. Houston & T. C. Ry. '^Muse v. Arlington H. Co. 1G8 U. 150 U. S. 170, 37 L. ed. 1041, 14 Sup. S. 435, 42 L. ed. 531, 18 Sup. Ct. Rep. Ct. Rep. 63. 109. iCosmopolitan M. Co. v. Walsh, ^Holder v. Aultman, 169 U. S. 88. 193 U. S. 460, 48 L. ed. 749, 24 Sup. 42 L. ed. 669, 18 Sup. Ct. Rep. 269; Ct. Rep. 489. But compare Fayer- Loeb v. Columbia T. Trustees, 179 U. weather v. Ritch, 195 b. S. 276, 49 L. S. 478, 45 L. ed. 285, 21 Sup. Ct. Rep. ed. 193, 25 Sup. Ct. Rep. 58. 174. 2Treat Mfg. Co. v. Standard, etc. ^Field v. Barber Asphalt Co. 194 Co. 157 U. S. 674, 39 L. ed. 854, 15 U. S. 620, 48 L. ed. 1153, 24 Sup. Ct. Sup. Ct. Rep. 718. Rep. 784; Anglo-American, etc. Co. sCornell v. Green, 163 U. S. 79, 41 ^'- ^"^""'^ ^^- 1^1 U. S. 376, 48 L. ed. L. ed. 76, 16 Sup. Ct. Rep. 969. 228, 24 Sup. Ct. Rep. 92. 4Merritt v. American S. B. Co. 75 lo^nTTn'^^ t .^°ooJ' oY « '^' Fed. 813, 21 C. C. A. 525. J.f ^- \^^^' ^8 L. ed. 228, 24 Sup. TT '^'^^«^9-T^'''I'^«.''n ?«"q"'' n? I'^Nishimura Ekin v. United States. U. S. 556, 42 L. ed. 850, 18 Sup. Ct. 149 u. S. 651, 658, 659, 35 L. ed. 1146. ^^P- *1^- 12 Sup. Ct. Rep. 336; Horner v. eCosmopohtan M. Co. v. Walsh, United States, 143 U. S. 576, 36 L. 252 Procedure] APPEALS FROM CIRCUIT AND DISTRICT COURTS. § 42 [i] treaty is within this clause.is A habeas corpus proceeding wliich de- pends, at least in part, upon the meaning of a treaty, is reviewable under this provision even although also involving the construction of the act of Congiess carrying the treaty into effect. i* But some right, title privi- lege or immunity must be set up and claimed before its construction and validity can be deemed involved.is Where a suit respecting allotment of Indian lands involves merely the construction of a statute and no right or title under a treaty is claimed, it is not within this clause even although incidently and remotely a treaty was involved. 1 6 So a question whether in fact petitioner was seeking an asylum in the United States has been held to involve no question of treaty construction.! 7 An admiralty case involv- ing the meaning of "foreign waters" in R. S. § 4370, does not involve the construction of a treaty although the waters in question were straits as to jurisdiction over which Great Britain and the United States had a treaty.is [i] Cases in which State law or constitution claimed to violate Federal Constitution. In such cases a direct appeal from circuit to Supreme Court is allow- able.i9 A city ordinance is a State law within this clause; 20 and direct appeal lies where an ordinance or statute is claimed to impair the obligation of a contract;! or to violate the Fourteenth Amendment.2 Direct appeal lies under this section as much where the State law is declared invalid as in cases where it is upheld, s But the right of appeal is in the party ag- grieved by the decision, who, in the former case, is the party relying on the State law, and in the latter, the party raising the Federal claim. The party in whose favor the lower court ruled on the constitutional question cannot appeal directly from a decision against him on the merits because the record contains this decision of the constitutional question in his favor. 4 ed. 266. 12 Sup. Ct. Rep. 522: Carey 20Penn M. L. Ins. Co. v. Austin. V. Houston, etc. Rv. 150 U. S. 179, 168 U. S. 695, 42 L. ed. 626, 18 Sup. 37 L. ed. 1041, 14 Sup. Ct. Rep. 63. Ct. Rep. 223; Macon v. Georgia P. !3Mitchell V. Furman, 180 U. S. Co. 60 Fed. 781, 9 C. C. A. 262. 428, 45 L. ed. 608. 21 Sup. Ct. Rep. iPenn M. L. Ins. Co. v. Austin, 168 430. U. S. 694, 42 L. ed. 626, 18 Sup, Ct. i^Ornelas v. Ruiz, 161 U. S. 502, Rep. 223; Holder v. Auitman, 169 40 L. ed. 787, 16 Sup. Ct. Rep. 689; U. S. 88, 42 L. ed. 669, 18 Sup. Ct. Pettit V. Walshe, 194 U. S. 205, 48 Rep. 269: Indianapolis v. Central T. L. ed. 938, 24 Sup. Ct. Rep. 657. Co. 83 Fed. 529, 27 C. C. A. 580. isMuse v. Arlington H. Co. 168 2Field v. Barber Asphalt Co. 194 IT. S. 430, 42 L. ed. 531, 18 Sup. Ct. U. S. 620, 48 L. ed. 1142, 24 Sup. Ct. Rep. 109. Rep. 784; Hastings v. Ames, 68 Fea. !6Sloan V. United States, 193 U. 726, 15 C. C. A. 628. S. 620, 48 L. ed. 817, 24 Sup. Ct. Rep. sLoeb v. Columbia Twp. T. 179 U. 570. S. 472, 477, 45 L. ed. 280, 21 Sup. Ct. i7In re Newman, 79 Fed. 615. Rep. 174; Connolly v. Union S. P. isThe Pilot, 53 Fed. 11, 3 C. C. A. Co. 184 U. S. 544, 46 L. ed. 679, 22 392. Sup. Ct. Rep. 431. isFidelity M. L. Assn. v. Mettler, 4 Anglo-American P. Co. v. Davis 185 U. S. .315, 46 L. ed. 922, 22 Sup. Co. 19i U. S. 376, 48 L. ed. 228, 24 Ct. Rep. 662. Sup. Ct. Rep. 93. 253 § 42 [j] THE SUPREME COURT. [Code Fed. [j] Scope of review under this section. Where the appeal is by virtue of a jurisdictional question, only that question is certified and the review is confined to it, and will not extend to any question on the merits. 6 Though where a habeas corpus case is ap- pealed from the circuit court on jurisdictional grounds, the Supreme Court will proceed "to dispose of the party as law and justice require.'"? Where a case involving a constitutional question is taken up by direct appeal un- der other clauses of the above section, the Supreme Court acquires juris- diction of the entire cases including any jurisdictional question.9 § 43. Anti-trust and commerce suits by United States appeal- able direct from circuit to Supreme Court. In every suit in equit}^ pending or hereafter brought in any cir- cuit court of the United States under any of said acts [i. e., the commerce act of 1887 or the anti-trust act of 1890, or any acts having a like purpose that hereafter may be enacted], wherein the United States is complainant, including cases submitted but not yet decided, an appeal from the final decree of the circuit court will lie only to the Supreme Court and must be taken within sixty days from the entry thereof. Part of § 2, Act Feb. 11, 1903, c. 544, 32 Stat. S23, U. S. Comp. Stat. 1905, p. 623. The rest of the section contained a proviso applying to appeals then pend- ing and was therefore temporary in its nature. The act also provides for certifying such cases to the Supreme Court on division of opinion.i2 The above provision is expressly made applicable to certain other commerce suits. 13 § 44. — such cases to be certified to Supreme Court on division of opinion. In the eA'ent tlie judges sitting in such case^^ [i. e. a suit in equity by the United States in the circuit court under anti-trust or com- merce laws of 1887 or 1890 or similar laws hereafter enacted] shall eSchunk v. Moline M. & S. Co. 147 143. 46 L. ed. 120. 22 Sup. Ot. Rep. 72. U. S. 500, 37 L. ed. 256. 13 Sup. Ct. sHomer v. United States. 14.S U. Rep. 416; The William M. Hoag, 168 S. 576. 36 L. ed. 266, 12 Sup. Ct. Rep. U. S. 444, 42 L. ed. 537, 18 Sup. Ct. 522; Chappell v. U. S. 160 U. S. 509, Rep. 114; The Resolute, 108 U. S. 40 L. eti. 510, 16 Sup. Ct. Rep. 397; 440, 42 L. ed. 533, 18 Sup. Ct. Rep. Field v. Barber Ashphalt Co. 194 U. 112; Greelev v. Lowe, 155 U. S. 58, S. 620, 48 L. ed. 1153, 24 Sup. Ct. 39 L. ed. 69, r5 Sup. Ct. Rep. 24; Rep. 784. Felts V. Murpbv, 201 U. S. 123. 50 sScott v. Donald, 165 U. S. 71, 41 L. ed. 089, 26 Sup. Ct. Rep. 366; Hale L. ed. 632, 17 Sup. Ct. Rep. 265. V. Henkel. 201 U. S. 43, 50 L. ed. i2Post, § 44. 652, 26 Sup. Ct. Rep. 370. isPost, §§ 62 & 64. TStorti V. Massachusetts, 183 U. S. isSee ante, § 43. 254 i Frocednre] DISTRICT OF COLUMBIA APPEALS. § 45 [a] be divided in opinion, the case shall be certified to the Supreme Court for review in like maimer as if taken there by appeal as here- inafter provided [i. e. by appeal to Supreme Court within sixty days.] Part of § 1 Act Feb. 11, 1903, c. 544, 32 Stat. 823, U. S. Comp. Stat. 1905, p. 623. The above section is given in full elsewhere. 1 6 It is made applicable to suits by the Commission. 1 7 The act from which it was taken was passed to expedite the hearing and determination of equity suits under the anti- trust and commerce laws. It provides for direct appeal from circuit to Supreme Court.is § 45. Appeal from CoTirt of Appeals of District of Columbia. Any final judgment or decree i^*^^ of the court of appeals [of the District of Columbia] may be re-examined and affirmed, reversed or modified by the Supreme Court of the United States, upon writ of error or appeal,"^^^ in all cases in which the matter in dispute, ex- clusive of costs, shall exceed the sum of five thousand dollars, in the same manner, and under the same regulations, as existed in cases of writs of error on judgments or appeals from decrees rendered in the supreme court of the District of Columbia on February 9, 1893,^^^ and also in cases, without regard to the sum or value of the matter in dispute, wherein is involved the validity of any patent or copyright, or in which is dra^^Ti in question the validity of a treaty or statute of, or an authority exercised under, the United States.t<^] Code Dist. Col. § 233, 31 Stat. 1227, c. 854. [a] Prior laws superseded and cross-references. R. S. §§ 705 and 706, provided for review of decisions of the supreme court of the District where the value exceeded $1,000, in the same cases aa in the Federal circuit courts. These provisions were superseded by an act of 18851 raising the jurisdictional limit to $5,000 but permitting an ap- peal regardless of amount in controversy where a patent or copyright or the validity of a Federal treaty, statute, or authority was involved. The act of 1885 was superseded in 1893,2 when the court of appeals of the District was created. The Code of the District adopted March 3, 1901, carried forward § 8 of the act of 1893, which was the same as § 233 of the Code, supra, except for slight changes of phraseology. 3 isPost, S 1368. 2Act Feb. 9, 1893. c. 74 §§ 1-8. iTPost, § 62. sSinclair v. District of Col. 192 U. 18 Ante, § 43. S. 18, 48 L. ed. 324, 24 Sup. Ct. Rep. »Act Mar. 3, 1885, c. 355. 212. 255 S 45 [b] THE SUPREME COURT. [Code Fed. |.bj Necessity for final judgment — mode of review. The judgment below must be final to be reviewable.5 A decree making final disposition of a cause and leaving to the lower court the mere minis- terial duty of entering an injunction in compliance with the mandate, is final.6 But a decree is not final when a cause is sent back for further pro- ceedings,7 nor is a decree remanding a cause, final. 8 Where the proceeding to be reviewed is legal and not equitable in character, error and not ap- peal is the proper form of review. 9 [c] Jurisdictional amount as determining right of review. The effect of the provision as to value in dispute is to limit the class of cases appealable, except where a Federal question is involved, n to cases in which the matter in dispute has a money value or is some right capable of reduction to an ascertained value.i2 A right involved, such as a right to freedom, may in fact, be priceless, yet cases involving merely that, do not involve a matter in dispute having pecuniary value. Hence habeas corpus cases have often been declared outside the scope of appellate pow- ers where measured by a value in dispute. is So also a right to the custody of a child is not capable of pecuniary estimate, i* Habeas corpus and crimi- nal cases are for this reason not appealable from the court of appeals of the District; 15 even though a fine is imposed which in a sense is a value in dispute.is In an early case the dispute was between an alleged slave claiming his freedom and an alleged master; but there the right to freedom involved also the correlative property right of an owner in his slave, and the case was accordingly held to involve a matter capable of BHume V. Bowie, 148 U. S. 252, L. ed. 70; Kurtz v. Moffitt, 115 U. 37 L. ed. 438, 13 Sup. Ct. Rep.582. S. 495. 29 L. ed. 459, 6 Sup. Ct. Rep. eChesapeake, etc. T. Co. v. Man- 150; Pratt v. Fitzhugh, 1 Black, 271, ninff, 186 U. S. 241, 46 L. ed. 1144, 17 L. ed. 206; Cross v. Burke, 146 22 Sup. Ct. Rep. 881. U. S. 88, 36 L. ed. 896, 13 Sup. Ct. TClarke v. Roller. 199 U. S. 541, 50 Rep. 22. L. ed. 300, 26 Sup. Ct. Rep. 141. i4Perrine v. Slack, 164 U. S. 452, 8 Warner v. Gravson, 200 U. S. 257, 41 L. ed. 510, 17 Sup. Ct. Rep. 79; 50 L. ed. 470, 26" Sup. Ct. Rep. 240. DeKrafft v. Barney, 2 Black, 704, 17 sMetropolitan R. R. v. MacFar- L. ed. 350. land, 195 U. S. 322, 49 L. ed. 219, 25 is In re Schneider, 148 U. S. 162, Sup. Ct. Rep. 28. 37 L. ed. 404, 13 Sup. Ct. Rep. 572; iiThen the value in dispute is im- Chapman v. United States, 164 U. S. material. Parsons v. District of Col. 440, 41 L. ed. 504, 17 Sup. Ct. Rep. 170 U. S. 49, 42 L. ed. 943, 18 Sup. 76; Cross v. Burke, 146 U. S. 84, 36 Ct. Rep. 521. L. ed. 896. 13 Sup. Ct. Rep. 22; In i2Cross V. Burke, 146 U. S. 88, 36 re Chapman, 156 U. S. 215, 39 L. ed. L. ed. 896, 13 Sup. Ct. Rep. 22; 401, 15 Sup. Ct. Rep. 3-31: In re Washington, etc. R. R. v. District of Belt, 159 U. S. 100, 40 L. ed. 88, 15 Col. 146 U. S. 231. 36 L. ed. 951, 13 Sup. Ct. Rep. 987; Sinclair v. Dis- Sup. Ct. Rep. 64; South Carolina v. trict of Columbia, 192 U. S. 18, 48 Seymour. 153 U. S. 357, 38 L. ed. L. ed. 324, 24 Sup. Ct. Rep. 212. 742, 14 Sup. Ct. Rep. 871; Holzen- leSinclair v. District of Col. 192 dorf V. Hav, 194 U. S. 373, 48 L. ed. U. S. 18, 20, 48 L. ed. 324, 24 Sup. 1025, 24 Sup. Ct. Rep. 681. Ct. Rep. 212; Unitea States v. Moore, isEarry v. Mercein, 5 How. 103,12 3 Oraneh. 159, 2 L. ed. 397. 256 Procedure] APPEAL FROM COURT OF APPEALS. § 45 [d] pecuniary estimate.i" The fact that an invention has a pecuniary value does not establish that there is a matter of pecuniary value in dispute where that matter is the question whether the invention is patentable.is The matter in dispute must have more than a conjectural value and must represent a justiciable demand. Hence" a right of one claiming damages from a foreign nation to have the State Department make appeal to the grace of a foreign country for a settlement is of merely conjectural value and a political rather than legal demand. is A case involving a right to have a trademark registered, as distinguished from a right to the trade- mark, is not one having pecuniary value in dispute, at least in the ab- sence of any evidence of value in the record. 20 A bill praying conveyance of land worth $300, or rescission of a contract for purchase of larger tract for $6,000 presents the necessary amount in controversy upon the alterna- tive prayer.i In estimating the value in dispute, the collateral effect of the judgment in determining other suits or the validity or invalidity of other contracts, obligations or conveyances cannot be considered, but only the direct effect of the judgment upon the matter directly involved. 2 [d] Cases involving validity of patent, copyright, Federal treaty, statute or authority. This clause has been in the law governing appeals from the District without substantial change, since the act of 1885.4 There are similar pro- visions in other statutes respecting appeal. 5 A suit to obtain the allow- ance of a patent is not one involving its validity and appealable under this clause. « Whenever the power to enact a statute as it is or as it is con- strued, is fairly open to denial and is denied, the validity of the statute is drawn in question.' A case involving the validity of a Federal statute as to jurisdiction of justices of the peace is appealable under this clause. « But a decision that a Federal statute does or does not repeal a legislative as- sembly's tax is one involving construction and not validity.s A decision as to the extent of a railroad's power under a statute does not question the statute's validity; 10 nor does a decision as to the District's liability for iTLee V. Lee, 8 Pet. 48, 8 L. ed. sQn error to State courts, see ante, 860. § 38. On appeal from Territories see 'sDurham v. Seymour, 161 U. S. post, § 47. 2.39, 40 L. ed. 682, 16 Sup*. Ct. Rep. eDurham v. Seymour, 161 U. S. 452. 238, 40 L. ed. 683, 16 Sup. Ct. Rep. isHolzendorf v. Hay, 194 U. S. 376, 454. 48 L. ed. 1025, 24 Sup. Ct. Rep. 681. 7Baltimore, etc. R. R. v. Hopkins, 2 0South Carolina v. Seymour, 153 130 U. S. 224, 32 L. ed. 908, 9 Sup. U. S. 358, 38 L. ed. 742, 14 Sup. Ct. Ct. Rep. 503. Rep. 871. sCapital T. Co. v. Hof. 174 U. S. iShappiro v. Goldberg, 192 U. S. 4, 43 L. ed. 873, 19 Sup. Ct. Rep. 580. 240, 48 L. ed. 419, 24 Sup. Ct. Rep. nVashington, etc. R. R. v. District 259. of Col. 146 U. S. 231, 36 L. ed. 951, nVashington, etc. R. R. v. District 13 Sup. Ct. Rep. 64. of Col. 146 U. S. 232, 36 L. ed, 953, lORaltimore, etc. R. R. v. Hopkins, 13 Sup. Ct. Rep. 64. 130 U. S. 226, 32 L. ed. 908, 9 Sup. < Supra, note, [a] Ct. Rep. 503. Fed. Proc— 17. 257 § 46 SUPREME COURT JURISDICTION. [Code Fed. defective streets under the street laws.n A suit attacking the validity of a jjatent ofRce rule of procedure involves the validity of a Federal authori- ty.i2 But an error of the comptroller in allowing fees does not involve the validity of his authority.is It is immaterial to the right of appeal whether the decision below was for or against the validity of the patent, statute or authority.!* § 46. Certiorari from Supreme Court to court of appeals of District of Columbia. In any case heretofore made final in the court of appeals of the District of Columbia it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination, with the same ])ower and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court. Dist. Col. Code, § 234. This provision was enacted in 1897i and carried forward into § 234 of the District Code. The provision as to certiorari from the circuit court of appeals will be found elsewhere. 2 In a number of cases certiorari has issued under this provision. 3 § 47. Appeal in cases relating to highways in District of Co- lumbia. From any judgment or order of said court of appeals [of the District of Columbia] involving any question as to the constitution- ality of this act [an act of Mar. 2, 1893, to provide a permanent system of highways in that part of the District of Columbia lying outside of cities] or of any part thereof, any party aggrieved may, within thirty days after such judgment or order shall be entered, appeal to the Supreme Court of the United States. Said court shall determine only the questions of constitutionality involved in the case, and shall have power to make such special rules and iiDistrict of Col. v. Gannon, 130 appeal from the circuit court. Ante, U. S. 229, 32 L. ed. 922, 9 Sup. Ct. § 42.[g]-[i] Rep. 508. lAct IVLarch 3, 1897, c. 390, 29 i2Steinmetz v. Allen, 192 U. S. 55G, Stat. 692, U. S. Comp. Stat. 1901, p. 48 L. ed. 555, 24 Sup. Ct. Rep. 416. 574. 2Ante § 41 « 'JS"^! ^^'f 7nn^^«"'^'nl^^^,^• ^See list of'cases in 171 U. S. 686, S 285, 34 L. ed. 700, 11 Sup. Ct. Rep. ^^ ^^ Yeager v. United States, 178 ^^*- U. S. 615, 44 L. ed. r215, 20 Sup. Ct. 14 Baltimore, etc. R. R. v. Hopkins, Rep. 1031 ; Hartford F. I. Co. v. Wil- 130 U. S. 222, 32 L. ed. 908, 9 Sup. son, 181 U. S. 617, 45 L. ed. 1030, 22 Ct. Rep. 503. The same is true on Sup. Ct. Rep. 945. 253 Procedure] ON APPEAL FROM TERRITORIES. § 48 [a] regulations applying to appeals under this act as may be proper to bring such cases to a speedy hearing and determination. Part of act Jan. 21, 1896, c. 5, 29 Stat. 3. § 48. From supreme courts of Arizona and New Mexico. Under the act of 1885, still partially in force, "no appeal or writ of error shall ... be allowed from any judgment or decree in any suit at law or in equity . . • in the supreme dourt of any of the territories of the United States, unless tlie matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars."f^^'t*^^" This restriction does not apply, however, "to any case wherein is involved the validity of any patent or copy- right, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States ; . . . in such cases an appeal or writ of error may be brought without regard to the sum or value in dispute." ^"^^^ Since 1891 the above provisions of the act of 1885 have been modified by the provision for appeal to the circuit court of appeals, and not to the Supreme Court, in cases where "the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizeus of the United States, or citizens of different States ; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws [other than capital cases] ^ and in admiralty cases."i<> In such cases and perhaps in certain others, the appeal is to the circuit court of appeals and its decision is final. In capital cases the decision of the territorial supreme court is nowhere re- viewable, except that, upon habeas corpus proceedings in such a case, the decision of either the territorial district or supreme court is reviewable on appeal or error in the Supreme Court.^^^ These provisions now apply only to Arizona and ISTcav Mexico. Author's section. [a] Existing and prior provisions and cross-references. R. S. § 702, provided for review by the Supreme Court of all cases where the value in dispute exceeded $1,000. An act of 1885 contained the pro- visions quoted above, raising the requisite value to $5,000 but permitting review regardless of value in cases involving the validity of a patent or copyright, Federal treaty, statute or authority. The circuit court of "Act March 3, 1S85. c. 355, § 2, sPost, § 81. 23 Stat. 443. U. S. Comp. Stat. 1001, lOAnte. § 42, post. § 81. p. 572. 259 § 48 [b] SUPREME COURT JURISDICTION. [Code Fed. appeals act of 1891 gave that court appellate jurisdiction over Territorial supreme courts in the class of cases in which its decisions upon appeal from the circuit and district courts, are made final; 12 and since 1891 sueli cases, as enumerated above, are not reviewable in the Supreme Court.i3 The law governing appeals from the territories must therefore be sought in the statutes of 1885 and 1891, supra.14 One effect of the legislation of (^ongress on this subject is to make criminal cases other than capital ap- pealable from the territorial supreme courts to the circuit court of ap- peals; while capital cases are appealable neither to that tribunal nor to the Supreme Court of the United States. As Congress has legislated specifi- cally regarding the riguo of review in the Supreme Court, of cases from Oklahoma, Philippines, Hawaii, Porto Rico, Alaska and Indian Territory,! 5 the above general enactments as to appeals from the territories apply only to Arizona and New Mexico. R. S. § 1909, provided that "writ of error or appeal shall be allowed to the Supreme Court of the United States from the decisions of the su- preme courts created by this title [i. e. the organized Territories, including Arizona and New Mexico] or of any judge thereof, or of the District courts [in the Tei-ritories] created by this title, or of any judge thereof, upon writs of habeas corpus involving the question of personal freedom." The act of 1891 very plainly abolished this right of appeal on habeas corpus in criminal cases other than capital, since it substituted a right of appeal to the circuit courts of appeals. But in capital cases, and in civil cases not of the type appealable to the circuit court of appeals, R. S. § 1909, still applies; and appeal lies from the district or supreme courts of Arizona and New Mexico (which are the only remaining Territories among those there enumerated) upon habeas corpus proceedings "involving the question of personal freedom. is Habeas corpus to determine the right to the cus- tody of a child does not involve a question of personal freedom. 1 6% Affirmative provision conferring right of appeal from a Territorial court must appear or no right exists.i7 A Territorial statute cannot enlarge the right of appeal. 18 [bj Only final judgment or decree appealable. Although the statute docs not now so specify, there can be no doubt that only a final Territorial judgment or decree is reviewable. An order dismissing an appeal because not in time, is not final, 1 9 neither is an order i2Post, § 81. sen. Petitioner, 131 U. S. 176, 33 L. isShute V. Keyser, 149 U. S. 651, ed. 119, 9 Sup. Ct. Rep. 672; In re 37 L. ed. 884, 13 Sup. Ct. Rep. 960; Delgado, 140 U. S. 586, 35 L. ed. 579, Aztec M. Co. V. Ripley. 151 U. S. 81, 11 Sup. Ct. Rep. 874. 38 L. ed. 80, 14 Sup. Ct. Rep. 236. i6H>New York F. Hospital v. i4See Royal Ins. Co. v. Martin, 192 Gattie, 203 U. S. , 51 L. ed. (adv. U. S. 156, 48 L. ed. 386, 24 Sup. Ct. op. 53) S7 Sup. Ct. Rep. . Rep. 247, reviewing this legislation. i^Clarke v. Bazadone, 1 Crancli. isPost, §§ 51 to 57. 212, 2 L. ed. 85. ifiConzales v. Cunningham, 164 U. isKennon v. Gilmer. 131 U. S. 24, S. 621. 41 L. ed. 572, 17 Sup. Ct. Rep. 33 L. ed. 110, 9 Sup. Ct. Rep. 696. 182; In re Snow, 120 U. S. 281, 30 isHarrington v. Holler, 111 U. S. L. ed. 658, 7 Sup. Ct. Rep. 556 ; Neil- 797, 28 L. ed. 602, 4 Sup. Ct. Rep. 697. 260 Procedure] OX APPEAL FROM TERRITORIES. § 4S [c] setting aside a sheriff's return to an execution. 20 Where numerous issues of fact are left undisposed of and to be determined upon a new trial, there is no final reviewable judgment.i An affirmance of a judgment of dis- missal below based upon the invalidity of a statute is fiiial.2 [c] Amount in controversy and criminal cases. A decree dismissing a hushaiid's cross complaint for divorce and granting the wife $6,000 alimony upon her complaint, involves the requisite juris- dictional value ; but a mere decree granting or denying a divorce would not be reviewable because representing no matter of pecuniary value. 4 .Judg- ment against several defendants for $5,000 each cannot be aggregated to make the necessary total. 5 In a suit over possession the value of the land is not the measure of value.6 If the judgment in the Territorial supreme court, by adding the interest on a judgment below for less than the re- quisite sum, amounts to more than $.5,000, the necessary value is involved.? A mandamus proceeding by a property owner to restrain the removal of the territorial seat of government does not involve a dispute capable of pecuniary estimate; 8 neither does a suit to test the validity of a vote to move a county seat.9 21 quo warranto proceeding ousting a county asses- sor does not involve a dispute of pecuniary value where the term had ex- pired before the Territorial supreme court's decision.io Where only part of a judgment is in dispute and that for less than $5,000 an appeal will be dismissed.il The effect of the provision measuring appellate jurisdiction by an amount in controversy is to exclude review in criminal cases,i2 since the matter there in dispute is not susceptible of pecimiary estimate.13 Since 1891 criminal cases other than capital are appealable to the circuit court of appeals.i4 But capital cases are not appealable at all except up- on habeas corpus.! B 20Wells Fargo v. McGregor, 13 lOAlbright v. New Mexico, 200 U. Wall. 188, 20 L. ed. 5.38. S. 9, .50 L. ed. 346, 26 Sup. Ct. iHolcombe v. McKusick, 20 How. Rep. 210. 552, 15 L. ed. 1020. iiNew Mexico v. Atchison. et<'. Ry. 2Guthrie Nat. Bank v. Guthrie, 201 U. S. 41, 50 L. ed. 651, 26 Sup. 173 U. S. 539, 43 L. ed. 796, 19 Sup. Ct. Rep. 386. Ct. Rep. 513. 12 Ante, § 45.M 4Simms v. Simms, 175 U. S. 169, isUnited States v. Sanges, 144 U. 44 L. ed. 118, 20 Sup. Ct. Rep. 58. S. 310, 320, 36 L. ed. 445. 12 Sup. Ct. sWilson v. Kiesel. 164 U. S. 248, Rep. 609; Famsworth v. Montana. 41 L. ed. 422, 17 Sup. Ct. Rep. 124. 129 U. S. Ill, 32 L. ed. 616, 618, 6McClung V. Penny, 189 U. S. 145, n Sup. Ct. Rep. 253; Snow v. 47 L. ed. 754, 23 Sup. Ct. Rep. .589. United States. 118 U. S. 347, .30 L. 7Benson M. & S. Co. v. Alta M. ed. 207, 6 Sup. Ct. Rep. 1059; In re & S. Co. 145 U. S. 428, 36 L. ed. Lennon, 150 U. S. 393, 397, 37 L. ed. 763, 12 Sup. Ct. Rep. 877; Guthrie 1120, 14 Sup. Ct. Rep. 123: In re Nat. Bank v. Guthrie, 173 U. S. 539, Belt, 159 U. S. 95, 100, 40 L. ed. 88, 43 L. ed. 796, 19 Sup. Ct. Rep. 513. 15 Sup. Ct. Rep. 987. sChumasero v. Potts, 92 U. S. 358, i4Post. §§ 77, 81. 23 L. ed. 499. i5Supra.[a] sSmitli v. Adams, 1,30 U. S. 173, 32 L. ed. 895. 9 Sup. Ct. Rep. 566. 261 § 48 [d] SUPREME COURT JURISDICTION. [Coue Fed. [dj Cases involving validity of patent or copyright, Federal statute treaty or authority. A similar provision respecting appeal, from the District of Columbia is elsewhere considered. i A right of appeal to the Supreme Court might ex- ist under this clause in cases otherwise within the class appealable to the circuit court of appeals. Presumably however the party would be obliged to take such a case to the Supreme Court. The act of 1885 allows appeal to the Supreme Court where the validity of a patent is in question and the act of 1891 makes a case arising under the patent laws appealable to the cir- cuit court of appeals. If there are or might conceivably be cases involv- ing the validity a patent which yet did not arise under the patent laws, such cases would still go to the Supreme Court notwithstanding the act of 1891.2 A case involving the validity of a governor's appointment of a Territorial auditor involves the validity of an authority exercised under the United States. 3 So also does a case involving the status of a body of persons as the legal Territorial legislature or as usurpers, * and a case involving a contention that a territory had no authority to extend its tax laws to an Indian reservation.s A case involving a dispute as to an act done under an authority as for instance the acts of an officer under the Territorial Code, does not necessarily call in question the validity of that authority.6 § 49. When a territory becomes a state after judgment in Ter- ritorial court. In all cases where the judgment or decree of any court of a terri- tory might be reviewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken, within the time and in the manner provided by law, notwithstanding such terri- tory 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. R. S. § 703, U. S. Comp. Stat. 1901, p. 572. The above provision was originally enacted in 1858.io The admission of a Territory as a State at once terminates the existence and powers of the territorial courts. They are no longer competent to discharge the functions even of Federal courts under the Constitution, unless Congress confers the authority and organizes them as respects the tenure of their judges and lAnte, § 45.W] 156 U. S. 351, 39 L. ed. 447, 15 Sup. 2 See ante. § 15. Ct. Rep. 391. sClavton v. Utah, 1,32 U. S. 638, 33 eperiy v. King Co. 141 U. S. 673, L. ed. 455, 10 Sup. Ct. Rep. 190. 35 L. ed. 895, 12 Sup. Ct. Rep. 130. 4Clouoh V. Curtis, 134 U. S. 369, 33 loAct June 12, 1858, c. 154, § 18. L. ed. 945. 10 Sup. Ct. Rep. 573. 11 Stat. 329. BMaricopa & P. R. R. v. Arizona, 262 Procedure] ON APPEAL FROM TERRITORIES. S 50 otherwise, in conformity with the provisions of the Constitution.il As re- spects the records in cases pending at the time of admission and which are of appropriate Federal cognizance it is for Congress and not the new State to provide a custodian and for their transfer to the Federal court of the new State. 12 As respects pending cases of appropriate State cognizance con- current action by Congress and the new State should be taken; Congress authorizing the transfer of the Territorial records to the new State court, and the State empowering its courts to take jurisdiction and determine the causes. This assent of Congress to a transfer of such Territorial rec- ords may, however, be presumed. 1 3 Where a cause has been decided before admission, in the highest Territorial court even though an appeal to the Supreme Court has already been taken and the case is there pending, there must be legislation by Congress to preserve the right of appeal and the existing appeal, which would otherwise lapse by the admission of the new State; 1* and further legislation by Congress to authorize the execution of the Supreme Court's mandate in the Federal court of the new State if the cause is Federal in character, and otherwise in the proper State tribunal. Such legislation is to be found in R. S. § 703, supra, so far as concerns cases decided prior to admission and not yet appealed. The section does not, however, preserve an existing appeal but only an existing right of appeal. Hence an appeal already taken at the time of admission would lapse,i5 even though the record were actually in the Supreme Court at the time of the admission. A case transferred to the highest State court on petition for rehearing of decision of highest Territorial court, is not reviewable in the Supreme Court unless of Federal cognizance under the section respect- ing writ of error from a State court. 16 Where a territory is admitted as two States the mandate will go to the supreme court of that State wherein lies the county of trial. i" It is customary now for Congress to provide with great particularity for transfers of causes and court records from Territorial courts to the new State and Federal courts, and for the main- tenance of existing appeals and existing rights of appeal. is § 50. Review of judgments of district courts in cases trans- ferred from territorial courts. The judgments or decrees of any district court, in cases trans- iiBenner v. Porter, 9 How. 244. 1.3 022. This seems to be an oversight Tj. ed. 123. See Forsythe v. I'nited on the part of Congress. But the States. 9 How. 573, 13 L. ed. 263. act admitting Oklahoma remedies the i2Hunt v. Palao. 4 How. 590, 11 omission: Act June 16, 1906, c. 3335. L. ed. 1115. § 15. 34 St-at. 276. isBenner v. Porter, 9 How. 246, iGNorthern Pac. R. R. v. Holmes, 247, 13 L. ed. 124. 155 U. S. 140, 39 L. ed. 99, 15 Sup. KHunt V. Palao, 4 Hoav. 590, 11 Ct. Rep. 28. L. ed. 1115; McNultv v. Batty. 10 iTElliott v. Chicago, etc. Rv. 150 U. How. 78, 13 L. ed. 3.35-. Gordon v. S. 249, 37 L. ed. 1068. 14 Sup. Ct. Rep. ITnited States, 117 U. S. 704. 85. i^See I^lcNultv v. Battv. 10 How. isAct June 16, 1906, c. 3335, § 15, 80. 13 L. ed. 333, 336, and see Free- 34 Stat. 276. born V. Smith, 2 Wall. 160, 17 L. ed. 263 § 51 SUPREME COURT JURISDICTION. [Code Fed. ferred to it from the superior court of any territory, apon the ad- mission of such territory as a State, under sections five hundred and sixty-seven and five liundred and sixty-eight^, may be reviewed and reversed or affirmed upon writs of error sued out of, or appeals taken to, the Supreme Court, in the same manner as if such judgments or decrees had been rendered in said superior court of such territory. And the mandates and all writs necessary to the exercise of the appellate jurisdiction of the Supreme Court in such cases shall be directed to such district court, which shall cause the same to be duly executed and obeyed. R. S. § 704, U. S. Comp. Stat. 1901, p. 572. This section was enacted in 1S47 and again in 1848.2 It grew out of the decision in Hunt v. Pala,3 and referred at the time particularly to the causes in the Territory of Florida. 4 § 51. Appeals from Indian Territory direct to Supreme Court. The legislation of Congress at its last session, for the admission of Oklahoma and Indian Territory as a State supersedes the various provisions for appeal from those territories, and renders them of value only for their bearing upon pending cases. Authors section. By an act of 18986 it was provided that "Appeals shall be allowed from tihe United States courts in the Indian Territory direct to the Supreme Court of the United States to either party in all citizenship cases, and in all cases beween either of the Five Civilized Tribes and the United States involving the constitutionality or validity of any legislation affecting cit- izenship, or the allotment of lands, in the Indian Territory, under the rules and regulations governing appeals to said court in other cases." That en- actment governed the subject until 1905, where it was provided that "here- after all appeals and writs of error shall be taken from the United States courts in the Indian Territory to the United States court of appeals in the Indian Territory, and from the United States court of appeals in the Indian Territory to the United States circuit court of appeals for the eighth circuit in the same manner as is now provided for in cases taken by appeal or writ of error from the circuit courts of the United States to the iSee post, § 213. 4 See Benner v. Porter, 9 How. 245, 2See act Feb. 22, 1847, c. 17, § 13 L. ed. 124; Forsythe v. United 1, 9 Stat. 128; also same provision States, 9 How. 573, 13 L. ed. 263. act Feb. 22, 1848, c. 12 § 2, 9 Stat. 6Act July 1, 1898, c. 545, 30 Stat. 212. 591. 84 How. 589, 11 L. ed. 1115. 264 Frocedure] QUESTIONS CERTIFIED IN ALASKA CASES. § 53 circuit coxirt of appeals of the United States for the eighth "circuit."^ De- cisions construing the superseded provisions will be found in a footnote. » § 52. From Alaska district court. Appeals and writs of error may be taken and prosecuted from the final judgments of the district court of the district of Alaska or any division thereof direct to the Supreme Court of the United States in the following cases, namely: In prize causes and in all cases which involve the construction or application of the Constitu- tion 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 dra\\Ti 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. Part of § 504, Alaska Code, 31 Stat. 414, Act June 6, 1900, c. 786. The balance of the section makes other cases, involving more than $500, appealable to the circuit court of appeals.io A proceeding to obtain a license for a vessel in Alaska waters is not one in which a final judgment can be rendered permitting appeal within this section. n The provision is similar to that permitting direct appeals from the circuit and district courts.! 2 § 53. Questions certified in Alaska cases on which instructions desired. Whenever the judges of the 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 case pending before the circuit court of appeals on writ of error to or appeal from the district court [of Alaska] judges^"* may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the questions and propositions certified to it, and its instruction shall be binding upon the circuit court of appeals. Part of § 505, Alaska Code, 31 Stat. 415, act June 6, 1900, c. 786. 7Act March 3, 1905, c. 1479, § 12, 174 U. S. 445, 43 L. ed. 1041, 19 Sup. 33 Stat. 1081, U. S. Comp. Stat. 1905, Ct. Rep. 722. p. 150. 10 See post, § 82. sBrown v. United States, 171 U. uPacific S. W. Co. v. United S. 631, 43 L. ed. 312, 19 Sup. Ct. Rep. States, 187 U. S. 447, 47 L. ed. 254, 56; Ansley v. Ainsworth. 180 U. S. 23 Sup. Ct. Rep. 154. 253, 45 L. ed. 517, 21 Sup. Ct. Rep. isAiite, § 42. 364; Stephens v. Cherokee Nation, i^So in the printed statutes. 2G5 § 54 SUPREME COURT JURISDICTION. [Code Fed. § 54. Appeals from Territory of Hawaii. The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as hetweon the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii. Part of § 86 of act April 30, 1900, e. 339, 31 Stat. 158. By the act of 1900 organizing the Territory of Hawaii, Congress departed from its previous policy as to the territorial judiciary, and created a dual system of courts in analogy to the State and Federal courts found in the several states. It established a district court having the powers and juris- diction of the Federal circuit and district courts. It adopted the existing courts of the old republic of Hawaii and left their jurisdiction intact, and then provided by the above enactment, that as between the Federal district court having jurisdiction of matters within the scope of the Federal judicial power, and the territorial courts having jurisdiction similar to State courts, the laws governing the right of review in and removal t>> Federal courts in the several States should apply. is Final judgments of the Hawaiian district court are reviewable in the circuit court of appeals and in the Supreme Court, as in the case of any other district or circuit court.16 Final judgments of the Hawaiian Territorial courts are review- able on error as in the case of State tribunals, and the procedure, scope of review and disposition of the cause in the Supreme Court will be the same aa on error to a State court.i7 § 55. Appeals from Porto Rico supreme and district courts. Writs of error and appeals from the final decisions of the Su- preme Court of Porto Rico and the district court of the United States shall be allowed and may he taken to the Supreme Court of the United States in the same manner and under the same regula- tions and in the same cases as from the Supreme Courts of the Ter- ritories of the United States; and such writs of error and appeal shall be allowed in all cases where the Constitution of the United States or a treaty thereof, or an act of Congress, is brought in ques- tion, and the right claimed thereunder is denied. . . . Part of § 35 of act April 12, 1900, c. 191, 31 Stat. 85. The cases in the Supreme Courts of the Territories which are reviewable in the Federal Supreme Court are enumerated in sections of the law already i5See Wilders S. J. Co. v. Hind, S. 197. 47 L. ed. 1016. 23 Sup. Ct. 108 Fed. 113, 47 C. C. A. 243: Ex Rep. 787. parte Wilders S. S. Co. 183 U. S. liEquitable L. Assur. Soc. v. 545, 46 L. ed. 321, 22 Sup. Ct. Rep. Brown, 187 U. S. 308, 47 L. ed. 190, 225. 23 Sup. a. Rep. 123. i6See Hawaii v. Mankichi, 190 U. 266 Procedure] FROM PHILIPPINES. § 56 considered. 1 In similar cases when decided in the Porto Rico district or supreme courts, there exists a similar right of review. Hence a Porto Rico case involving more than $5,000 and not within the class made appealnble to the circuit court of appeals if arising in Arizona or New IMexico, is appeal- able to the supreme court; 2 though no Federal right is involved. 3 A right under an act of Congress is denied within the meaning of the pro- vision for appeal, where motion in arrest of judgment based on a claim that the grand jury was not summoned as provided by tlie Federal slatuti'. is denied. ■! A claim that an indictment did not set forth an ofi'ense under Federal statutes is too vague as an assertion of a Federal claim. 5 The Supreme Court has intimated that no cases are appealable from the Porto Rico courts to any circuit court of appeals. « Hence the class of cases ap- pealable to the circuit court of appeals if arising in Arizona or New Mexico, could not, if arising in Porto Rico, be appealable to any court unless consti- tuting a denial of a right under the Federal Constitution, treaties or laws. under the latter portion of the above provision. A case denying a right in respect to the selection or qualifications of grand jurors under the Fed- eral laws, comes within sucli latter clause. 7 § 56. Error and appeal from supreme court of Philippines. The Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the supreme court of the Philippine Islands in all ac- tions, cases, causes, and proceedings now pending therein or here- after determined thereby in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent wit- nesses, is involved or brought in question; and such final judg- ments or decrees may and can be reviewed, revised reversed, modi- fied, or aflBrmed by said Supreme Court of the United States on ap- peal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far lAnte, § 48. U. S. 156, 49 L. ed. 994, 25 Sup. Ct. 2RoyaI Tns. Co. v. :\Iartin, 192 U. ^^P- ^^''■ S. 159. 160. 48 L. ed. .388. 24 Sup. Ct. ^Amndo v. United States. 195 U. Rep. 247; Hijo v. United States. 194 f- l^^-- 4» L. ed. 145. 25 Sup. Ct. Rep. U. S. 320, 48 L. ed. 995. 24 Sup. Ct. ^\^ , , ^ ,, ,. ._, ,, "Rpn 797 6Roval Ins. Co. v. Martin, 192 U. P' '• S. 160". 48 L. ed. .385. 24 Sup. a. Rep. sAmado v. United States. 195 U. 247 S. 173, 49 L. ed. 145, 25 Sup. Ct. TCrowley v. United States, 194 U. Rep. 13. S. 466, 48 L. ed. 1075, 24 Sup Ct. Rep. ^Rodriguez v. United States, 198 731. 267 § r.7 tiUl'KEMK COLUT J U1H«D1CTI0N. [Code Fed. as applicable, as the final judgments and decrees of the circuit courts of the United States. § 10 of act July 1, 1902, c. 1369, 32 Stat. 695, U. S. Comp. Stat. 1905, p. 154. Provisions measuring appellate jurisdiction by an amount in dispute, are also contained in the law conferring a right of appeal from other terri- tories! o and the District of Columbian and the cases bearing upon them are applicable to this enactment. While a question of divorce is not one susceptible of pecimiary estimate, yet if alimony in excess of $25,000 is involved the case is appealable. 12 § 57. — from Oklahoma Territory. Tlie admission of Oklahoma and Indian Territory as a State has superseded the legislation respecting appeals except as to pending eases. The effect of the admission of a State upon pending cases is elsewhere considered. ^^ Author's section. The original proAnsion for appeal from Oklahoma Territory was as fol- lows: "Writs of error and appeals from the final decisions of said supreme court [i. e. the supreme court of Oklahoma] shall be allowed and may be taken to the Supreme Court of the United States in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property or the amount in controversy, to be ascer- tained by oath or affirmation of either party or other competent witness, shall exceed five thousand dollars."i5 This provision was modified by § 15 of the circuit court of appeals act of 1891, 1 6 authorizing appeal to that court from Territorial supreme courts in the cases therein made final.i7 Some of the decisions bearing upon the old law are given in a footnote.is § 58. Appeals from Court of Claims. An appeal to the Supreme Court sliall be allowed, on behalf of the United States, from all judgments of the Court of Claims ad- lOAnte, § 48.[c] U. S. 533, 43 L. ed. 798, 19 Sup. Ct. iiAnte, § 45.[c] Rep. 513; New v. Oklahoma, 195 U. i2De La Rama v. De La Rama, S 252, 49 L. ed. 182, 25 Sup. Ct. Rep. 201 U. S. 303, 50 L. ed. 765, 26 Sup. 68; Queenan v. Oklahoma, 190 U. S. a. Rep. 485. 548, 47 L. ed. 1175, 23 Sup. Ct. Rep. 1 4 Ante, § 49. 762; Comstock v. Eagleton, 196 U. S. isPart of § 9, act May 2, 1890, c. 99. 49 L. ed. 402, 25 Sup. Ct. Rep. ISe, 26 Stat. 86. 210; Oklahoma Citv v. McMaster. ■ lePost, § 81. 196 U. S. 529, 49 L.^ed. 587, 25 Sup. i7See ante, § 48, as to other terri- Ct. Rep. 324; Guss v. Nelson. 200 U. tories. S. 298. 50 L. ed. 489. 26 Sup. Ct. Rep. iSMcClung v. Penny, 189 U. S. 145, 260; New v. Oklahoma, 195 U. S. 47 L. ed. 753, 23 Sup. Ct. Rep. 580; 252, 49 L. ed. 182, 25 Sup. Ct. Rep. Guthrie v. Guthrie Nat. Bank, 173 68. 268 iTocedure] ON APPEAL PROM COURT OF CLAIMS. § 58 [b] verse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dol- lars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section one thousand and eighty-nine J^^'^^^ R. S. § 707, U. S. Comp. Stat. 1901, p. 574. [a] History of section, collateral provisions and cross-references. This provision was originally enacted in 1863 and again in 1868.1 The reference to R. S. § 1089, is intended for R. S. § 1086, providing forfeiture of a claim for fraud in the proof, statement, establishment or allowance thereof. The present law governing suits against the United States was passed in 1887.2 It provides by § 4, for a continuance of the laws in force as to jurisdiction and right of appeal except as therein modified. In § 9 it provides that "the plaintiff or the United States, in any suit brought under the provisions of this act shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limitations therein con- tained. The modes of procedure in claiming and perfecting an appeal or writ of error shall conform in all respects, and as near as may be, to the statutes and rules of court governing appeals and writs of error in like causes." An act of 18913 respecting the jurisdiction of the Court of Claims over claims for Indian depredations provided in § 10 that "the claimant, or the United States, or the tribe of Indians, or other party thereto interested in any proceeding brought under the provisions of this act, shall have the same rights of appeal as are or may be reserved in the statutes of the United States in other cases, and upon the conditions and limitations therein contained. The mode of procedure in claiming and perfecting an appeal shall conform, in all respects, as near as may be, to the statutes and rules of court governing appeals in other cases." Claims under the captured and abandoned property act have been held reviewable in the supreme court under the above section, although the statute made no specific provision thercfor.4 The law conferring jurisdiction on appeals from the court of private land claims is omitted because temporary in its character and purposes. The time for taking appeal,5 and procedure on appeals are con- sidered elsewhere. [b] The section construed. The section as enacted in the law of 1863 was declared legally ineffective to confer jurisdiction in the Supreme Court, for the reason that its de- lAct March 3, 1863, c. 92, §§ 5, 11, 853, U. S. Comp. Stat. 1901, p. 703. 12 Stat. 706, 767; act June 25, 1808, *Ex parte Zellner, 9 Wall. 246, 19 c. 71 § 1, 15 Stat. 75. L. ed. 065; United States v. O'Grady, 2Act. March 3. 1887, c. 359, 24 Stat. 22 Wall. 646, 22 L. ed. 772. 505. U. S. Comp. Stat. 1901, p. 752. sPost. §§ 1907-1909. 'March 3, 1891, c. 538, 26 Stat. epost, §§ 1937-1939. 269 § 59 SUPREME COURT JURISDICTION. [Code Fed. cisions were subject to discretionary action on the part of the executive and therefore would constitute an exercise of a function in subordination to the executive.* The objectionable feature of the act of 1803 was repealed in 186<),9 and since then the Supreme Court has taken junsdiction on appeal and affirmed its jurisdiction, in a large number of cases. lo A right of appeal in a particular case must be conferred by law or it does not exist. n Hence where an act of Congress as to payment of a certain French spoliation claim did not provide for an appeal as to the party entitled to payment, none will lie. 12 it does not exist since the act of 1887, where the amount is less than $3,000; and no regulations of the executive department, or certifi- cate and pro forma decision below for the purpose of procuring a review, can be permitted to impair the force of the legislative enactment on the subject.is Where a controverted claim in the executive department is by consent re- ferred to the court of claims under § 12 of the act of 1887, supra, for its findings, such findings do not constitute a judgment from which appeal may be taken. 1 4 But where the value exceeds $3,000 appeal is matter of right. 15 A claim for services rendered Indians under H. S. §§ 2103-2105 is not a claim against the United States within the section under con- sideration.! 6 A suit authorized by Congress before the Court of Claims, to determine the question of fraud in the obtaining of an award against Mexico is a "case" and not merely an advisory proceeding; and the final decision of the Court of Claims may be reviewed by the Supreme Court.17 Appeal and not writ of error is the appropriate mode of review. is § 59. Writ of error on conviction of capital crime. Hereafter in all eases of conviction of crime the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be re-examined, reversed, or affirmed by the Supreme Court of the United States upon a writ sGordon v. United States, 2 Wall. S. 255, 31 L. ed. 421, 8 Sup. Ct. Rep. 561, 17 L. ed. 921. See 117 U. S. 702. 502. Contra under earlier laws: sActMar. 17, 1866, c. 19, 14 Stat. 9. United States Alire, 6 Wall. 577, 18 lOUnited States v. Alire. 6 Wall. L. ed. 947. 577, 18 L. ed. 948; United States v. i^ln re Sanborn, 148 U. S. 222, 37 Jones. 119 U. S. 477, 30 L. ed. 440, 7 L. ed. 429, 13 Sup. Ct. Rep. 577. Sup. Ct. Rep. 283; United States v. is United States v. Adams, 6 Wall. O'Grady. 22 Wall. 041. 22 L. ed. 772; 107, 18 L. ed. 792. Langford v. United States, 101 U. S. lein re Sanborn. 148 U. S. 227, 37 344. 25 L. ed. 1012. L. ed. 429, 13 Sup. Ct. Rep. 577. iiUnited States V. Atocha, 17 Wall. i^La Abra S. M. Co. v. United 439, 21 L. ed. 696. States, 175 U. S. 423, 44 L, ed. 223, i2United States v. Gilliat, 164 U. 20 Sup. Ct. Rep. 168. S. 42, 41 L. ed. 344, 17 Sup. Ct. Rep. iSUnited States v. Young, 94 U. 16. S. 259, 24 L. ed. 153. isUnited States v. Gleeson, 124 U. 270 i'roceduie] DIRECT APPEAL FROM CIRCUIT COURTS. § CO of error, under such rules and regulations as said court may pre- scribe. Part of § 6, act Feb. 6, 1880, c. 113, 25 Stat. 656, U. S. Comp. Stat. 1901, p. 569. As respects appeal from the circuit and district courts within the several States, the foregoing provision is unquestionably repealed by the act of 1891.1 The various territorial courts are not "courts of the United States" in the sense of being courts invested with the judicial power of the United States created by Congress under its power to establish inferior courts, and whose judges possess the Constitutional tenure of ofBce.2 Statutory ref- erences to courts of the United States have generally been held not to in- clude such courts, although there are exceptions where the intent of Con- gress to apply the provision also to the territorial tribunals and the courts of the District of Columbia was deemed plain. 3 The words "any court of the United States"' are very broad and the nature of an enactment may show that other than technical Federal courts are included. * It has been decided, however, that § 6 of the act of 1889, supra, does not apply to the District of Columbia, » or to the Indian territory.6 It has never been deemed applicable to organized Territories such as Arizona and New .Mexico. 7 It contemplates a direct appeal from the trial to the Supreme Court, a proceeding which is inconsistent with the organization and distri- bution of jurisdiction in the courts of Arizona, Xew Mexico, Oklahoma and Indian Territory. And the provisions respecting review from Porto Rico, Hawaii, Alaska and the Philippines are complete in themselves and not subject to qualification or extension by reference to earlier general laws. It seems clear telow was decided in appcl- T. Co. 173 U. S. 586, 4a L. ed. 818, 19 lant's favor it cannot be objec-ted that Sup. Ct. Rep. 551. the circuit court of appenls Imd no !2Lau Ow Bew- v. United States, jurisdiction on appeal. Viqucsney v. 144 U. S. 56, 30 L. ed. "40, 12 Sup. Allen, 131 Fed. 21, 65 C. C. A. 259. Ct. Rep. 517; Badanu-es v. C!orf, ! s See ante, § 42.[dl-[dd]-[E] 63 Fed. 169, 3 C. C. A. 491. 285 § 77 [g] THE CIRCUIT COURT OF APPEALS. [Code Fed. the entire purposes of the new statute. i Hence it has been said that it refers to contemporaneous and subsequent Uiws;2 and was inserted out of abundant caution in order that any qualification of the jurisdiction in later laws should not be construed as taking away the jurisdiction conferred by the above section except when expressly so provided, s But in the ninth circuit it has been held that the old provision requiring a value of over $50 in dispute to confer a right of appeal to the circuit court in, admiralty is still in force and applies to appeals to the circuit court of appeals.* [g] Judgment final where jurisdiction dependent on diverse citizenship. A case removed for local prejudice is one made final in the circuit court of appeals under this section. 6 The same is true of a suit between citi- zens of different States over land grants from different States. 7 It will be obsei'ved however, that a controversy between a citizen and a foreign State is not among the enumerated cases made final in the circuit court of ap- peals because of the citizenship or character of parties, and hence may be carried by further appeal to the Supreme Court.s Where Federal juris- diction arises because a proceeding is ancillary to another in which diverse citizenship is the basis of jurisdiction, appeal in the ancillary case is governed by this clause and final in the circuit court of appeals. 9 Other cases dealing with the question of finality of the circuit court of appeals decision are discussed elsewhere.io [gg] — where other ground of jurisdiction apparent in plaintiff's statement. It is to be noted that the statute makes judgment final only where juris- diction depends "entirely" on diverse citizenship. Hence it follows that the judgment is not final under this section imless jurisdiction is entirely de- pendent on diverse citizenship. This is determined from plaintiff's state- ment of his cause in his bill or declaration. If that shows other adequate ground of jurisdiction under accepted rules,i2 such as a question arising iLau Ow Bew v. United States, ^Stevenson v. Fain, 195 U. S. 165, 144 U. S. 47, 36 L. ed. 343, 2 Sup. 49 L. ed. 142, 25 Sup. Ct. Rep. 6. Ct. Rep. 517; Louisville P. W. Co. v. sColombia v. Cauca Co. 190 U. S. Collector of Customs, 49 Fed. 564, 1 524, 47 L. ed. 1159, 23 ^up Ct. Rep. C. C. A. 371. 704. zMason v. Pewabic M. Co. 153 U. sAnte, § 3. 8. 361. 38 L. ed. 745, 14 Sup. Ct. Rep. lOAnte, § 39.[b] 847; In re Lennon, 150 U. S. 398, 37 i2Mere assertion of title under L. ed. 1120, 14 Sup. Ct. Rep. 123; mining patent is not: Bonin v. Giilf American C. Co. v. Jacksonville, etc. Co. 198 U. S. 115, 49 L. ed. 970. 25 Ry. 148 U. S. 383, 37 L. ed. 486, 13 Sup. Ct. Rep. 608; nor an inferential Sup. Ct. Rep. 758. alleofation of denial of due process: 3Lau Ow Bew, 144 U. S. 47, 36 L. Empire, etc. M. Co. v. Hanley. 198 ed. 343, 12 Sup. Ct. Rep. 517. U. S. 292, 49 L. ed. 1056, 25 Sup. Ct. 4North A. T. Co. V. Smith, 93 Fed. Rep. 691; nor suit for publishing 8, 35 C. C. A. 183. manuscript: Press P. Co. v. Mon- eCochran v. Montgomery Co. 199 roe, 164 U. S. 112, 41 L. ed. 367, 17 U. S. 260, 50 L. ed. 182, 26 Sup. Ct. Sup. Ct. Rep. 40. Rep. 58. 286 Procedure] APPELLATE JURISDICTION. § 77 [gggl under the Federal laws, is the case is not within the class here made final and may go to the Supreme Court on a furtlier appeal. i4 In this connection, however, it is necessary to distinguish the cases where the other ground of jurisdiction presents a case properly appealable direct to the Supreme Court from the circuit or district court.is Thus, where the original pleading showed a case involving the constitutionality of a State law under the Federal Constitution or other question of the type requiring an appeal of the whole case directly from the trial court to the Supreme Court,i6 the circuit court of appeals canot entertain an appeal,i7 even although the original pleading also averred diverse citizenship.is [ggg] — where a jurisdictional question arises. If a question of the trial courts jurisdiction is involved, § 5 of the act of 1891 provides for certifying it directly to the Supreme Court for decision,! although the party has a right to elects an appeal to the circuit court of appeals on the whole case if otherwise within § 6, supra. 3 But where the trial court dismisses for want of jurisdiction, the jurisdictional question will generally be the only question in the case, and in that event and in any other case, where only the jurisdictional question exists,* it is held that 131 e., a question of construction this point by statements in Carter but not of constitutionality in which v. Roberts, 177 U. S. 496, 500, 44 L. appeal must be direct to the Su- ed. 863. 20 Sup. Ct. Rep. 113, appar- preme Court (ante, § 42, § 39[c]) ; ently declaring that the court of ap- Florida, etc. R. R. v. Bell, 176 U. S. peals has a discretion to entertain 321, 44 L. ed. 486, 20 Sup. Ct. Rep. such cases: United States v. Lee Yen 399. Tai, 113 Fed. 46.5, 51 C. C. A. 299; 14 Colorado, etc. M. Co. v. Turck, Pike P. P. Co. v. Colorado Springs, 150 U. S. 142, 37 L. ed. 1030, 14 Sup. 105 Fed. 7, 44 C. C. A. 333. But the Ct. Rep. 35; Union P. Rv. v. Harris, Carter case is explained and qualified 158 U. S. 327, 39 L. ed. 1003, 15 Sup. in American S. R. Co. v. Xew Or- Ct. Rep. 843; Florida, etc. Rv. v. leans, 181 U. S. 282, 45 L. ed. 859, Bell, 176 U. S. 321, 44 L. ed. 486, 20 21 Sup. Ct. Rep. 646. Sup. Ct. Rep. 399; Borgmever v. isPenn Mut. L. I. Co. v. Austin, Idler, 159 U. S. 413, 40 L. ed. 199, 168 U. S. 685, 42 L. ed. 626, 18 Sup. 16 Sup. Ct. Rep. 34. Ct. Rep. 223. isAnte, § 42. lAnte, § 42. 16 Ante, § 42. 2Ante, § 42.W] 1'? Indianapolis v. Trust Co. 83 Fed. ^if there are other questions the 529, 27 C. C. A. 580; Hubinger Co. appeal may be to the circuit court V. Quincy, etc. Co. 98 Fed. 897, 39 of appeals': Texas & P. R. R. v. C. C. A. 336; Union & P. Bank v. Bloom, 60 Fed. 979. 9 C. C. A. 300; Memphis, 189 U. S. 71. 47 L. ed. 712, United States Freehold, etc. Co. v. 23 Sup. Ct. Rep. 604; Holt v. Indiana C,allegos, 89 Fed. 769, 32 C. C. A. 470; Mfg. Co. 80 Fed. 1, 25 C. C. A. 301; Beck & P. L. Co. v. Wacker, 76 Fed. Wright V. MacFarlane, 122 Fed. 773, 10, 22 C. C. A. 11; Board of Council- 58 C. C. A. 570, and cases cited; men v. Deposit Bank, 124 Fed. 21, 59 St. Clair Co. v. Interstate S. & C. T. C. C. A. 538; even though the other Co. 110 Fed. 785, 49 C. C. A. 169; questions are not properly preserved Barr v. New Burnswick, 72 Fed. 689, bv exception: Reliable, etc. Co. v. 19 C. C. A. 71; Owensboro v. Owens- Stahl. 105 Fed. 663, 44 C. C. A. 657. boro W. Works, 115 Fed. 318, 53 C. 4The Alliance, 70 Fed. 273. 17 C. C. A. 146; Seattle v. Thompson, 114 C. A. 124; The Annie Faxon, 87 Fed. Fed. 96, 52 C. C. A. 44. Some of the 963, 31 C. C. A. 325; Manufacturing courts have been led into error on Co. v. Barber, 60 Fed. 465, 9 C. C. 287 § 77 [gggg] THE CIRCUIT COURT OP APPEALS. [Code Fed. the party cannot go to the circuit court of appeals, but must take the question directly to the Supreme 'Court.5 Nor would the circuit court of appeals be the proper tribunal to mandamus the circuit court to take jurisdietion.6 It has been held in the second circuit that the circuit court of appeals will not consider the jurisdictional question when presented with other questions on the merits. 7 [gggg] — where Federal question arises during progress of cause. Where a Constitutional question arises during the trial.io or by supple- mental pleading,! 1 and is not set up in the original pleading, which shows only diverse citizenship, such a case is deemed one in which originally the jurisdiction depended entirely upon citizenship. If the party takes such a case to the circuit court of appeals its judgment is final and not anpealable; nor can he afterwards take a direct appeal on such l^ederal question aris- ing during the trial to the Supreme Court, although § 5 of the acti2 would have so permitted in the first instance.13 It is a case for election of remedies.ii The circuit court of appeals cannot decline to entertain an appeal where jurisdiction originally depended entirely upon diverse citizen- ship, because a constitutional question arose and became controlling in the case, suoh for instance as the validity of a State law vmder the Federal Constitution.! 5 it is not sufficient that a constitutional question might have arisen if not in fact raised.! 6 A. 79; United States v. Sutton, 47 20 Sup. Ct. Rep. 713, relied on by Fed. 129, 2 C. C. A. 115. the judges of the second circuit. See 5 Cabot V. Mc:Master, 65 Fed. 533, also contra: Rust v. United W. Co. 13 C. C. A. 39; Excelsior W. P. Co. 70 Fed. 129, 17 C. C. A. 16; Balti- V. Pacific B. Co. 109 Fed. 497, 48 C. more & 0. R. R. v. Meyers, 62 Fed. C. A. 349; Dudlev v. Board, 103 Fed. 307, 10 C. C. A. 485; The Presto, 93 209, 43 C. C. A. 184; Hays v. Richard- Fed. 522, 35 C. C. A. 394; Coler v. son, 121 Fed. 536. 57 C. C. A. 598: Grainger Oo.74 Fed. 16,20 C. C. A. 267. Evans, etc. Co. v. McCaskill, 101 Fed. i^Ex parte Jones, 164 U. S. 693, 658, 41 C. C. A. 577; In re Aspin- 41 L. ed. 601, 17 Sup. Ct. Rep. 222; wall's Estate, 90 Fed. 675, 33 C. C. American S. R. Co. v. New Orleans, A. 217; United States v. Sutton, 181 U. S. 2S6, 45 L. ed. 861. 21 Sup. 47 Fed. 129, 2 C. C. A. 115; Halpin Ct. Rep. 646; Watkins v. King, 118 V. Amerman, 138 Fed. 548, 70 C. Fed. 524, 55 C. C. A. 390. C. A. 462; St. Louis C. C. Co. v. !!Third St. Ry. v. Lewis, 173 U. American L. Co. 125 Fed. 196, 60 S. 460, 43 L. ed. 766. 19 Sup. Ct. Rep. C. C. A. 80. 451. eUnitcd States v Swan, 65 Fed. !2See ante. § 42. 647, 13 C. C. A. 77: United States v. i3Caiy Mfg. Co. v. Acme, etc. Co. Severens, 71 Fed. 768, 18 CCA. 314. 187 U. S. 427, 47 L. ed. M4, 23 Sup. ■fUnited States v. Lee Yen Tai, 113 Ct. Rep. 211. See also cases cited Fed. 465, 51 C C A. 299; Sun P. & ante, § 38.[c] P. Co. v. Edwards, 121 Fed. 826, ! 4 Ante, § 42.W]-[d(i] 58 C. C. A. 162; Fisheries Co. v. !5American S. R. Co. v. New Or- Lennen. 130 Fed. 534. 65 C C A. leans, 181 U. S. 277, 45 L. ed. 859, 79. But see contra ante, § 42W] and 21 Sup Ct. Rep. 646 ; Columbia T. T. oases cited. And see American S. v. Loeb, 179 U. S. 472, 45 L. ed. 280, R. Co. V. New Orleans, 181 U. S. 21 Sup. Ct. Rep. 174; Keyser v. 282, 45 L. ed. 859. 21 Sup. Ct. Rep. Lowell. 117 Fed. 400,24 C C. A. 574. 646, which explains Carter v. Rob- ! eWorld's C Exp. v. United States, erts, 177 U. S. 496, 44 L. ed. 861. 56 Fed. 654, 6 C C A. 58. Procedure] APPELLATE JURISDICTION. § T7 [jj] [h] Cases arising under the patent laws. The question when a case is deemed to arise under the patent laws has already been considered as it is one of the classes of cases in which Federal jurisdiction is made exclusive.! 8 A suit by the United States to cancel a patent for an invention is not a case arising under the patent laws, made final in the circuit court of appeals. 1 9 Neither is a suit to enjoin the col- lection of a State tax on the value of patent rights. 20 [ij Cases arising under the revenue laws. The act of 1890 providing for appeals to the Supreme Court from decisions of the board of general appraisers is superseded pro tanto by this clause, which has the effect of making such cases appealable to the circuit court of appealsi and not to the Supreme Court.2 The judgment of the circuit court of appeals are now final in cases arising under the revenue laws. 3 [j] Cases arising under criminal laws. Since 1897, the only criminal cases appealable direct from the trial to the Supreme Court, are capital cases, 5 unless of course, a treaty or consti- tutional question is involved conferring a right of direct appeal under § 5 of that act of 1891.6 A writ of scire facias upon a forfeited recognizance to secure the appearance of a person to answer to a charge of embezzlement in a case arising under criminal laws. 7 Proceedings in a criminal case are not reviewable until after final judgment. 8 tjj] — habeas corpus and contempt proceedings. By the act of 1891 the circuit court of appeals has succeeded to the ap- pellate jurisdiction in habeas corpus formerly exercised by the circuit court under R. S. § 763.^0 It has no original habeas corpus jurisdiction.! 1 But if a habeas corpus case presents a treaty or constitutional question of the type appealable direct from the trial to the Supreme Court,! 2 appeal should be to that court rather than the circuit court of appeals.! 3 And if properly appealable to the circuit court of appeals it is not again appeal- able to the Supreme Court.!* isAnte, § 15.[k] 20 Sup. Ct. Rep. 993; Davis v. Burke, i9United States v. American Bell 97 Fed. .501. 38 C. C. A. 299. Tel. Co. 159 U. S. 548, 40 L. ed. 255, ^Hunt v. United States, 166 U. S. 16 Sup. Ct. Rep. 69. 41 L. ed. 1063, 17 Sup. Ct. Rep. 609. 20Holt V. Indiana Mfg. Co. 80 Fed. 4'24, 41 L. ed. 1063, 17 Sup. Ct. Rep. 25, 25 C. C. A. .301. C09. iPost. § 79. sWhitworth v. United States. 114 2Anglo-Californian Bank v. United ^^d. 302 5^ C. C. A. 214 States, 175 U. S. 39. 44 L. ed. 65, 20 loUnited States v. Fowkes, 53 Fed. Sup Ct Reo ''0 ^^- ^ ^- ^- *^- ''^^■^• Tw \.V. !^' e u ,.^ TT o r« '>a !! Whitney v. Dick, 202 U. S. 132, T 5 a«r"^7-/°^V^^t^ ^■?. ^^' ^^ 50 L. cd. 903, 26 Sup. Ct. Rep. 584. L. ed. 886, 13 Sup. a. Rep. 13. 12 Ante, § 42. CAnte, § 42.m Good Shot v. isbavis v. Burke, 97 Fed. 501, 38 United States, 104 Fed. 257, 43 C. C. c. C. A. 299. A- 5^'5. '!4Lau Ow Bew v. United States, SAnte, § 42. Motes v. United 144 U. S. 47, 36 L. ed. 344, 12 Sup. States, 178 U. S. 466, 44 L. ed. 1153, Ct. Rep. 517. Fed. Proc— 19. 289 { 77 [k] THE riH('UIT ('OIHT OF AITKALS. [Code Fed. A contempt proeecHling is sui goneiii. though closely akin to a criminal proceeding.! 5 The Supreme Court has in many cases denied its own juris- diction to review a contempt proceeding in an inferior court upon appeal or error. 16 But it has recently sustained the jurisdiction of the circuit court of appeals to review contempt proceedings in the circuit court, under its power to review criminal cases. i" And where the contempt is by one not a party to the suit below, writ of error will lie from the interlocutory order in contempt regardless of final judgment in the case in which the adjudication of contempt occurred. is Conflicting views have been ex- pressed as to whether a contempt by a party to the suit is reviewable ])rior to final judgment in the cause. 19 [kj Admiralty cases. A suit to limit the liability of shipowners is deemed an admiralty case, liiial in the circuit court of appeals.! |l] Further appeal in other cases if exceeding one thousand dollars. This clause of § 6 of the act of 1801 is considered in the chapter dealing with the Siipreme Court's jurisdiction. 3 The effect of a provision measur- ing a right of appeal by a value in dispute is also considered elsewhere.4 By reqviiring a value in dispute exceeding one thousand dollars, cases in- volving less and cases not susceptible of pecuniary estimate, are neces- sarily made final in the circuit court of appeals. § 78. Appeal from interlocutory receivership or injunction or- ders or decrees. Where, upon a hearing in equitv^*^ in a district or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree. '^^'^ in any cause'^*'^ an appeal may be takenf*^^ froii; 150'Xeal v. United States. 190 U. Crimiss, 112 Fed. 377. 50 C. C. A. S. 36, 47 L. ed. 945. 23 Sup. Ct. Rep. 291. 776. isBessette v. W. B. Conkcv Co. leSee In re Olietwood, 165 U. S. 194 U. S. 324. 48 L. ed. 997. 24 Sup. 462, 41 L. ed. 788. 17 Sup Ct. Rep. Ct. Rep. 665 :, Butler v. Fnverweatlier. 392: O'Neal v. United States. 190 91 Fed. 458, 33 C. C. A. 625. U. S. 36. 47 L. ed. 945, 23 Sup. Ct. i^See Ohristensen E. Co. v. West- Rep. 776: Besisette v. W. B. Conkev inghouse A. B. C-o. 129 Fed. 96, 63 Co. 194 U. S. 324. 48 L. ed. 997. 24 C. C. A. 598: Bullock E. & M. Co. v. Sup. Ct. Rep. 665. Westinghouse E. & M. Co. 129 Fed. iTBessette v. W. B. Conkev Co. 194 105. 63 C. C. A. 607. U. S. 324. 48 L. ed. 997, 24'Sup. Ct. iQregon R. R. Co. v. Balfour. 179 Rep. 665. To same effect: In re U. S. 56, 45 L. ed. 84', 21 Sup. Ct. Heinze. 127 Fed. 96. 62 C. C. A. 96; Rep. 28. Butler v. Faverweather. 91 Fed. 458, sAnte, § 39. 33 C. C. a' 625; Flower v. Mac- 4 Ante. § 45. [c] § 48. [c] 290 Procedure] INTERLOCUTORY Al'l'KAL. { 78 [b) such interloc-utorv order or decree granting or continuing such in- junction, or appointing such receiver, to the circuit court of appeals. Part of § 7 of act :\Iar. 3, 1891, 26 Stat. 828, as amended Apr. 14, 1906, c. J627, 34 Stat. 116. [a] History of section and cross-references. The section also provides that such appeals must be within thirty days.7 and regfulates the matter of bond and supersedeas* and gives such cases precedence. 9 As originally enacted this section allowed appeal merely from interlocutory orders granting or continuing injunctions, and confined the rights to cases finally appealable to the circuit court of appeals. An amendment in 18951 o enlarged the provision so as to permit appeal also from an order refusing, dissolving or refusing to dissolve an injunction. In 190011 the enlargement of the right of appeal introduced by the act of 1895 was withdrawn, but interlocutory receivership orders were for the first time made appealable. In 1906 the clause restricting the right to causes "in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals," was stricken out. [b] Construction and application. Since the amendment of 1900, an order refusing an injunction is not ap- pealable.13 An order refusing to dissolve an injunction has been held not an order continuing an injunction within the meaning of the present law, and hence not appealable ;14 although an order refusing to dissolve and ordering the injunction continued to final hearing has been declared ap- pealable: is as also an order contiTiuing an injunction vacated temporarily during the hearing.ie An order awarding permanent injunction in in- fringement suit and reference to master to find damages is appealable as interlocutory. 1" The successful party can defeat a right to such inter- locutory appeal by waiving his injunction imtil final decree. Prior to the TPost, S 1900. G. Co. V. Seaman. 113 Fed. 7.50. 51 sPost, §§ 2020. 2021. C. C. A. 440. 9Post. § 2056. !•* Rowan v. Ide. 107 Fed. 161, 4a lOAct Feb. 18. 1895, c. 96. 2S Stat. <^- ^- -^- 214: Heinze v. Butte & B. 666. etc. Co. 107 Fed. 105, 46 C. C. A. iiAct June 6. 1900. c. 803. .•?! Stat. 219: Dreutzer v. Frankfort L. Co. 660. This act amended § 7 of the '^S Fed. 642. 13 C. C. A. 73. act of 1891, without refprriug to tlie isBerliner G. Co. v. Seaman. 108 a«t of 1895. but it was held ellectual Fed. 714, 47 C. C. A. 630. to supersede the amendment of 1895: isArmat M. P. Co. v. Edison M. Rowan v. Ide. 107 Fed. 161. 46 C. C. Go. 125 Fed. 039, 60 C. C. A. 380. .\. 214; Columbia W. Co. v. Bovce, i^Starr B. Works v. General E. Co. 104 Fed. 172, 44 C. C. A. 588: Heinze 129 Ferl. 102. 63 C. C. A. 604: I^ek- V. Butte & B. Co. 107 Fef appeals of the District of Columbia shall have appellate juris- diction of all suits at law or in equity respecting trademarks registered in accordance with the provision of this act, arising under the present act without regard to the amount in controversy. Part of § 17, act. Feb. 20, 1905. c. 592. 33 Stat. 728, U. S. Comp. Stat. 1905, p. 675. The first portion of the above section declares the jurisdiction of the circuit court. 5 Other portions of the act are given in the cliapter dealing with procedure in trademark cases. 6 § 88. Appeals from United States court in China. Appeals shall lie from all final judgments or decrees of said court to the United States circuit court of appeals of the ninth judicial circuit, and thence appeals and writs of error may be taken from the judgments or decrees of the said circuit court of appeals to the Supreme Court of the United States in the same class of cases as those in which appeals and writs of error are permitted to judg- ments of said court of appeals in cases coming from district and circuit courts of the United States. Said appeals or writs of error shall be regulated by the procedure governing appeals within the 19 Ante, § 54. 2 Ante, § 42. 20 Ante. § 77. sPost. § . iWright V. MacFarlane, 122 Fed. spost, S 162. 770, 58 C. C. A. 570. cpost, § 1177, et seq. 298 Procedure] APPEALS FROM COURT IN CHINA. § 88 United States from the district courts to the circuit courts of ap- peal, and from tlie circuit courts of appeal to the Supreme Court of the United States, respectively, so far as the same shall be applicable; and said courts are hereby empowered to hear and determine appeals and writs of error so taken. 8 3 of act June 30, 190t>, c. 3934, 34 Stat. 815. 299 CHAPTEK 4, THE CIRCUIT COURT.— ORGANIZATION AND GENERAL POWERS. § 100. "Circuit justice" and "circuit judge" defined and distinguished. § 101. Allotment of justices to the circuits. § 102. Circuit judges. § 103. Establishment of circuit courts in the various States. § 104. By whom circuit courts are to be held. § 105. Justices of Supreme Court to attend once in two years. § 106. Judges of circuit courts may sit apart. § 107. When Iowa district judges holding circuit court, to sit together. § 108. Circuit courts at same time in different districts. § 109. Who may hold criminal terms in southern district of New York. § 110. Whose opinion prevails where judges divided. § 111. Whose opinion prevails where district judge holds circuit court with other judges. § 112. Suit transferred to another circuit court in case of disability. § 113. When such causes certified back. § 114. Justices may hold courts of other circuits on request. § 115. — in cases where no justice is allotted to a circuit. § 116. Wlien district court matters to be certified into and disposed of in circuit court. § 117. District court matters subsequent to certifying order also to be transmitted. § 118. Powers of district judge vested, during disability, in circuit judge. § 119. Duty of disabled district judge to certify and of circuit judge to take cognizance. § 120. Circuit court's jurisdiction of transferred district court matters. § 100. "Circuit justice" and "circuit judge" defined and dis- tinguished. The words ''circuit justice" and "justice of a circuit," when used in thisTitle, [i. e relating to the judiciary] shall be understood to designate the justice of the Supreme Court who is allotted to any circuit ; but the word "judge," when applied generally to any circuit, shall be understood to include such justice. R. S. § 605, U. S. Comp. Stat. 1901, p. 486. 300 rocedure] ESTABLISHMENT OF CIRCUIT COURT. § 103 § 101. Allotment of justices to the circuits. The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allottment 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 otherwise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. R. S. § 606, U. S. Comp. Stat. 1901, p. 487. § 102. Circuit judges. At present there are four circuit judges in the second, seventh and eighth circuits, and three circuit judges in each of the other seven circuits, excepting the fourth wherein there are now only two. They have the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. Author's section. Revised Statutes, § 607. called for one circuit judge in each circuit. A special act of 1887 provided an additional circuit judge in the second circuit;! and the circuit court of appeals act of 1801,2 provided for the appointment of an additional circuit judge in each circuit. Later statutes have at various times provided for a third circuit judge in the third, fifth, sixth, seventh, eighth and ninth circuits. 3 Acts of 1902 and 1903 provided a fourth circuit judge for the second and eighth circuits;* and acts of 1905 provided .an additional circuit judge in the first and seventh circuits. 5 Provisions as to salary, residence, and expenses of judges are given else- where. 6 § 103. Establishment of circuit courts in the various States. The statutes now provide for and there exists a circuit court of the United States in and for each Federal judicial district through- out the several States, whether a State comprise two or more such lAet Mar. 3, 1887, 24 Stat. 492. 4Seeond circuit, act Apr. 17. 1902, 2Act Mar. 3, 1891, c. , 26 Stat. c. 530, 32 Stat. 106; Eighth circuit, 826. act Jan. 31, 1903, c. 345, 32 Stat. sTliird circuit bv act Feb. 23, 1899, 791. c. 186, .30 Stat. 846. Fifth and sixth 5 Act Jan. 21, 1905, c. 51, 33 Stat. circuits' bv act Jan. 25, 1899, c. 56, 611; Act Mar. 3, 1905, c. 1427, § 1, 30 Stat. 803. Seventh circuit by act 33 Stat. 992, U. S. Comp. Stat. 1905, Fefc. 8. 1895. c. ,59, 28 Stat. 643. p. 140. Eighth circuit by act July 23, 1894, epost, §§ 46, et seq. c. 147, 28 Stat. 115. Ninth circuit by act Feb. 18, 1895, c. 94, 28 Stat. 665. 301 § 104 Tin: CIRCUIT COURT. [Code Fed. districts, or one only. In a few instances separate circuit and dis- trict courts are created for the several divisions into which certain districts have been divided. Author's section. Formerly there was not always a circuit as well as a district court in each district. At tihe time of the adoption of the Revised States a circuit court was provided for each district except in Alabama, Arkansas and Mis- sissippi, s in which States there was only one circuit court, althoniili two or more districts. Later statutes have created the additional cnvuts, and repealed R. S. § 655, conferring circuit court powers on certain district courts. 9 The various statutes which have created two or more divisions in a large number of the Federal judicial districtsio have usually not created separate circuit and district courts in such divisions, but have merely pro- vided for sessions and terms of those courts as created for the district, in each such division. However in the case of Missouri the statute dividing the two districts, one into two and the other into four divisions, provides "that there shall be, and there are hereby, established a district and circuit court of the United States in each of the several divisions" uf the tv,i> districts.il This is an exception to the general policy of Congress. § 104. By whom circuit courts are to be held. Circuit courts shall be held by the circuit justice, or by the circuit judge of the circuit, or by the district judge of the district sitting alone, or by any two of the said judges sitting together. R. S. § 609, U. S. Comp. Stat. 1901, p. 494. This provision was first enacted in 1869.13 The authority of a district judge holding a circuit court aloiK! under this section, is just as extensive as that of any other judge sitting in the same court.i* Such judge can issue a writ of injunction just as fully and freely in all respects as when the court is held by the circuit justice or judges or by two just ices, i'' Different judges holding the same court should not overrule one another except for most cogent reasons.is In some cases there are special pro visions for three judges to sit at circnit.isVb • sR. S. § 60S, U. S. Comp. Stat, respecting South Carolina seems t> 1901, p. 489. create a district court for each divi- sAlabama bv act June 22, 1874, c. sion. See post. § 284. 401, 18 Stat. 195, U. S. Comp. Stat. 1 3 Act April 10. 1869, c. 22, 16 Stat. 19ui, p. 490. Arkansas and Missis- 44. sippi bv act Feb. 6, 1889. c. 113. 25 i4McDoiwell v. Kurtz. 77 Fed. 206. Stat. 655, U. S. Comp. Stat. 1901, p. 23 C. C. A. 119. 492. isGoodvcar. etc. Co. v. Folsom. 3 10 See post, §§ 257, et seq. Fed. 509.^ iiSee act Feb. 28. 1887. c. 271, § leBoatmen's Bank v. Fritzlen, 135 3, 24 Stat. 425, U. S. Comp. Stat. Fed. 650. 68 Fed. 288. 1901, p. 386. So also the legislation i6%See post, § 1347. 302 Proiediire] ORGANIZATION. S lOS § 105. Justices of Supreme Court to attend once in two years. It shall be the (liity of the Chief Justice, and of each justice of the Supreme Court, to attend at least one term of the circuit court in each district of the circuit to which he is allotted during every period of two years. R. S. § 610. U. S. Comp. Stat. 1901, p. 494. While the above section does not require that the justices shall go to their circuits more tlian once in two years, its effect is to compel them to do this, there being so many districts in many of the circuits that it is impossible for the circuit justice to reach them all in one year.i7 § 106. Judges of circuit courts may sit apart. C'ases may be heard and tried by each of the judges holding a circuit court sitting apart by direction of the presiding justice or judge, who shall designate the business to be done by each. R. S. § 611, U. S. Comp. Stat. 1901, p. 494. § 107. When lewa district judges holding circuit court, to sit together. The circuit judge of the eighth judicial circuit may, by order, direct the judges of the said northern and southern districts of Iowa' to sit together in holding the circuit court in either of said districts; and when so sitting the judge oldest in commission shall preside, and in case of disagreement between them his opinion shall prevail for the time being: Provided, however, That a certifi- cate of division may be signed by them with like effect as in cases provided by law for certificates of division between a crcuit and district judge. fi 8 act July 20, 1882, c. 312, 22 Stat. 173 U. S. Comp. Stat. 1901, p. 351. The proviso as to certificate of division is no longer operative, since R. S. §S 0.>1, 6.52. to which it refers were superseded by the circuit court of ap- peals act of 1891.2 § 108. Circuit courts at same time in different districts. (.'ircuit courts may be held at the same time in the different districts of the same circuit. R. S. 012, U. S. Comp. Stat. 1901, p. 494. iTIn re Neagle, 13,5 U. S. 55, .34 iSee post. § 267. L. ed. 68, 10 Sup. Ct. Rep. 658. 2\J, S. Comp. Stat. 1901, p. 527. 303 § 109 THE CIRCUIT COURT. [Code Fed. This section was carried into the Revised Statutes from an act of 18G9.3 It is of course now usual for courts to be so held. § 109. Who may hold criminal terms in southern district of New York. The terms of the circuit court for the southern district of New York, appointed exclusively for the trial and disposal of criminal husiness, may be held by the circuit judge of the second judicial court and the district judges for the southern and eastern districts of New York, or any one of said three judges. . . . Part of R. S. § 613, U. S. Comp. Stat. 1901, p. 494. The remainder of the above section provides for allowing expenses of a visiting judge of the eastern district.^ § 110. Whose opinion prevails where judges divided. Whenever, in any civil suit or proceeding in a circuit court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, there occurs any difference of opinion between the judges as to any matter or thing to be de- cided, ruled, or ordered by the court, the opinion of the presiding justice or judge shall prevail, and be considered the opinion of the court for the time being. R. S. § 650, U. S. Comp. Stat. 1901, p. 527. The section was first enacted in 1872.7 The further provision of R. S. § 652, for certifying such cases to the Supreme Court is superseded by the circuit court of appeals act of 1891.8 § 111. Whose opinion prevails where district judge holds circuit court vidth other judges. A district judge sitting in a circuit court shall not give a vote in any case of appeal or error from his own decision. . . . When he holds a circuit court with either of the other judges, the judg- ment or decree in such cases shall be rendered in conformity with the opinion of the presiding justice or judge. Part of R. S. § 614. The first part of the above and the part omitted deal with the appel- late power of the circuit court, and are not in force, since the appellate 3Act Apr. 10, 1809, c. 22, 16 Stat. 7Act June 1, 1872, c. 255, 17 Stat. 44. 196. 4Post, § 472. sSee ante, § 42,[a] § 39. 304 i Procedure] SUITS TRANSFERRED TO ANOTHER CIRCUIT. § 112 powers of that coui't were taken away by the act of 1891.1 o But there is i-oom for arguing that the latter portion of the section is still in force. § 112. Suit transferred to another circuit court in case of disability. When it appears in any civil suit in any circuit court that all of the judges thereof who are competent by law to try said case are in any way interested therein, or have been of counsel for either party, or are so related or connected with either part}^ as to render it, in the opinion of the court, improper for them to sit in such trial, it shall be the duty of the court, on the application of either party, to cause the fact to be entered on the records, and to make an order that an authenticated copy thereof, with all the proceedings in the case, shall be forthwith certified to the most convenient circuit court in the next adjoining State or in the next adjoining circuit; and said court shall, upon the filing of such record and order with its clerk, take cognizance of and proceed to hear and determine the case, in the same manner as if it had been rightfully and originally commenced therein; and the proper process for the due execution of the judgment or decree rendered in the cause shall run into and may be executed in the district where such judgment or decree was rendered, and also into the district from which the cause was re- moved. R. S. § 616, U. S. Comp. Stat. 1901, p. 495. By the provisions of R. S. §§ 591-595,1 1 another district judge may be designated to perform the duties of a disabled district judge in both the district and circuit courts. Disqualification is not established by an un- verified petition filed in a cause alleging that the judge's wife had bought an interest in the land in controversy.! 2 The fact that a judge is one of the parties in a collision suit does not disqualify him from hearing and de- termining a suit to fix the liabilities of sureties on an appeal bond in the former suit. is Nor does the fact that a judge is a creditor of a bankrupt, disqualify him from reviewing an order in the bankruptcy proceedings, where he has sold his claim and received compensation therefor. i* Upon a proper case arising under the section, a motion to remove should be made by one of the parties, and the order of removal may be made by the dis- qualified judge. 15 The "most convenient court" is that court which is competent to act, lOSee § 70. i-iln re Sime, 2 Sawy. 320, Fed. iiPost, § 172 et seq. Cas. No. 12.860. i2McGuire v. Blount, 199 h. S. 142, isThe Richmond, 9 Fed. 86.3. See 60 L. ed. 125, 26 Sup. Ct. Rep. 1. also Spencer v. Lapsley, 20 How. 266, i3Tlie Ricihmond, 9 Fed. 863. 15 L. ed. 904. Fed. Proc— 20. 305 § 113 THE CIRCUIT COURT. [Code Fed. and nearest to the subject of the controversy, the witnesses, the parties, and the court Mhence the removal is to take place; is and upon the trans- fer it is the duty of that court to take cognizance of the suit and try it as if originally brought there. i" It has all the powers necessary to carry the litigation into a judgment or decree, and hence may issue a subpoena to the marshal of the district in another State from which the case was trans- ferred.! s § 113. When such causes certified back. The circuit jiiptice, or the circuit judge of any circuit, may order any civil cause, which is certified into any court of the circuit under the provisions of the preceding section, to be certified back to the court whence it came; and then the latter shall proceed therein as if the cause had not been certified from it: Provided, That if, for any reason, it shall be improper for the judges of such court to try the cause so certified back, it shall be tried by some other judge holding such court, pursuant to the provisions of the next section. R. S. § 616, U. S. Comp. Stat. 1901, p. 495. § 114, Justices may hold courts of other circuits on request. Whenever a circuit justice deems it advisable on accoimt of his disability or absence, or of his having been of counsel, or being interested in any case pending in the circuit court for any district in his circuit' or of the accumulation of business therein, or for any other cause, that said court shall be held by the justice of any other circuit, he may, in writing, request the justice of any other circuit to hold the same, during a time to be named in the request; and such request shall be entered upon the journal of the circuit court so to be holden. Thereupon it shall be lawful for the justice so requested to hold such court, and to exercise within and for said district, during the time named in said request, all the powers of the justice of such circuit. R. S. § 617, U. S, Comp. Stat. 1901. p. 495. § 115. — in cases where no justice is alloted to a circuit. Whenever, by reason of death or resigniation, no justice is allotted to a circuit, the Chief Justice of the Supreme C*ourt may make a ifiRichardson v. Boston. 1 Cuvi. i^See Lee County v. Rogers. 7 Wall, 250, Fed. Gas. No. 11,780. 181. 19 L. ed. 160. isMay V. Le Claire, 18 Fed. 49. 806 Procedure] DISTHICT COURT MATTERS CERTIFIED. S 117 request as provided in the preceding section, which shall have effect in like manner until a justice is allotted to such circuit. R. S. § 618, U. S. Comp. Stat. 1901, p. 496. This and the previous section were carried into the Revised Statutes from an act of 1863.1 § 116. When district court matters to be certified into and disposed of in circuit court. When satisfactoi-}' evidence is shown to the circuit judge of any circuit, or, in his absence, to the circuit justice allotted to the cii- cuit, that the judge of any district therein is disabled to hold a district court, and to perform the duties of his office, and an ap- plication accordingly is made in writing to such circuit judge or justice, by the district attorney or marshal of the district, the said judge or justice, as the case may be, ma}' issue his order in the nature of a certiorari, directed to the clerk of such district court, requiring him forthwith to certi'fy into the next circuit court to be held in said district all suits and processes, civil and criminal, depending in said district court, and undetermined, with all the proceedings thereon, and all the files and papers relating thereto. Said order shall be immediately published in one or more news- papers printed in said district, at least thirty days before the session of such circuit court, and shall be sufficient notification to all con- cerned; and thereupon the circuit court shall proceed to hear and determine the suits and processes so certified. And all bonds and rcognizances taken for, or returnable to, such district court, shall be held to be taken for, and returnable to, said circuit court, and shall have the same effect therein as they could have had in the district court to which they were taken. R. S. § 587, U. S. Comp. Stat. 1901. p. 479. By the provisions of R. S. §§ 591-5952 another district pidge may be designated to perform the duties of a disabled district judge in both the district and circuit courts. § 117. District court matters subsequent to certifying order also to be transmitted. When an order has been made as provided in the preceding sec- tion, the clerk of the district court sluill continue, during the lAct Mar. 3. 1863, c. 93. 12 Stat. 2Post. § 172 et sen. 768. 307 S 118 THE CIRCUIT COURT. [Code Fed. disability of the district judge, to certify, as aforesaid, all suits, pleas, and processes, civil and criminal, thereafter begun in said court, and to transmit them to the circuit court next to be held in that district; and the said court shall proceed to hear and de- termine them as provided in said section : Provided, That when the disability of the district judge ceases or is removed, the circuit court shall order all such suits and proceedings then pending and undetermined therein, in which the district courts have an exclusive original cognizance, to be remanded, and the clerk of such court shall transmit the same, with all matters relating thereto, to the district court next to be held in that district; and the same pro- ceedings shall then be had in the district court as would have been had if such suits had originated or been continued therein. R. S. § 5SS, U. S. Comp. Stat. 1901, p. 479. This and the following section were carried into the Revised Statutes from an act of 1809.4 § 118. Powers of district judge vested, during disability, in circmt judge. In the case provided in the two preceding sections the circuit judge, and in his absence the circuit justice, shall have and exercise, during such disability, all the powers of every kind vested by law in such district judge. But this provision does not require them to hold any special court, or court of admiralty, at any other time than that fixed by law for holding the circuit court in said district R. S. § 589, U. S. Comp. Stat. 1901, p. 480. § 119. Duty of disabled district judge to certify and of cir- cuit judge to take cognizance. Whenever it appears that the judge of any district court is Ie any way concerned in interest in any suit pending therein, or has been of counsel 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, with all the proceedings in the suit, shall be forthwith certified to the next circuit court for the district; and if there be no circuit court therein, to the 4Act Mar. 2, 1809, c. 27, 2 Stat. 534-535. 308 Procedure] JURISPRUDENCE OF TRANSFERRED MATTERS. § 120 next circuit court in the State; and if there be no circuit coiiri in the State^ to the next convenient circuit court in an adjoining State; and the circuit court shall, upon the filing of such record with its clerk, take cognizance of and proceed to hear the case, in like manner as if it had originally and rightfully been commenced therein. R. S. § 601, U. S. Comp. Stat. 1901 ,p. 484. A district judge who was a resident citizen and taxpayer of a county,, was held not to be disqualified by pecuniary interest, from sitting in a case involving the validity of bonds issued by the county.6 § 120. Circuit court's jurisdiction of transferred district comt matters. When any cause, civil or criminal, of whatever nature, is removed into a circuit court, as provided by law, from a district court where- in the same is cognizable, on account of the disability of the judge of such district court, or by reason of his being concerned in interest therein, or having been of counsel for either party, or being so. related to or connected with either party to such cause as to render it improper, in his opinion, for him to sit on tne trial thereoj. such circuit court shall have the same cognizance of such cause,, and in like manner, as the said district court might have, or as said circuit court might have if the same had been originally and lawfully commenced therein; and shall proceed to hear and deter- mine the same accordingly. R. S. § 637, as amended act Feb. 27, 1877, c. 69, 19 Stat. 241, U. S. Comp. Stat. 1901, p. 519. ^Wade v. Travis Co. 72 Fed. 985. 309 :§ 127. ■:§ 128. § 129. 4; 130. Jj 131. § 132. ?! 133. CHAPTER 5. CIRCUIT COURT.— .JURISDICTION. I 124. Circuit court's jurisdiction under R. S. § 629 — suits by United States or officei-s, and arising under import, revenue and postal laws. .< 125. — suits for penalties, condemnation of insurrectionary property, slave trade and on debentures. S 126. — patent and copyright suits, national banks and suits against Fed- eral officers for acts done imder Federal laws. — suits for offices, removal of officers, etc., under civil rights laws. — sviits for punishing vessel owners and officers causing death. Jurisdiction over cases arising under Federal Constitution, treaties or laws. Jiuisdiction where United States are plaintifls or petitioners. In cases of diverse citizenship, or land grants from different states. .Jurisdiction of crimes and ofl"enses. Removal of causes arising under Federal Constitution, treaties or laws. 134. Removal of causes where United States are parties, diverse citizens- ship or land grants from different States. Removal of separable controversies. Removal on ground of prejudice or local influence. Removal of causes against persons denied any civil rights, etc. Removal of causes against revenue and registration officers. Concurrent jurisdiction with Court of Claims. Jurisdiction over revenue decisions of general appraisers. Jurisdiction of partition suits where United States are parties. Over proceedings under anti-trust act of 1890. Jurisdiction to enforce injunction in copyright cases. Jurisdiction to prevent combinations restraining import trade. To remove structures obstructing navigation. To mandamus marshals, clerks, etc., to make return of fees. Jurisdiction over suits for penalties under alien immigrant laws. Over suit on defaulting paper contractor's bond. Jurisdiction of suits to determine right to Indian allotments. Circuit and district court's jurisdiction over government condemna- tion suits. -over damage suits under interstate commerce act. -of mandamus to compel equal facilities to shippers. 310 § 1.35. § 136. § 137. s 138, s 139. § 140. § 141. § 142. § 143. § 144. § 145. s 146. s 147. § 148. § 149. § 150. § 151.- § 152.- Z'rocedure] JURISDICTION UNDER R. S. § 629. § 124 [a] S 153. — under alien iniiuigiant laws. § 154. — of suits for unlawful occupancy of public lands. § 155. — over crimes in Indian reservations in South Dakota. § 156. — over alien enemies. § 157. — over oflenses committed upon the great lakes. § 158. — to enforce awards of foreign consuls. § 159. Jurisdiction to mandamus Union Pacific R. R. S 160. Removal of suits by aliens against Federal officers. § 161. — over creditors' bills affecting national banks. § 162. — of suits respecting trade marks. § 124. Circuit court's jurisdiction under R. S. § 629 — suits by United States or officers, and arising under im- port, revenue, and postal laws. The circuit courts shall have original jurisdiction : . . . Sec- ond. Of all suits in equity where the matter in dispute, exceeds the sum or value of five hundred dollars, and the United States are petitioners. "^^^ Third. Of all suits at common law where the United States, or any officer thereof suing under the authority of any act of Congress, are plaintilfs.^''^ Fourth. Of all suits at law or in equity, arising under any act providing for revenue from imports or tonnage, except civil causes of admiralty or maritime jurisdic- tion, and seizures on land or on waters not within admiralty and maritime jurisdiction, and except suits for penalties and forfeit- ures; of all causes arising under any law providing internal reven- ue and of all causes arising under the postal laws.f'^^ Pars. 2, 3 and 4 of R. S. § 629, U. S. Comp. Stat. 1901, p. 503. [a] In general — equity suits by United States. In construing the provisions of R. S. § 629, of which the above section is a part, and the subsequent act of 1875 as amended and corrected in 1887- 1888, the Supreme Court has held that the latter provision was not intended t(i interfere with prior statutes conferring jurisdiction on the circuit and district courts in special eases and over particular subjects, nor to divide the jurisdiction vested exclusively in the district courts.! The same con- struction was placed on the original act of 1875.2 The equity jurisdiction of suits by the United States as set forth in the second paragraph above, is apparently superseded by the subsequent act of 1875 as amended in 1887-1888, whifh gives the circuit court jurisdiction of all suits in equity in which the United States are petitioners regardless of the amount in iln re Hohorst. 150 U. S. 653, 37 S. 104, 29 L. ed. 5.50, 6 Sup. Ct. Rep. L. ed. 1211, 14 Sup. Ct. Rep. 221. 304; Mem, 11 Fed. 476; Price v. Ab- 2United States v. IMooney. 116 U. bott, 17 Fed. 508. 311 § 124 [b] CIRCUIT COURT— JURISDICTION. [Code Fed. controversy.3 Under the above provision it was held that the circuit court had jurisdiction of a creditor's bill brought by the United States.* [b] Common law suits by United States or officers thereof. The district courts are also given jurisdiction of common law suits by the United States "or by any officer thereof authorized by law to sue."5 The right of United States to bring a common law suit in the circuit court is given al«o by the act of 1875 as amended. 6 Under this provision the circuit courts have jurisdiction over suits by the postmaster general upon official bonds of postmasters. ^ A receiver of a national bank is a United States officer within the meaning of the provisions as is also an agent of a national bank who has displaced a receiver. 9 But the provision does not apply to a suit against a receiver.io [c] Suits under import, internal revenue and postal laws. By the fourth paragraph of R. S. § 629, above set forth, the circuit courts have jurisdiction of all suits at law or equity arising under any act pro- viding for a revenue from imports or tonnage, irrespective of the amount involved. The provision evidently includes all actions against customs officers acting under color of their office. 12 Hence it would include an action againci a collector to recover back duties assessed upon non-im- portable property.! 3 The provision gives jurisdiction also over suits aris- ing under statutes providing for internal revenue.14 A suit against the heirs and executors of an internal revenue collector to recover taxes illegal- ly collected is within the provision. is But an allegation in a complaint that plaintiffs claim title through a certain revenue law is not sufficient to give the circuit court jurisdiction where t'he plaintiffs' title in that respect is not disputed.! 6 The jurisdiction of suits for penalties and forfeitures arising under acts providing for revenue from imports and tonnage is de- nied the circuit courts by this provision. 1 7 The district coui-ts have jurisdiction in such cases.is But circuit courts have jurisdiction of penalties and forfeitures arising under the internal revenue laws. 1 9 3 Post, § 130. ^United States v. Stiner, 8 Blatchf. 544, Fed. Cas. No, 16,404, BPost, § 196. sPost, § 130, 'Postmaster General v. Early, 12 Wheat. 136, 6 L. ed. 577. sScofield V. Palmer, 134 Fed. 753; Brown v. Smith, 88 Fed. 565; see also Gibson v. Peters. 150 U. S. 344, 37 L. ed, 1106, 14 Sup. Ct. Rep. 134: Kennedy v. Gibson, 8 Wall. 498. 19 L. ed. 476; Price v. Abbott, 17 Fed, 508; Rankin v. Herod, 130 Fed. 390, See ante, § 24. sMcConville v. Gilmour, 36 Fed. 277, 1 L.R.A. 498. lOHallam v.Tillinghast, 75 Fed. 849. 31 i2Doe'rlain, .53 Fed. isAmes V. Kansas, 111 U. S. 449, 309. Keith v. Rockingham. 2 Fe'.. 28 L. ed. 48,, 4 Sup. Ct. Rep. 43, : 3.34. 18 Blatchf. 246: Kohl v. United Texas v. Day, etc. Co. 41 Fed. 2.30 : states. 91 U. S. 367, 23 L. ed. 449. Iowa v. Chicago. 37 Fed. 497. 3 EBrisden v. Chamberlain. 53 Fed. 1-T J- /-wM r. or T- 1 o-n 300: Denuick v. Railroad Co. 103 l. 1. Indiana v.^Oil Co. 85Jed. S/0.^^ ^ „ .,g ^ ^^, ^^^. ^^j^^ ^. p^^^.. ingham. 2 Fed. 834, 18 Blatchf. 246. In re Jamecke Ditcli, 69 Fed. 163. L.R.A. .5.54. IS Atkins V. Fibre, etc. Co. 18 Wall 272. 21 L. ed. 841 inVilliams :\lower. etc. Co. v. Ray- ^ ^ ^'— •-'.-— ■■•"•' ^-"- •"-■ or, 7 Biss. 245. Fed. Cas. No. 17.748; ^o\"'f " '*'■ J^' ''"v "'u^ITV ,^1- . AT-i I * r> )!• TP 1 -^ \'ed. 193: \\ aid v. lianz. 100 Fed. ^._rk V. Milwaukee, etc. Co. 2(, Fed. ,.^.^ ^^ ^ ^^ ^ g3g ^^ ^ ^^^ g.,. Kills V. Davis. 109 U. S. 498. 27 L. nor, Ki 507 20United Ntates v. Whitcomb. etc. „, i^nc o c,,^ nt- t> oo? Co.45Fed. 89: United States v.Mex- '^^- ^^^^' ^ ^"P" ^'*- ^^^P" ^^^• ican, etc. Co. 40 Fed. 769. 319 § 129 [cc] CIRCUIT COURT— JURISDICTION. [Code Fed. equity. 8 So where the controversy is within the jurisdiction of the cir- cuit court, such jurisdiction cannot be defeated on the ground that the State statute gives a remedy in a form not available in the circuit court.s Equity suits are to be understood as those suits in which relief is sought according to the principles and practice of English equity jurisprudenceio and equity jurisdiction, when conferred, is uniform throughout the Federal courts and cannot be limited or extended by State legislation.! i Con- demnation proceedings by the United States are suits at law within the meaning of the section,i2 as are also similar proceedings under a State law. 13 [cc] — probate proceedings. A proceeding to probate a will is not a suit at common law or in equity, within the meaning of the above rule, such a proceeding being in rem and not necessarily involving any dispute between the parties. 1 4 Nor, independently of statute, has a court of equity general jurisdiction to set aside a will or its probate. is By State statute, however, jurisdiction may be vested in the State courts of equity to set a will or its probate for fraud or other reasons, and when so vested there seems no reason why the Federal courts setting in those States have not concurrent jurisdiction in a proper case.is As has been seen, 1 7 the Federal courts also have juris- diction to adjudicate claims against an estate and the rights of a legatee or claimant under a will, although no power to take the property of a decedent out of the custody of the State court of probate. [d] Amount in dispute to exceed two thousand dollars. In a suit arising under the Constitution or laws of the United States 8ln re Jarnecke Ditch. 69 Fed. 163. i^Gaines v. Fuentes, 92 U. S. 10, 9 Wilson V. Smith, 66 Fed. 81. 2.3 L. ed. 524; Kirby v. Railroad Co. lolrvine v. Marshall, 20 How. 565, 106 Fed. 551. See Copeland v. Bru- 15 L. ed. 998 ; Robinson v. Campbell, niiig, 72 Fed. 6. 3 Wheat. 212, 4 L. ed. 373. isCase of Broderick's Will, 21 Wall. iiMcConihay v. Wright, 121 U. 509, 22 L. ed. 509; see Gaines v. S. 201, 30 L. ed. 932, 7 Sup. Ct. Rep. Fuentes, 92 U. S. 10, 23 L. ed. 524. 940; Scott V. Neelv, 140 U. S. 106, leWilliams v. Crabbe, 117 Fed. 193, 35 L. ed. 358, 11 Sup. Ct. Rep. 712; 54 C. C. A. 213, 59 L.R.A. 425; Gaines Gates V. Allen, 149 U. S. 451, 37 L. v. Fuentes, 92 U. S. 20, 23 L. ed. ed. 804, 13 Sup. Ct. Rep. 883, 977; 524; Ellis v. Davis. 109 U. S. 496, Mississippi Mills v. Cohn, 150 L. S. 27 L. ed. 1006, 3 Sup. Ct. Rep. 329; 205, 37 L. ed. 1054, 14 Sup. Ct. Rep. Byers v. McAuley. 149 U. S. 610, 37 76; Thomas v. Marble, etc. Co. 58 L. ed. 867, 13 Sup. Ct. Rep. 906; Fed. 489, 7 C. C. A. 330. See ante, Richardson v. Green, 61 Fed. 429, § 5, post, § 935. 435, 9 C. C. A. 565; dissenting opin- i2Kohl V. United States, 91 U. S. ion Wahl v. Franz, 100 Fed. 705, 40 376, 23 L. ed. 449 ; United States v. C. C. A. 638 ; Brodhead v. Shoemaker, Oregon, etc. Co. 16 Fed. 524, 9 Sawy. 44 Fed. 518, 11 L.R.A. 567. See con- 61. tra, In re Cilley, 58 Fed. 977; Reed isKirby v. Chicago, etc. R. Co. 106 v. Reed, 31 Fed. 49. See also ante, Fed. 551 ; Terre Haute v. Evansville, § 2.[s] etc. R. Co. 106 Fed. 545; Union Ter- i^Ante, § 17. minal R. Co. v. Chicago, etc. R. Co. 119 Fed. 209. 320 Procedure] CASES UNDER FEDERAL LAWS. § 129 [e] or under treaties made or which shall be made, the circuit court has no jurisdiction unless the amount in controversy, exclusive of interest and costs amounts to two thousand dollars. i This rule is not affected by the fact that the operation of the act of Mar. 3, 1891 was to do away with any pecuniary limitations on appeals directly from the circuit court to the Supreme Ck)urt.2 The value of matter in dispute which conditions the jurisdiction of the Federal Court is the amount or value of that which the complainant claims to recover or that which the defendant will lose if the complainant obtains recovery.^ In ascertaining this amount the inquiry must be limited to the particular action, and hence any estimate in money by reason of the probative force of the judgment itself, in some subsequent proceeding cannot be considered.* The court will look to the whole record. 5 If it appears from the showing of the parties that the amount in dispute is less than two thousand dollars, jurisdiction cannot be given by allegations in the pleadings that the amount is sufficient. 6 The sum demanded is, however, presumed to be the matter in dispute until the contrary is shown.7 In a stockholders' suit on behalf of the corpora- tion the value in dispute is not measured by the value of complainants stock interest. 8 [e] — ascertainment of amount in suits ex contractu and otherwise. In suits ex contractu the amount claimed will not establish the juris- diction, when the application of settled rules of relief and measure of damages to the particular allegations of the complaint show that the recovery must be less.8% In suits not ex contractu the plaintiff's demand is the amoimt in controversy unless such demand is colorable. 9 Hence in a suit for an account and to set aside a settlement,! o or for an amount lUnited States v. Sayward. IGO U. ^Edwards v. Bates, 55 Fed. 439; S. 493. 40 L. ed. 508, 16'Sup. Ct. Rep. and see Shippirio v. Goldberg. 192 371; Fishback v. Western Union Tel. U. S. 240, 48 L. ed. 424, 24 Sup. Ct. Co. 161 U. S. 100, 40 L. ed. 632, 16 Eep. 259; see also Vance v. Vander- Sup. Ct. Rep. 508 ; Shewalter v. Lex- cock Co. 170 U. S. 468, 42 L. ed. ington, 143 Fed. 161. 1111, 18 Sup. Ct. Rep. 645. 2The Paquete Habana, 175 U. S. eCabot v. McMaster, 6i Fed. 130. 677, 44 L. ed. 320, 20 Sup. Ct. Rep. See \Yay v. Clay. 140 Fed. 352, where 290; Holt V. Indiana, etc. Co. 170 land in ejectment suit not worth U. S. 68, 44 L. ed. 374, 20 Sup. Ct. $2000 and no special damages were Rep. 272. Ante, § 42. alleged. sCowell V. Citv, etc. Co. 121 Fed. ^Hilton v. Dickinson, 108 U. S. 53, 57 C. C. A. 393. 166, 27 L. ed. 688, 2 Sup. Ct. Rep. ^Washington, etc. R. R. v. District 424. See also Edwards v. Bates Co. of Columbia, 146 U. S. 231. 36 L. eu 55 Ftnl. 439. 951, 13 Sup. Ct. Rep. 64; United s Hill v. Glasgow, etc. R. R. 41 Fed. States v. Wanamakor, 147 U. S. 614. 150, 37 L. ed. 118. 13 Sup. Ct. Rep. sRarrv v. Edmunds. 116 U. S. 561, 281; Hollander v. Fechheimor. 162 29 L. ed. 729, 6 Sup. Ct. Rep. 501; U. S. 328, 40 L. ed. 986, 16 Sup. Ct. Peeler v. Lathrop, 48 Fed. 780, 1 C. Rep. 796; Hartfor. 13 Sup. Ct. Fed. 30. Rep. 348; Fishback v. Western Union, 2iNashville. etc. Railwav Co. v. Mc- etc. Co. 161 U. S. 100. 40 L. ed. 6,31, Connell, 82 Fed. 65: Humes v. Fort 10 Sup. Ct. Rep. 508. Smith, 93 Fed. 857; see also Arkan- 'OSioux Falls Bank v. S^vansen. 48 sas v. Kansas, etc. Coal Co. 96 Fed. Fed. 625. 353 ; Board of Trade v. Cella Comm. iiWheless V. St. louis, 96 Fed. 860. Co. 145 Fed. 28, — (C. C. A.) , 323 § 129 [gg] CIRCUIT COURT— JURISDICTION. [Code Fed. a license tax on business the amount in controversy is the value of the business since it will be destroyed unless the injunction is granted.i \'niere the object of the injunction is to restrain the use of property by a party other than the owner, the right to use the property is the matter in dispute, and the jurisdiction depends on the value of that right.2 Where in a suit to restrain the enforcement of a law, complainant shows penalties already incurred for its violation in excess of $2,000, jurisdiction exists. 3 So also where the injunction is to restrain the maintenance of an awning over part of a street, the amount in dispute is the value of the right to use the awning and not the amount of damage done by it to the plaintiff. 4 On the same principle where the suit is brought by stockholder on behalf of other stockholders to enjoin a misapplication of the corporate funds, the amount in dispute is not the interest of the particular stock- liolder, but the value of the funds misapplied. 5 [gg] — proof necessary where allegation controverted. If the allegation in a bill that the value in dispute exceeds two thousand ■dollars, is put in issue, there must be proof offered to sustain it.e [h] Suits arising under Con.stitution, laws or treaties of United States, — in general. The provision conferring jurisdiction of suits of a civil nature at com- inon law or in equity arising under the Federal Constitution, laws or treaties was absent from the judiciary act of 1789, and appeared first in the act of 1875.7 The general rule is that if it appears from the bill or statement of the plaintiff that in any aspect which the case may assume, the right to obtain relief may depend upon the construction of a provision of the Constitution or laws of the United States, and that the Federal claim is not merely colorable but rests on a reasonable foundation, the cir- cuit court has jurisdiction.s It is established also that the dispute between the parties must be a real and substantial one.9 Where it does not appear from any of the facts stated that there is a disputed construction of a Fed- See Louisville, etc. R. R. v. Bitter- Bank, 152 U. S. 459, 38 L. ed. 513, man, 144 Fed. 34, — (C. C. A.) . 14 Sup. Ct. R«p. &54. iHumes v. Little ivock, 138 Fed. ^St. Louis, etc. Ry. v. Davis, 132 933 Fed. 632; Illinois, etc. R. R. v. Chi- 2bleson V. Northern, etc. R. Co. ^^go^ ^'l,^''^^" ^£; ** ^- ^- ^^-' ^^ -p^ J 20 Sup. Ct. Rep. 509. «TkT -vV ■n^ o iu T> r> one sNashvillc, ctc. Rv. V. Tavlor, 86 ttT^^S'. .r7V . ifl? S-\ r. Fed. 178; Southern Pac. R. R. y. Cal- U. S. 543, 50 L. ed. 1142, 2Q Sup. Ct. .^^^,^.^^ '^^g ^ g j^,,^ 3^^ ^ ^^ ^03^ Rep. 722. „,,,,„„-,, J o, 6 Sup. Ct. Rep. 993; Newburyport 4 Whitman v. Hubbell, 30 Fed. 81. ^-y^^^^. ^^ ^, Xe^vburyport, 193 U. S. sHill V. Glasgow, etc. R. Co. 41 ^q^ 43 l. ed. 795, 24 Sup. a. Rep. Fed. 614. 553; Penn. etc. Insurance Co. v. Aus- eOregon R. & N. Co. v. Shell, 143 tin, 168 U. S. 695, 42 L. ed. 630. 18 Fed. 1008; Klenk v. Byrne, 143 Fed. Sup. Ct. Rep. 227; Western Union 1008. Tel. Co. V. Ann Arbor, etc. Ry. 178 TNashville, etc. R. Co. v. Taylor, 86 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Fed. 174; Tennessee v. Union, etc. Rep. 867; McCain v. Des Moines. 324 Procedure] CASES UNDER FEDERAL LAWS. § 120 [j] eral law under which the parties claim, and the contest is about the facts only, a Federal question is not presented. lo Removal suits involving Fed- eral questions are considered in a following section.^ [ij Federal questions in particular cases. A Federal court has jurisdiction over a suit by a telegraph company to enjoin threatened removal of line built and accepted pursuant to R. S. § 5263; 13 it has jurisdiction also over a suit to restrain construction of municipal water works on account of alleged violation of contract with the plaintifl' and the water eompany,i4 and over suits to enforce the lia- bility of national bank stockholders.! 5 It has jurisdiction also of a suit to enjoin an assessment alleged to violate an exemption from assessability of United States bonds. 1 6 An action for damages for denial of right to vote for a member of Congress is a suit under the Federal laws. 1 7 But a Federal question is not presented in an action for damages for acts of the defendant as judge of a State court.is Nor is such question pre- sented in a suit against a circuit court clerk for damages for refusal to file papers where alleging him to be liable under R. S. §§ 1979, 1980; !■> nor in a suit under R. S. § 232G, in support of an adverse claim in mining ground.2 The fact that a suit is alleged to be over a United States patent does not raise a Federal question where the averments show that the question really at issue is the plaintiff's right to land formed by accretion. 21 Ljj Suits under the Constitution. The mere allegation that constitutional questions are involved is not sufficient to give the circuit court jurisdiction when it appears that such allegation is without color or merit. i Thus a claim that an action of a State is in violation of the Fifth Amendment cannot be maintained as that Amendment is a limitation on the powers of Congress only.2 Nor has the 174 U. S. 168, 43 L. ed. 936, 19 Sup. i4Knoxville W. Co. v. Knoxville, Ct. Rep. 644; Xew Orleans v. Benja- 200 U. S. 22, 50 L. ed. 353, 26 Sup. min, 153 U. S. 411, 38 L. ed. 764, 14 Ct. Rep. 224. Sup. Ct. Rep. 905; Shroveport v. isWvman v. Wallace, 201 U. S. 230, Cole. 129 U. S. .36. 32 L. ed. 5S9, 9 50 L. ed. 738. 26 Sup. Ct. Rep. 495. Sup. Ct. Rep. 210 ; Carson v. Dunham, See post, § 9G4. 121 U. S. 421. 30 L. ed. 992. 7 Sup. isPeoples Sav. Bank v. Lavman, Ct. Rep. 1030: Ames v. Kansas. Ill 134 Fed. 635. U. S. 449, 28 L. ed. 482, 4 Sup. Ct. iTKnight v. Shelton, 134 Fed. 423. Rep. 4.35; Jov v. St. Louis. 122 Fed. isKinnevv. Mitchell. 1.38 Fed. 270. 528; Minnesota v. Duluth, etc. Rv. isUnited States v. Bell, 135 Fetl. 87 Fed. 497: Crvstal Springs Laiid 339. Co. V. Los Angeles. 76 Fed. 151. 20Willitt v. Baker, 133 Fed. 937. lOAustin V. Gagan. 39 Fed. 626, 21 Jov v. St. Louis, 201 U. S. 332, 5 L.R.A. 476; Theurkauf v. Ireland, 50 L. ed. 776, 26 Sup. Ct. Rep. 478. 27 Fed. 769; ISIurrav v. Bluebird i\lin. iNewburvport, etc. Co. v. Newburv- Oo. 45 Fed. 385; Ca.lifornia Oil, etc. port, 193 U. S. 576. 48 L. od. 795, Co. V. Miller, 90 Fed. 17. 24 Sup. Ct. Rep. 553. 11 Post. § 133. 2 St. Louis, etc. Ry. v. Davis, 132 i30hio, etc. Co. V. Board of Com'rs. Fed. 632. 137 Fed. 947. 325 § 129 [k] CHtCUIT COURT— JURISDU'TIOX. [Code Fed. court jurisdiction merely because in tlie process of litigation it may bo- come necessary to give a construction to the Constitution. The suit must, in part at least arise out of a controversy between the parties in re- gard to the Constitution. 3 Whenever in any suit the right and title of either party to property is founded upon State legislation which under- takes to transfer to one person, the property of another without due process of law, a Federal question is presented. ^ Where, however, the dep- rivation of property without due process of law is without legislative au- thority, the case does not present a Federal question. 5 The circuit court has jurisdiction of a bill to restrain collection of taxes alleged to be repugnant to the Constitution, being a deprivation of property under the 1 4th Amendment.6 A Federal question is not presented where the con- •^titutionality of a State law is admitted, but it is asserted that its con- struction by the State officers is such as to render the act unconstitutional.'^ It is unnecessary .that the particular provision of the Constitution relied upon be set out special!}' so long as the case made out necessarily comes within some of the provisions of that instrument. s fk] Suits by and against States, involving Federal questions. There is no constitutional provision prohibiting a State from suing in any tribunal which can entertain its case.io Tlie above provision gives the circuit court jurisdiction concurrent with the State courts, over all cases involving a Federal question, hence a State may under its pro- visions sue either in the State or in a circuit court when such question is involved and the amount is sufficient to give jurisdiction.! i The immunity of a State from suit guaranteed by the Constitution,! 2 is a personal privilege which the State may waive.! 3 But without its consent a State cannot be sued in the Federal circuit court, on the ground that a case is one arising under the Federal Constitution or have laws either by a citizen of another State or of a foreign State,!* or by one of its own citizens.! 5 sGold Washing and Water Co. v. son. 170 U. S. 511, 42 L. ed. 1126, Keyes, 96 U. S. 199, 24 L. ed. 656. 18 Sup. Ct. Rep. 685; Ames v. Kan- •iCrystal Springs, etc. Co. v. Los s-as. Ill U. S. 449, 28 L. ed. 482. Angeles 76 Fed. 148. 4 Sup. Ct. Rep. 437: NeAV Orleans. ^Barney v. New York. 193 U. S. etc. R. Co. v. Mississippi. 102 IT. S. 430, 48 L. ed. 737, 24 Sup. Ct. Rep. 140. 20 L. ed. 98. See also Illinois v. 502: Huntington v. New York, 193 Illinois, etc. R. Co. 16 Fed. 886. U. S. 441, 48 L. ed. 743, 24 Sup. Ct. isAnte. § 7. Rep. 505. i3Clark v. Bernard. 108 U. S. 436. 6Mic'higan R. R. Tax Cases, 138 27 L. ed. 780. 2 Sup. Ct. Rep. 878. Fed. 223. i-s Louisiana v. Jumel, 107 U. S. TArbuckle v. Blackburn. 191 U. S. 711, 27 L. ed. 448. 2 Sup. Ct. Rep. 413, 48 L. ed. 242, 24 Sup, Ct, Rep. 128; Hagood v. Southern, 117 U. S. 148. 52. 29 L. ed. 805, 6 Sup. Ct. Rep. sBridge Proprietors v. Land. etc. 608: In re Avers, 123 U, S. 443, 31 Co. 1 Wall. 116, 17 L. ed. 571; see L. ed. 216, 8 Sup. Ct. Rep. 164; Cun- Crystal Springs, etc. Co. v. Los An- nini;ham v. Macon, etc. R. Co. 109 geies, 76 Fed. 153. U. S. 446, 27 L. ed. 91)2, 3 Sup. Ct. !0P]aquinines. etc. Co. v. Hender- Rep. 292, 609. son. 170 U. S. 511. 42 L. ed. 1126, !5Hans v. Txjuisiana, 1.34 U. S. 1, IS Sup. Ct. Rep. 685. 33 L. ed. 842, 10 Sup. Ct. Rep. iiPlaquemines, etc. Co. v. Hender- 504: North Girolina v. Temple. 134 326 i n Iiocedurej CASP:S UNDER FEDERAL LAWS'. § 123 [n] The scope of the jurisdiction in suits against a State has already been con- sidered.! 6 [I] Suits under Federal land grants. The mere fact that the plaintiff and the defendant make adverse claims to land which has been granted under a Federal law does not pre- sent a Federal question, i since such a case may involve merely a question of fact. 2 A Federal question is raised, however, where a right is claimed under a particular Federal statute, the validity, construction or applica- liility of which is made the subject of dispute.3 So a controversy turning upon the validity of a patent from the United States under which the plaintiff claims title and which is denied by the defendant presents a l''ederal question,* as does also a suit resting upon the proper interpreta- tion of a land grant act of Congress.s A Federal question is likewise pre- sented where a complainant claims equitable title to Federal lands as a pre-emptor, and the question in dispute is whether he has a rigiit to such title under the Federal land laws.6 [m] Suits on Federal judgments. The fact that a suit was brought to recover the amount of a Federal judgment does not make it a suit arising under the Constitution and laws of the United States. « Such a suit is nothing more than the case of an ordinary right of property sought to be enforced and cannot of itself give tlie Federal courts jurisdiction.^ Many suits respecting the enforcement or interpretation or enjoining of Federal judgments are maintainable as an exercise of the ancillary jurisdiction and regardless of citizenship or amount in dispute. lo [n] Federal question must appear from plaintiff's own statement. It was held under the act of 187512 and is also the rule under tiie amend- ment of 1 887-1 8S8, that where the original jurisdiction of the circuit r. S. 22. 33 L. ed. 849. 10 Sup. Ct. 188 U. S. 526. 47 L. ed. .575. 23 Sup. Rep. .50n : Brown University v. Rhode Ct. Rep. 365. Island College. .56 Fed. 55." «.Joncs v. Florida, etc. R. Co. 41 iBAnte. § 7. Fed. 71. iDe Lamar, etc. ]\Iin. Co. v. Nes- sMetcalf v. Watertown, 128 U. S. I.itt. 177 V. 8. 523. 44 L. ed. 872. 588, 32 L. ed. 544. 9 Sup. Ct. Rep. 2n Sup. Ct. Rep. 715. 173; Pope v. Louisville, etc. R. Co. ^Shoshone Min. Co. v. Rutler. 177 173 U. S. 573. 43 L. ed. 814. 10 Sup. U. S. 505. 44 L. ed. 865, 20 Sup. Ct. Ct. Rep. 500. Rep. 726; Blackburn v. Portland, etc. ^Providence Savings Societv v. Min. Co. 175 U. S. 571. 44 L. ed. Ford, 114 U. S. 642. 29 L. ed. 261, 5 276, 20 Sup. Ct. Rep. 222; Joy v. Sup. Ct. Rep. 1104; si^e Berger v. St. I^uis. 122 Fed. 527. " Douglass, 5 Fed. 23, 2 McCrarv. 483. sDe Lamar, etc. Co. v. Nesbitt. lOAnte. § 3. 177 U. S. .y27. 44 L. ed. 872, 20 Sup. i^^fetcalf v. Watertown. 12S U. Ct. Rep. 715. S. rM. .32 L. ed. 543, Sup. Ct. Rep. itizens of a State, and hence cannot sue or be sued and on the ground of ■ liverse citizenship in the circuit court, 2 even though a person competent to -ue be joined with such a person as coplaintil? or codefendant.s Neither ■s a State itself a citizen within the meaning of the judiciary acts and 'lence in a suit between a State and a citizen of another State a circuit •lurt ha>; no jurisdiction on the grounds of diverse citizenship.^ Where diverse citizenship existed at the commencement of the suit, a ■.ubsequent change of domicile will not effect the court's jurisdiction. 5 P>ut where there is an entire want of jurisdiction it cannot be obtained by waiver on the part of the litigants. 6 A wife's domicile is that of her liusband for jurisdictional purposes." The necessity for explicit allegation if the requisite citizenship is discussed elsewhere. s d1 Re£l and representative parties. As already stated the courts will look to the real party in determining jurisdictional questions arising on the grounds of diverse citizenship, and hence a nominal complainant through whom the real complainant seeks iflCooper V. Pralbraith, Fed. Cas. .39 L. ed. 2.31, 1.5 Sup. Ct. Rep. 192; So. .3.193, 3 "Wash. C. C. .546; Morris Germania Ins. Co. v. Wisconsin. 1U» V. Gilmer, 129 U. S. 328. .32 L. ed. G9o, U. S. 473, 30 L. ed. 4^il. 7 Sup. Ct. ':> Sup. Ct. Rep. 289: Marks v. Marks, Rep. 2G0: Stone v. South Carolina, 75 Fed. 32(3. 117 U. S. 430. 29 L. ed. 962. 6 Sup. Ct. 2oCooper v. Galbraith, 3 Wash. C. Rep. 799; Ames v. Kansas, 111 L. S. C. 546. Fed. Cas. Xo. 3.193; Briggs 449, 28 L. ed. 482, 4 Sup. Ct. Rep. V. French. 2 Sumn. 256. Fed. Cas. No. 437 ; Commonwealth v. Cliicago. etc. 1.871. See also Morris V. Gilmer, 129 R. Co. 123 Fed. 457; Arkansas v. U. S. .3f28. .32 L. ed. 695. 9 Sup. Ct. Kansas, etc. Co. 96 Fed. 353; Hick- Rep. 289. man v. Missouri, etc. R. Co. 97 Fed. iPacific Mutual, etc. Co. v. Toinp- 116. kins. 101 Fed. 539. 41 C. C. A. 488. SKoenigsberger v. Mining Co. 15S 2.Ante. § 2. subdiv. q; Hooe v. U. S. 41. 39 L. ed. 889. 15 Sup. Ct. lamieson. IG^G U. S. 398. 41 L. ed. Rep. 751; Louisville R. Co. v. Trust 10.50. 17 Sup. Ct. Rep. 596; Johnson Co. 174 U. S. 552. 43 L. ed. 1081, v. P.unkerhill. etc Ck). 46 Fed. 417; 19 Sup. Ct. Rep. 817: Haracovic v. Tameron v. Hodges. 127 U. S. 32.5. Standard Oil Co. 105 Fed. 785. 32 L. ed. 134. 8 Sup. Ct. Rep. 1154; sEmpire Coal Co. v. Empire Coal Barnev v. Baltimore. Wall. 280. 18 Co. 1.50 U. S. 159, 37 L. ed. 1037, L. e(l.'825. 14 Sup. Ct. Rep. 66; Wolfe v. Hart- 3TIooe V. .Taiiiieson. 166 C. S. 398. ford Ins. Co. 148 V. S. 389. 37 L. 41 L. ed. 1050. 17 Sup. Ct. Rep. 596; ed. 493. 13 Sup. Ct. Rep. 602. New Orleans v. Winter. 1 Wheat. 91. ^Thompson v. Stalmann, 139 Fed. 4 L. ed. 44. 93. ••Ante. § 2, subiliv. q.; Postal, etc. ^Ante. § 9. •Cable Co. v. Alabama, lo.i V. S. 482. .331 § 131 [e] CIRCUIT COURT— JURISDICTION. [Code Fed. relief will not be considered a party to the suit. But it is also well settled that the courts will look to the citizenship of the party in whom the cause of action is vested, and not to the status of his predecessor in interest, or those beneficially interested. lO [ej Several parties, plaintiff or defendant. As stated in a previous section, 12 Federal jurisdiction fails where all parties on one side of a controversy have not a right by diverse citizenship to sue all parties on the other.is But an arrangement of parties which is merely a contrivance to found jurisdiction on diverse citizenship in the circuit court, will not avail.i* Thus the circuit court has no jurisdiction, on the grounds of diverse citizenship, of a suit by a mortgagee of municipal water- works to enforce a contract of the company against the city where there was no antagonism in the claim of the mortgagee as respects the water company and no diversity of citizenship between the water company and the city.15 Where diversity of citizenship does not exist between certain defendants and the plaintili's, the suit may be dismissed as to the former, and jurisdiction thus retained, where they are not indispensable parties to the suit and such dismissal will not prejudice them. is [f J Citizenship of corporations. The word "citizen" in the judiciary acts has always been held to include corporations.! 8 Under the early decisions the jurisdiction in suits between citizens of one State and corporations of another was maintained on the theory that the persons composing the corporations were suing or being sued,i9 and hence if some members of the corporation were citizens of the same State as the opposing party, jurisdiction was denied.20 it is now however well settled that for the purpose of suing on being sued in a Federal court, the stockholders of a corporation are conclusively presumed to be citizens of the State creating it.i But this presumption does not prevent the stockholders in suing for the corporation, from alleging actual citizenship different from that of the corporation and so sustaining Federal 10 Ante, § 2.[s] indispensable parties see post. §§ 902, izAnte. § 2.[q] 1010. isHooe V. Jamieson, 166 U. S. 395, isBarrow, etc. Co. v. Kane, 170 U. 41 L. ed. 1049, 17 Sup. Ct. Rep. 596; S. 100, 42 L. ed. 965, 18 Sup. Ct. Rep. Abel V. Book, 120 Fed. 47; Fletcher 526. V. Hamlet, 116 U. S. 408, 29 L. ed. isBarrow, etc. Co. v. Kane, 170 U. 679, 6 Sup. Ct. Rep. 426; Mirabile S. 100. 42 L. ed. 965, 18 Sup. Ct. Corp. v. Purvis, 143 Fed. 920. Rep. 526. i4Dawson v. Columbia Trust Co. 2 0Commercial, etc. Bank v. Slo- 197 U. S. 178, 49 L. ed. 713, 25 Sup. comb. 14 Pet. 60, 10 L. ed. 3.54. Ct. Rep. 420. lAnte, § 2 [t] ; Barrow, etc. Co. v. 15 Dawson v. Columbia Trust Co. Kane. 170 U. S. 100, 42 L. ed. 965. 197 U. S. 178, 49 L. ed. 713, za Sup. 18 Sup. Ct. Rep. 52«; National, etc. Ct. Rep. 420. Co. v. Tugman, 106 U. S. 118, 27 isSee ante. § 2 [q] ; Mason v. L. ed. 87. 1 Sup. Ct. Rep 58; St. Dullag'ham. 82 Fed. 689. 27 C. C. A. Louis, etc R. Co. v. James. Itil U S. 296; Grove v. Grove, 93 Fed. 865. 555, 559, 40 L. ed. 805, 16 Sup. Ct. For distinctions as to necessary and Rep. 621 ; Mississippi, etc. Co. v. Pat- 332 Procedure] IN CASES OP DIVERSE CITIZENSHIP. § 131 [si jurisdiction. 2 A corporation does not become a citizen of another State by transacting business therein nor by having an office therein, 3 nor by agree- ing as a condition of being permitted to transact business in another State, that it may be sued therein.* It is established also that a State corpora- tion incorporating under the laws of another State does not thereby become a citizen of the second State for the purposes of Federal jurisdiction. 5 Hence a citizen of the second State may bring suit against it or have a suit re- moved on the ground of diverse citizenship. 6 [gj Averment of citizenship essential. Where the jurisdiction depends on the citizenship of the parties it is essential that such citizenship or the facts which in legal intendment consti- tute it should be distinctly and positively averred in the pleadings or other parts of the record. 8 It is not sufficient that the jurisdiction may be in- ferred argumentatively from the pleadings. » The averment must show that the requisite citizenship existed at the commencement of the suit.io WTiere jurisdiction is dependent upon the citizenship of the plaintiff's as- signor such citizenship must affirmatively appear.n Likewise Avhere an executor, administrator, trustee or receiver is suing in his representative capacity his personal citizenship must be alleged,i2 and the court has no jurisdiction where a defendant trustee and plaintiff are residents of the same State.is So also where a party sues by a guardian or next friend, terson, 98 U. S. 407, 26 L. ed. 208: 11 Sup. Ct. Rep. 449: Chapman v. Marsliall v. Balumore. etc. R. Co. Barney, 129 U. S. 681. 32 L. ed. 801, 10 How. 329. 14 L. ed. 959; Louis- 9 Sup. Ct. Rep. 426, and see Railway ville, etc. R. Co. v. Letson. 2 How. Co. v. Ramsey. 22 Wall. 322. 22 L. ed. 558. 11 L. ed. 378. 823; Rriges v. Sperrv, 95 U. S. 401, 2Do*-tor V. Harrington, 196 U. S. 24 L. ed. 390; Menard v. Goggan. 121 587, 49 L. ed. 606, 25 Sup. Ct. Rep. U. S. 253, 30 L. ed. 914, 7 Sup. Ct. 355. Rep. 873. 3Railroad Co. v. Koontz, 104 U. S. oRrown v. Keene, 8 Pet. 112, 8 L. 12, 26 L. ed. 043; Ex parte Schollen- ed. 885; Robertson v. Cease, 97 U. S. berger, 96 U. S. 309, 24 L. ed. 853 ; 646, 24 L. ed. 1057 ; Continental Ins. In re Keasbey, etc. Co. 160 U. S. 229, Co. v. Rhoads, 119 U. S. 240, 30 L. 40 L. ed. 405, 16 Sup. Ct. Rep. 273; ed. 381, 7 Sup. Ct. Rep. 193. McOormick Co. v. Walthers. 134 U. lOBenjamin v. Citv of New Orleans, S. 43, 33 L. ed. 834. 10 Sup. Ct. Rep. 71 Fed. 758; also 74 Fed. 417, 20 0. 4S5; Freemen v. Aimerican, etc. Co. C. A. 591; Chicago Lumber Co. v. 116 Fed. 551; United States v. South- Comstocks, 71 Fed. 477. 18 C. C. A. ern Pac. R. Co. 49 Fed. 302. 207 ; Laskey v. IMining Co. 56 Fed. ^Southern Pac. Co. v. Denton, 146 628; Brigelv. Coal, etc. Co. 73 Fed. U. S. 202, 36 L. ed. 943, 13 Sup. Ct. 13. Rep. 44; Piatt v. Massachusetts, etc. uNorth American, etc. Co. v. Mor- Co. 103 U. S. 707, 26 L. ed. 601. rison, 178 XT. S. 268, 44 L. ed. 1064, 5 Ante, § 2 [tl. 20 Sup. Ct. Rep. 809; Brock v. North- sFreeman v. American, etc. Co. 116 westprn, etc. Co. 130 U. S. 341. 32 Fed. .548. L. ed. 905, 9 Sup. Ct. Rep. 552; 8 Ante, § 9. Wolfe v. Hartford, etc see Morgan v, Gav, 19 Wall. 82, 22 Tns. Co. 148 U. S. 389, 37 L. ed. 493, L. ed. 100: Hampton v. Truckee Ca- 13 Sup. Ct. Rep. 602; Home v. Ham- nal Co. 19 Fed. 2. 9 Sawv. 381. mond Co. 155 U. S. 393, 39 L. ed. 197. izCoal Co. v. Blatehford, 11 Wall. 15 Sup. Ct. Rep. 107; Anderson v. 172, 20 L. ed. 179. Watt, 138 U. S. 702, 34 L. ed. 1081, isGardner v. Brown, 21 Wall. 41, 333 S 131 [h] CIRCUIT COUKT^.TIjRISDICTION. [Code Fed. the citizenship of the party hiwiself must be allejjjed.i* In (lie case ot' a partnership or joint stook company, tliere lieing no jnesnmption tliat i !io members thereof are citizens of the particular State in wliicli it docs busi- ness,! 5 the citizenship of each of the members must be allcgcil.iG I'uL diverse citizenship being alleged an allegation of residence is unnecessary. it The decisions are uniform in holding that an averment of residence is not the equivalent of an averment of citizenship for the purpose of supportijig Federal jurisdiction.! s The following allegations have also been declared insufficient, that a party is "a citizen of the United States.! 9 that a party is "of" a certain place.20 The allegation that a corporation is a citi/.cii of a particular State is not a sufficient averment of its titi/cnship as a corporation. 1 The averment should be that it is a covpmat ion croatciS under the laws of a particular State. 2 [hj Citizens claiming under land grants of different States. By the terms of the section jtu-isdiction is conferred only where citizens of the same State claim under land grants of different States, hence whcro the parties so claiming are citizens of different States, jurisdiction depends I'litircly on diverse citizenship. ^ The amount in dispute is immaterial. » [ij Suits between citizens and aliens. The circuit court has jurisdiction of a suit between a citizen of a State and a subject of a foreign State, without reference as to which one is I'laintifT or defendant.'' But the suit must be between a State citizen and an alien and hence the fact that one of the parties is an alien is not suf- ficient. 8 Likewise the fact that a party is a citizen of the United States only and not of a particular State, is insufficient to give jurisdiction. 9 A 22 L. ed. 527: Donolhoe v. Mariposa, etc. Co. 5 Sa.wv. 167, Fed. Cas. No. .3.989. i4Voss V. Neineber. 68 Fed. 947: Wiggins V. Bethune. 29 Fed. 51 : see ;'nte. § 2 [q]. !5Ante, § 2. iGGreat Southern, etc. Hotel Co. V. Jones, 177 U. S. 449, 44 L. ed. 842, 20 Sup. Ct. Rep. 690: Imperial Re- fining Co. V. Wvman, 38 Fed. 574. 3 L.R.A. 503. ivBaltimore. etc. R. R. v. Dotv. 133 Fed. 866. 67 C. G. A. 38. isHorne v. Hammond Co. 155 U. S. 393, 39 L. ed. 197. 15 Sup. Ct. Rep. 167: Wolfe v. insurance Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct. Rep. 602: Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914. 7 Sup. Ct. Rep. 873: Everhart v. Huntsville College, 120 U. S. 223, 30 L. ed. G23, 7 Sup. Ct. Rep. 555 : Grace v. Insurance Co. 109 U. S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207 : Brown v. Keene. 8 Pet. 112. 8 L. ed. 885: ]\Iarks v. Marks 75 Fed. 325. inVilson V. Citv Bank. 3 Suniii. 422. Fed. Cas. Xo.' 17.797. 20j}iekson v. Ashton. 8 Pet. 14S. 8 L. ed. 898. iLafayette Ins. Co. v. French. IS How. 405. 15 L. cd. 451 : Lonergan V. Illinois, etc. 1\. R. o5 Fed. 55V. Frisbie v. Chesapeake, etc. Ry. 57 Fed. 3: American, etc. Co. v. Jolnison. 60 Fed. 509. 9 C. C. A. 110. 2Lafayet<<' Ins. Co. v. French. IS How. 405. 15 L. ed. 451. ■tStevenson v. Fain. 195 U. S. Id.'.. 49 L. ed. 142, 25 Sup. Ct. Rep. 6. sSupra [b]. THincklev v. Bvrne. Deadv. 224. Fed. Cas. No. 6.510'. sPrentiss v. Brennan, 2 Blatchf. 162. Fed. Cas. No. 11,385. i'Picquet v. Swan. 5 Mason, 35. Fed. Cas. No. 11,134. 334 i Procedure] OF CRIMKS AND OFFENSES. S 132 citizen of Cuba is a foreign citizen within the meaning of the section, i" as is also a corporation created under the laws of a foreign country. n But an Indian residing in the United States is not a foreign citizen, 12 nor. unless naturalized, is he a citizen of the United States nor of the State of his residence within the meaning of the statutes conferring jurisdiction on the Federal courts. is .Jurisdictional facts must appear affirmatively. One party must be al- leged to be a citizen of a particular State and the other a citizen of some particular foreign State, 14 the presumption being that a case is without the jurisdiction of the Federal courts unless the contrary appears from the record. 15 The Supreme Court has held that by a description of a plaintiff" as a "citizen of London, England," the fact that he was a subject of the English crown, did not affirmatively appear; I6 and following this decision the circuit court has held that a "resident of Ontario, Canada, and a citize?! of the Dominion of Canada and the Empire of Oreat Britain." is not a sufficient averment. i" A recent decision of the Supreme Court, however, holds that an averment that all the complainants are "of Cognac in France, and citizens of the Republic of France" is sufficient, and that ati averment of alienage is unnecessary.! s The circuit court has no juri^ diction of suits between aliens, where no Federal question is involved. i^* § 132. Jurisdiction of crimes and offenses. The circuit courts of the United States . . . shall liavc^ exclusive cognizance of all crimes and offenses cognizable under the authority of tlie United States,^^^'^^^ except as otherwise provided by law,f'^^and concurrent jurisdiction with the district courts of the crimes and oft'enses cogTiizable by them-^*^^ Part of § 1, act Mar. 3, 1875, c. 137, 18 Stat. 470. a* amended :\Iar. .;. 1887, and corrected Aug. 13, 1888, c. 866. 25 Stat. 433. U. S. Comp. Stat mOl, p. 508. lOBetancourt v. .Mutual, etc. Ass'n. 120 U. S. 226. .10 L. ed. 624. 7 Sup. 101 Fed. 30.^. Ct. Rep. 552: Stuart v. Easton, 156 iiTerry v. Imperial Ins. Co. 3 Dill. U. S. 47, 30 L. ed. 341. 15 Sup. Ct. 408. Fed". Cas. Xo. 13.838: Shattuck R«p. 268: Mansfield, etc. Ry. v. Swan, v. Xorth British, etc. Tns. Co. 58 Fed. ^ ^^- ^- ^83, 28 L. ed. 464, 4 Sup. 60!). 7 C. C. A. 386; Sherwood v. New- <^'t- Rep. 5iz. port News. etc. Co. 55 Fed. 1. lestuart v. Easton. 156 U. S. 46, i20herokee Nation v. Georgia. 5 ^^ V'' /^f ' ''^^"P-u^*' ^X^t^ "i^^.-. Pet. 10. 8 L. ed. 31: Cherokee Na- o. 'A^n'^'f T'J'' ^i' ^ /^\. X- e j-1 T.' Ti r^ -5 C. C. A. 145: see also Voight v. tion V. Southern Kansas Ry. Co. ,.. , • . tV t> ion i^.. 1 ono iQc TT c cr:.> o T 1 en ( 1 "A o ^liphigau. etc. R. R. l.W red. 398. 135 U. S. 65,!. 8 L. ed. 594. 10 Sup. , -,t t>- u j t^ Cf TJo (¥•- isHennessy V. Rachardson Drug Lo. ut nep. .TOO. . -^ T. , .^o 189 U. S. 34. 47 L. ed. 698. 23 i^up. ispaul V. Clulsoquie. lO Fed. 402. ^. p^ go2 nBors V. Preston, n 1 r. S. 252, 28 mPoolev v. Luce. 72 Fed. .561: L. od. 419. 4 Sup. Ct. Rep. 407. T.aird v. Mutual, etc. Asso. Co. 44 Fed. i'>Bors v. Preston, 111 U. S. 25.1, 712: Jackson v. Twentvman. 2 Pet. 28 L. ed. -1 10. 4 Snp. Ct. Rep. 407: 1.36, 7 L. ed. .374: Prentiss v. Bren- sec also King HriUge Co. v. Otoe Co. nan, 2 Blatchford. 164. Fed. T^as. No. 335 § 132 [a] CIRCUIT COURT— JURISDICTION. [Code Fed. [a] In general. Federal courts have no common law jurisdiction in criminal casesi and can take cognizance of offenses only as authorized by Congress. 2 Before an offense can become cognizable in the circuit court Congress must first define or recognize it as such and affix a punishment to it, and confer jurisdiction on some court to try the offender.3 By the above section Congress has conferred on the circuit court exclusive cognizance of all crimes and offenses cognizable under the authority of the United States except as otherwise provided by law. 4 The question whether a Federal court has jurisdiction can be raised at any stage of a criminal proceedin;^;. It is never presumed and must always be proved.5 The want of juris- diction of subject-matter may appear in such proceeding either because there is no law making the act charged a crime, or because the act is not properly charged or because the facts fail to show that the party charged committed the act. 6 An indictment found in a district court may on an order of a judge of that court be transmitted to a circuit court, and that court will have jurisdiction although the transfer was not made until after the defendant had pleaded.'? [bj Jurisdiction in particular cases. Federal courts have jurisdiction of the crime of murder committed in a place under the exclusive jurisdiction of the United States. 9 Perjury be- fore a State notary in testimony as to a congressional election is within the jurisdiction of the circuit court under the above provision and is not cognizable in a State court.io The offering of a bribe to a Federal officer to do an act not connected with his Federal duties, is no violation of a Federal law. and the offender cannot be subjected to Federal punishment. 11 An act of Congress declaring that the embezzlement by a guardian of i.ioney received by him from the government for his ward, is constitutional, and power may be vested in the circuit court to punish the offense. 1 2 The jurisdiction given by this section cannot be defeated by the refusal of a defendant to plead to an information.! 3 Federal jurisdiction in suits against consuls and vice-consuls is discussed in a previous section. i* 11.385; Hincklev v. Bvrne, Deady, ^United States v. Richardson. 28 227, Fed. Cas. No. 6.510. Fed. 65. See United States v. Mur- iSee ante, § 13. phy, 3 Wall. 649. 18 L. ed. 217. Ante, 2Bollraan v. Swart wout, 4 Cranch, § 116 et seq. ■93, 2 L. ed. 554; United States v. sUnited States v. McBratney. 104 Wiltberger, 5 Wheat. 98, 7 L. ed. 37; U. S. 621, 26 L. ed. 869. See ant,\ United States v. Hudson, 7 Cranch, § 25. 32, 3 L. ed. 259. loin re Loney, 134 U. S. 375, 33 sUnited States v. Hall, 98 U. S. L. ed. 949. 10 Sup. Ct. Rep. 584, 346, 25 L. ed. 180; see also United Aflirmincr 38 Fed. 101. States V. Wilson, 3 Blatchf. 435, Fed. nUnited States v. Gibson, 47 Fed. Cas. No. 16,731. 834. ^United States v. Hall, 98 U. S. izUnited States v. Hall, 98 U. S. 345. 2i5 L. ed. 180. 343, 25 L. ed. 180. SUnited States v. Rogers, z3 Fed. isUnited States v. Borger. 7 Fed. •662. 193, 19 Blatchf. 249. 6In re Wolf, 27 Fed. 606. 1 4 Ante, § 2 [i]. 336 tl Procedure! REMOVAL OP CAUSES. § 133 [a] [cj "Except as otherwise provided by law." The district courts are given jurisdiction of all crimes and offenses cognizable under the authority of the United States committed within their respective districts, or upon the high seas, the punishment of which is not capital. 16 The jurisdiction of the circuit courts therefore is exclusive only in the cases of capital offenses and in other cases is concurrent with the district court of the district in which the crime or offense is committed. 17 The circuit and district courts are given concurrent jurisdiction over certain offenses committed on the great lakes and the waters connecting them.18 [d] Concurrent with district court The act giving the circuit court concurrent jurisdiction with the district court over crimes and offenses, operates prospectively and hence an after- created offense may be cognizable in the circuit court, although jurisdiction may, in terms be conferred on the district court only.i § 133. Removal of causes arising under Federal Constitution, treaties or laws. 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 circuit courts of the United States are given original jurisdiction by the preceding section, [a]-[f]2 ^j^ich 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 circuit court of the United States for the proper district. "^^^ First clause § 2, act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended Mar. 3, 1887. c. 373, 24 Stat. 552, and corrected Aug. 13, 1888, c. 866, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 509. [a] Removal of suits involving Federal questions — in general. The original jurisdiction of the circuit courts over suits arising under the Constitution and laws of the United States has already been considered. 5 The jurisdiction of the circuit courts on removal of such suits from the State courts seems to present no different principles. A suit is not re- movable simply because an act of Congress is to be construed or applied. i«Post, § 1(W. lUnited States v. Holliday, 3 Wall. iTUnited States v. Holliday, 3, 415, 18 L. ed. 182. See also United Wall. 414, 18 L. ed. 182; United States v. Block, 3 Biss. 213, Fed. States V. Plumer, 3 Cliff. 28. Fed. Cas. Xo. 14.610. Cas. No. 16,056; United States v. 2 Ante, § 12i9. Reese, 4 Sawy. 629, Fed. Cas. No. sAnte. § 129. [h]-[n] see also 16,1.38. ante, § 2. [g] IS Ante, § 27. Fed. Proc.— 22. 337 § 133 [b] CIRCUIT COURT— JURISDICTION. [Code Fed. 'Dicrc niust be a dispute as to the construction of the act. 6 The right of rciuoval exists whei-e plaintiff's statement shows that his recovery would be defeated by a construction of some Federal provision, which may fairly be contended for. Thus, a suit by a State to recover lands under a State statute forfeiting a previous railroad grant is removable where the validity of the act of forfeiture is questionable under the Federal Constitution. T It has been held that a complaint by a State alleging that the defendant is about to import into the State a number of armed and lawless men. raises a Federal question under the 14th Amendment, and entitles the de- fendant to a removal. 8 But a proceeding by a State to forfeit a franchise cannot be removed to the Federal courts on the ground that it impairs the obligations of a contract, the constitutional prohibition being that "no State shall pass any law" impairing the obligation of contracts. 9 Suits arising under disputes as to public land laws are removable, as where the plaintiff denys the authority of the land department to issue a certain patent. n Where, however, the dispute merely involves the location of boundary lines no Federal qiiestion is involved. 12 A suit arising uiiil^r Federal mining laws is removableis as is also a mandamus proceeding to compel a railroad engaged in interstate commerce to run its trains to a certain station, since a judgment therein may impose a burden on interstate commerce. i< A bill by an assignee in bankruptcy to set aside a fraudulent conveyance by the bankrupt, is removable as presenting a Federal ques- tion.i5 Where the Federal question has already been decided by the Su- preme Court it ceases to be ground for removable A suit by daughter of deceased homesteader to establish her right against widow to whom patent issued under R. S. § 2291, is one arising under Federal laws and removable. it A suit on a marshal's bond involving the proper construction of a section of the Revised Statutes is removable. i« [b] — suits by and against national bank receivers. A suit against a receiver of a national bank, appointed by the Comptroller of Currency is one arising under the laws of the United States. 1 Hence the circuit court has jurisdiction of a suit against such a receiver, brought to establish the claim of the plaintiff as a depositor in the bank. 2 It has jurisdiction also to compel the receiver to pay to the comjilainant out of the 6 Fitzgerald v. Missouri, etc. Rv. i^People v. Rock Island, etc Ry. 45 Fed. 812. ~ 71 Fed. 753. vState V. Duluth, etc. R. R. 87 Fed. i^Woolridge v. McKenna, 8 Fed. 497. &-50. s Arkansas v. Kansas, etc. Co. 96 i*'''\fyTtle v. Nevada, etc. Ry. 137 Fed 353 Fed. 193: Arkansas v. Choctaw, etc. !»Kentucky V. Louisville Bridge Co. ^^'- ^?^^^^*^- ^^Jl" . ,„„ ^t o qqo 4'> Fed 241 I'^IcCune v. Lssig. 190 U. S. 382, .A ■\'^ ^l o 1 1.0 TT c .n« ''"'0 • '^fl- -•'^■' 26 Sup. Ct. Rep. 78. iiMitchell V. Smale, 140 U. S. 406. isLawrence v. Norton. 13 Fed. 1, 35 L. ed. 442, 11 Sup. Ct. Rep. 819. 4 ^Voods 383. 12L0S Angles, etc. Co. v. Hoff. 48 iSjjeckart v. German Nat. Bank, Fed. .340. 85 Fed. 12 : Sowles v. W itters, 43 Fe:l. isFrank. etc. Co. v. Larimer, etc. 700: Cilliert v. Mr-Nulta. 96 Fed. S3. Co. 8 Fed. 724. 2Bartlev v. Havden. 74 Fed. 9l4. .338 Procedure] REMOVAL OF CAUSES. § 133 [dl funds of the bank in the receiver's hands a certain sum on the grounds that it was held by the receiver as a trust fund and not part of the bank prop- erty. s A receiver of a national bank being a Federal officer^ may, under R. S. § 629,5 sue in the Federal courts \\ithout regard to the parties or the amount of the suit. 6 [c] — suits against Federal corporations. Suits against corporations organized under acts of Congress have always been held to be suits arising under the laws of the United States, and therefore cognizable by the circuit courts regardless of citizenship.s By act of 1S87, however, national banks for jurisdictional purposes are to be deemed citizens of the States in which they are located and hence, although Federal associations, have no more right to sue in a circuit court. than a citizen of the particular State.9 The fact that a State corporation is jointly sued with a Federal corporation does not change the nature of the suit. It is one arising under the Federal laws and hence removable. lo [dj — suits against Federal court receivers. The fact that a receiver is appointed by a Federal court does not make all actions .against him cases arising under the Constitution and laws of the United States. 12 Accordingly where he was appointed as receiver of a State corporation in the exercise of the general jurisdiction of the court, and not under any proA-ision of the Federal laws, a suit against him does not per se, present a Federal question.! 3 While some cases in the Supreme Court go further than thisi* they really involved receivers of Federal corpor- ations.! 5 This distinction has apparently not been drawn in some of the 2Hot Springs, etc. School District V. National Bank, 61 Fed. 417. ^Frelinghuysen v. Baldwin. 12 Fed. .S95. sAnte. § 124. sPrice v. Abbott. 17 Fed. .506: Arm- strong V. Ettlesohn. 36 Fed. 209: Armstrong v. Trautman. 36 Fed. 276. sSee Osborn v. United States Bank. 9 Wheat. 819. 6 L. ed. 223: Pacific R. R. Removal Cases. 115 U. S. 1, 20 L. ed. .3.19, 5 Sup. Ct. Rep. 1113; Oregon, etc. R. Co. v. Skottowe. 162 U. S. 490. 40 L. ed. 1049, 16 Sup. rt. Pep. 869: I^nion Pac. Rv. v. Har- ris. 158 I^ S. 326. 39 L. ed. 1003, 15 Sup. Ct. Rep. 843: Texas, etc. R. Co. V. Cody. 166 U. S. 606. 41 L. ed. i0.'i2, 17 Sup. Ct. Rep. 703: Texas R. Co. V. Cox, 145 U. S. .>93. 36 L. ed. 829. 12 Sup. Ct. Rep. 905: Lund v. Chicago, etc. R. Co. 78 Fed. .385; United States Freehold, etc. Co. v. f^allegos. 89 Fed. 769. 32 C. C. A. 470: Supreme Lodge, etc. v. ^^'ilson. 66 Fed. 785, 14 C. C. A. 264. "Ante. § 24. Ex parte Jones. 164 r. S. 693. 41 L. ed. 602. 17 Sup. Ct. Rep. 222: Wichita Nat. Bank v. Smith. 72 Fed. .569. 19 C. C. A. 42. 10 Lund V. Chicago, etc. Ry. 78 Fed. 387 : ]\lartin v. St. Louis, etc. Rv. 1.34 Fed. 135. i2Cableman v. Peoria, etc. Ry. 179 V. S. 3.35. 45 L. ed. 220, 21 Sup. Ct. Rep. 171 : Peoner v. Rogers. 128 Fed. 988. see also. Bausman v. Dixon. 173 U. S. 113. 43 L. ed. 6.33. 19 Sup. Ct. Rep. 316: Pope v. Railway Co. 173 U. S. .573. 43 L. ed. 814. 19 Sup. Ct. Rep. .500. isOableman v. Peoria, etc. Rv. 179 U. S. 340, 45 L. ed. 220. 21 Sup. Ct. Rep. 171. 14 See Railroad Co. v. Cox. 145 U. S. 593. .36 L. ed. 829. 12 Sup. Ct. Rep. 905: Tennessee v. Union, etc. Bank, 1.52 U. S. 463. .38 L. ed. 515. J 4 Sup. Ct. Rep. 654. isMarrs v. Felton, 102 Fed. 776. 339 § 133 [e] CIRCUIT COURT— JURISDICTION. [Code Fed. circuit courts, which have held that all suits against a Federal receiver are suits under the laws of the United States. 1 6 Where a suit against a re- ceiver raises a Federal question, the fact that other parties are joined as co-defendants does not aflect the nature of the suit or the right of re- moval. 1 7 [ej Federal question to appear from plaintiff's statement. As already stated the general rule is that the Federal question must ap- pear by the plaintiff's statement of his own claim, and unless it does so appear the court has no jurisdiction either original or on removal.i The failure of the plaintiff so to set forth a Federal question is not remedied by any statement in the petition for removal or in the subsequent plead- ings. 2 The above rule has been followed however, only since the amend- ment of 1887. As the act of 1875 originally stood, any civil suit of the requisite amount arising under the Federal laws might be removed by either party. Removal cases, while this provision was in force, held that the Federal question might be presented by the answer or plea of the de- fendant,3 the test being whether at the time of removal, a Federal question appeared on the record, i By the amending act of 1887, only such Federal question might be removed as the circuit court iiad original jurisdiction over "by the preceding section," and since it is uniformly held that the circuit court has original jurisdiction over a suit involving a Federal ques- tion only when such question appears in the plaintiff's statement, a removal suit must also show jurisdiction on the face of the plaintiff's statement. 5 An exception has been made where plaintiff has been guilty of bad plead- ing and failed to set forth facts which if stated would give the Federal courts jurisdiction. 6 Accordingly failure to state that a corporation is a Federal corporation will not destroy the right of removal and the fact can be shown in the petition for removal." So also Federal jurisdiction can- not be defeated by a false statement in plaintiff's declaration, that the citizenship of defendant corporation is State, and not Federal. « [f] Amount in controversy. The above provision allows the removal of causes arising under the Federal Constitution or laws, of which the circuit courts are given juris- leLanders v. Felton, 73 Fed. 313; sas, 111 U. S. 4©2, 28 L. ed. 487, 4 Ray V. Peirce, 81 Fed. 881; Pitkin v. Sup. Ct. Rep. 437; Metoalf v. Water- Cmven, 91 Fed. 600. But see Crable- town. 128 U. S. 589, 32 L. ed. 544. man v. Peoria, etc. R. Co. 101 Fed. 1, 9 Sup. Ct. Rep. 173. 41 C. C. A. 160. sTennessee v. Union, etc. Bank. 152 i^Landers v. Felton. 73 Fed. 311. U. S. 461, 38 L. ed. 514, 14 Sup. Ct. lAnte, § 129.[h] Rep. 654. 2Arkansas v. Kansas, etc. Co. 183 eSpeer v. Colbert, 200 U. S. 130, V. S. 188, 46 L. ed. Uo, 22 Sup. Ct. 50 L. ed. 403, 26 Sup. a. Rep. 201. Rep. 47; Cella v. Brown, 144 Fed. 7 Scott v. Choctaw, etc. R. R. 112 742. Fed. 182; Winters v. Drake, 102 Fed. 3 See San Mateo v. Railroad Co. 13 545. Fed. 145: Van Allen v. Atchison, etc. sTexas, etc. Rv. v. uody, 166 U. S. R. Co. 3 Fed. 545, 1 McCrary, 598. 606. 41 L. ed. 1132, 17 oup. Ct. Rep. ■JRailroad Co. v. Mississippi, 102 703. U. S. 140, 26 L. ed. 98; Ames v. Kan- 340 Procedure] REMOVAL OP CAUSES. § 134 diction "by the preceding section." That section requires in excess ot two thousand dollars to be involved, lo Hence a removal to the Federal court is not allowed in a case arising under the Federal Constitution or laws, unless the amount in dispute exceeds two thousand dollars.n Where, however, a suit is merely ancillary to one in the Federal court, it may be removed regardless of the amount in controversy.! 2 A receiver appointed by a Federal court, when authorized to defend in a suit affecting his trust, may remove the case regardless of the amount on the ground that 3uch> suit is ancillary. 13 [g] May be removed by defendant or defendants. As originally enacted in 1875 the above provision gave either party the right to remove on the ground that a Federal question was raised. This right is now, however, limited in terms to the defendant or defendants,! ^ and the rule is well established that all such defendants must join in the petition, where the removal is sought because of a Federal question.! 6 The rule has been applied where a State corporation and a Federal corpora- tion are jointly sued!'? and in the case of a joint suit against a railroad- and its receiver.! 8 § 134. Removal of causes where United States are parties, di- verse citizenship, or land grants from different States. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction hy the preceding section [i. e., causes where United States are plaintiffs or petitioners or where diverse citizenship exists or where parties claim under land grants from different States] ,21 and which are now pending, or which may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein.^^^'^''^ i>eing non-residents of that State. ^'^ Part of § 2, act :Mar. 3, 1875, as amended Mar. 3, 1887, c. 373. 24 Stat. 552, and corrected Aug. 13, 1888, c. 860, 25 Stat. 433, U. S. Comp. Stat. 509. lOAnte, § 129.[(i] S. 335. 45 L. e«"'- \l^ ^^_^- Fed '^86 ^^^ ^^ ^^- ^- *^-^- 5 ^"P- ^*- R^P- ^'*^- -a~ A 1 17 .t 11 i o loWilson V. Oswefro Twp. l.'il U. •See Creagli v. Equitable, etc. Soc. o ,^,, oo r /i -- i • c nt- t> 88 Fed. 1: Helms v. Northern Pac. .^;.. '^•- '^^ '^ "'^^ '''■ ^^ "'^P" ^*- ^^P" R. Co 120 Fed. 389: TTen.T ^^ Tlli- " ^o.^Boatmen's Bank v. Frit.leu, nois. e c. R. Co. 1_32 led. /1 5; Atarax y.- ,,^,j ,,5^ gg ^ ^ ^ 288: Keller V. Railroad to. r2 ted. 63/; Hukill ^. K,,„5a<,_ etc. Rv. 135 Fed. 202. V. Railroad Co. 72 Fed. 745: Mc- 11 Ante. § 23. " Intyre v. Southern Ry. 131 Fed. 985. 1 2Boatmen''s Bank x. Fritzlcu. l.ij> 8See Railroad Co. v. Dixon. 179 V. Fed. 6.")0, 68 C. C. A. 288. S. 131, 45 L. ed. 121. 21 Sup. Ct. Rep. 1 "Keller v. Kansas, etc. Ry. 13.> 07; Southern R. Co. v. Carson. 194 Fed. 202. 351 { 135 [d] CIRCUIT COURT— JURISDICTION. [Code Fed [d] — controversies in particular cases. There has been held to be no separable controversy in the following cases: a suit for an undivided half interest in a tract of land held by two defendants; 13 a suit by a stockholder against a corporation and its lessee to set aside lease; i* or to cancel shares of stock or determine their owner- ship; is suits against a stockholder and the corporation to determine the ownership of certain stock; 16 a suit to compel specific performance of con- tract for the sale of land, brought against the vendor and his grantee and the latter's grantee; it a suit against a partnership on a joint contract; is or by one partner for the settlement of partnership affairs; 19 a suit to foreclose a mortgage brought against several mortgagors ; 2 o a suit brought by several plaintiffs, judgment creditors of the assignors, to set aside the assignments, where the only controverted facts were those tending to im- peach the validity of the assignments. i The failure to serve one of the de- fendants with summons 2 or the default of a defendants does not make the controversy separable. Where one of the defendants enters a disclaimer it is said that such disclaimer does not leave a separable controversy as to the others.* In any event, there is no separable controversy where the disclaiming defendant still retains an interest in the eontroversy.5 [e] . suits concerning liens. Suits by a judgment creditor to have his debtor's property sold after satisfying prior encumbrances, the holders of which are made defendants, presents no separable controversy, justifying removal, between the plain- tiff and such holders. 7 But a suit by a judgment creditor to subject land standing in name of the debtor to payment of judgment on the ground that purchase price was paid by debtor, was held to present a separable controversy. 8 A cross bill brought by a defendant claiming interest in mortgaged property in a suit by the mortgagee to foreclose, presents merely matters of defense and such defendant has no right to remove. 9 So isKnight V. Lumber Co. 136 Fed. 406, 69' C. C. A. 248. i4East Tennessee, etc. Ry. v. Gray- son, 119 U. S. 244, 30 L. ed. 382, 7 Sup. Ct. Rep. 190. iBVinal V. Construction Co. 35 Fed. 673; and see Crump v. Thurber, 115 U. S. 56, 29 L. ed. 328, 5 Sup. Ct. Rep. 1154. i6Rogers x. Van NortwicK, 45 Fed. 513. I'Smedley v. Smedley, 110 Fed. 255. isStone V. South Carolina, 117 U, S. 433, 29 L. ed, 963, 6 Sup, Ct. Rep. 799, isShainwald v, Lewis, 108 U, S, 158, 27 L. ed, 691, 2 Sup, Ct. Rep. 385 20Ayres v. Wiswall, 112 U, S, 187, 28 L, ed. 694, 5 Sup, Ct. Rep. 90. 352 iReinenian v. Ball, 33 Fed. 692. 2Ame3 V. Railway Co. 39 Fed. 881 ; Patchen v. Hunter. 38 Fed. 51. 3 Wilson V. Oswego Twp. 151 U. S. 56, 38 L. ed. 70, 14 Sup. Ct. Rep. 259. 259. 4Hax V. Caspar, 31 Fed. 500; Davies v. Wells, 134 Fed. 140. sWashington v. Columbus, etc. R. Co. 53 Fed. 673. T Fidelity Safe Deposit Co. v. Hunt- ington, 117 U. S. 280, 29 L. ed. 898, 6 Sup. Ct. Rep. 733 ; Graves v. Corbin, 132 U. S. 571, 33 L. ed. 462, 10 Sup. Ct. Rep. 196; Torrenoe v. Shedd. 144 U, S, 527, 36 L, ed, 528, 12 Sup. Ct. Rep. 726. 8 Kalamazoo Wagon Oo. v. Suavely, 34 Fed. 823. 9Maish v. Bird, 48 Fed. 607. Procedure] REMOVAL OF SEPARABLE CONTROVERSIES. § 135 [h] where a bill in equity is brought to establish a resulting trust in land in possession of a mortgagor, a non-resident mortgagee being made defendant, cannot remove.! o An action by a divorced woman against the heirs of her former husband to subject lands of which he died seised to payment of her alimony presents no separable controversy as to any of the defendants; n No separable controversy is presented as to a nonresident trustee of a railroad who intervenes in a suit in the nature of a creditors bill brought against the railroad.12 Nor is such controversy presented in a suit brought to enforce a mechanic's lien against a railroad under a statute requiring all lien holders to be made parties and their claims and priorities adju- dicated; is nor in the case of a suit brought by a party who has replevied goods against one of several attaching creditors;!* nor in case of a bill brought by a creditor to compel satisfaction of his debt out of property of his deceased debtor, in the hands of the heirs, since all the heirs are indispensable parties to the suit. 15 [f ] proceedings concerning wills. An action to establish a will is a single and not a separable controversy.! 7 A proceeding brought in a probate court to contest the probate of a will by the heirs of the deceased is a single proceeding.! 8 So also a bill filed by an administrator for the construction of a will as against two bene- ficiaries, presents no separable controversy as between the non-resident bene- ficiary and the other beneficiary or the administrator. 1 9 [g] suits in ejectment and to quiet title. One of several defendants charged with conspiracy in a scheme to raise a cloud on plaintiflf's title cannot remove on ground of separable controver- sy.! So a suit brought against a lessor and lessee to quiet title cannot be removed by the lessor on grounds of separable controversy. 2 But a suit to quiet title requiring each of several defendants to set up any claim he may have, has been held to present a separable controversy.3 [h]. condemnation proceedings. A controversy between property owners and city on a proceeding for widening the city streets is held to be separable as each defendant owned a particular piece of land. 5 But where the object of the suit is to con- demn a single lot the controversy is held not to be separable although the lOChester v. Chester, 7 Fed. 1. !8Fraser v. Jennison. 106 U. S. iiChapman v. Chapman. 28 Fed. 1. 191, 27 L. ed. 131, 1 Sup. Ct. Rep. !2ln re Saa Antonio Ry. 44 Fed. 171. 145. ! 9 Security Co. v. Pratt, 64 Fed. isSweenev v. Railroad Co. 61 405. Fed. 3. ' !Little v. Ciles. 118 U. S. 596, 30 ! 4 Temple v. Smith, 4 Fed. 392, 2 L. ed. 269, 7 Sup Ct. Rep. 32. McCrarv. 226. 2Mil1er v. Sharp. 37 Fed. 161. !5Lyddy v. Gano. 26 Fed. 177. sBates v. Carpenter, 98 Fed. 4,52; ! "Anderson v. Appleton, 32 Fed. see also Bacon v. Felt. 38 Fed. 870. ■855. 5Pacific Ry. Removal Cases, 115 U. Fed. Proc— 23. 353 S 1 :'..-. |i| riit( 1 IT contT— .Tritismc'j'ioN. [ ("ode Fed. two (Icl'oiKhnits (iwii distinct interests. e A eontrovcrsy holws-en a state and a noneiti/en owner in a condenination proteodiiig in \vhii'li tlie resi- dent lessee of the owner is made eodefendant is separable for removal pur- ]ioses.T A proceedini;- for the establishment and construction of a drain in which the main (|uestion is the right of the petitioners to establish such drain presents a ^sin^i•le and entire controversy. >> Railroad cDndemnation proceedings aie separable as to eacli separate owner.!* [i] Separable controversy, how to appear. Whether an action involves a separable controversy must be determined by the allegations in the plaintifl[''s pleadings at the time when the peti- tion for removal is filed, lo and not by the allegations in the petition, ^i or the subsequent proceedings in the circuit court. 12 Hence the removal of a cause cannot be had on the ground that facts may be developed at the trial which may exculpate the defendant,! s matters of defense not being available as a ground for removal. n An exception to this rule exists, however, where the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of pieventing a removal to the Federal court. is To establish this it must appear not only that they were joined to defeat jurisdiction but that no cause of action is asserted against them, or that they are in law improperly joined, or that the averments of fact on which the joint liability is asserted, are so pal- pably untrue or unfounded as to make it improbable that the plaintiflf could have inserted them in good faith. 1 6 In determining whether the controversy is separable so as to allow removal, the allegations in the complaint are considered as confessed. i' [j] Petition for removal, what to contain. The petition for removal must specify the separate controversy and claim the right of removal on that ground, and show that the suit is wholly between citizens of different States, and that it can be fully de- S. 23. -20 L. ed. 310, .5 Sup. Ct. Eep. 1113. sBellaire v. Baltimore, etc. Ev. 146 IT. S. 119, 36 L. ed. 911, 13 Sup. Ct. Rep. 16. But see Northern Pac. Terminal Co. v. Lowenberg, 18 Fed. 339. 9 Sawy. 348. "Sugar Creek, etc. Rv. v. McKell. 75 Fed. 36. sin re Jarnecke Ditch, 69 Fed. 161. !*Soutli Dakota Rv. v. Chicago, etc. Ry. 141 Fed. 578, 73 C. C. A. 176. lOHarley v. Insurance Co. 125 Fed. 792; Wilson v. Oswego Twp. 151 IT. S. 65. 38 L. ed. 74. 14 Sup. Ct. Rep. 259; Deere v. Chicago, etc. R. Co. 85 Fed. 876; Cableman v. Peoria, etc. R. Co. 179 U. S. 335. 45 L. ed. 220, 21 Sup. Ct. Rep. 171 : Louisville, etc. R. Co. V. Wangelin, 132 U. S. 601, 3.54 33 L. ed. 474, 10 Sup. a. Rep. 203: Doremus v. Root, 94 Fed. 760. iiFogartv v. Southern Pac. Co. 123 Feu. 973. 12 Wilson v. Oswego Twp. 151 U. 8. 65, 38 L. ed. 74. 14 Sup. Ct. Rep. 259. 13 Ward V. Franklin. 110 Fed. 794 i4Riser V. Southern Rv. 116 Fed. 216. isBryce v. Southern Ry. 122 Fed. 710: see also Prince v. Illinois, etc. R. Co. 98 Fed. 2; Railroad Co. v. Wangelin. 132 U. S. 599. 33 L. ed. 475. 10 Sup. Ct. Rep. 203. i6H)ikill V. Mavsville. etc. R. Co. 72 Fed. 750. iTEast Tennessee, etc. R. R. v. Gravson. 119 U. S. 244, 30 L. ed. 382, 7 Sup. Ct. Rep. 190. i Prote;iure] HEMOVAL ON GROUND OF PREJUDICE. § VM tenniiied as between them.i Where it fails to allege such jurisdictional facts it i'; insufficient. 2 So it is said that the averment of a separable controversy in the pleadings cannot make up for the failure to allege it in the petition. s The omission in the petition of the averment of a sepa- rable controversy can be amended only in the State court.* [kj Who may remove. The controversy must be wholly between citizens of different States: 6 ;ind the suit is not removable if a necessary party defendant in a sepa- rable controversy is a citizen of the same State as the plaintiff." More- over, since the controversy must be between citizens, an alien defendant is not given the power to remove a separable controversy in a suit by a State citizen, 8 nor is a citizen given the power to remove where the suit is brought by an alien. 9 The right is confined to parties "'actually inter- ested in the controversy" and no other party can apply.io An interveuor cannot remove where the real questions at issue are between the original parties and the intervenor has rights only as he may be subrogated to those of the defendant.!! Nor can he remove where he appears only to protect the rights of the original defendant and claims nothing independent f the original plaintiff or defendant. 12 jlj Whole suit removed. While under the act nt' 1S6G. only the separable controversy could be rc!noved,i4 there is nothing in the act of 1875 justifying the conclusion liat Congress intended to leave any part of the suit in the State court: is md where a suit involves a separable controversy under the above provi- sion the suit is removable in its entirety. 16 >^ 136. Removal on ground of prejudice or local influence. And where a suit is now ponding, or may be hereafter broiiglit. in anv State court, in which there is a controversy between a citi- iSharkcv v. Mill Co. 02 Fed. 425. '"Rand v. \Yalker. 117 U. S. 345, 2Spp Smith v. Horton, 7 Fed. 270. 20 L. ed. 007. 6 Sup. Ct. Rep. 769; sGates. etc. Works v. Pepper, 98 Merchants, etc. Co. v. Insurance Co. Fed. 451. of N. a. 151 U. S. 387. 38 L. ed. 105.. ^s. 30. Fed. Ct. Rep. 3.53. Cas. No. 3,695. § 136 [a] CIRCUIT COURT— JURISDICTION. [Code Fed. zen of the State in which the suit is brought and a citizen of an- other State, ^^^"'^'^^ any defendant, being such citizen of another State, may remove such suit into the circuit court of the United States for the proper district, '^''^ at any time before the trial thereof J*^^ when it shall be made to appear to said circuit 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 de- fendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause t^^' 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 circuit 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. Part of § 2, act of Mar. 3, 1875, c. 137, 18 Stat. 470, as amended act Mar. 3, 1887, c. 373, 24 Stat. 552, and corrected act Aug. 13, 1888, c. 866, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 50&. [a] In general — history of provision. The procedure on removal for prejudice or local influence is fully con- sidered in a following section. i Under an act of Mar. 2, 18672 which first gave the right of removal on the ground of prejudice or local influence the right was confined to "such citizen of another State whether he be plaintiff or defendant."3 That pi'ovision was substantially re-enacted in the Re- vised Statutes. 4 Nothing was contained in the act of 1875 as it stood orig- inally, concerning removal on the ground of prejudice or local infiuence, and the provision of the Revised Statutes just referred to remained in force until the act of 1875 was revised and corrected in 1887-18885 as set forth above. While the existing provision does not in terms set forth what suits are removable for prejudice or local influence, it does not describe a new class of suits but only specifies a distinct ground for removing one class of suits previously defined, viz., that class in which there is a con- troversy between citizens of difi'erent States. 6 And as the controversy in such a case must exceed the sum or value of two thousand dollars,'? it must likewise do so where removal is attempted on the ground of prejudice or local infiuence. s An appeal under a State law from an assessment of taxes iPost, § 1143. 6Malone v. Richmond, etc. R. R. 214 Stat. 558, c. 196. 35 Fed. 625; Cochran v. Montgomery SThurber v. Miller, 67 Fed. 375, 14 Co. 199 U. S. 271, 50 L. ed. 187, C. C. A. 432. 26 Sup. Ct. Rep. 58. See In re 4R. S. § 639. subsec. 3. Cillev. 58 Fed. 980. 5Fisk V. Henarie, 142 U. S. 459. 35 7Ante. § 134.[b] L. ed. 1080. 12 Sup. Ct. Rep. 207. sin re Pennsylvania Co. 137 U. 356 Procedure] REMOVAL ON GROUND OF PREJUDICE, § 136 [c] to a "county court" sitting without judicial powers is not a suit within the meaning of the section. 9 [b] Citizenship of parties. Under the above provision the plaintiff must be a citizen of the State where suit is brought. Where there are several plaintiffs each one must apparently be a citizen of that State.n In any event they must be citizens of the State if they are all jointly concerned in the cause of ac- tion against the defendant. 12 Since citizenship is essential the presence of an alien plaintiff whether sole, or one of several, will prevent removal. 1 3 So, if it is found upon an arrangement of the parties according to the real controversy, that aliens and citizens of the same State as the de- fendants would be placed in the position of plaintiflFs there can be no removal. 14 Xone but defendants can remove; is and no removal can be had for prejudice or local influence by a defendan:. where a co-defendant is a citizen of the same State as the plaintiffs. is The diverse citizenship necessary to jurisdiction, must exist both at the time the suit is commenced and at the time petition for removal is filed.i7 [c] Application for removal. Under the original act of 1867, as carried into the Revised Statutesi a petition for removal on the ground of prejudice or local influence was ex- pressly required. No such express requirement is made in the above pro- vision, however, which simply requires that the prejudice or local influence must be shown to the circuit court. 2 Such fact may appear by oral testimony or afRdavits,3 but the court should be legally not merely moral- ly satisfied as to the truth thereof.* Legal satisfaction requires some proof suitable to the nature of the case. The amount and manner of the S. 454, 34 L. ed. 740, 11 Sup. Ct. Rep. number of cases contra: Whelan v. 143; Todd v. Cleveland, etc. Rv. 65 New York. 35 Fed. 849. 1 L.R.A. 65: Fed. 148, 12 C. C. A. 521; City of Jackson, etc. Co. v. Pearson, 60 Fed. Detroit v. Detroit, etc. Ry. 54 Fed. 5. 113; Hall v. Chattanooga, etc. Works. sUpshur Co. V. Rich, 135 U. S. 467, 48 Fed. 599; Tacoma v. Wright, 84 34 L. ed. 196, 10 Supt. Ct. 651. Fed. 836; Wilder v. Virginia, etc. Co. iiRike V. Floyd, 42 Fed. 247: 46 Fed. 676; Boatmen's Bank v. Thouron v. East Tenn. etc. R. Co. 38 Fritzleu, 135 Fed. 650, 68 C. C. A. Fed. 678; Wilder v. Virginia, etc. Co. 288; Parker v. Vanderbilt. 136 Fed. 46 Fed. 676. 246; Haire v. Rome R. Co. 57 Fetl. i2Gann v. Northeastern R. Co. 57 321; Holmes v. Southern R. Co. 125 Fed. 417. Fed. 301. isCohn v. Louisville, etc. R. 39 1 'Young v. Parker, 132 U. S. 267, Fed. 227. 33 L. ed. 352. 10 Sup. Ct. Rep. 75. KAdelbert College v. Toledo, etc. iR. S. § 639, subdiv. 3. R. Co. 47 Fed. 836. 2 Short v. Chicago, etc. Ry. Co. 33 i5Tullock V. Webster Co. 40 Fed. Fed. 116. 706. 3 Short v. Chicago, etc. Ry. 33 isCochran v. Montgomerv Co. 199 Fed. 116. U. S. 272, 50 L. ed. IS'8, 2C Sup. Ct. ^Ex parte Pensylvania Co. 137 U. Rep. 58; Anderson v. Bowers, S. 457. 34 L. ed. 741, 11 Sup. Ct. 43 Fed. 321: Campbell v. Milliken. Rep. 143; Tacoma v. Wright. 84 Fed. 119 Fed. 982. There have been a 838. 357 § i:;»! [d] CIRCUIT COi:UT— JUltlSDICTION. [Code i'pd. proof required must be left to the discretion of tlic court.!'' lender the act of 1807 the affidavit was required to state men I y that the jjarty "lias reason to believe and does ))elieve that lie will be unable to obtain jus- tice."6 But under tlie present act an ex parte affidavit merely alleoin*,' tlie existence of local prejudice without stating any facts tending to show it, lias been held insufficient.' On the other hand a bare statement of the fact of prejudice in the language of the statute has been held a sufficient prima facie showing.'** But if such statement is made on information and be lief only it is insufficient. 9 Where, however, the facts supporting a state- ment on information and belief are fully set forth it is held that personal knowledge is not necessary.! o While there is no requirement that the application be made by petition, that is the usual method of procedure. The petition should distinctly aver the prejudice or local influence, and as a consequence thereof the inability of the defendant to obtain justice in the State court. n A petition and affidavit merely alleging that the de- fendant is unable to obtain justice are not sufficient.! 2 Notice to the op- posite party, of the application for removal while not required is perhaps the better practice.is An order of removal by the circuit court is neces- sary. Tlie mere finding that a party is entitled to remove, is no order and does not work a removal. i< [dj Removal to be before State court trial. Under a provision of the act of 1807 as substantially embodied in the Revised Statutes, the petition for removal was required to be filed at any time fore the trial or final hearing; is and a cause might be removed even after the trial court had granted a new trial, or after reversal and remand by the State supreme court.i'? But removal, under the above provision, may be had "at any time before the trial." Tliis means before or at the terra at which the cause could first be tried, and before the trial thereof. IS The right of removal remains up to the time of the first trial on the merits. 1 9 A hearing on a special demurrer as to formal de- 5ln re Pensylvania Co. 137 U. S. isAdelbert College v. Toledo, etc. 454. 34 L. ed. '741. 11 Sup. Ct. Rep. R. Co. 47 Fed. 830. 143. i-iPennsvlvania Co. v. Bender, 148 eSee R. S. § 039. subdiv. 3. U. S. 255/37 L. ed. 441, 13 Sup. Ct. TSchwenk v. Strang. 59 Fed. 211, Rep. 591. 8 C. C. A. 92. See also INIalone v. 16R. S. § 039. subdiv. 3. Railroad Co. 35 Fed. 025. i^See Fisk v. Henorie. 142 U. S. sShort v. Railroad Co. 34 P^ed. 227: 459, 35 L. ed. 1080. 12 Sup. Ct. Rep. Franz v. Wahl, 81 Fed. 10. 207. and cases cited. 9Short V. Chicago, etc. Co. 33 Fed. isMcDonnell v. Jordan, 178 U. S. 110: Collins v. Campbell. 62 Fed. 238, 44 L. ed. 1052, 20 Sup. Ct. Rep. 851: In re Pennsylvania Co. 137 U. 880; Fisk v. Henarie. 142 U. S. 467, S. 457. 34 L. ed. 741. 11 Sup. Ct. Rep. 35 L. ed. 1082, 12 Sup. a. Rep. 207; 143. Thurber v. Miller, 67 Fed. 378, 14 C. loDetrolt v. Detroit, etc. R. Co. 54 C. A. 432. But see Detroit v. De- Fe07. Schuster. 86 Fed. H!l. 29 C. C. A. iHobart v. Illinois, etc. R. Co. 81 ()4S). Fed. .5; Maher v. Hotel Co. 94 Fed. sKniglit v. International, etc. R. •2I0: Lookout Mountain v. Houston, Co. (H Feil. 90, 9 C. C. A. ;37tt. 32 Fed. 711. iiAdelbert College v. Toledo. 47 -'See Wilson v. Rock Inland, etc. Fed. 8.3G. Co. 20 Fed. 70o. i2Xeal v. Foster, 31 Fed. r,:i, 12 3Durkee v. Illinois, etc. R. Co. 81 Sawv. 424: Parks v. Southern Ry. l^i'd. I. no Fed. 4. n of the same act. respect in^ the constiTict ion nf a hridii-c. dam. dike or causeway, over or in any jiovl. roadsrt'uil. liaxcn. luirbor. canal, naviiiabie river oi- other navi^-aljle v, alci- nf the Ignited States] may he enforced by the injunction of any circuit court ex- ercising jurisdiction in any district in whicli sucli structures mav exist, and proper proceedings to this end may be instituted under tlie direction of the Attorney General of the United States. Part of § 12, act March ,3, 1809. c. 425,. 30 Stat. 11.5L U. S. Comp. Stat. 1901, p. 3542. A bill for obstructioji will lie tliongli tliere is no proof of ac-tual use of a navigable .stream in interstate or foreign commerce. 4 § 146. To mandamus marshals, clerks, etc., to make return of fees. The circuit courts of the United States, for the purposes of this act [an act regulating fees and costs and providing for auditing and l)roving ccst bills and accounts of district attorneys, clerks, mar- shals, and commissioners I shall have power to award the writ of mandamus, according to the course of the common law. upon motion of the Attorney General or the district attorney of the United States, to any officer thereof, to com])el him T or citizens of the United States, shall forfeit and pay for every sucli offense the sum of one thousand dollars, which may he sued for and recovered by the United States or by any person mA\o shall first bring his action therefor including any such alien or foreigner who may be a party to any such contract or agreement, as debts of like amount are now recovered in the circuit courts of the United States ; the pro- ceeds to be paid into the Treasury of the United States ; and separate suits may be brought for each alien or foreigner being a party to such contract or agreement aforesaid. Part of § .3, act Feb. 26, 1885, c. 164, 23 Stat. 333, U. S. Comi.. Stat. 1901. p. 1291. riie omitted portion of the above section making it the duty of the dis- trict attorney to prosecute .such suits, is given in a following chapter. i Proceedings l)rouglit under this provision cannot be settled, compromised or discontinued without consent of the court, entered of record. 2 Tlie soliciting of alien immigration by transportation companies and ownei- of vessels is made subject to the penalties above prescribed.^ Notwith- standing the reference to the circuit court in the above provision, it i> settled that the jurisdiction of such suits is in the district court under its gen«^i-al jurisdiction o\ ei- suits for penalties and forfeitures. 4 § 148. Over suit on defaulting paper contractor's bond. In casr of tlic default of any contractor to furnish pa])er, he and his sureties shall bo res])onsible for any increase of cost to th'- govci'iniient in procuring a supply of such papier which may be con- sequent u])on such default. The public printer shall report every such default, with a full statement of all the facts in the case, to the Solicitor of the Treasury, who shall prosecute the defaulting couti'actor and his sureties upon their bond, in the circuit court ol' tile I'nited States in the district in which such defaulting contractors reside. § 10, act Jan. 12, 1895, c. 23, 28 Stat. 602, U. S. Comp. Stat. 1901. p. 2539. Similar provisions contained in the Revised Statutes^ are superseded by the above section. § 149. Jurisdiction of suits to determine right to Indian allot- ments. -Ml persons who are in whole or in part of Indian blood or descent iPost. § 541. 4Lees v. United States. 150 U. S. 2Post, § 1391. 475. 37 L. ed. 1151. 14 Sup. Ct. Kep. "§ 4. act March 3. 1891, c. 551. 26 163. Stat. 1084. 6R. S. §§ 3776. 3777. 367 ^ 150 CIRCUIT COURT— [Code Fed. who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment act or under any grant made by Congress, or who claim to have been un- lawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto, in the proper circuit court of the United States; and said circuit courts are hereby given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions 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 in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant, 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 held ])y either of the Five Civilized Tribes, 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. § 1 act Feb. 6, 1901, c. 217, 31 Stat. 760, amending Indian Appropria- tion act Aug. 15, 1894, c. 290, 28 Stat. 305. The provision confers on the circuit court jurisdiction to hear and de- termine the complaint of any person in whole or in part of Indian blood, who claims to have been unlawfully denied or excluded from an allotment of land, to which he claims to be lawfully entitled by act of Congress, s It is held that the United States is not a necessary party to the suit. 9 The amendment of 1901, however, expressly provides that the United States shall be party defendant. § 150. Circuit and district court jurisdiction over government condemnation suits. The United States circuit or district courts of the district wherein such real estate [as the Secretary of the Treasury or other govern- mental officer is authorized to procure for public uses] is located, shall have jurisdiction of proceedings for . . . condemnation [in cases where in his opinion it is necessary or advantageous to 8Hy-yu-tse-kin v. Smith, 119 Fed. 115, 55 C. C. A. 216. 9 Idem. 3C3 Procedure] OVER DAMAGE SUITS UNDER COMMERCE ACT. § 151 the Government to procure the same for the United States by con- demnation under judicial process]. Part of § 1 act Aug. 1, 1888, c. 728, 25 Stat. 357, U. S. Comp. Stat. 1901, p. 2516. § 151. — over damage suits under interstate commerce act. Any person or persons claiming to be damaged by any com- mon carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. Part of § 9 act Feb. 4, 1887, c. 104, 24 Stat. 382, U. S. Comp. Stat. 1901, p. 3159. The act also declares various acts and practices to be misdemeanors and provides the punishment resulting "upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed."! i In 1889 the circuit and district courts were further authorized to issue mandamus against a carrier to compel him to transport freight for relator without discrimination.! 2 Suits arising under the provisions of the interstate commerce act are suits under the Federal laws and the citizenship of the parties is immaterial.! 3 The provisions of the judiciary fict of 1887-1888 limiting the place of bringing suit to the district whereof the defendant is an inhabitant does not apply to the above section and suits thereunder may be brought in any district where the defendant may be found. 1 4 State courts are given no jurisdiction under the section, the Federal jurisdiction being exclusive.! 5 There is no limitation as to the time of bringing suit, however, and the State provisions in that respect are to be followed.! 6 Thus in Missouri the action, imder the State statutes of limitations, must be brought within three years,! 7 and in Louisiana, within one year.!8 The authorities are !!See § 10. act Feb. 4, 1887, c. 104, !5Van Patten v. Chicago, etc. R. 24 Stat. 382, U. S. Comp. Stat. 1901, Co. 74 Fed. 981 ; Edmunds v. Illinois, p. 3160. . etc. R. Co. 80 Fed. 79. !2See following section. !6Ratican v. Terminal, etc. Assn. iSToledo, etc. Rv. v. Pennsylvania 114 Fed. 668. Co. 54 Fed. 732, 19 L.R.A. 387; In lUdem. re Lennon, 166 U. S. 548. 41 L. ed. !SCopD v. Louisville, etc. R. Co. 1110, 17 Sup. Ct. Rep. 658. 50 Fed. 'l64. ix(Iusi\i' or supplemental.is § 152. — of mandamus to compel equal facilities to shippers. The circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, oi- corporation, alleging such violation [i. e., by discrimination, ]:»references, etc.,] by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ. Part of § 10 act Mar. 2, 1889, c. S82, 25 Stat. 862, U. S. Comp. Stat. 1901, p. 3172. Other portions of the section authorize issuance of peremptory manda- mus upon security given, notwithstanding undetermined issues of fact;l and declare that the remedy is cumulative and not exclusive of others. 2 Unjust disciimination is the wrong which Congress intended to remedy by the above provision. Such discrimination must not only be pleaded but must be proved by the relator or the writ will be denied.s § 153. — under alien immigrant laws. The circuit and district courts of the United States are hereby invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act. [An act excluding certain classes of alien immigrants and punishing persons guilty of bringing or encouraging such immigrants, etc. | § 29 act ]\:lar. 3, 1903, c. 1012, .32 Stat. 1220, U. S. Comp. Stat. Supp. 1905, p. 289. The above section supersedes a similar provision in an act of Mar. 3, 1891.5 In interpreting the superseded section it was held that its inten- isThat they are exclusive; Central iPost. § 846. Stock Yards* Co. v. Louisville. 112 spost. § 847. Fed. 823. See A^an Patten v. Chi- sUnited States v. Norfolk, etc. R. cago, etc. E. Co. 74 Fed. 981. That Co. 109 Fed. 831. thev are merelv supplemental; Tift 5 Act March 3, 1891, c. 551, § 13, V. Southern R. Co. 123 Fed. 789; Lit- 26 Stat. 1086. lie Rock. etc. R. Co. v. East Tennes- see, etc. R. C. 47 Fed. 772. 370 Procedure] JURISDICTION. § 155 tion was to vest concurrent jurisdiction, in the circuit and district courts of cases arising under the act of 1891 and that it could not be construed as giving jurisdiction to determine matters which the act expressly com- mitted to the final determination of execution officers. 6 Hence, the Federal courts would not intervene by habeas corpus to prevent a deportation by such officers, under the provisions of that act." § 154. — of suits for unlawful occupancy of public lands. Jurisdiction is . . . hereby conferred on any United Slates district or circuit court or territorial district court having jurisdic- tion over the locality where the land inclosed [i. e., public lands w.t- lawfully inclosed], or any part thereof, shall be situated, to Iimju- and determine proceedings in equity, by writ of injunction, to re- strain violations of the provisions of this act [to prenvent unlawful occupancy of the public lands] ; and it shall be sufficient to es therefor.' So also the acts admitting new States into the Union constitute each State a ju- dicial district, and provide for the appointment of a district judge. In some districts the appointment of an additional district judge has been authorized.!* The judicial districts of each State and the divisions thereof, are given in a following chapter. f' Besides the above requirement that every district judge shall reside in the district for which he is appointed, every clerk of the circuit or district court,io marshal, n and district at- torneyi2 is required to reside permanently in the district in which hia official duties are to be performed. § 168. In some cases one judge for two or more districts. There shall be appointed in each of the States of Alabama, Oeorgia, Mississippi, South Carolina, and Tennes.see, one district judge, who shall be district judge for each of the districts included in the State for which he is appointed, and shall reside within some one of the said districts. And for offending against this provision, such judges shall be liable as in the preceding section. R. S. § 552, U. S. Comp. Stat. 1901, p. 447. Alabama and Tennessee are divided into three districts; and South Carolina, Georgia and Mississippi into two each.i* An act of 1SS215 gave Georgia a district judge for each district. A statute of 187816 gave Ten- nessee a district judge for the western District, the older appointee continu- ing to have jurisdiction in the middle and eastern districts. An act of 18861^ gave Alabama a new district judge in the southern district and con- tinued the powers of the existing judge in the middle and northern dis- tricts. § 169. In some cases two or more district judges in a district. In the southern district of Xew York tliere are now three dis- "See U. S. Comp. Stat. 1901, p. uPost, § G23. .316-446 passim; also U. S. Comp. isPo.st, 8 506. Stat. 1905, p. 89. 112, 120. i4Post, S§ 2.57, 263, 274, 284. 286. sPost, § 170. 15 Act April 25, 1882, c. 87. 9Post. §§ 257, et seq, isAct June 14. 1878, c. 196. loPost, § 571. I'Act Aug. 2, 1886, c. 842. 378 I Procedure] ORGANIZATION AND POWERS. § 1T2 trict judges.^ ^ In the Minnesota district, i^ in the northern dis- trict of Illinois,2o eastern district of Pennsylvania/ the district of Xew Jersey.2 and the northern district of Texas-'' there are two dis- trict judges. But the law authorizing the additional judge in the Texas district provided that no vacancy in the office of the then ■existing district judge should be filled and after such vacancy the district should have only one district judge.^ Author's section. § 170. Circuit judge may act for district judge in Tennessee. In the case of the non-attendance of the district judge of Ten- nessee at any term of the district court in either of the districts tliereof, the circuit justice, or circuit judge of the circuit to which such district belongs, may hold such term, and shall have and exer- cise the jurisdiction and powers given by law to a district judge. R. S. § 582, U. S. Comp. Stat. 1901. p. 477. By an act of 1878,6 a district judge was appointed for the western dis- trict of Tennessee so that there are now two district judges instead of one. § 171 — in Oregon. In case of the absence of the United States district judge for thv? district of Oregon from said district, or of his disability, a circuit judge of the United States of the circuit to which such district be- longs may hold the district court and perform the duties of the dis- trict judge. Act Apr. 28, 1904, c. 1775, 33 Stat. .527, U. S. Comp. Stat. 1905, p. 138. § 172. Another district judge may be designated to act for dis- abled judge. When any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, or of the circuit court in his district in the absence of the other judges, and that fact is made to appear by the certificate of the clerk, under 18 Act Feb. 9, 1903. c. 527, 32 Stat. neces.sary orders for the division of 805; act Mav 26. 190(). c. 2557. 34 business and assignment of cases. Stat. 202. " -'^-^ct March 3, 1905. c. 1427, § 2. iii*~i.~^ 1 A irvrto ^A. OT et 4. ^Act April 1. 1904. c. 851. -l^t ^'^- \ 'T- '• ^^-: f . .^ : 2Act Mluoh 3. 1905. c. 1418. /ns. The act further provided that 3^^^ y^\^ 9 1898, c. 15, 30 Stat, tlie senior circuit jvidge of the eighth 940. <"ircuit or the resident circuit judge 4lbid. within the district shall make all «Act June 14. 1878. c. 196. 379 § 173 THE DISTRICT COURT. [Code Fed. the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district lies, 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 courts, 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, under the seal of the court, shall be transmitted by the district clerk to the judge so designated and appointed. R. S. §. 591, U. S. Comp. Stat. 1901, p. 480. There is a special provision in the case of the northern district of Alabama.7 Under the above provision the circuit justice or judge may ap- point an outside district judge to hold both the circuit and the district courts. 8 Such judge when so appointed is judge de jure, of the district. If upon the death of the disabled judge, he holds court until a successor is appointed, he is at least a judge de facto during that time and his acts are not open to collateral attack. 9 While the section provides that the ap- pointment should be filed in the clerk's office, the filing is not essential to the validity thereof. lo § 173. Designation of additional district judge to assist with accumulated business. When, from the accumulation or urgency of business in any dis- trict court, the public interest require the designation and appoint- ment hereinafter provided, and the fact is made to appear, by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may designate and ap- point 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; and each of the said district judges may, in case of such appointment, hold separately at the same time a district or circuit court in such district, and discharge all the judicial duties of a district judge therein ; but no such judge shall hear appeals from the district court. R. S. § 592, U. S. Comp. Stat. 1901, p. 481. ■jPost. § 184. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. sNational Home, etc. v. Butler, 33 761. Fed. 374. lONational Home, etc. v. Butler, sBall V. United States, 140 U. S. 33 Fed. 374. 3S0 I I Procedure] ORGANIZATION AND POWERS. { 177 § 174. When Chief Justice shall make such designation. If the circuit judge and circuit justice are absent from the cir- cuit, 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 courts and transact the business for which he is designated, the district clerk shall certify the fact to the Chief Justice of the United States, who may thereupon designate and ap- point, in the manner aforesaid, the judge of any district within such circuit or within any circuit next contiguous; and said appoint- ment shall be transmitted to the district clerk, and be acted upon by him as directed in the preceding section. R. S. § 593, U. S. Comp. Stat. 1901, p. 481. § 175. When new designations and appointments may be made. The circuit judge, or circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public interests so require, make a new designation and appointment of and other district judge within the said circuits, for the duties, and with the powers mentioned in the three preceding sections, and to revoke any previous designation and appointment. R. S. § 594, U. S. Comp. Stat. 1901, p. 481. § 176. Duty of district judge to comply with designation. It shall be the duty of the district judge who is designated and appointed under either of the four preceding sections, to discharge all the judicial duties for which he is so appointed, during the con- tinuance of such disability, or, in the case of an accumulation of business, 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. R. S. § 595, U. S. Comp. Stat. 1901, p. 482. § 177. Duty of circuit judge to designate and of district judge to act. It shall be the duty of every circuit judge, whenever in his judg- ment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section five hundred and ninety-one,^ the district judge of any judicial district within lAnte, § 172. 381 S ITS TIIK DISTIMCT t'OrUT. [Code Fed. liis circuit to liold a ilistrict or cii'cuit court in the place or in aid of any other district judge within tlie same circuit; and it shall be: the duty of the district judge so designated and appointed, to hohl the district or circuit as aforesaid, without any other com- pensation than his regular salary as established by law, except in the case provided in the next section. ^ R. S. § 596, U. S. Comp. Stat. 1001, p. 482. The omission of the word "court"' after the words '"district or circuit" in the last clause is apparently unintentional. By an act of 1881,3 so much of the above provision as forbids the payment of the expenses of district judges while holding court outside of their districts, is expressly repealed. The provision gives the circuit judge power to act whenever in his judgment the public interests require, ■> and this power apparently extends to an appointment of a judge to fill an existing vacancy. 5 In any event a judge so appointed is judge de facto if not de jure, and his actions are not open to question so far as they affect third persons. 6 It contemplates that an appointment made under it should state what court the appointee is to hold and whether it is in place of the district judge or in aid of him." § 178. Judge of one Florida district to act in other in case of disability. When a certificate of the judge of either of the districts of Florida, stating that he is disabled to hold any regular, special, or adjourned term of the court of such district, and requesting the judge of the other district to hold the same, is filed in the clerk's office of the place where it is to be held, the judge of the other district is au- thorized to hold such courts, and to exercise all the powers of district judge, in the district of the judge so certifying. R. S. § 598, U. S. Comp. Stat. 1901, p. 483. This provision was originally enacted in 1855.9 § 179. What district judge to act in case of disability in a New York district. Whenever the judge of the northern district of Xew York is disabled to perform the duties of his office, it shall be the duty of 2Post, § 473. V. S. 596, 40 L. ed. 271. 16 Sup. ( t. 3Mareh 3, 1881, c. 133. 21 Stat. Rep. 111. 454. 'Ball V. United States. 140 U. S. ^McDowell V. Ignited States, 159 128. 35 L. ed, 382, 11 Sup. Ct. Rep. U. S. 596. 40 L. ed. 271, 16 Sup. Ct. 761: National Home, etc. v. Butler. Rep. 111. 33 Fed. 374. sTdem; see also United States v. SAct Feb. 24, 1855, c. 125, 10 Stat. Murphv. 82 Fed. 896. 615. cMcbowell V. United States, 159 382 Proceaure] ORGANIZATION AND POWERS. § 183 the judge of the southern district, upon receiving from liini notice thereof, to hold the district court, and to perform all the duties of district judge for such district. And whenever the judge of the southern district is so disabled, it shall be the duty of the judge of the eastern district, upon like notice, to hold the district court, and to perform all the duties of district judge for the southern dis- trict. In such cases the said judges, respectively^ shall have the same powers as are vested in the judge so disabled. R. S. § 599, U. S. Comp. Stat. 1901, p. 483. § 180. District judge of eastern New York district may sit in southern. Whenever the judge of the soutliern district of Xew York deems it desirable, on account of the pressure of public business or othei- cause, that the judge of the eastern district sliall perform the duties of a district judge in the southern district, an order to that effect may be entered upon tlie records of the district court thereof ; and thereupon the judge of the eastern district shall have power to hold the district court, and to perform all the duties of district judge for the southern district. R. S. § 600, U. S. Comp. Stat. 1901, p. 483. This section was carried into the Revised Statutes from an act of 1865.12 § 181. Continuances by vacancy in office of district judge. When the office of judge of any district court is vacant, all process, pleadings, and proceedings pending before such court shall be con- tinued of course until the next stated term after the appointment and qualification of his successor; except when such first-mentioned term is held as provided in the next section. R. S. § 602, U. S. Comp. Stat. 1901, p. 484. The exception above stated relates to a vacancy in any district in a State containing two or more districts and does not apply where there is only one district in a State. Hence in the latter case, during a vacancy in the office of judge of the district court, all judicial action must remain in abeyance uritil the vacancy be filled, unless a judge shall have been ap- pointed pursuant to law to e.xenise dnring the vacancy, the powers and duties of a district judge. '^ Wliethor the law authorizes such an ap- i2Aet Feb. 25, 1865. c. 54. 13 Stat. i^Lnitcd States v. Murphv, 82 Fed. 438. S96. 383 § 182 THE DISTRICT COURT. [Code Fed. pointiuent is not altogether cloar.is The section is remedial, and its general purpose is that the administration of justice by a district court shall not, through a vacancy in the office of judge, be defeated or unduly impeded. 16 The term "process" while not including the whole cause, em- braces among other things, all means provided by law for compelling one arrested and held on a criminal charge to appear in court. Imprisonment under a commitment by a commissioner to answer a criminal charge is "process." "Process pending before" the court includes process the object of which has not been fully accomplished.! 7 A recognizance is such process. The application of this section to a recognizance, executed after its enact- ment, does not in any legal sense either extend the undertaking of, or impose additional burdens upon the recognizors.! 8 § 182. But another district judge in State may act in vacant district. When the office of district judge is vacant in any district in a State containing two or more districts, the judge of the other or of either of the other districts may hold the district court, or the cir- cuit court in case of the sickness or absence of the other judges thereof, in the district where the vacancy occurs, and discharge all the judicial duties of judge of such district, during such vacancy; and all the acts and proceedings in said courts, by or before such judge of an adjoining district, shall have the same effect and valid- ity as if done by or before a judge appointed for such district. R. S. § 603, U. S. Pomp. Stat. 1901, p. 484. This provision was enacted in 1861.1 It applies only when a vacancy ex- ists. If a district judge is merely out of the State leave to institute suit against a receiver, granted by a district judge of another district is of no effect. 2 § 183. District court clerk's power to make orders, etc., in ad- miralty during judge's disability. When the business of a district court is certified into the circuit court on account of the disability of the district judge, the district clerk shall be authorized, by order of the circuit judge, or, in his ab- sence, of the circuit justice within whose circuit such district is included, to take, during such disability, all examinations and depo- 15 See McDowell v. United States, isidem. 159 U. S. 596. 40 L. ed. 272, 16 Sup. lAct Aug. 6, 1861, c. 59, 12 Stat. Ct. Rep. 111. 318. i6United States v. Murphy, 82 Fed. 2 American, etc. Co. v. East, etc. R. 896. Co. 40 Fed. 182. IT United States v. Murphy, 82 Fed. flOO. 384 I Procedure] ORGANIZATION AND POWERS. § 184 sitions of witnesses, and make all necessary rules and orders, pre- paratory to the final hearing of all causes of admiralty and mari- time jurisdiction. R. S. § 590, as amended in 1875, U. S. Comp. Stat. 1901, p. 480. The amendment of 1875 consisted in the insertion of the word "dis- trict" where it occurs in the first line instead of the word "circuit," in the section as originally enacted.-* § 184. Assignment of judge for northern district of Alabama. Whenever the judge for the northern district of Alabama deems it advisable, on account of disability or absence, or of the accumu- lation of business therein, or for any other cause, that said court should be held by the judge of some other district or circuit court, he shall, in writing, request the presiding judge for the fifth judicial circuit of the United States to assign a judge to hold the term or terms of said court. § 2 act Apr. 14, 1906, c. 16-25, 34 Stat. 114. 4Act Feb. 18, 1875, c. 18, 18 Stat. 317. Fed. Proc— 25. 385 CHAPTER 7. THE DISTRICT COURT— .JURISDICTION. § 193. Jurisdiction over Federal crimes and offenses. § 194. .Jurisdiction over piracy. § 195. Over suits for penalties and forfeitures. S 196. Over common law suits by the United States or its officer. § 197. Over equity suits to enforce lien for revenue tax. § 198. Over suits for forfeitures for debts to United States. § 199. Over actions under postal laws. § 200. Over admiralty causes and non admiralty seizures § 201. Over proceedings for condemnation as prize. § 202. Over suits on debentures for drawback of duties. § 203. Over suits for damages for conspiracy against civil rights. S 204. Over suits to redress deprivation of Federal right. § 205. Suits to recover office where denial of Federal rights involved. , § 206. Over quo warranto suits against ofHce holders contrary to Four- teenth Amendment. § 207. Suits by or against national banks. § 208. Suits by aliens for tort against treaty or law of nations. § 209. Over .suits against consuls. S 210. In Bankruptcy. § 211. Over prosecutions for violation of sealing laws. § 212. Concurrent jurisdiction with Court of Claims. § 213. .lurlsdiction in cases transferred from Territorial courts, § 214. .lurisdiction under interstate commerce, alien immigrant, and alien enemies laws. § 215. Jurisdiction as to suits for unlawful indosure of public lands, and for condemnation, and over crimes upon South Dakota res- ervations and upon great lakes, etc. § 21G. -lurisdictioTi over offenses against submarine cable law. § 193. Jurisdiction over Federal crimes and offenses. The district courts shall have jurisdiction as follows: First. Of all crimes and offenses cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, the punishment of which is not capital, ex- 386 I'roeeduie] JURISDICTION OVER PIRACY. I 194 cept ill the eases mentioned in section fifty-four hundred and twelve. Title "Crimes." First paragraph R. S. § 563, U. S. Comp. Stat. 1901, p. 455. Other sections of the Revised Statutes provide for the transfer of criminal cases from the district to the circuit court, where difficult ques- tions of law are involved, or in capital cases; and also provide generally for the transfer of causes to or from the circuit courts from or to the district eourts.i R. S. § 5412, aboA'e referred to. makes punishable the act of secretly or fraudulently placing any document in the archives of the sur- veyor general's office in California. Federal jurisdiction of crimes and offenses cognizable under the authority of the United States is exclusive of State courts. 2 As between the circuit and district courts, the juris- diction in such cases is concurrent, except in the case of capital offenses, where the jurisdiction is exclusively in the circuit court. s , Federal courts have no common law jurisdiction in criminal cases* and the above provision confers no jurisdiction on the district court of a crime not otherwise de- fined by some Federal statute.5 The authority to punish for manslaughter on the navigable waters of the United States is found in the constitutional grant of power to regulate commerces Pei'jury as defined by R. S. § 5392. is punishable under this section.'? The jurisdiction of a district court is coextensive with the particular district, 8 and the fact that such district is divided by act of Congress into two or more divisions does not affect the criminal jurisdiction of that court, unless otherwise provided.9 In dividing a district however. Congress may provide that crimes committed in a particular division may be prosecuted only in that division. lo And this provision will be followed although the crime was committed before the division took place, if the indictment was not brought until afterward. n § 194. Jurisdiction over piracy. The district courts shall have jurisdiction . . . Second. Of all cases arising under any act for the punishment of piracy, when no circuit court is lield in the district of such court. Second paragraph R. S. § 563, U. S. Comp. Stat. 1901, p. 456. lAnte, § 116. et seq. TCaha v. United States, 152 U. S- 2Ante, § 15. 216. 38 L. ed. 418. 14 Sup. Ct. Rep. sSee ante. S 1:52: United States v. 513. Plumer, 3 Cliff. 28. Fed. Cas. No. sRosencrans v. United States, 165 lfi-056. U. S. 257, 41 L. ed. 708, 17 Sup. Ct. ^United States v. Rogers. 46 Fed. Rep. 302. 1 : United State's v. ^Vorrall. 2 Dall. sUnited States v. Kessell. 63 Fed. 384. 1 L. ed. 426: United States v. 434: Rosencrans v. United States, Hudson, 7 Crancb, 32. 2 L. ed. 259; l(i5 U. S. 257. 41 L. ed. 708, 17 Sup. United States v. Coolidge. 1 Wheat. Ct. Rep. 302. 415, 4 L. ed. 124. loPost, § 406. sUnited States v. Lewis. 36 Fed. uPost v. United States, 161 U. 449, 13 Sawy. 532. S. 583. 40 L. ed. 816. 16 Sup. Ct. Rep. «United States v. Be^icham, 29 Fed. 611. 284. 387 § 195 THE DISTRICT COURT— JURISDICTION. [Code Fed. § 195. Over suits for penalties and forfeitures. The district courts shall have jurisdiction . . . Third. Of all suits for penalties and forfeitures incurred under an}^ law of the United States. Third paragraph R. S. § 563, U. S. Corap. Stat. 1901, p. 456. Jurisdiction over suits for penalties and forfeitures incurred under Feder- al laws, has been vested in the district court from the time of the judiciary act of 1789.14 Under that act the jurisdiction was exclusive. Now, how- ever, the circuit court has jurisdiction in certain cases; is though always ■given by special act and the general jurisdiction has been and still is •vested in the district court. i 6 So, where a statute imposes a penalty and forfeiture the latter court has jurisdiction unless it is in express terms placed exclusively elsewhere.i^ Thus a suit for a penalty for importing alien contract laborers under an act of 188518 is within the meaning of the provision, although the act provides that the penalty may be recovered, "as ■debts of like amount are now recovered in the circuit courts."i9 Such pro- vision refers to the form of the action rather than to the court in which the suit is to be brought. 20 Whether the act just mentioned gives the •circuit court jurisdiction at all seems questionable.! The jurisdiction of the district court under the above provision is not repealed or modified by the act of 1875 as amended 1887-1888, giving the circuit courts original jurisdiction of all suits arising under the Federal laws or in which the United States are plaintiffs or petitioners. 2 Forfeit- 'ures under this provision, include the forfeitures of a bail bond in suit for violation of internal revenue laws;3 penalties in a suit against a national bank for taking illegal interest;* and penalties and forfeitures vmder the customs laws are also within the section. 5 In the latter case the jurisdiction vests exclusively in the district court. 6 14 Act Sept. 24, 1879. c. 20, § 9, 1 ■■Stat. 76. isAnte, §§ 124, [c] 125. i6Lees V. United States. 150 U. S. 478, 37 L. ed. 1150, 14 Sup. Ct. Rep. 163. i7ldem. 18 Ante, § 147. i9Lees V. United States, 150 U. S. 476. 37 L. ed. 1150. 14 «up. Ct. Rep. 163; Rosenberg v. Union, etc. Works, 109 Fed. 845: United States v. Bed- stead Co. 45 Fed. 90. But see United States V. Banister, 70 Fed. 45. See ante, § 147. 2 0Lees v. United States, 150 U. S. 476, 37 L. ed. 1150, 14 Sup. Ct. Rep. 163. iSee ante, § 147. -2 Ante, §§ 129, 130; Helwig v. United States. 188 U. S. 605. 47 L. ed. 614. 23 Sup. Ct. Rep. 427 : United States V. Bedstead Co. 45 Fed. 90. See also United States v. Mooney, 116 U. S. 106, 29 L. ed. 550. 6 Sup. Ct. Rep. 304. sinslev V. United States, 150 U. S. 515, 37 L. ed. 1165, 14 Sup. Ct. Rep. 158. 4Firs't Nat. Bank of Charlotte v. Morgan, 132 U. S. 141, 33 L. ed. 282, 10 Sup. Ct. Rep. 37. sHelwig V. United States, 188 U. S. 605, 47 L. ed. 614, 23 Sup. Ct. Rep. 427; United States v. Mooney, 116 U. S. 106, 29 L. ed. 551, 6 Sup. Ct. Rep. 304. 6Helwig V. United States, 188 U. S. 610, 47 L. ed. 614, 23 Sup. Ct. Rep. 427. 388 Procedure] OVER SUITS FOB FORFEITURES. $ 19S § 196. Over common law suits by the United States or its offi- cer. The district courts shall have jurisdiction . . . Fourth. Of all suits at common law brought by the United States, or by any officer thereof, authorized by law to sue. Paragraph 4, R. S. § 563, U. S. Comp. Stat. 1901, p. 456. The circuit courts are also given jurisdiction of the suits mentioned in this section. 9 Suits under this provision include an action of trover brought by a United States marshal to recover official moneys found by the defendant; 10 an action to recover a penalty under the navigation law for employing an unlicensed pilot ;ii a set-off imposed by the government in a suit by a district attorney to recover fees;i2 a suit brought by United States under a State statute, on a sheriff's bond to recover damages for negligently allowing the escape of a Federal prisoner; 13 a suit by a national bank receiver.!* § 197. Over equity suits to enforce lien for revenue tax. The district courts shall have jurisdiction . . . Fifth. Of all suits in equity to enforce the lien of the United States upon any real estate for any internal revenue tax, or to sub- ject to the pa3Tnent of any such tax any real estate owned by the delinquent, or in which he has any right, title or interest. Fifth paragraph R. S. § 563, U. S. Comp. Stat. 1901, p. 456. The above provision was enacted in 1868.16 The venue of suits arising thereunder is stated in a following section. 17 Jurisdiction of all cases arising under internal revenue laws is given also to the circuit court.is § 198. Over suits for forfeitures for debts to United States. The district courts shall have jurisdiction . . . Sixth. Of all suits for the recovery of any forfeiture or damages under section thirty-four hundred and nintey. Title "Debts due by or to the United States;" and such suits may be tried and deter- mined by any district court within whose jurisdictional limits the defendant may be found. Sixth paragraph R. S. § 563, U. S. Comp. Stat. 1901, p. 456. 9Ante §§ 124. 130. i4Ante, § 124, note.Cb] Freling- lOHenry v. Sowles, 28 Fed. 481. huvsen v. Baldwin. 12 Fed. 395; iiUnited States v. Bougher. 6 Mc- Stephens v. Bernays. 44 Fed. 642. Lean, 277, Feage.2o It does not however apply to a suit against a United States consul such person having no official character in his own country, i All suits or proceedings against consuls or vice-consuls were made exclusive of the State courts by the judiciary act of 1789.2 That provision, which was carried into the Revised Statutes, 3 was directly repealed by an act of 1875,4 and under the present law there is no statute which in terms makes the Federal jurisdiction exclusive of State courts in such cases.6 The act just referred to, however, in no way diminishes the jurisdiction of the district court. « § 210. In bankruptcy. The district courts are constituted courts of bankruptcy, and shall have in their respective districts orignal jurisdiction in all matters and proceedings in bankruptcy. 18th paragraph, R. S. § 5G3, U. S. Comp. Stat. 1901, p. 459. This provision was carried into the Revised Statutes from the Bank- l6Act Sept. -24. 1789. c. "20. § 9. 1 iMilward v. McSaiil. 17 Fed. Cas. Stat. 70. Xo. 9.f)24. iTIbid. 2 Act Sept. 24, 1875. c. 20. § 9. 1 18 Ante § 2 ^*'^*- '^^• - 3R. S. § 711 paragraph 8. isDavis V. Packard. 7 Pet. 281. 8 4 ^^t Feb. 18, 1875, c. -20, 18 Stat L. ed. 087: Pooley v. Luco. 76 Fed. -^it^ 147; State v. Lewis. 14 Fed. 67. See VrJus v. Preston, 111 U. S. 252, 28 *nte, § 2. j^ pd 419 4 Sup ct. Rep. 407. 2 0Pooley V. Luco, 76 Fed. 147. sFroment v. Duclos, 30 Fed. 385. 394 Piocedure] JURIS5DICTION. S 212 rupt act of 1867.8 The language is broad and general, and covei-s the two general classes of cases which arise; first, proceedings in bank- ruptcy initiated by the petition, and ending in the distribution of assets amongst the creditors, and the discharge of, or the refusal to discharge the bankrupt; second, suits at law or in equity, brought by or against tlie assignee in reference to alleged propea'ty of the bankiiipt or to claims alleged to be due from or to him.^ A general discussion of the juris- diction of the district courts and other courts as courts of bankruptcy, .as defined in the Bankruptcy act of 189810 will be found in a following chapter. 11 § 211. Over prosecutions for violation of sealing law. Any violation of this act. [i e.. regulating seal fishing] or of the regulations made thereunder, may be prosecuted either in the district court of Alaska or in any district court of the United States in California, Oregon or Washington. § 9 of act April G. 1894, c. 57, 28 Stat. 54., U. S. Comp. Stat. 1901, p. 3009. An act of 1897 contained the same provision as to jurisdiction.! 3 § 212. Concurrent jurisdiction with Court of Claims. The district courts of the United States shall have concurrent Jurisdiction with the Court of Claims as to all matters named in the preceding section^"* [claims against the United States growing out of contract, etc.] where the amount of the claim does not ex- ceed one thousand dollars. . . . The jurisdiction hereby con- ferred upon the said . . . district courts shall not extend to 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 repre- sentatives thereof. Part of § 2. act Mar. 3. 1887, 24 Stat. 505, as amended -June 27. 1898. c. 503, 30 Stat. 495, U. S. Comp. Stat. 1901, 753. This section also gave concurrent jurisdiction to the circuit courts over suits exceeding one thousand dollars in amount and not exceeding ten thousand dollars. is The amendment of 1898 consisted in the addition of the last sentence above .set forth. \Miether this amendment applied to pending suits so as to require their dismissal for want of jurisdiction 8Act March 2. 18G7. c. 17G, § 1. 14 13§ 5, of act Dec. 29, 1897. c. 3, Stat 517. 30 Stat. 227, U. S. Comp. Stat. 1901, sLatlirop v. Drake, 91 U. S. 517. p. 3012. 23 L. ed. 415. USee post. § 229. loAct Julv 1. 1898. c. .541. § 2. isAnte, § 139. 11 Post. § 21fi3. et seq. 395 S 213 THE DISTRICT COURT— [Code Fed. was a mooted question. is it was finally settled in 190017 by an act pro- viding that no suit pending in the circuit or district courts should abate or be affected by the amendment. A letter carrier is a United States officer within the meaning of the amendment, and hence a suit brought by him to recover for services is not within the juirisdiction of the dis- trict court. 18 A claim against the United States for salvage is one for unliquidated damages not sounding in tort within the section re- ferred to in the above provision; and the jurisdiction is not defeated where the salvage was of sugar in customs officers' possession, upon the theory that the case is one under the reveYiue laws. is § 213. Jurisdiction in cases transferred from territorial courts. Wlien 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 superior court of such Territory, from the judgments or decrees to be ren- ered in which writs of error could have been sued out or appeals taken to the Supreme Court, and shall proceed to hear and deter- mine the same. R. S. § 569, U. S. Comp. Stat. 1901, p. 462. The several acts passed since the Revised Stautes, admitting new States- into the Union, constitute each State a judicial district and contain special provisions similar to the above, for the transfer of pending casesi § 214. Jurisdiction under interstate commerce, alien immigrant, and alien enemies' laws. Jurisdiction is conferred in general terms upon the circuit and district courts by provisions of the interstate commerce,^ alien immi- grant,^ and alien enemies' laws,^ and others,^ which are set forth in the chapter dealing with the circuit court's jurisdiction. Author's section. 16 Ante, § 139. also Forsyth v. United States, 9 i7Act Feb. 26, 1900, c. 25, 31 Stat. How. 571. "13 L. ed. 262; McNulty v. 33. Batty, 10 How. 72, 13 L. ed. .333. isUnited States v. McCrory, 91 See act June 19, 1906, c. 33.35, § 16, 34 Fed. 296, 33 C. C. A. 515. Stat. 276, admitting Oklahoma, 19 United States v. Cornell S. Co. 2 Ante, §§ 151, 152. 202 U. S. 184. 50 L. ed. 987, 26 3 Ante, § 153. Sup. Ct. Rep. 648. 4Ante. § 156. iSee Ames v. Colorado, etc. R. Co. 5 Ante, § 163. 4 Dill. 251, Fed. Cas. No. 324. See 396 Procedure] JURISDICTION. § 216 § 215. Jurisdiction as to suits for unlawful occupancy of pub- lic lands, and for condemnation, and over crimes upon South Dakota reservations and upon great lakes. Jurisdiction is also conferred in general terms upon the circuit and district courts by statutes respecting suits for unlawful in- closure of public lands,^ for condemnation for government uses/ and over crimes upon South Dakota reservations^ and upon the great lakes.^ Another provision confers jurisdiction over suits on the bond of a deputy marshal of Owensboro, Kentucky.^ "^ Author's section. § 216. Jurisdiction over offenses against submarine cable law. The district courts of the United States shall have jurisdiction over all offenses against this act and of all suits of a civil nature arising thereunder, whether the infraction complained of shall have been committed within the Territorial waters of the United States or outside of the said waters : Provided, That in case such infraction is committed outside of the Territorial waters of the United States the vessel on board of which it has been committed is a vessel of the United States. From the decrees and judgments of the district courts in actions and suits arising under this act appeals and writs of error shall be allowed as now provided by law in other cases. This section also provides for the venue in such cases. ^2 Part of § 13 of act Feb. 29, 1888, c. 17, 25 Stat. 42, U. S. Comp. Stat. 1901, p. 3589\ •Ante, § 154. SAnte, § 157. 7Ante, § 150. loPost, § 632. •Ante, § 155. 12 See post, § 425. 397 CHAPTER 8. THE COURT OF CLAIlSfS. § 221. Cross-references. § 222. Organization and constitution. § 223. — power of judges and clerks. § 224. — power to establish rules, punish contempts, etc § 225. Seal of court. § 226. Court rooms, etc., how provided. § 227. Quorum of the court. § 228. Officers of the court. § 229. Jurisdiction under act of 1887 — what claims against government cognizable. § 230. — jurisdiction in matter of sot-offs. etc.. and proviso as to lime of suit and suits by Federal officers. § 231. Jurisdiction as defined by Revised Statutes. § 232. —claims of disbursing officers for relief from unavoidable lois. § 233. — claims for captured and abandoned property. § 234. Jurisdiction over petitions and bills for claims transmitted from Congress. S 235. Claims pending before Congiess may be transmitted to Court of Claims. § 236. Jurisdiction over claims referred by executive departments. § 237. — on referred claims under act of 1887. § 238. — on referred claims under act of 1883. § 239. Jurisdiction to render judgment on a referred claim. § 240. Duty to report to Congress on referred claim. § 241. Jurisdiction over claims for Indian depredations. § 242. Jurisdiction to adjust indebtedness to United Stales, alleged and unsettled, on behalf of debtor or his bondsmen. § 243. Juri.sdiction over particular claims or classes of claims. § 244. Over suits by aided railroads, for transportation furnished. § 245. Claims not cognizable — war claims. § 246. — no jurisdiction over claims pending in other courts. § 247. — nor over claims growing out of treaties. § 221. Cross-references. Elsewhere will be found provisions forhiddins: members of Con- gress to practice in the Court of Claims;^ conferring concurrent iPost, § 498. 308 Procedure] ORGANIZATION AND POWERS. S 224 jurisdiction on the circuit and district courts ;2 defining the pro- cedure in the Court of Claims;^ providing for offsets against a judgment recovered in Court of Claims;"* for suits by aliens there- in;^ and prescribing the time for suit;^ and for interest on judg- ments against the United States^ Author's section. § 222. Organization and constitution. The Court of Claims, establislied by the act of February 24, 1855, shall be continued. It shall consist of a chief justice and four judges, wlio sliall be appointed by the President, by and with the advice and consent of the Senate, and hold their offices during good behavior. Eacli of them shall take an oath to support the Consti- tution of the United States, and to discharge faithfully the duties of his office. Part of R. S. § 104!), U. S. Conip. Stat. 1901, p. 729. The lemaind*'!" of the section provides the salaries of such judges.* § 223. — power of judges and clerks. The judges and clerks of said court may administer oaths and af- firmations, take acknowledgments of instruments in writing, and give certificates of the same. R. S. « 1071. U. S. Comp. Stat. 1901, p. 741. The aoove section was carried forward into the Revised Statutes from an act of 186.3.io § 221. — power to establish rules, punish contempts, etc. Thv said court shall have power to establish rules tor its govern- ment aud for the regulation of practice 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 neces- sary to carry into effect the powers granted to it by law. R. S. § 1070. r. S. Comp. Stat. 1901. p. 740. The above section was originally enacted in 1863.12 Although the court cannot delegate its judicial powers there is no reason why it cannot refer 2Ante, §J; 139. 212. sPost. § 469. sPost, S 1448.' et seq. lOAct March 3. 1863, c. 92, § 4, 12 i9 raise implied contracts enforceable in the Court of Claims. But the appro- priation by the government of private property raises no implied contract to pay therefor unless the government admits that it is private property. 20 In case of services the promise to pay can be implied only when the court can see that they were performed under such circumstances as would authorize the claimant to entertain reasonable expectation of their pay- ment. 1 Where a greater sum has been paid voluntarily, for public lands, than the law requires the excess cannot be recovered in a Court of Claims on the ground of implied contract.- A claim for damages made by a government contractor for improper interference on the part of the gov- ernment agent, with a contract made by such agent, is justiciable under this provision. 3 Where the claimant prays reformation of a contract and then for dam- ages for breach of such contract as reformed, the case is cognizable in the Court of Claims notwithstanding the prerequisite need of equitable aid to establish it.4 [d] Cases sounding in tort. The jurisdiction of the Court of Claims does not extend to cases of tort* nor can such a suit be maintained by framing the claim on an implied con- tract.'? Hence it has no jurisdiction over a suit for damages for injuries suffered by reason of defect in public building,^ nor for injury caused by diversion of a water course. » Nor has it jurisdiction over a suit for infringement of a patent by the United States, 10 nor for the appropriation 16 Coleman v. United States, 152 6Reed v. United States, 11 Wall. U. S. 99, 38 L. ed. 368, 14 Sup. Ct. 603. 20 L. ed. 220; German Bank v. Rep. 473. United States, 148 U. S. 580, 37 L. i^Urtited States v. Morgan, 99 Fed. ed. 564, 13 Sup. Ct. Rep. 702; Schil- 570, 39 C. C. A. 653. linger v. United States. 155 U. S. 167, isSalomon v. United States, 19 39 L. ed. 108. 15 Sup. Ct. Rep. 85; Wall. 17, 22 L. ed. 46. Russell v. United States, 182 U. S. isUnited States v. Russell, 13 530, 45 L. ed. 1215, 21 Sup. Ct. Rep. Wall. 623, 20 L. ed. 474. 899. 2 oUnited States V. Great Falls Mfg. ^Hill v. United States, 149 U. S. Co. 112 U. S. 645, 28 L. ed. 846, 5 598, 37 L. ed. 862, 13 Sup. Ct. Rep. Sup. Ct. Rep. 306; Langford v. United 1011. States, 101 U. S. 341, 25 L. ed. 1010; sBigby v. United States, 103 Fed. Hill V. United States, 149 U. S. 593, 597. 37 L. ed. 862, 13 Sup. Ct. Rep. 1011. sMills v. United States, 46 Fed. iColeman v. United States, 152 U. 738, 12 L.R.A. 673. S. 96, 38 L. ed. 308, 14 Sup. Ct. Rep. lORussell v. United States, 182 U. 473. S. 535, 45 L. ed. 1217, 21 Sup. Ct. 2United States v. Edmondston, 181 Rep. 899; Sehillinger v. United U. S. 500, 45 L. ed. 97.^, 21 Sup. Ct. States, 155 U. ». 163, 39 L. ed. 108, Rep. 718. 15 Sup. Ct. Rep. 85; United States v. sBowe V. United States, 42 Fed. 761. Berdan, etc. Co. 156 U. S. 565, 39 L. ■^United States v. Milliken Imp. ed. 533, 15 Sup. Ct. Rep. 420'. Co. 202 U. S. 168, 50 L. ed. 980, 26 Sup. Ct. Rep. 572. 404 Procedure] JURISDICTION IN MATTER OF SET-OFFS. § 230 of private property where the United States asserts title thereto.n But where the suit is for compensation for the use of a patented invention, the plaintiff's right in which is admitted, the suit arises on an implied contract and the Court of Claims has juiisdiction.12 [e] Claims heretofore rejected. The disallowance of an account by the First Comptroller of the Treasury is not a rejection or disallowance of a claim by "any court department or commission," within the meaning of this provision; i* nor is the disallow- ance of a district attorney's claim, by the department having such ac- counts in charge. 15 § 230, — jurisdiction in matter of set-oifs, etc., and proviso as to time of suit, and suits by Federal officers. The Court of Claims shall have jurisdiction to hear and deter- mined the following matters : . . . Second. All set-offs, coun- terclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States agaiust any claimant against the government in said court : provided, that no suit against' the government of the United States, shall be allowed under this act unless the same shall have been brought within six years after the right accrued for which the claim is made : provided further, that no suit, against the gov- ernment 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 act unless an ac- count for said fees shall have been rendered and finally acted upon according to the provisions of the act of July 31, 1894 (chapter 174, 28th Statutes at Large, page 162), unless the proper account- ing officer of the treasury fails to finally act thereon within six months after the account is received in said office. Part of § 1 of act Mar. 3, 1887, c. 359, 24 Stat. 505, as amended June 27, 1898, c. 503, § 1, .30 Stat. 494 and act July 1, 1898, c. 546, § 3, 30- Stat. 597, U. S. Comp. Stat. 1901, p. 752. The first clause of the above proA'ision is almost identical with para- iiLangford v. United States, 101 i^United States v. Harmon. 147 U. U, S. 341, 25 L. ed. 1011. S. 273. 37 L. ed. 167, 13 Sup. Ct. Rep. isUnited States v. Palmer, 128 U. 327. Prior to this decision the con- S. 269, 32 L. ed. 442. 9 Sup. Ct. Rep. trary view had obtained in some cir- 104; Hollister v. Benedict. Burn- cuit courts. Bliss v. United States, ham, etc. Co. 113 U. S. 59. 28 L. ed. 34 Fed. 781; Rand v. United States, 901, 5 Sup. Ct. Rep. 717. See also 36 Fed. 671 ; Preston v. United States. Schillinger v. United States. 155 U. 37 Fed. 417. S. 169, 39 L. ed. 108, 15 Sup. Ct. Rep. isStanton v. Uniteil States, 37 Fed. 85. 2.54. 40.'5 § 231 COURT OF CLAIMS. [Code Fed. graph 2 of R. S. § 1059 ;i and it has been contended that it violates the Seventh Amendment providing that in suits at common law where the value in controversy shall exceed twenty ilollars the right of trial by jury shall be preserved. Its constitutionality has however been sustained.2 The period of limitations set forth above is the same as that prescribed for the bringing of claims against the United States by R. S. § 1069.3 It is jurisdictional and cannot be waived by government officers. 4 Where any part of a claim arises before the six years prior to the filing of the petition the claimant is barred as to such part.5 The act from which the above provision is taken superseded only such previous legislation as was inconsistent with its provisions, hence it did not bar that provision of R. S. § 1069,6 extending the period of limitations in certain cases, and it must be interpretated as if the latter provision were added to it.T § 231. Jurisdiction as defined by Revised Statutes. The Court of Claims shall have jurisdiction to hear and deter- mine the following matters: First. All claims founded upon any law of Congress, or upon any regulation of an Executive Depart- ;tnent, or upon any contract, express or implied, with the govern- ment of the United States, and all claims which may be referred to it by either House of Congress. Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the government of the United .States against any person making claim against the government in said court. Paragraphs 1 and 2, R. S. § 1059, U. S. Comp. Stat. 1901, pp. 734, 735. These provisions are virtually superseded by the act of 1887.9 § 232. — claims of disbursing officers for relief from unavoid- able loss. The Court of Claims shall have jurisdiction to hear and determine the following matters : . . . Third. The claim of any paymas- ter, 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 capture or otherwise, while in the line of his duty, of government funds, vouchers, rec- iPost. § 231. epost. § 873. zMcElrath v. United States. 102 ^United States v. Greathouse, 166 U. S. 440. 26 L. ed. 191. U. S. 601. 41 L. ed. 1130, 17 Sup. Ct. sPost. § 873. Rep. 701. 4Finn v. United States 123 U. S. 9 Ante. §§ 229, 230. 233, 31 L. ed. 130, 8 Sup. Ct. Rep. 82. STimraonds v. United States, 84 Fed. 933, 28 C. C. A. 570. 406 Procedure] JURISDICTION UNDER REVISED STATUTES. { 234 ords, or papers in his charge, and for which such officer was and is held responsible. Paragraph 3, R. S. § 1059, U. S. Comp. Stat. 1901, p. 736. This provision was carried into the Revised Statutes from an act of 186611 The jurisdiction is subsequently enlarged and defined by the act of 18S712 in such a way that this provision may be deemed superseded. § 233. — claims for captured and abandoned property. The Court of Claims shall have jurisdiction to hear and deter- mine the following matters : . . . Fourth. Of all claims for the proceeds of captured or al^andoned property, as provided by the act of March 12, 1863, chapter one hundred and twenty, entitled ^'An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States," or by the act of July 2, 1864, chapter two hundred and twenty-five, being an act in addition thereto: Provided, That the remedy given in cases of seizure under the said acts, by pre- ferring claim in the Court of Claims, shall be exclusive, precluding the owner of any property taken by agents of the Treasury Depart- ment as abandoned or captured property in virtue or under color of said acts from suit at common law, or any other mode of redress whatever, before any court other than said Court of Claims : Pro- vided also. That the jurisdiction of the Court of Claims shall not ■extend to any claim against the United States growing out of the destruction or appropriation of. or damage to, property by the army or nsLVj engaged in the suppression of the rel)ellion. Paragraph 4, R. S. § 1059, as amended act Feb. 18, 1875. c. 80, 18 Stat. 318, U. S. Comp. Stat. 1901, p. 736. The amendment of 1875 consisted in the addition of the last proviso, ■providing that the court's jurisdiction shall not extend to war claims. Similar provisions are found in other sections of this chapter. 1 4 Under the captured and abandoned property act above mentioned the Court of Claims may render judgment not only generally for the claimant but for a specfic •sum as due to him. is § 234. Jurisdiction over petitions and bills for claims trans- mitted from Congress. i All petitions and bills praying or providing for the satisfaction "Act May 9, 1866, c. 75, § 1, 14 i^Post. § 244: ante. ? 230. Stat. 44. laUnitcd States v. Anderson, 9 i2Amte, §§ 229, 230. Wall. 72, 19 L. ed. 619. 407 § 235 COURT OP CLAIMS. [Code Fed. of private claims against the government, founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, shall, unless otherwise ordered by resolution of the house in which they are introduced, be transmitted by the secretary of the Senate or the clerk of the House of Eepresentatives, with all the accompanying documents, to the Court of Claims. R. S. § 1060, U. S. Comp. Stat. 1901, p. 736. This section was enacted in 1863.17 The jurisdiction of the Court of Claims over cases referred to it by either House of Congress, is subject to the general statute of limitations regulating its jurisdiction.! 8 § 235. Claims pending before Congress may be transmitted to Court of Claims. Whenever a claim or matter is pending before any committee of the Senate or House of Eepresentatives, or before either house of Congress, which involves the investigation and determination of facts, the committee or house may cause the same, with the vouch- ers, papers, proofs, and documents pertaining thereto, to be trans- mitted to the Court of Claims of the United States, and the same shall there be proceeded in under such rules as the court may adopt. When the facts shall have been found, the court shall not enter judgment thereon, but shall report the same to the committee or to the house by which the case was transmitted for its consideration. § 1, act Mar. 3, 1883, c. 116, 22 Stat. 485, U. S. Comp. Stat. 1901, p. 748. Jurisdiction to render judgments or decrees in cases referred to it under the above section is given to the Court of Claims where under the existing law it can exercise such jiuisdiction.i The act from which this section is taken is known as the "Bowman act." It is remedial in char- acter and should be liberally construed. 2 It is the duty of the court acting under this section to settle the ultimate facts so that Congress may assume them as a basis for its legislative judgment and discretion. 3 These facts should be ascertained in strict conformity to the rules of judicial procedure from competent evidence properly taken. 4 Cross-examination should be as prescribed in R. S. § 1083.5 The object of the provision as to the trans- iTAct March 3, 1863, c. 92, § 2, 12 sMoore v. United States, 25 Ct. CI. Stat. 765. 82. iSFord v. United States, 116 U. S. 4 West Vir^nnia v. United States, 218. 29 L. ed. 610, 6 Sup. Ct. Rep. 37 Ct. CI. 201. 360. spost. § 14G5; Smith v. United iPost. S 2.38. States, 19 Ct. CI. 692. 2Duplantier v. United States, 27 Ct. CI. 323. 408 Procedure] JURISDICTION OVER KEFERRED CLAIMS. § 236 mission of vouchers and papers was evidently to take from Congress every- thing relating to the claim without subjecting the particular Congres- sional committee to the duty of determining the relevancy and competency of the pai>ers as legal evidence. 6 § 236. Jurisdiction over claims referred by executive depart- ments. Whenever any claim is made against any executive department, involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the par- ticular case, or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States, the head of such department may cause such claim, with all the vouchers, papers, proofs and documents pertaining thereto, to be transmitted to the Court of Claims, and the same shall be there pro- ceeded in as if originally commenced by the voluntary action of the claimant; and the Secretary of the Treasury may, upon the certifi- cate of any auditor or Comptroller of the Treasury, direct any ac- count, matter, claim, of the character, amount, or class described in this section, to be transmitted, with all the vouchers, papers, docu- ments, and proofs pertaining thereto, to the said court, for trial and adjudication : provided, that no case shall be referred by any head of a department unless it belongs to one of the several classes of cases which, by reason of the subject matter and character, the said court might, under existing laws, take jurisdiction of on such volun- tary action of the claimant. R. S. § 1063, U. S. Oomp. Stat. 1901, p. 738. Procedure in such cases is stated elsewhere.8 This section is not re- pealed, expressly or by implication, either by § 12 of the "Tucker act"9 or by § 2 of the "Bowman act."io The latter act should be construed as if it were a proviso of this section.! i A claim must be pending in an executive department before it can be referred. 12 When properly referred, the Court of Claims has jurisdiction over a claim although the rights of conflicting «See Brannen v. United States, 20 551, 16 Sup. Ct. Rep. 402. Ct. CI. 221. iiUnited States v. New York, 160 sPost. § 1476, et seq. U. S. 610, 40 L. ed. 551, 16 Sup. Ct. 9Post, § 237. Rep. 402. loPost. § 2.38: United States v. 12 Armstrong v. United States, 29 New York, 160 U. S. 598, 40 L. ed. Ct. CI. 168. 409 :« 237 COURT OF CLAIMS. [Code Fed. claimants are involved.is But a war claim cannot be referred imder this pi'ovision so as to give the court jurisdiction.! ^ Xor can a claim already •adjudicated against the claimant. is So also a diplomatic claim presented by a foreign government cannot be considered by the Court of Claims. is § 237. — on referred claims under act of 1887. When any claim or matter ma}^ be pending in any of the execu- tive departments which involves controverted questions of fact or law, the head of sucli department, with the consent of the claim- ant, may transmit the same, with the vouchers, papers, proofs, and documents pertaining thereto, to said 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. § 12, act Mar. 3, 18S7, c. 359, 24 Stat. 507, U. S. Comp. Stat. 1901, p. 756. As stated in the preceding section the above provision does not supersede that section, but refers only to claims which the head of an Executive Department, with the express consent of the claimant may send to the Court of Claims in order to obtain a report of facts and law.i This the ilepartment may regard as only advisory2 and the matter is not appealable.s § 238. — on referred claims under act of 1883. When a claim or matter is pending in any of the executive de- partments which may involve controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, proofs and documents pertaining thereto, to said 'Court, and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law ^hall have been found, the court shall not enter judgment thereon, but shall report its findings and opinions to the department by which it was transmitted for its guidance and action. § 2, act Mar. 3, 1883, c. 116, 22 Stat. 485, U. S. Comp. Stat. 1901, p. 748. This provision does not repeal R. S. § 1003,5 nor is it in conflict with isBorcherling v. United States, 35 lUnited States v. New York. 160 Ct. CI. 342. U. S. 613. 40 L. ed. 556, 16 Sup. Ct. i^United States v. Winchester, etc. Rep. 402. R. Co. 163 U. S. 244. 41 L. ed. 146, 16 2in re Sanborn, 148 U. S. 226, 37 Sup. Ct. Rep. 993. L. ed. 431, 13 Sup. Ct. Rep. 577. isBaltimore, etc. R. Co. v. United sin re Sanborn, 148 U. S. 222, 37 States, 34 Ct. CI. 484. L. ed. 431. 13 Sup. Ct. Rep. 577. leBerger v. United States, 36 Ct. 5 Ante. § 236. -CI. 243. 410 Procedure] JURISDICTION OVER REFERRED CLAIMS. § 240 « somewhat similar provision of the ''Tucker act. '"6 By a provision of the ^'Tucker act" cases referred to the Court of Claims* under the above provision mav be adjudicated by that court, and judgment rendered, wliere under the existing law such court has jurisdiction. t § 239. Juisdiction to render judgment on a referred claim. In every case which shall come before the Court of Claims, or is now pending therein, under the provisions of an act entitled "An act to afford assistance and relief to Congress and the executive de- partments in the investigation of claims and demands against the government/' approved ]\Iarch 3rd, 1883, if it shall appear to the satisfaction of the court, upon the facts established, that it has jurisdiction to render judgment or decree thereon under existing laws or under the provisions of this act, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and report its proceedings therein to either house of Congress or to the department by which the same was referred to said court. § 13, act Mar. 3, 1887, c. 359, 24 Stat. 507, U. S. Comp. Stat. 1901, p. 757. This provision is mandatory and if the court has power to render judg- ment it is its duty to do so.9 The object of the provision is to save time by -adjudicating the cases referred, at once, where possible instead of first remitting them to the department. lo § 240. Duty to report to Congress on referred claims. Whenever any bill, except for a pension, shall be 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 refer the same to the Court of Claims, who shall proceed with the same in accordance with the provisions of tlie act approved March 3rd, 1883. entitled an "Act to afford assistance and relief to ■Congress and the executive departments in the investigation of claims and demands against the government," and report to such house the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has heen delay or laches in presenting sucli claim or applying 6Ante. § 237. U. S. 614, 40 L. ed. 556, 16 Sup. Ct. 7Po-;t, § 239. Rep. 402. 9United States v. Xew York. 160 loibid. 411 § 241 COURT OP CLAIMS. [Code Fed, for such grant, gift, or bounty, and any facts bearing u})on the question whether the bar of any statute of limitation should be re- moved or which shall b& claimed to excuse the claimant for not having resorted to any established legal remedy. § 14, act Mar. 3, 1887, c. 359, 24 Stat. 507, U. S. Comp. Stat. 1901, p. 757. With the exception of bills for pensions, the jurisdiction here conferred is unrestricted. The reference to the act of 1883, known as the "Bowman act" is not a jurisdictional limitation, but is intended to indicate the pro- cedure to be followed. 12 § 241. Jurisdiction over claims for Indian depredations. In additon to the jurisdiction which now is, or may hereafter be, conferred upon the Court of Claims, said court shall have and pos- sess jurisdiction and authority to inquire into and finally adjudi- cate, in the manner provided in this act, all claims of the following classes, namely: First. All claims for property of citizens of the United fStates taken or destroyed by Indians belonging to any band, tribe, or nation, in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for. Second. Such jurisdiction shall also extend to all cases which have been examined and allowed by the interior department and also to such cases as were authorized to be examined under the act of Congress making appropriations for the current and contingent expenses of the Indian department, and for fulfill- ing treaty stipulations wdth various Indian tribes for the year end- ing June thirtietli, eighteen hundred and eighty-six, and for other purposes, approved March third, eighteen hundred and eighty-five,^^ and under subsequent acts, subject however, to the limitations hereinafter provided. Third. All just offsets and counterclaims to any claim of either of the preceding classes which may be before such court for determination. § 1 act Mar. 3, r891, c. 538, 26 Stat. 851, U. S. Comp. Stat. 1901, pp. 758-760. By the act of 18S5,i-» referred to in the second clause of the above section. Congress set aside the sum of ten thousand dollars "for the investigation of certain Indian depredation claims," and provided that a list of all such claims should be filed in the Department of the Interior. Subsequent ap- i2Dowd.y V. United States, 26 Ct. Stat. 376, U. S. Comp. Stat. 1901. p. CI. 220. ■ 759. i3See act :\Iarch 3, 1885, c. 341, 23 i4lbid. 412 Procedure] JURISDICTION TO ADJUST INDEBTEDNESS. § 242 propriations for continuing the investigation of Indian claims were made in 188G, 1887, 1888, 1889, 1890 and 1891.15 Pursuant to these appro- priation acts the Secretary of the Interior had examined and allowed numerous claims, and a greater number were pending when the above act was passed. By this act jurisdiction was for the first time conferred upon a court to adjudicate upon Indian claims which theretofore had been ex- clusively before Congress. i By its terms, however, the claim must have been one arising prior to the passage of the act, and must have been pre- sented within three years after its passage. The act also contained various provisions as to procedure. In view of the fact that the act of 1891 is limited and temporary in character these further provisions are omitted. The claimant must be a "citizen of the Lnited States."2 This term is used in its broad sense, however, and includes a corporation organized under State laws. 3 But the claimant must be such citizen at the time the depre- dation was committed,^ and his subsequent naturalization cannot give the court jurisdiction. 5 It is necessary also that the depredation be com- mitted within the United States, and destruction of property of a United States citizen in Mexico cannot give the Court of Claims jurisdiction. 6 Since the property must be "taken or destroyed" mere consequential damages resulting from the taking of other property cannot be considered. 7 The Indians must belong to a band or tribe which is in amity with the United States in order that a right of action will lie, hence where they them- selves constitute a hostile tribe, there can be no recovery for depredations : s and the fact that the hostilities were can-ied on for a special purpose is immaterial.9 § 242. Jurisdiction to adjust indebtedness to United States, al- leged and unsettled, on behalf of debtor or his bondsmen. 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 15 Act Mav 15, 1886, c. 333, 24 sjohnson v. United Stat^^s. 160 U. Stat. 44: act March 2, 1887, c. 320, S. 546, 40 L. ed. 530, 16 Sup. Ct. Rep. ■24 Stat. 464; act June 29. 1888. c. 503. 377. 25 Stat. 234; act March 2. 1889, c. eCorralitos v. United States. 178 412. 25 Stat. 998: act Aug. 19, 1890, U. S. 280. 44 L. ed. 10G9. 20 Sup. Ct. c. 807, 26 Stat. 356; act March 3, Rep. 941. 1891, c. 4.'>3. 26 Stat. 1009. U. S. vprice v. United St-at<^s. 174 U, S. •Comp. Stat. 1901, p. 759. ,377, 43 L. ed. 1013, 19 Sup. Ct. Rep. iCorralitos Co. v. United States. 765. See also lirice v. Inited States, 178 U. S. 280. 44 L. ed. 1072, 20 Sup. ,32 Ct. CI. 23. •Ct. Rep. 941. sMontoya v. United States, 180 2Johnsons Case, 29 Ct. CI. 1. U. S. 261, 45 L. ed. 521. 21 Sup. Ct. ^United States v. North'ivestern, Rep. 358. •etc. Co. 164 U. S. 686, 41 L. ed. 599, sLeighton v Unitod States, 161 17 Sup. Ct. Rep. 206. U. S. 291, 40 L. ed. 704. 16 Sup. Ct. *Valks, Case, 28 Ct. CI. 241. Rep. 495. 413 § 243 COUKT OF CLAIMS. [Code Ked. any officer, or agent, or contractor so indebted, or that he, or the person for Avhom he is such surety, guarantor, or personal represen- tative has held any office or agency under the United States, or en- tered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States has arisen and exists, and that he or the person he represents has applied to the proper department of the government requesting that the account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said depart- ment and to the iVttorney General of the United States, proceed tO' hear the parties and to ascertain the amount, if any, due the United States on said account. The Attorney General shall represent the United States at the- hearing of said cause. The court may postpone the same from time to time whenever justice shall require. The judgment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The payment of such amount so found due by the court shall discharge such obligation. An action shall accrue to the United States against such principal, or surety, or representative to recover the amount so foimd due, which may be brought at any time within three years after the final judgment of said court. Unless suit shall be brought within said time, such claim and the claim on the orignal indebtedness shall be forever barred. § 3, act Mar. 3, 1887, c. 359, 24 Stat. 505, U. S. Comp. Stat. 1901. p. 7.')4. While a jiulgnient cannot be rendered against the government under this provision, the court may determine that nothing is due either party, n § 243. Jurisdiction over particular claims or classes of claims. Congress has from time to time passed laws conferring jurisdic- tion over particular claims or classes of claims upon the Court of Claims. Thus an act of 1885^ ^ authorized presentation of Frencli spoliation claims to that tribunal within two years thereafter, and iiGerding v. United States, 28 Ct. is Act Jan. 20, 1885. c. 25, 2.-? CI. 531. Stat. 283; act March 3, 1899, c. 426. 30 Stat. 1167. 414 Procedure] CLAIMS NOT COGNIZABLE. f 245 a large number of acts have been passed conferring jurisdiction to decide or investigate claims by Indians or Indian tribes. These statutes are special and temporary in character and it would serve- no useful purpose to include them herein. An examination of late volu,mes of the statutes at large will show such as are still opera- tive.i^ Author's section. § 244. Jurisdiction over suits by aided railroads for transporta- tion furnished. Any such company [i. e., railroad company to which United States bonds have been issued, the interest on which has not been paid] may bring suit in the Court of Claims to recover the price of such freight and transportation, [i. e., which has been withheld to the amount of interest due on bonds, and five percentum of net earnings due United States] and in such suit the riglit of such com- pany to recover the same upon the law and the facts of the case shall be determined, and also the rights of the United States upon the merits of all the points presented by it in answer thereto by them; and either party to such suit may appeal to the Supreme Court: and both said courts shall give such cause or causes prece- dence of all other business. R. S. § 5261, U. S. Comp. Stat. 1901, p. 3576. This section was originally enacted in 1873.16 Under it the right of the railroad to sue, accrues when the money is improperly withheld.i" Appeals under this section differ in no way from ordinary appeals from th& Court of Claims, and it is proper for the Supreme Court to require the findings of fact and the supporting evidence to be sent up.is § 245. Claims not cognizable — war claims. The jurisdiction of said court shall not extend to or include any , claim against the United States growing out of the destruction or i^As to repayment of Porto Rico of registers and receivers of land of- duties. see act April 20. 1902. c. 640. fice for commissions on Indian 32 Stat. 176. As to claims of par- lands referred, see act IMarch 3, 1903,. ticular individuals referred, see act c. 994, 32 Stat. 1010. See generally May 27. 1902, c. 887. 32 Stat. 243. U. S. Comp. Stat. 1901. p. 732, et Indian land controversy referred for seq. U. S. Comp. Stat. 1905, p. 165, adjustment, see act July 1. 1902. c. et seq. 1362. 32 Stat. 649. Indian allot- leAct March 3, 1873. c. 226. 17 ments adjusted, see act July 1. 1902. Stat. 508. c. 1375, ' .32 Stat. ;i8. "Cherokee i 'Central Pac. R. Co. v. United claims referred, see act July 1. 1902. States, 24 Ct. CI. 145. c. 1375. 32 Stat. 726. Claims for re- isUnion Pac. R. Co. v. Unit^l fund of duties referred, see act Jan. States, 116 U. S. 157, 29 L. ed. 586, 9, 1903, c. 61, 32 Stat. 764. Claims 6 Sup. Ct. Rep. 325. 415 § 24G COURT OF CLAIMS. [Code Fed. damage to property by the army or navy during the war for the sup- pression of the rebellion, or for the use and occupation of real es- tate by any part of the military or naval forces of the United States in the operations of said forces during the said war at the seat of war ; nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the pro- visions of any law of the United States. § 3, act Mar. 3, 1883, c. 116, 22 Stat. 485, U. S. Comp. Stat. 1«01, p. 748. A similar provision as to war claims will be found in a previous sectioa.i § 246. — no jurisdiction over claims pending in other courts. No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in re- spect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or imme- diately, under the authority of the United States. R. S. § 1067, U. S. Comp. Stat. 1001, p. 739. This provision was first enacted in 1868.3 ^ 247. — nor over claims growing out of treaties. The jurisdiction of the said court shall not extend to any claim against the government not pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes. R. S. § 1066, U. S. Comp. Stat. 1901, p. 739. This section was originally enacted in 1863.5 It excludes claims under treaty stipulations from the general jurisdiction of the Court of Claims. If such jurisdiction is given by a special act the authority of the court to hear and determine is limited by that special act.e In order for a claim to grow out of or be dependent on a treaty stipulation, the right which is tlie foundation of the claim must have its origin in such stipulation.^ lAnte, § 229. S. 51, 32 L. ed. 62. 8 Sup. Ct. Rep. sAct June 25, 1868, c. 71, 15 Stat. 1000. See, however. Great Western 77. Ins. Co. V. United States, 112 U. S. 5Act March 3. 1863. c. 92, 12 Stat. 193, 28 L. ed. 687, 5 Sup. Ct. Rep. 767. 99; Ailing v. I'nited States, 114 U. 6 Ex parte Atoclia, 17 Wall. 444, S. 562. 29 L. ed. 272, 5 Sup. Ct. Rep. 21 L. ed. 698. 1080. 7 United states v. Weld, 127 U. 416 CHAPTER 9. JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS, § 255. The nine circuits and the districts comprising them. S 256. Judicial districts and divisions in general. § 257. —Alabama, three districts, one having two and one having fou' divisions. § 258. — Arkansas, two districts, each of three divisions. § 259. — California, two districts, one having two divisions. § 260. — Colorado, one district. § 261. — Connecticut and Delaware, one district each. § 262. —Florida, two districts. § 263. — Georgia, two districts, one of four and one of five divisions. § 264. — Idaho, one district of three divisions. § 265. — Illinois, three districts, two having two divisions each. g 266. — Indiana, one district. § 267. — Iowa, two districts, each of four divisions. § 268. — Kansas, one district of three divisions. § 269. ■ — Kentucky, two districts and Owensboro division. § 270. — Louisiana, two districts, one of two and other of five divisions. § 271. — Maine, Maryland and Massachusetts, one district each. § 272. — Michigan, two districts, each of two divisions. § 273. — Minnesota, one district of six divisions. § 274. — Mississippi, two districts of two and four divisions. S 275. — Missouri, two districts of three and five divisions. § 276. — Montana, Nebraska, Nevada, New Hampshire and New Jersey, each one district. § 277. — New York, four districts. § 278. — North Carolina, two districts. § 279. — North Dakota, one district of five divisions. § 280. — Ohio, two districts of two divisions each. § 281. — Oklahoma, two districts. § 282. — Oregon, one district. § 283. — Pennsylvania, three districts. § 284. — Rhode Island, one district. § 285. — South CaroliTia, one district of two divisions. § 286. — South Dakota, one district of four divisions. S 287. — Tennessee, three districts, one having three and others two divi- sions. § 288. —Texas, as divided into four districts. S 289. — Texas districts as subdivided into divisions. •i 290. — Utah, one district of two divisions. Fed. Proc. — 27. 417 S 2oo .ILiilClAL i lUCLlTS AND JUDICIAL DISTRICTS. [Code Fed. § 291. — Vermont, one district. § 292. — Virginia, two districts. § 293. — Washington, two districts. § 294. — West Virginia, two districts. § 295. — Wisconsin, two districts. S 29G. — Wyoming, and Yellowstone National Park, one district. § 255. The nine circuits and the districts comprising them. The judicial districts of the United States are divided into nine >irciiits, as follows: First. The first circuit includes the districts of Ehode Island, ^[assaclmsetts, New Hampshire, and Maine. .Second. The second circuit includes the districts of Vermont, Connecticut, and New York. Third. The third circuit includes the districts of Penns^'lvania, Xew Jersey, and Delaware. Fourth. The fourth circuit includes the districts of Maryland, \"irginia, West Virginia, North Carolina, and South Carolina. Fifth. The fifth circuit includes the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. Sixth. The sixth circuit includes the districts of Ohio, Michigan, Kentucky, and Tennessee. Seventh. The seventh circuit includes the districts of Indiana, Illinois, and Wisconsin. Eighth. The eighth circuit includes the districts of Colorado, Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, North Dakota, South Dakota. Utah, AVyoming and Oklalioma. Ninth. The ninth circuit includes the districts of California, Oregon, Nevada, Washington, Idaho, and Montana. ^iUthor's section. For appellate purposes Arizona, Hawaii and Alaska have been assigned to the ninth circuit, and New Mexico, to the eighth, i Porto Rico and the Philippines have not as yet been assigned to any circuit. § 256. Judicial districts and divisions in general. Upon the organization of the Federal judiciary in 1789" Con- gress divided the United States into judicial districts for Federal jurisdictional purposes, and has since from time to time created iSee ante. §§ 80. 81. Stat. 73, U. S. Comp. Stat. 1901, p. 3§ 1, act Sept. 24, 1789, c. 20. 1 316. 418 rroeednre] JUDICIAL DISTRICTS AND DIVISIONS IX GENERAL. § 256 new districts and redefined the old. The policy has been to make the boundaries of one or more of these judicial districts coterminous with a State, but never to include more than a single State within a single district. Hence while a State may be divided into two 01' more complete districts it never comprises less than one entire district. And while a district does not always comprise an entire State, it never comprises land situate in two States. Upon the ad- mission of new States to the union, Congress has provided Federal judicial districts therein; and has provided such division and re- vision, or alteration of the boundaries of the various districts created as increase of litigation and the growth of the country have seemed to demand. During the past twenty-five years Congress has fre- quently adopted the plan of dividing districts having an extensive geographical area, into divisions, sometimes merely for district court purposes, but often for both circuit and district court. The policy has generally been to designate some place for holding court in each such division, to make process issued against parties in the counties embraced therein returnable there, and the cause there triable, to make crimes W'ithin the said counties cognizable there. to make causes removed from State courts tlierein, triable there, and to summon jurors for service at these designated places of trial, only from counties within such division. Congress has, in general, either required, or in the discretion of the court, permitted the establishment of a deputy clerk's office in each such division. The lack of uniformity in the legislation upon this subject renders it necessary for the praxititioner to ascertain the provisions govern- ing proceedings in any particular division of a district. Author's section. Where a State boundary is elianged by the assent of Congress the judicial district ipso facto expands or contracts accordingly. 5 But the change of a State boundarye or the organization of new counties^ by State legislation cannot affect such district. Attaching territory to another State for judicial purposes does not constitute such territory part of the State, s sin re Dovoe Mfg. Co. 108 U. S. "Hvde v. Victoria Land Co. liM 401. 27 L. ed. 7li4. 2 Sup. Ct. Rep. Fed. 971. 894. 8 United States v. Pridgeon, 153 U. S. 48. 38 L, ed. 631, 14 Sup. Ct. Rep. SHall V. Dcvoe :Mfg. Co. 14 Fed. 191. 746. 419 § 257 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. § 257. — Alabama, three districts, one having two and one hav- ing four divisions. The State of Alabama is divided into three districts, the south- ern, middle and northern. The southern district, as constituted at the time of the adoption of the Revised Statutes and modified latei- by the act of 1884,''' comprised the counties of Mobile, Washington, Baldwin, Clarke, Marengo, Wilcox, Monroe, and Conecuh, as they then existed. On March 3, 1905, the counties of Dallas, Hale. Marengo, Perry, and Wilcox, were constituted the northern division of the southern district, and all the other counties of the district were constituted the southern division, with Mobile as the place of holding court.^' The middle district is composed of the counties of Montgomery, Autauga, Coosa, Chambers, Randolph, Macon, Russell, Barbour, Pike, Henry, Dale, Coffee, Covington, Lowndes, Perry, Butler, and Tallapoosa.^- The northern district includes the remaining counties of the State. In 1884' ^ the counties of iSumter, Greene, Pickens, and Hale were detached from the south- ern district, and Tuscaloosa, Bibb, Shelby, and Talladega were de- tached from the middle district, and attached to the northern dis- trict. The northern district is divided into four divisions. The .southern division thereof includes the counties of Hale, Lamar, Fayette, Walker, Jefferson, Blount, Shelby, Saint Clair, and De Kalb, as they existed May, '3, 1884, when the district was reorgan- ized and subdivided. The western division was created March 3, 1905,'^ by detaching the counties of Tuscaloosa, Bibb, Greene, Sum- ter, and Pickens, as they then existed, with Tuscaloosa as the place of holding court. The eastern division includes the counties of i'^towah, Calhoun, Cleburne, Clay. Talladega, and Cherokee, as they existed February 16, 1903, when the division was created, with An- uiston as the place for holding court.''' The renuiinng counties of the northern district constitute the nortliern division.'*^ Author's section. lOR. S. § 532. Act May, 2. 1884. c. i4Act Mar. .3. 1905, c. 1410. S S. :58. 23 Stat. 18. U. S. Coinp. Stat. 33 Stat. 988. U. S. Comr). Stat. 1905. 1901. p. 317. 318. p. 79. iiAct Mar. 3. 1905. c. 1419, .33 Stat. isAct Feb. Iti. 1903, c. 554. 32 987, U. S. Coiiip. Stat. 1905, p. 77. Stat. 832, U. S. Comp. Stat. 1905, 12 See R. S. § 532, and act May p. 76. 2. 1884, cited supra. islbid. i3Act May 2, 1884, c. 38. 23 Stat. 18. 420 IToccdure] ARKANSAS— CALIFORNIA. § 259 § 258. — Arkansas, two districts of three divisions each. The State of Arkansas is divided into two districts, whicli are called the eastern and western districts of Arkansas. The western district includes the counties of Benton. Washington, Craw^ford, Sebastian, Scott, Polk Sender, Little Eiver, Howard, Yell, Logan. Franklin. Jonhson, Madison, jSTewton, Carroll, Boone, Pike, Hemp- stead, Miller, La Fayette, Xevada, Columbia, Union, Ouachita, and Calhoun. The eastern district includes the residue of said State. The eastern district is divided into three divisions, known as the western, eastern, and northern divisions of the eastern district of Arkansas. The eastern division consists of the following counties, to wit: Mississippi, Crittenden, Lee, Phillips, Clay. Craighead, Poinsett, Greene, Cross, Saint Francis, and ]\Ionroe. as constituted February 20, 1897, wdien the divisions were created, courts to be held at the city of Helena. The counties of Independence, Cle- burne, Stone, Izard, Baxter, Searcy, Marion, Sharp, Fulton, Eaii- dolph, Lawrence and Jackson as they then existed constitute the northern division, the courts to be held at the city of Batesville. The remaining counties of the eastern district of the State con- stitute the western division, the courts to be held at the city of Little Rock. The western district now contains three divisions, the Texarkana, Fort Smith, and Harrison. The Harrison division em- braces the counties of Baxter, Boone, Carroll, Madison, ]\Iarioii. Xewton, and Searcy, as they existed Mai'ch 18, 190'?, when the divi- sion was created. 1 The counties of Sevier, Howard, Pike, Little River. Hempstead, Miller, La Fayette, Columbia. Xevada, Ouachita. Calhoun, and Union, as they existed February 20, 189 T, when tlie division was created, constitute the Texarkana division, the courts to be held at Texarkana. The remaining counties of the western district of the State constitute the Fort Smith division, the courts to be held at the city of Fort Smith.^ Author's section. § 259. — California, two districts, one having- two divisions. California is divided into two districts. All that portion of ilu^ State of California comprised in the counties of San Diego, San Bernardino, Los Angeles, Ventura, Santa Barbara. San Luis Obispo, Fresno, Tulare, and Kern, upon August 5, 1886, and that lAct Mar. 18. 1902, c. 222. .32 Stat. 2Act Feb. 20, 1S!»7. c. 269. 29 Stat. 72. 590, U. S. Comp. Stat. 1901, p. 321. 421 § 260 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. ])ortion comprised iu Inyo. Mariposa, aiid Merced counties, on May 29. 1900, constitute tlie southern district of California. The northern district of California consists of all tlie remaining coun- ties in the State. The southern district is divided into a northern division consisting of Inyo, Mariposa, Tulare, Merced, Madera, Presno. Kings, and Kern counties, as constituted on May 29, 1900. and a southern division, consisting of Los Angeles, Orange, River- side, San Barnardino, San Diego, San Luis Obispo, Santa Bar- bara, and Yentura counties, as constituted on Max 29, 1900. Tlie State was divided into two districts by act of 1886-^ and the en- largement and division of the southern district was by act of 1900.^ Author's section. s; 260. — Colorado, one district. The State of Colorado constitutes one judicial district, called the 3. p. 84. the northern district but peresuniably lAct Apr. 7, 1904. c. 941. 33 Stat, meiins nortlieni division. See Bir- KJl. ['. S. Conip. Stat. I;i()'). p. 87. 423 i 204 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fpd. rected June 28. 1906, and comprises the counties of Tift, Turner. Crisp, Colquitt. Miller, Baker, Calhoun, Dougherty, Lee, Mitchel!, and Worth, as tlien constituted, with All)any as the place of hold- ing eourt.2 The northeastern division was created February 1"). 1889, and is composed of the counties of Warren, Glascock, Mc- Duffie, Columbia, Eichmond, Burke, Jefferson, Johnson, Washing- ton, Lincoln, Wilkes, and Taliaferro, as then constituted. The western division of the southern district was created January 29, 1880, and consists of the counties of Bibb, Monroe, Jones, Twiggs, Houston, Crawford, Baldwin, Wilkenson, Laurens, Pulaski, Dooly. Macon, Upson, Pike, Butts, Jasper, Putnam, Hancock, Dodge, Wil- cox, Telfair, and Sumter as then constituted. Aiithor's section. By R. S. § 535 Georgia was divided into two districts without any fur ther provision for divisions therein. An act of 18803 divided the soiithcni district into an eastern and a western division; and a northeastern divi sion was created in 1889.^ In the northern district a northern and a wcst- em division were created by act of 1891,5 a northwestern division by act of 1900,6 and an eastern division by act of 1901.'? The error in the act of March 3, 1905, in speaking of the new division created thereby as tlie "south\\»'stern" when there was an existing southwestern division was sought to be cured by act of June 28, 1906, cited in the footnote by amend- ing so as to call the new division the Albany division. The former coun- ties which are designated in the act of June 28, 1906, by the names "Tift, Turner and Crisp," and. attached to the Albany division should of course be excluded from enumeration among the counties included in some other division. § 264. — Idaho, one district of three divisions. For the purpose of holding terms of the district court, Idalio. which constitutes but one district, is divided into three divisions, known as the northern, the central and southern divisions. The ter- ritory composing the counties of Idaho, Kootenai, Latah, Nez Perces, and Shoshone, including any and all Indian reservations within such territory, constitute the northern division, the court for which must be held at the town of Moscow. The territory composiui^- 2Act Mar. 3. 1905. c. 1431. .33 Stat. 5Act Mar. 3, 1891, c. 566, 26 Stal. 999. V. S. Comp.Stat. 1905. p. 87. as 1110. amended, act June 28, 1906. e. .3577, «Act Apr. 12, 1900, c. 185, 31 Stat. .34 Stat. .547. 73. 3Act Jan. 29. 1880. c. 17. 21 Stat. ^Act Feb. 28, 1901. c. 021, 31 St:it. 62. 818. See U. S. Comp. Stat. 1901, 4 Act Feb 15, 1889. c. 168. 25 Stat. p. 333 et seq. 071. 424 Procedure] ILLINOIS. § 265 the counties of Ada, Boise, Blaine, Cassia, Canyon, Lincoln, Elmore. Owyhee, and Washington, including any and all Indian reservations within said territory, constitute the central division, the court for wliich must be held at Boise City. The territory composing the counties of Bingham, Bannick, Bear Lake, Custer, Fremont, Lemhi,, and Oneida, including any and all Indian reservations within such territory, constitute the southern division, the court for which must be held at the town of Pocatello. Xew counties created remain part of the division out of which it or the larger portion thereof was cre- ated, but if part of county is detached and added to another in another division, it becomes part of such latter division. Author's section. The above subdivision of the district was made by act of 1892 as modified by act of 1898.9 § 265. — Illinois, three districts, two having two divisions each. Illinois was divided into three districts, viz., the northern, south- ern and eastern by act of March 3, 1905.^ ^ The northern district is composed of the counties of Lake, McHenry, Boone. Winnebago. Stephenson, Jo Daviess, Carroll, Whiteside, Lee, Ogle, DeKalb, La- salle, Grundy, Kendall, Kane, Dupage, Will and Cook. Of these the western division consists of the counties of Boone, Winnebago. Stephenson, Jo Daviess, Carroll, Whiteside, Lee and Ogle with Freeport as the place of holding court, and the eastern division comprises the remaining counties. The southern district is com- posed of the counties of Rock Island, Henry, Bu]-ean. ]\Iercer, Knox, Stark, Putnam, Marshall, Henderson, Warren, Peoria, Woodford, Livingston, McLean, Tazewell, Fulton, McDonongh, Hancock, De- witt, Logan, Mason, Schuyler, Adams, Brown, Cass, Menard, Ma- con, Sangamon, Christian, IMorgan, Montgomery, Pike. Scott, Ma- coupin, Greene, Calhoun, Jersey, Bond and Madison. Of these, tlie following comprise the northern division, to wit: Peoria. Bureau. Stark, Henry, Eock Island, Mercer. Henderson, Warren, Knox. McDonough, Fulton, Putnam. Marsliall, Woodford, Tazewell and Livingston with Peoria as the place for holding court. Tlio re- maining counties of the southern district constitute the southern 9Act July 5. 1892, c. 145, 27 Stat. nC. 1427. 33 Stat. 993. U. S. Comp. 72. as amended, act June 1, 1898, c. Stat. 1905, p. 89 et seq. 309. 30 Stat. 423. U. S. Conip. bait. 1901, p. 342. 425 § 266 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. division. The eastern district consists of the following coiuities, to wit: Kankakee, Iroquois, Ford, Vermilion, Champaign, Piatt, Moultrie, Douglas, Edgar, Shelby, Coles, Clark, Cumberland, Effing- liam, Fayette, Marion, Clay, Jasper, Crawford, Lawrence, Richland, ('linton, Saint Clair, Washington, Jefferson, Wayne, Edwards, Wabash, White, Hamilton, Franklin, Perry, Eandolpli, ^lonroe, Gallatin, Saline, Williamson, Jackson, Hardin, Pope, Johnson, Union, Alexander, Pulaski, and Massac, with Cairo, Danville and East St. Louis as the places of holding court. Author's section. § 266. — Indiana, one district. Indiana constitutes but one judicial district, although terms of court are held at Indianapolis, Fort Wayne, Hammond, Evansville. and New Albany. ^^ Author's section. § 267. — Iowa, two districts, each of four divisions. The State of Iowa is divided into two judicial districts called the northern and southern. The northern district is divided into four divisions, viz., the Cedar Rapids, the eaistern, central and western divisions. The Cedar Rapids division was created Feb. 3-i, 1891, and comprises the counties of Cedar, Johnston, Iowa, Tama, Grundy, Hardin, Benton, Linn, Jones, as then constituted, (Clinton being- withdrawn to the Davenport division in 1906)^^ the terms of court for which are held at the city of Cedar Rapids. The other three di- visions were created July 20, 1882. The counties of Jackson. Black Hawk, Buchanan, Delaware, Dubuque, Clayton, Fayette, Bre- mer, Floyd, Chickasaw, Mitchell, Howard, Winneshiek, and Alama- kee as then constituted, comprise the eastern division, the courts for which are held at the city of Dubuque. The counties of Hamilton, Webster, Calhoun, Pocahontas, Palo Alto, Emmett, Kossuth, Hum- boldt, Wright, Hancock, Winnebago, Worth, Cerro Gordo, Franklin, and Butler as then constituted, comprise the central division, the courts for which are held as Fort Dodge. The counties of Monona, Woodbury, Plymouth, Sioux, Lyon, Osceola, O'Brien, Cherokee, Ida, Sac, Buena Vista, Clay and Dickinson as then constituted, isPost. § 323. 15 Act June 19. lOOfi. c. 3437. 34 Stat. 304. 426 I'l-ocednre] KANSAS. § 2GS ■c-omprise the western division^ the courts for which are held at Sioi:x City. The southern district contains five divisions, viz., the southern, eastern, central, western and Davenport divisions. The southern division of that district was created June 1, 1900. and comprises the counties of Lucas, Clarke, Union, Adair, Adams, Tremont, Page, Taylor, Einggold, Decatur and Wayne, as then constituted.^^ The eastern, central, and western divisions were cre- ated July 20, 1882. The counties of Louisa, Davis, Wapello, Jeffer- son, Van Buren, Henry, Des Moines, and Lee as then constituted and the county of Appanoose added in 1900^" comprise the eastern division, for which the courts are held at the city of Keokuk. The counties of Poweshiek, Mehaska. Jasper, Marshall, Story, Boone, Greene, Guthrie, Dallas, Polk, ^Madison, Warren, Marion, and Mon- roe, as then constituted, comprise the central division, for which the courts are held at the city of Des ]\Ioines. The counties of Carroll. Crawford, Harrison, Shelby, Audubon, Cass, Pottawattamie, Mills, and Montgomery, as then constituted, comprise the western division, in which the courts are held at the city of Council Bluffs. The Davenport division was created April 28, 190-1. by taking the counties of Scott, Muscatine, Washington and Keokuk out of the eastern division ;is Clinton county was added in 1906.^^ Author's section. By R. S. § 53^7, Iowa comprised but one judicial district divided into four divisions. An act of July 20, 1SS2,2 divided the State into two districts of three divisions each. In 1891 the Cedar Rapids division was created in the northern district,i and in 1900, the southern division in the siiuthern district. 2 § 268. — Kansas, one district of three divisions. The judicial district of Kansas is divided into three divisions known as the first, second and third. The first and second divisions were created June 9, 1890. The second division now comprises the counties of Cowley, Butler, Harvey, McPherson, Rice, Ellsworth. Barton, Rush, ISTess, Lane, Scott, Wichita, Greely, Hamilton, i«Act Apr. 21, 190G, c. 1648. 34 isAct June 19, 1906. c. 3437, 34 Ptat. 127. Stat. 304. I'Act Apr. 21, 1906, c. 1648. 34 20C. 312. 22 Stat. 172, U. S. Comp. Stat. 127. Stat. 1901, p. 349. isAct Apr. 28. 1904. c. 1800. 33 lAct Feb. 24. 1891. c. 282. 26 Stat. Stat. .i46, U. S. Conip. Stat. 1905, 707. U. S. Comp. Stat. 1901. p. 352. P. 97. 2Act June 1, 1900. c. 601. 31 Stat. 249, U. S. Comp. Stat. 1901. p. 353. 427 § 209 JUDICIAL CIKCUITS AM) .ni»l(-IAL DISTRICTS. [Code Ked. Koarny, Finiiv, Garfield, Hod<:einaii. Pawnee, Stafford, Keiio, Kingman, Pratt, Kiowa, Edwards, Ford, Gray, Haskell, Grant, Stanton, Morton, Sedgwick, Stevens, Seward, Meade, Clark, Co- manche, Harper, Barber, and Sumner, as then constituted, courts to 1)6 held at Wichita. The third division was created May, 3, 189-2, and comprises the counties of Miami, Linn, Bourbon, Crawford, Cherokee, Labette, Neosho, Allen, Anderson, Coffey, Woodson, Wil- son, ]\fontgomery, Chautauqua, Elk and Greenwood, as then con- stituted, courts to be held at Fort Scott. The remaining counties embraced in the district of Kansas constitute the first division thereof, courts to be held at Leavenworth and. Topeka. Author's section. By R. S. § 531, Kansas is constituted one judicial district. An act of 18905 created two divisions, and an act of 1802 a tliird.6 The jurisdiction formerly exercised over Indian Territory by the Kansas district was taken away in 1S98.T § 269. — Kentucky, two districts and Owensboro division. Kentucky has been divided into two districts, an eastern and a western, since Feb. 12, 1901." The eastern district includes the territory then embraced in the counties of Carroll, Trimble, Henry^ Shelby, Anderson, Mercer, Boyle, Gallatin, Boone, Kenton, Camp- bell, Pendleton, Grant, Owen, Franklin, Bourbon, Scott, Woodford, Fayette, Jessamine, Garrard, Madison, Lincoln, Eockcastle, Pulaski, Wayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry, Owsley, Jackson, Estill, Lee, Breathitt, Knott, Pike, Floyd, ]\Iagoffin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, 1^1- liott, Morgan, Wolfe, Powell, Menifee, Clark, Montgomery, Batlt^ Eowan, Lewis, Fleming, Mason, Bracken, Robertson, ISricholas, Hai-- rison and the waters thereof. The residue of the State of Kentucky with the waters thereof constitutes the western district. From the portion of Kentucky that is now the western district, a division known as the Owensboro division had previously been created on Aug. 8, 1888.1^ That division is expressly continued by the act creating the two districts. It comprises the counties of Daviess. sAct June 9. 1890, c. 403, 2(5 Stat. ^Aet :Mar. 1, 1895, c. 146, 28 Stat. 129. 699. 6Act :Ma.v 3. 1892, c. 59. 27 Stat. I'Act Feb. 12. 1901. c. 3.^5. 31 Stat 24. U. S. Couip. Stat. 1901, pp. 350, 781. U. S. Comp. Stat. 1901. p. 300. 357. lOAct Aug. 8. 1888, c. 792, 25 Stat. 389, U. S. Comp. Stat. 1901, p. 359. 428 Procedure] LOUISIANA— MASSACHUSETTS. § 271 Henderson, Union, Christian, Todd, Hopkins, Webster, ]\IcLean, Muhlenberg, Logan, Butler, Grayson, Ohio, Hancock and Breck- enridge as then constituted. Author's section. § 270. — Louisiana, two districts, one of two and other of five divisions. Louisiana has been divided into an eastern and a western dis- trict since March 3, 1881.^2 The western district was divided into four divisions on August 8, 1888,^ ^ which are known as the Ope- lousas, Alexandria, Shreveport, and Monroe divisions; a fifth di- vision with terms of court at Lake Charles was created in 1905. comprising the parishes of Acadia, Calcasieu, Cameron, and Ver- non. ^^ Subject to the creation of this new Lake Charles division. Opelousas division comprises the parishes of Saint Landry, Saint ]\rartin, Lafayette, and Vermillion as then constituted. The Alex- andria division comprises the parishes of Kapides, Avoyelles, Cata- houla, Grant and Winn as then constituted. The Shreveport di- vision comprises the parishes of Caddo, De Soto, Bossier, Webster. Claiborne. Bienville, Xatchitoches, Sabine, and Red River as then constituted. The Monroe division comprises the parishes of Oua- chita, Fi-anklin. Richland. Morehouse. East Carroll, West Carroll. Madison, Tensas, Concordia, Union, Caldwell, Jackson and Lincoln as then constituted. The eastern district was divided into two di- visions on Aug. 13, 1888,^-^ known as the Xew Orleans and Baton Rouge divisions. The New Orleans division comprises 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 Wash- ington as then constituted. The Baton Rouge division comprises tlie parishes of Ascension, Ea.st Baton Rouge, East Feliciana, Liv- ingston, Pointe Coupee. Saint Helena, West Baton Rouge and West Feliciana as then constituted. Autlior's section. § 271. — Maine, Maryland and Massachusetts, one district each. The States of Elaine. Maryland and ^Massachusetts eacli constitute i2Act Mar. 3. 1881. c. 144, il Stat. i^Act Mar. 2, 1905. c. 1.308. 3.3 Stat. 507. U. S. Conip. Stat. 1901, p. 363. 941, U. S. Comp. Stat. lOOo. p. 100. isAct Alio;. 8, 18S8. c. "80. 2o Stat. isAct Aug. 13. 1888. c. 809. 2.i St^it. 388, U. S. Comp. Stat. 1901. p. 3(i.-). 438. U. S. Comp. Stat. 1901. p. 3lUi. 429 S ::72 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. one Federal judicial district. *' While terms are held at ditl'rrcnt places in all of them except Massaclnisetts, they have never been parceled into judicial divisions as in the case of so many districts. Author's section. § 272. — Michigan, two districts, each of two divisions. The State of Michigan is divided into two districts, known as tlie eastern and western districts of Michigan. Since April 30, 1894, the eastern district of Michigan has been divided into two divisions. known as the northern division and the southern division, respect- ively. The following named counties, as then constituted, comprise the northern division: Chebovgan, Presque Isle, Otsego, Mont- morency, Alpena, Crawford, Oscoda, Alcona, Eoscommon, Ogeman, Iosco, Clare, Gladwin, Arenac, Isabella, Midland Bay. Tuscola, Huron, Gratiot, Saginaw, Shiawassee, and Genesee. The following named counties, as then constituted, comprise the southern division : Saint Clair, Lapeer, Sanilac, Macomb, Oakland, Livingston. Ing- ham, Clinton, Jackson, Washtenaw, Wayne. Branch. Hillsdale Lena- wee, Calhoun and Monroe.^ The remainder of the State of Michigan and its waters have since June 19, 1878. constituted the western district of Michigan. Upon that date it was enlarged to its present size and divided into two divisions, a northern and a southern. The northern division of the western district comprises all the ter- ritory and waters of the entire upper peninsula of Michigan. The southern division of the western district comprises all that jiortiou of said district lying and being in the lower peninsula of said state.2 Author's section. § 273. — Minnesota, one district of six divisions. Minnesota constitutes one judicial district.^ For the purpose of holding terms of court the district of Minnesota lias been (!i\id(M| since April 26, 1890, into six divisions, known as the first, second, third, fourth, fifth and sixth divisions. The portion of the State of Minnesota comprising the counties of Winona, Wabasha, Olmsted, Dodge. Steele, Mower, Fillmore and Houston, as then constituted, comprise the first division, the courts of which are held at W^inona. iTSee R. S. § 5.31. 2Aot June If). 1878. c. 32G, 20 St.it. lAct Apr. .30. 1804. e. 66, 27 Stat. 17.5. U. S. romp. Stat. 1901, p. 370. 67, U. S. Comp. Stat. 1901, p. 372. 4R. S. § 531. 430 Procedure] MISSISSIPPI. § 274 The counties of Freeborn, Faribault, ]\rartin, Jackson, Xobles, Eock. Pipestone, Murray, Cottonwood, Wantonwan, Blue Earth, Waseca. Le Soeur, Xieollet, Brown, Eedwood, Lyon, Lincoln, Yellow Medi- cine, Sibley and Lac Qui Parle, as then constituted, comprise the second division, the courts of which are held at Mankato. The counties of Chicago, Washington, Eamsey, Dakota, Goodhue, Eice and Scott, as then constituted, comprise the third division, tlie couris of Avhich are held at Saint Paul. The counties of Hennepin, Wright, Meeker, Kandiyohi, Swift, Chippewa, Eenville, McLeod, Carver, Anoka. Sherburne, and Santi, as then constituted, compi'isc the fourth division, the courts of which are held at Minneapolis. The counties of Cook, Lake, Saint Louis, Itasca, Cass, Crow Wing, Aitkin, Carlton, Pine, Kanabec, Mille Lacs, Morrison and Benton, as tlien constitucd, comprise the fifth division, the courts of which are lield at Duluth. The counties of Stearns, Pope, Stevens, Big Stone, Traverse. Grant, Douglas, Todd, Otter Tail, Wilkin, Clay, Becker, Wadena. Xorman, Polk, Marshall, Kittson, Beltromi and Hubbard, as then constituted, comprise the sixth division, the courts of which are held at Fergus Falls.^ Author's section. § 274. — Mississippi, two districts of two and four divisions. Mississippi is divided into a northern and a southern district.^ Since June 15, 1882, the northern district has been divided into an eastern and a western division. The eastern division of the northern district comprises the counties of Chickasaw, Winston, .Vttala, Tishomingo, Alcorn, Prentiss, Itawaml)a, Lee. Monroe, Lowndes. Oktibbeha, Choctaw, Pontotoc, and Clay^ as then con- stituted. The western division of the northern district comprises the counties of Benton, Coahoma, Calhoun, Carroll, De Soto, Gren- ada, Lafayette, Marshall, Montgomery, Panola. Quitman, Talla- hatchie, Tate, Tippah, Tunica, Union, Webster and Yalabusha as then constituted. The southern district of Mississippi is divided into four divisions, kno\vn as the southern, eastern, western and Jackson divisions. The southern division of the southern district was created April 4, 1888,^ and comprises the counties of Hancock, cAct Apr. 26. 1890. c. Kw, 26 Stat. c. 218. 22 Stat. 101, U. S. Comp. Stat. 72. U. S. Comp. Stat. 1001, p. 374. 1901, p. 377. 8R. S. § 539, act June 15, 1SS2, ?Act Apr. 4. 18SS. c. 58. 25 Stat. 78, U. S. Comp. Stat. 1901. p. 381. 431 ^ 275 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. Harrison, Jackson, Marion, Perry and Greon as tlien constituted. The eastern division was created July 18, 1894, and comprises thr counties of Lauderdale, Kemper. Noxubee. Leake, Nesho])a, Xewton. Jasper, Clarke, Wayne and Jones as then constituted, courts to be held at Meridian.^*' The western division of the southern dis- trict was created Feb. 28, 1887, and comprises the counties of Washington, Sharkey, Isaquena and Warren, as then constituted,^^ and Claiborne county as constituted March 2, 1899. when it was added to the western di\'ision -^^ and Bolivar and Sunflower counties as constituted April 11 1888, when they were added to the western division. 12 The remaining counties of the southern district seem not to have been organized as or declared a division of that district : but such is the effect of the creation of other divisions out of that district. These counties are Adams, Amite, Copiah, Covington, Franklin, Hinds, Holmes, Jefferson, Lawrence, Lincoln, Leflore, Madison, Pike, Eankin, Simpson, Smith, Scott, Wilkinson and Yazoo, and terms of circuit and district courts therefor are held at Jackson. 1"* Author's section. § 275. — Missouri, two districts of three and five divisions. Missouri is divided into two districts an eastern and a western. ^^ On February 28, 1887,^' the eastern district was divided into a northern and an eastern division, and on January 31, 1905, a new division known as the southeastern division was created comprising the counties of Cape Girardeau, Scott, Mississippi, New Madrid, Pemiscot, Dunklin, Stoddard, Butler, Ripley, Carter, Oregon, Shannon, Reynolds, Wayne, Madison, Bollinger and Perry with terms of court at Cape Girardeau. ^^ Subject to this new division, the eastern division of the eastern district now comprises tlie city of Saint Louis and the counties of Saint Louis, Frank- lin, Gasconade, Jefferson, Crawford, Washington, Saint Fran- cois, Saint Genevieve, Dent, Iron, Montgomery, Lincoln, War- lOAct July, 18. 1894. c. 144. 28 i^See R. S. § 658, Stat. 114, U. S. Comp. Stat. 1901, p. i6R. S. § 540, Act Apr. 8, 1878. c. 382. 51. 20 Stat. ,%, U. S. Comp. Stat. iiAct Feb. 28, 1887. c. 279. 24 Stat. 1901, p. 385. 430. U. S. Comp. Stat. 1901, p. 3S0. iTAet Feb. 28. 1887, c. 271. 24 Stat. i2Act Mar. 2, 1899. c. 379. 30 Stat. 424, U. S. Comp. Stat. 1901, p. 385. 995, U. S. Comp. Stat. 1901. p. 384. isAct Jan. 31, 1905, c. 287, 33 Stat. i3Act Apr. 11. 1888. e. 81, 25 Stat. 626, U. S. Comp. Stat. l905, p. 103. 84, U. S. Comp. Stat. 1901, p. 380. 432 I Proceaurej MISSOURI. S 275 reu, Audrain, and Saint Charles as then constituted, the courts for which are now held at the city of Saint Louis. The coun- ties of Linn and Chariton were transferred from the western to the eastern district on April 8, 1904/^ but whether to tlie eiistern or northern division, does not appear. The northern divi- sion of said district, the courts for which are held at the city of Hannibal, comprises the counties of Adair, Clark, Knox, Lewis, Macon, Marion, Monroe. Pike, Kails. Randolph, Schuyler, Scot- land and Shelby, as then constituted. The western district was divided Feb. 28, 1887,2° into the Saint Joseph, the western, cen- tral, and southern divisions: and on Jan. 24, 1901. a fifth division, known as the southwestern, was created. The southwestern division comprises counties of Jasper, ISTewton, Barton, Vernon, Barry, Lawrence, McDonald and Stone, as constituted at the time of the creation of the division. The western division comprises the coun- ties of Clay, Eay, Carroll, Chariton, Sullivan, Jackson, La Fayette, Saline, Cass, Johnston, Bates. Henry, Putnam. Caldwell, T^iving- ston, Grundy, Mercer, Linn and Saint Clair, as constituted Feb. 28, 1887, the courts for which are held at the city of Kansas. The St. Josepli division comprises the counties of Atchison, Xodaway, Holt, Andrew, Buchanan, Platte, Clinton, Harrison, Daviess, De Klab, Gentry and Worth as constituted Feb. 28. 1887: the courts tlierefor are held at tlie city of Saint Joseph. The southern di- vision comprises the counties of Cedar, Polk, Dallas, Laclede, Pulaski, Dade, Greene, Webster, Wright, Texas, Christian, Douglas, Howell, Taney and 0/ark. tlie courts for which are held at Spring- field. Formerly the counties of the southern division were divided for circuit court pui-poses between the western and the central divisions. But since April 19. ]892,i terms of the circuit court have been held at Springfield. The central division comprises the counties of Benton. Boone, Callaway, Cooper, Camden, Cole, Hickory, Howard. Maries, ^liller. ^loniteau, Morgan, Osage, Pettis, and Phelps, as constituted Feb. 28, 1887. Author's section. The act creating these variou-. divisions (except the one last created) created a separate circuit and district court in each such divi-^ion. con- l9Act Apr. S. 1004. c. 047. .33 Stat. lAct Apr. 10. ISOJ. c .lO. 27 Stnt. 1G4, U. S. Coinp. Stat. 190.5. p. 102. 20, X. S. Comp. >'>uit. 1901, p. 388, 20Act Fel). 28. 1887. c. 271. 24 Stn?. 424. r. S. Conio. Stat. 1001. p. .^S.l. Fed. Proc— 28. 433 i 276 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. trary to tho usual policy of Congress in providing one circuit and one dis- trict court in each district.2 § 276. — Montana, Nebraska, Nevada, New Hampshire & New Jersey, each one district. The States of Montana, Nebraska, Nevada, New Hampshire and New Jersey each constitute one judicial district. In none of them are there any judicial divisions of such districts, though there were at one time two divisions in Montana* and terms are held in difEer- ent places.^ Author's section. § 277. — New York, four districts. The State of New York was on May 12, 1900J divided into four districts, called the western, northern, eastern, and southern dis- tricts of New York. The western district includes the counties of Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Liv- ingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, Wyoming and Yates as then constituted, with the waters thereof. The northern district includes the counties of Al- bany, Broome, Cayuga, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, Rens- selaer, Saint Lawrence, Saratoga, Schenectady, Scholiarie, Tioga, Tompkins, Warren and Washington, as tlien constituted, with the waters thereof. The eastern district includes the counties of Eich- mond. Kings, Queens, Nassau and Suffolk, as then constituted, with the waters thereof. The southern district includes the residue of said State, with the waters thereof. Author's section. In 1833 the States of New York and New Jersey entered into an agree- ment changing the boundary line between them. This agreement was ap- proved by Congress in 1834s and became operative in determining the territorial limit of the Federal courts of those States. 9 Since by that agreement waters of the Hudson river lying west of ^lanhattan Island are 2See ante. § 103. note. vAct M3, U. S. Comp. Stat. 1901. p. 403. 436 nocedure] OKLAHOMA— PEXNSVLVAXIA. § 283 away, Eoss, Pike, Gallia, Jackson, Meigs, Vinton, Athens, Hocking, Fairfield, Licking, Perry, ]\Iuskingum, Morgan, Washington, Xoble, Monroe, Belmont and Guei-nsey as then constituted, and the county of Logan, as constituted March 2, 1891, when it was transferred to the eastern division of the southern district.^ The western divi- sion of the southern district of Ohio comprises the remaining coun- ties in said State.^ Author's section. § 281. — Oklahoma, two districts. The State of Oklahoma is to constitute an eastern and a western judicial district, of which what was Indian Territory is the eastern with terms of court at ^Muscogee, Vinita. Tulsa, )South McAlestei-. Chickasha, and Ardniore. The western district is the former Terri- ritory of Oklahoma, with terms of court at Guthrie, Oklahoma City, and Enid."* , Author's section. § 282. Oregon, one district. The State of Oregon constitutes but one district, court being held at Portland.6 Author's section. § 283. — Pennsylvania, three districts. Since March 2, 1901, the State of Pennsylvania has been divided into three districts, called the eastern, middle and western districts of Pennsylvania. Prior thereto the state was divided into an east- ern and a western district. Tlie middle district then created'^ com- prises the counties of Lackawanna, Wyoming, Bradford, Monroe. Wayne, Pike, Susquehanna, Carbon, Tioga, Potter, Cameron, Clin- ton, Lycoming, Center. TTuion, Snyder, Mifflin, Jimiata, Xorthum- berland, Montour, Columbia, Sullivan, Luzerne, Dauphin, Leljanon. Perry, Huntingdon, Fulton, Franklin, Adams, York and Cumber- land as then constituted and defined. All that portion of the State cast of the middle district constitutes the eastern district of Penn- lAct Mar. 2. 1S!M. c. 4f«. 2ti Stat. ^Act June, 16. 1906. c. ,3335. 34 799, U. S. Comp. Stat. 1901. p. 405. Stat. 275. 2Act Feb. 4. 1880. c. 18. 21 Stat. 6R. S. § 531. 63, U. S. Comp. Stat. 1901, p. 403. sAct Mar. 2, 1901, c. 801, 31 Stat. 880, U. S. Comp. Stat. 1901, p. 405. 437 § 284 JUDICIAL CIRCUITS AND JUDICIAL DISTRICTS. [Code Fed. sylvania, and all that portion westerly thereof constitutes the west- ern district.^ Author's section. § 284. — Ehode Island, one district. The State of Rliode Island constitutes but one judicial district, with terms of court at Providence and Kewport.^^ Author's section. § 285. — South Carolina, one district of two divisions. The State of South Carolina is divided into two districts, which shall be called the eastern and western districts of the district of South Carolina. The M-estern district includes the counties of Lan- \'aster, Cliester, York, Union, Spartanburgh, Greenville, Pendleton, Abbeville. Edgefield, ISTewberry, Laurens and Fairfield as they ex- isted February 21, 1823. The eastern district includes the residue (of said State. I R. S. § 540, U. S. Comp. Stat. 1901. p. 407. The ambiguity in speaking of two districts "of the district of South (■arolina" has been resolved by a recent decision of the Supreme Court de- claring that but one Federal judicial district is created and that it has two divisions as defined above. is The statutes respecting terms of court in South Carolina seem to contemplate one circuit court for both divisions, but two district courts, one for each division. 1 4 § 286. — South Dakota, one district of four divisions. South Dakota constitutes only one district. But for the pur- pose of holding terms of the district court said district was divided on Xov. 3, 1893,^ "^ into four divisions, known as the southern, north- i-rn, central and western divisions. The counties of Clay, Union, Yankton, Turner, Ijincoln, Bonhomme Charles, Mix, Douglas, Hutchinson, Brule, Aurora. Davison, Hanson, McCook, JMinnehaha, Moody, Lake, Lyman. Miner. Sanborn, Beadle, Gregory, Kingsbury and Todd as then constituted, and the Yankton, Crow Creek, and 9R. S. § 545. enumerated the coun- i^See Act Dec. 21. i898. c. 32. § ties in the western district as tliev 4, .30 Stat. 7(59; Act Mav 10, 1900, c. existed in 1818. U. S. Comp. Stat. 390. 31 Stat. 174, U. S.'Comp. Stat. 1901, p. 405. 1901, p. 410. See also ante, § 103 iiR. S. §^ .531. 572. note. isBarret't v. United States, 1G9 U. isAct Xov. 3, 1893. c. 10. 28 Stat. S. 228, 42 L. ed. 72(), 18 Sup. Ct. Rep. 5. U. S. Comp. Stat. 1901, p. 411. 327. See Young v. Ins. Co. 29 Fed. 275; The Hungaria, 41 Fed. 109. 438 Procedure] TENNESSEE. § 287 Lower Brule Indian reservations, constitute the southern division, the court for which is held at tlie citv of Sioux Falls. The counties of Brookings, Hamlin, Denel, Grant, Eoberts, Codington, Clark, Day. Marshall, Spink, Brown, IMcPherson, Edmunds, Campbell, Walworth, as then constituted, and the Sisseton and Wahpaton reservation constitute the northern division, the court for which is held at Aberdeen. The counties of Potter, Sully, Faulk, Hand, Hyde, Hughes, Buffalo, Jerauld, Stanley, Xowlin as then consti- tuted and that portion of the counties of Pratt, Jackson, and Sterling not included in any Indian reservation, and the Standing Rock and Cheyenne Indian reservations, constitute the central di- vision, the court for which is held at the city of Pierre. All that portion of the State of South Dakota lying west of the central and southern divisions, and in addition thereto the Rosebud and Red Cloud Indian reservations, constitute the western division, the court for which is held at the city of Deadwood. Author's section. § 287. — Tennessee, three districts, one having three and others two divisions. The State of Tennessee is divided into three districts, called the eastern, western, and middle districts of Tennessee. The eastern district includes the counties of Anderson, Bledsoe, Blount, Bradley, Campbell, Carter, Claiborne, Cocke, Cumberland, Grainger, Greene, Hamilton, Hancock, Hawkins, Jefferson, Johnson, Knox, ■Mc- Minn, Marion, ]\Ieigs, Monroe, Morgan, Polk, Rhea, Scott, Sevier, Sullivan, Union, Washington and Grundy, as they ex- isted February 10, 1856,^^ and the county of Fentress as con- stituted December 27, 1884,^^ when it was transferred from the middle district. The western district includes the counties of Benton, Carroll, Henry, Obion, Dyer, Gibson, Lauderdale. Hay- wood, Tipton, Shelby, Fayette, Hardeman, McXairy, Hardin, Mad- ison, Henderson, Perry and Weakley, as they existed June 18, 1838.20 The middle district includes the residue of said State. The middle district is not divided into subdivisions, but each of the others is divided. The eastern district comprises tbe northeastern, the nortliern and tbe southern divisions. The nortbeastern was isAct Fed. 10. 18.50. c. S 1 . 11 Stat. 280. U. S. Conip. Stat. 1901. p. 417. 1. lioAct June 18. 1838. c. 18, 5 Stat. "Act Dec. 27, 1884. c. 7, 23 Stat. 249 439 § 288 JUDICIAL CIKCI ITS AND JUDICIAL DISTUICTS. [Code Fed. created Feb. 7. U)(I0. ovit of counties then embraced within the northern and soutliern divisions, and comprises the counties of Jolinson. Carter. Unicoi, Sullivan, Washinoton, (rreene, Hawkins, Hancock, Cocke and Hamblen, as then constituted. The southern division was created June 11, 18 them as divisions although it does creates a Victoria division of the not so desiiffnate tlieni. See act Mar. southern district. See act Apr. 18, 11, 1902. c.l8:5. ^ 10, 32 Stat. G8, V. S. 1906, c. 1636, 34 Stat. 121. 442 I Procedure] TEXAS DISTRICT AS SUBDIVIDED INTO DIVISIONS. § :iS9 counties being withdrawn June 9, 190G, to constitute the Del Rio division.^ ^ The Del Rio division, created June 9, 1906, comprises the counties of Uvalde, Zavella, Maverick, Kinney, Valverde, Ter- lell and Pecos. ^^ The Waco division comprises the counties of ^lilani, Robertson, Leon, Limestone, Freestone, McLennan, Falls, Bell, Coryell, Hamilton, Bosque, Somervell and Hill as then con- stituted. The El Paso division comprises the counties of El Paso, Presidio, Reeves, Loving, Winkler, Ward, Ector, Crane, Jeff Davis and Brewster as then constituted. In the southern district the places of holding circuit and district court are Brownsville, Galves- ton, Houston, Laredo and Victoria. The Victoria division was •created April 18, 1906, and comprises the counties of Bee, Calhoun, Dewitt, Goliad, Jackson, Live Oak, Refugio, Aransos, 8an Patricio and Victoria.^ -^ Subject to this later Victoria division, the Browns- ville division comprises the counties of Cameron, Hidalgo and Starr .as constituted March 11, 1902. The Galveston division comprises tlie counties of Austin, Fort Bend, Matagorda, Wharton, Brazoria, (lalveston and Chambers as then constituted. The Houston divi- sion comprises the counties of Lavaca, Colorado, Waller, Grimes, Brazos, Madison, Trinity, Walker, Montgomery, San Jacinto, Polk and Harris as they then existed; and also Fayette county was addetl January 21, 1905.^* The Laredo division comprises the counties of Zapata, Webb, Duval, Dimmit, Lasalle, McMullen, jSTueces a.s they then existed. In the eastern district the places of holding cir- <-uit and district court are Tyler, Beaumont, Sherman, Jefferson, Paris and Texarkana. The Tyler division comprises the counties •of Shelby, Xacogdoches, Angelina. Houston, Anderson, Cherokee, Panola, Rusk, Smith, Henderson, Van Zandt, Rains, Gregg and Wood as they existed March 11, 1902. The Beaumont division com- prises the counties of Jefferson, Liberty, Orange, Xewton, Jasper, Mardin, l^ylei-, San Augustine and Sabine as they then existed. The >^lierman division comprises the counties of Grayson, Cooke, Mon- tague, Denton and Collin as they then existed. The Jefferson divi- sion comprises tlio counties of Upshur, Harrison, Marion, Cass, 'Camp, Hopkins and Morris as they then existed. The Paris divi- sion ctomprises tlie counties of Lamar, Fannin, Red River and Delta iiAct Juiiefl. ]90(i, c. 3063. 34Stat. isAct Apr. IS. 1000. o. 10:10. 34 220. Stat. 1-21. i2Act June 9, 1900. c. 300.1. 34 Stat. i^Act Jan. 21. 1905, c. 52, 33 Stat. 22&. (;12. U. S. Comp. Stat. 1905, p. 121. 443 S li'JO .lUDK'lAL ClUt'L'lTS AM> .ILDKIAL DISTKICTS. [Code Fed. as they then existed. ^^ IMie Te.\ark;ina division eomprises of the counties of Bowie, Franklin and Titus as they existed March 'Z, 1903, when the division was created. ^^ Author's section. § 290. — Utah, one district of two divisions. The State of Utah constitutes hut one district, l)ut foi- ti)o pur- pose of holding terms of the district court it is divided into two divisions, known as the northern and central divisions. The coun- ties of Weber, Davis, Morgan, Eich, Cache and Box Elder as con- stituted March 2, 1897,^^ when the division was made, comprise the northern division, the court for which is held at the city of Ogden. All remaining counties of tlie State constitute the central division, the court for which is held at the city of Salt Lake. Author's section. § 291. — Vermont, one district. The State of Vermont constitutes but one district withotit any organized divisions thereof, though court is held at Burlington, Windsor, Ri;tland, and may be held at Montpelier.^o Author's section. § 292. — Virginia, two districts. The State of Virginia is divided into two districts, which shall he called the eastern and western districts of Virginia. The western district includes the cotmties of Albemarle, Allegliany, Andicrst, Appomattox. Augusta, Bath, Bedford, Bland, Botetcourt, Buchanan, Biickingham, Campbell, Carroll, Charlotte. Clai'ke, Craig, Cum- l)erland, Floyd, Franklin, Fi'cderick, Fluvanna. Giles, Crayson, Greene, Halifax, Henry. Highland. Lee, Madison, Montgomery, Nelson, Patrick, Page, Pulaski. Pittsylvania, Pappahannock, Poa- noke, Pockbridge. Pockingham. Pussell. Scott, Smyth, Shenandoali, Tazewell, Washington. Wise. Wythe and Warren. The eastern dis- trict includes the residue of said State. R. S. § 549, U. S. Comp. Stat. 1901, p. 437. The above section of tlie Revised Statutes necessarily refers to the terri- tory then embraced by the above named counties. i5See act Mar. 11, 1902. c. 183. 3i isAct ^Nlnr. 2. 1897. c. .366. 29 Stat. Stiat. 65. et seq. 020. XL S. Comp. Stat. 1901, p. 435. i6Act Mar. 2, 1903, c. 974, 32 Stat. -'OR. s. §§ 531, 807. 926. 444 i I'lOiedure] WASHINGTON— WISCONSIN. S 295 § 293. — Washington, two districts. Washington waj? divided into two districts on March 2, 1905.* All that portion of tlie State which inclndes the counties of Stevens, Ferry. Okanogan. Chelan, Spokane, Lincoln, Douglas, Adams, Franklin. Wallawalla, Garfield, Columbia, Asotin, Whitman, Yakima, Klickitat, Kittitas, and any and all Indian reservations in one or more of said counties, and such other counties as may be created in that portion of the State of Washington lying east of the Cascade Mountains, with the waters thereof, constitute the eastern opened, prescribe the duties of his officers, and the mode of pro- ceeding, and any of the details thereof. Notice of such sijecial term shall be given by the clerk by posting a copy of said order on the front door of the court house where the court is to be held, and by publishing the same in one or more newspapers in the same place." Author's section. While the provision of the Revised States above quoted was enacted be- fore the division of the State into districts, it would seem to be still in force and unimpaired by later laws governing the holding of regular terras. The statute creating the Owensboro division provided that circuit and dis- trict judges should have "the same power to call special terms in said divi- sion as they may now do under the laws of the United States elsewhere in said district. is 8R. S. § 579, U. S. Comp. Stat. uR. S. § 584. ante, § 314. 1901, p. 477. i2See ante in § 323. 9R. S. § 580, U. S. Comp. Stat. is Act Aug. 8, 1888. c. 792. 25 Stat. 1901, p. 477. 389, U. S. Comp. Stat. 1901, p. 359. lOR. S. § 579, U. S. Comp. Stat. 1901, p. 477. 4G1 S 327 TERMS OF FEDERAL COURTS. [Code Fed. § 327. — Louisiana, regular terms and adjournments. In the western district of Louisiana regular terms of circuit and district courts are lield at Lake Cliarles, for the Lalve Charles divi- sion, on the first Mondays in May and December ;^^ at Opelousas, for the Opelousas division, on the first ^londays in January and June; at Alexandria, for the Alexandria division, on tlie fourth ?Jondays in January and Jime; at Shreveport, for the division of that name, on the third Mondays in February and October: at ^lonrof. for the Monroe division, on the first Mondays of April and Octolx'r.'"^ in the eastern district of Louisiana terms of district court are held at Xew Orleans, for the Xew Orleans division, on the third Mon- days in Februar}', May and Xovember,i" and of circuit court on the fourth Monday in April and first Monday in Novembcn-;^^ at Baton Houge, for the Baton Bouge division, terms of both circuit and dis- trict court are held on the second ^londays in April and Xovem- ber.i^ By B. S. § 579 district judges in Louisiana are given pow.T to adjourn court "from time to time to meet the necessities or cou- \cnience of business.'"2o Author's section. § 328. — Maine, Maryland and Massachusetts. In the circuit court for the Maine district terms are held at Port- land on the third Tuesday of April and September ;i and in the district court at Portland the first Tuesday in February and De- cember; at Bangor the first Tuesday in June, and at Bath the first Tuesday in September.^ In Maryland, circuit court terms are held at Baltimore first Monday in April and November,'^ and at Cum- berland, second Monday in May and last Monday in September:^ and district court terms at Baltimore on first Tuesdays in Marcli, June, September and December,^ and at Cumberland on the second Monday in May and last Monday in September.*^ In Massaehiisclls isAct Mar. 2, 1905. c. 1308. 33 Stat. 1901. p. 534. as amended bv act Mav 841, U. S. Comp. Stat. 1905. p. 100. 14. 1902. c. 790. 32 Stat. 199. isAct Mav 18, 1900. c. 481, 31 2R. S. S 572. U. S. Comp. Stat. Stat. 179, U. S. Comp. Stat. 1901, 1901. p. 468. p. 368. 3R. s. S 658. U. S. Comp. Stat. ITR. S. § 572. 1901. p. 534. isR. S. § 658. -lAct Mar. 21. 1892. c. 20. 27 Stat. i9Act Aug. 13. 1888, e. 869. 25 Stat. 11, U. S. Comp. Stat. 1901. p. S^.^. 438. U. S. Comp. Stat. 1901, p. 367. r,R. R. § 572, U. S. Comp. Sit. 2 OR. S. § 579. U. S. Comp. Stat. 1901. p. 468. 1901, p. 477. «Act Mar. 21. 1892. c. 20, 27 Stit. iR. S. § 658, U. S. Comp. Stat. 11, U. S. Comp. Stat. 1901, p. 368. 4G2 ii Procedure] MICHIGAN— MINNESOTA. § 330 circuit court terms are held at Boston the last Tuesday of Fehruarv and third Tuesday of October;" and district court terms at Boston the third Tuesday in March, fourth Tuesday in June, second Tues- day in September, and first Tuesday in December.^ Author's section. R. S. §§ 572 and 658 provide that when the named day falls on Sunday the term shall commence the following day. § 329. — Michigan, regular and admiralty terms and adjourn- ments. In the ea.stern district of Michigan terms of circuit and district court are held at Detroit, for the southern division thereof, on the first Tuesdays in March, June and November ;i'' and at Bay City, for the northern division, on the first Tuesdays in May and Octo- ber." In the western district terms of circuit and district court are held at Grand Kapids, for the southern division thereof, on the first Tuesdays in ■Marcli and October; and at Marquette, for the northern division, on the first Tuesdays in May and September.^^ A special or adjourned term of the district court at Bay City in the northern division of the eastern district is required to be held beginning in Fel)ruary each year, for the trial of admiralty causes.^^ One or more terms of the district court must be held at Port Huron annually in the discretion of the judge and at such times as he shall appoint.^* By R. S. § 579 district judges in Michigan are em- j)o\vered to adjourn court "from time to time, to meet the neces- sities or convenience of business/'^^ Author's section. § 330. —Minnesota. in the district of Minnesota terms of district and circuit courts are lield at Winona, for the first division, on the third Tuesdays in May and Xovember; at Mankato, for the second division, on the fourth Tuesdays in April and October; at St. Paul, for the third ■Act May 14. 1902, c. 790, 32 Stat. Stat. 175, U. S. Comi). Stat. 19(11. 199. p. 370. SR. S. § 572. U. S. Comp. Stat. is Act Apr. 3o. 1894. c. 66, 28 Stat. 1001. p. 409. 67, U. S. Comp. Stat. 1901, p. 373. i"R. S. §§ 572, 658. V. S. Comp. i^Act June 19. 1878. c. 326. S 9, Stat. 1901. pp. 460. 534. 20 Stat. 177, U. S. Comp. Stat. 1901, iiAct Apr. .30. 1894. c. 66, 28 Stnt. p. 371. 67, U. S. Comp. Stat. 1901, p. 373. i5R. S. § 579. U. S. Comp. Stat. i2Act June 19, 1878, c. 326, 20 1901, p. 477. 463 § 331 TERMS OF FEDERAL COURTS. [Code Fed. division, on the first Tuesdays in June and December; at Min- neapolis, for the fourth division, on the first Tuesdays in April and •October; at Duluth, for the fifth division, on the second Tuesdays in January and July; and at Fergus Falls, for the sixth division, ■on the first Tuesday in May and second Tuesday in November.^ "^ Author's section. § 331. — Mississippi, regular and special terms. In the northern district of Mississippi terms of circuit and dis- trict court are held at Aberdeen, for the eastern division, on the first Mondays in April and October, and continuing twenty-four judicial days, if the business requires; and at Oxford, for the west- ern division, on the first Mondays in June and December, and con- tinuing so long as business requires.^'' In the southern district terms of circuit and district courts are held for the Jackson divi- sion on the fourth Mondays in January and June; at Meridian, for the eastern division, on the second Mondays of March and Septem- ber, continuing three weeks or so long as business requires ;2*^ at Biloxi, for the southern division, on the third Mondays in February and August;^ and at Vicksburg, for the western division, on the first Mondays in January and July, and continuing four weeks, or so long as business requires.^ The district judge in the northern district is also authorized to hold "additional special terms of said •courts, for the disposal of the unfinished business thereof, whenever the interests of the public and the condition of the docket shall so require; provided, that there shall not be more than two such spe- cial terms in any one year in each division, nor for a longer period than twelve judicial days for each special term.""^ Author's section. § 332. — Missouri, regular and adjourned terms. In the eastern district of Missouri terms of circuit and district iTSee act Apr. 20. 1890, c. 107, § July 18, 1894, c. 144, 28 Stat. 114, 4, 26 rStat. 73, U. S. Comp. Stat. U. S. Comp. Stat. 1001, p. 382. 1901, p. 376, as amended Act Feb. lAct Apr. 4, 1888, c. 58, 2,5 Stat. 9, 1904, c. 153, 33 Stat. 11, U. S. 78: act May 3, 1900, c. 344. 31 Stat. Comp. Stat. 1905, p. 101. 165; U. S. Comp. Stat. 1901. pp. 381, 19 Act June 15. 1882. c. 218, 22 384. Stat. 10], act Feb. 6, 1889, c. 113, 25 ^Act Feb. 28, 1887, c. 279, 24 Stat. Stat. 655, U. S. Comp. Stat. 1901, p. 430, U. S. Comp. Stat. 1901. p. 380. 378, 492. 3Act June 15, 1882, c. 218, § 10, 2 0Term is to continue three weeks 22 Stat. 103, U. S. Comp. Stat. 1901, ■or so long as business requires. Act p. 380. 464 Procedure] MONTANA AND NEBRASKA. § 333 courts are held at St. Louis, for the eastern division, terms of dis- trict court commencing on the first Mondays in ^Ma}' and Xovember,^ and of circuit court on the third Mondays in March and Septem- ber;^ at Hannibal, for the northern division, terms of both circuit and district court commence on the first Mondays in May and No- vember;''' and in the southeastern division at Cape Girardeau on the second Mondays in April and October.^ In the western district terms of circuit and district court are held at Kansas City, for the western division, on the fourth Monday in April and first Monday in November f at Joplin, for the southwestern division, on the sec- ond Mondays of June and January ;^*^ at St. Joseph, for the St. Joseph division, on the first Monday in March and third ]\Ionday in September ; at Jefferson City, for the central division, on the third Mondays of March and October ; and at Springfield, for the south- ern division, on the first Mondays in April and October.!^ "The circuit court for the several districts of ilissouri may at any time order adjourned terms thereof. In the eastern district a copy of the order shall be posted on the door of the court room, and shall bo advertised in some newspaper printed in St. Louis ; and in th^^ west- ern district a copy of the order shall be posted on the door of the court room and advertised in some newspaper printed in the city of Jefferson, at least twenty days before the adjourned term is lield. At such adjourned term any business may be transacted which might be transacted at a regular term.''^^ Author's section. An adjourned term is an extension of the preceding session.is § 333. — Montana and Nebraska. Terms of circuit and district courts in the Montana district are required to be held at Helena on the first Mondays in April ami November;! 5 at Butte on the first Tuesdav in Februarv and on the 5R. S. § 572, U. S. Comp. Stat. loAct Jan. 24. 1001. o. ]()4. 31 Stat. IWl. p. 470. 739, U. S. Comp. Stat. 1901. p. 390. 6R. S. § 658, U. S. Comp. Stat. nAct Apr. 19, 1892. e. 50. 27 Stat, inoi, p. 535. 20. U. S. Comp. Stat. 1901. p. 388. VAct May 14. 1890, c. 202, 26 Stat. i2R. s. § 633, U. S. Comp. Stat. 106, U. S.'Comp. Stat. 1901, p. 386. 1901. p. 543. 8Act Jan. 31, 1905. c. 287, 33 Stat. i3:\Iemo. 1 Cranch C. C. 159, Fed. 626, U. S. Comp. Stat. 1905, p. 103. Cas. No. 9.409. 9Act Apr. 19, 1892. c. 50. 27 Stat. i5Act Feb. 22. 1889, c. 180, § 21. 20, U. S. Comp. Stat. 1901, p. 388. 25 Stat. 682. Fed. Proc— 30. 465 § 334 TERMS OF FEDERAL COURTS. [Code FcJ. first Tuesday in September in each year;^^ and at Great Falls on the first Monday in ]\Iay and on the first Monday in October in each year, and causes civil and criminal may be transferred by the coiirt or judge thereof from Helena or Butte to Great Falls or from Great Falls to Butte or Helena, in said district, when the convenience of 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. ^'^ In the district of Nebraska terms of cir- cuit and district courts are held at Omaha on the first Monday in May and second Monday in November; at Lincoln on the third ]\ronday in January and first Monday in October ; at Hastings on the third Monday in April; and at Norfolk on the fourth Monday in April.18 Author's section. § 334. — Nevada and New Hampshire, In the district of Nevada circuit court terms are held at Carson on the third Monday in March and first Monday in November;' and district court terms at Carson on the first Mondays in February, May and October.^ The provision of E. S. § 664 respecting special circuit court terms in California applies also to Nevada.^ In tho district of New Hampshire,'* circuit court terms are held at Ports- mouth, on the first Tuesday of May ; at Concord on the second Tues- day of December ; and at Littleton last Tuesday in August ; and dis- trict court terms are held at Portsmouth on the third Tuesdays in March and September; at Concord on the third Tuesdays in June and December ; and at Littleton the last Tuesday in August. Author's section. § 335. — New Jersey at Trenton and Newark. Circuit court terms in the district of New Jersey are held at Trenton on the fourth Tuesdays in March and September, and dis- trict court terms at Trenton the third Tuesdays in January, April, i6Act July 7, 1898. c. 571, 30 Stat. lAct Feb. 18, 1876. c. 11, 19 Stat. 685. U. S. Comp. Stat. ioO\. p. 392. 4, U. S. Comp. Stat. 1901, p. 541. i7Act Apr. 27. 1904, c. 1610. 33 2R. S. § 572, U. S. Comp. Stat. Stat. 313, U. S. Comp. Stat. 1905. p. 1901. p. 470. 104. The same provision as to trans- sSee ante, § 316. fers is in the act of July 7, 1898, ^See R. S. §§ 668, 572. act Feb. 23, supra. ' 1881, c. 71, 21 Stat. 330; act IMar. 10, isAot Aug. 3. 1894. c. 194, 28 Stat. 1892, c. 15, 27 btat. 7, V. S. Co:r-i. 221, U. S. Comp. Stat. 1901, p. 392. Stat. 1901, pp. 393, 470. 53 i : u.c Alay 14, 1902, c. 790. 32 Stat. 199. 460 Procednre] NEW YORK TERMS. 5 3:JT June and September.^ But at any such term of either circuit or district court the judge or judges may by consent or upon applica- tion and good cause shown, order any civil cause set for hearing or trial at said term, to be tried at Newark upon a day set by said judge. Such application must be made to said judge either in vacation or term time, one week before the day set for trial, and on at least five days' notice to the opposite party, or his or her coun- sel.7 Author" section. § 336. — New York, circuit court terms. Terms of the circuit court in the four districts of New Yoric are held as follows : In the northern district of New York, ar Utica on the first Tuesday of December; at Syracuse on the firsi: Tuesday of April; at Albany on the second Tuesday of February. In the western district of New York, at Eochester, on the second Tuesday of May; at Canandaigua on the second Tuesday in Sep- tember; at Bufi'alo on the second Tuesday of November. In th ■ southern district of New York, at the city of New York, on tl: ■ first Monday in April and the third ]\Ionday in October ; and for the trial of criminal causes and suits in equity, on the last ]\Ion- day in February; and exclusively for the trial and disposal of criminal cases, and matters arising and pending in said court, ou the second Wednesdays in January, March and May, on the tliird Wednesday in June, and on the second Wednesdays in October and December: Provided, That the holding of any of the last-men- tioned terms for criminal business shall not dispense with nor affect the holding of any other term of the court at the same time, and tliat the pending of any other term of the court shall not prevent the holding of any of the said terms for criminal business. In the eastern district of New York, at Brooklyn, on the first Wednesday in every month.^ Author's section. § 337. — New York, district court terms. 1'erms of the district court in the four districts of New York 6See R. S. §§ 572. 6.5S. U. S. Comp. iiioning jurors and witnesses at New- Stat. 1901. pp. 470. .5,3fi. ark. "See act Aug. 8, 1888. c. 790, 25 sR. S. § 658. as amended act :\Inv Stat. 388. U. S. Comp. Stat. 1001, p. 12. 1000. c. 391. § 3. 31 Stat. 175, 393, which further provides for sum- U. S. Couip. Stat. 1901, p. 536. 467 S o3S TEKAIS VI' b'EiJLAlXL COURTS [Code Fed. are held as follows: In the northern district of jSTew York, at Albany, on the second Tuesday of February; at Utica on the first Tuesday of December; at Binghamton on the second Tues- day of June ; at Auburn on the first Tuesday of October ; at Syra- cuse on the first Tuesday of 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, Jef- ferson, Oswego and Franklin as he may from time to time appoint. Such appointment shall be made by notice of at least twenty days j)ublished in a newspaper published at the place where said court is to be held. In the western district of New York, at the city of Elmira, on the second Tuesday of January; at the city of Buffalo on the second Tuesdays of March and November ; at the city of Kochester on the second Tuesday of May ; at the city of Jamestown on the second Tuesday of July ; at the city Lockport on the second Tuesday of October. In the southern district of New York, in the city of New York, on the first Tuesday in every month. In the eastern district of New York, in Brooklyn, on the first Wednesday in every month. Eegular sessions of the district court for the western district of New York, for the hearing of motions and for proceedings in bankruptcy and the trial of causes in admiralty are required to be held at the city of Bufl'alo at least two weeks in each month of the year except August, unless the business is sooner dis- posed of. The times for holding the same, and such other special sessions as the court shall deem necessary, are directed to be fixed by rules of the court.^^ Author's section. § 338. — North Carolina, regular and special terms. In the eastern district of North Carolina terms of the district court are held at Washington on the second Mondays in April and October;^ 3 at Elizabeth City on the third Mondays in April and October; at Newbern, on the fourth Mondays in April and Octo- ber ; at Kaleigh on the fourth Monday of May and first IMonday of December; at Wilmington on the first Monday after fourth Mon- day in April and October.^ ^ Terms of the circuit court in the east- ern district are held at Washington, Raleigh and Wilmington, at iiR. S. § 572. act ]\Iav 12. 1900, c. is Act Mar. 3, 1905 c. 1437, 33 Stat. 391. 31 Stat. 175, 176. U. S. Comp. 1004, U. S. Comp. Stat. 1905, p. 107, Stat. 1901, pp. 395. 471. i4Act Aug. 9, 1894, c. 244, 28 Stat. 274. U. S. Comp. Stat. 1901, p. 398. 468 Procedure] NORTH DAKOTA— OHIO. § 340 the same times as terms of the district court there.^^ In the west- ern district terms of circuit and district courts are held at Greens- horough on the first Mondays in April and October; at Statesville on the third j\Iondays in April and October ; at Asheville on the first Mondays in May and Xovember;^^ at Charlotte on the second ]\Ion- days in June and December, to continue until the business is dis- posed of; and at Wilkesboro on the second Mondays of July and November, and continuing until the business is disposed of.^^ "In each of the districts of North Carolina the circuit court may order special terms thereof, to be held at such times and places in said district as the court may designate ; provided, that no special term of the circuit court for either district shall be appointed, except by and with the concurrence and consent of the circuit Judge."'^^ The district court clerks in North Carolina are given power to ad- journ a term of court for non-attendance of the judge by E. S. § 584, quoted elsewhere.^ ^ Author's section. § 339. —North Dakota. In the four divisions of the district of North Dakota terms of circuit and district court are held as follows: At Bismarck for southwestern division, first Tuesday in March ; at Fargo, for south- eastern division, third Tuesday in May; at Grand Forks, for the northeastern division, second Tuesday in November; at Devil's Lake, for the northwestern division, on the first Tuesday in July; and at Minot on the second Tuesday in October.^ Author's section. § 340. — Ohio, regular terms and adjournments. In the northern district of Ohio terms of circuit and district court are held for the eastern division thereof, at Cleveland on the first Tuesdays in Feliruary, April and October ; and for the western division at Tojedo on the first Tuesdays in June and December.^ In the southern district terms of circuit and district court are held 15R. S. §§ -572. 658, U. S. Comp. isAnte. § 314. 1901, pp. 471. 537. lAct June 29. 1906. c. 3595, 34 isAct June J9. 1878. c. 322. 20 Stat. Stat. 610. amending act of Apr. 26, 173, U. S. Comp. Stat. 1901, p. 398. 1890, c. 161. 26 Stat. 67, U. S. Comp. iTAct Feb. 23. 1903. c. 749, 32 Stat. 1901. p. 389. Stat. 852. 3Act Julv 27, 1882. c. 351. 22 Stat. 18R. S. § 667, U. S. Comp. Stat. 176, U. S. 'Comp. Stat. 1901, p. 404. 1901, p. 544. 4G9 § 341 TERMS OF FEDERAL COURTS. ICodo Fed. for the western division at Cincinnati on the first Tuesdays in Feb- ruary, April and October; and for the eastern division at Colum- bus on the first Tuesdays in June and December.-* By E. S. § 579 the district judges in Ohio are empowered to adjourn court "from time to time, to meet the necessities or convenience of the busi- ness."^ Author's section. § 341. — Oklahoma and Oregon. In the eastern district of Oklahoma regular terms of circuit and •district courts are to be held at Muscogee on the first ilonday 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 j\Ionday in October. In the western •district the regular terms are at Chickasha on the first j\Ionday of November; at Guthrie on the first Monday in January; at Okla- homa City on the first jMonday in March : at Enid on the first Mon- ■day in June, and at Lawton on the first Monday in October in eacli year." Circuit court terms in tlie Oregon district are held at Portland on the second Monday of April and the first ]\Ionday of October;* and district court terms on the first Mondays in ■March. July and November. ^ The provision of R. S. § 664, for special circuit court terms in California, applies also to Oregon,^"* Author's section. § 342. — Pennsylvania, regular and special terms and adjourn- ments. In the eastern district of Pennsylvania terms of district courts are held at Philadelphia on the second Mondays in March and June, the third Monday in September, and second Monday in Decem- ber^ ^ and of circuit court at Philadelphia on the first ]\[ondays in April and October.^ ^ In the western district terms of district court are held at Pittsburg on the first Monday in ■May and third 4 Act Feb. 4. 1880, c. 18. 21 Stat. 64, 9R. S. § 572. U. S. Comp. Stat. U. S. Comp. Stat. 1901, p. 403. 1901. p. 472. 5R. S. S 579. U. S. Comp. Stat. lOSee ante. § SIR. 1901. p. 477. i2Act June 30, 1902. c. 1,336. 32 vAct June 10. 1900. c. 3335, 34 Stat. 549. Stat. 275. 13R. S. s 658, U. o. Comp. Stat. 8Act Feb. IS. 1876, c. 11, 19 Stat. 4. 1901. p. 538. U. S. Comp. Slat. 1901. p. 541. 470 i Procedure] RHODE ISLAND TERMS. § 343 Monday iu October, and of circuit court on the second Monda}s oi ]\Iay and jSTovember ; and at Erie terms of both circuit and district courts are held on the third ]\Ionday in July and the second Monday in January.! ■* j^ the middle district terms of circuit and district court are held at Scranton on the fourth Monday of February and tliird Monday of October ; at Williamsport on the second Mondays of January and June ; at Harrisburg on the first jMondays in May and December. The law provides that sessions in the middle district are to continue so long "as the judges thereof shall severally direct and determine; and adjourned sittings and sessions may be held from time to time according as the business of the said courts shall, in the opinion of the same, require it.''^^ Moreover, the circuit and district court for the middle district, or either of them, "may from time to time, in their discretion, appoint special terms of court, civil or criminal, and require grand, traverse, or petit juries, or all of them, to attend the same, by an order to be entered of record thirty days before the day at which such term shall convene, and at such special terms shall have all the powers which they respectively have at the regular terms appointed by law; Provided, however, That no special term of said circuit court shall be appointed except upon the order of the circuit judge or of the associate judge of the Supreme Court allotted to the third judicial circuit."^'' An earlier provision of the Eevised Statutes applicable to Pennsylvania and a few other States, authorizes the district judges to adjourn court "from time to time, to meet tlie necessities or convenience of the business."!'^ Author's section. § 343. — Rhode Island at Providence and Newport. Circuit court terms in the district of Ehode Island are held at Providence on the fourth Tuesday of May and 15th day of Novem- ber.i District court terms are held at Providence on the first Tues- KR. S. §§ 572. 658. U. S. Comp. itR. S. § 579, U. S. Comp. Stat. Stat. 1901, pp. 472. 5.38. 1901, p. 477. i5Aet June 30. 1902. c. 1.335, 32 lAct Mav 14. 1902, c. 790, 32 Stat. Stat. 549. U. S. Comp. Stat. 1905. p. 199. R. S. '§ 658. U. S. Comp. Stat. 107. 1901, p. 538. When that date falls i6Act M«r. 2. 1901. c. 801, § 6. on Sunday, then the term commences 31 Stat. 884, U. S. Comp. Stat. 1901. tlie following day. p. 407. 471 5 344 TEUMS OF FEDERAL COURTS. [Code Fed. (lays in Febrnarv and August, and at Newport on the second Tues- day in May and the third Tuesday in Octolicr.^ Author's section. § 344. — South Carolina. Terms of district court in tlie western division of the South Carolina district are held at Greenville on the third Tuesdays in April and October; and in the eastern division at Charleston on the first Tuesdays in June and December, at Columbia on the fofurth Tuesday in November, and at Florence on the first Tuesday in ^larch.^ Terms of the circuit court are held at Greenville on the third Tuesdays in April and October; at Columbia on the fourth Tuesday of November; at Charleston on the first Tuesday in April ; and at Florence on the first Tuesday in March.'' Author's section. South Carolina constitutes only one district though the legislation of Congress is ambiguous and seems to speak of two. Congress also seems to assume the existence of one circuit court for the entire district, but of two district courts, one for each division.6 § 345. — South Dakota. The terms of the district and circuit courts of the United States in and for the State of South Dakota are held at Sioux Falls, the first Tuesday in April and the third Tuesday in October; at Aber- deen, the first Tuesday in ]\Iay and the second Tuesday in November; at Pierre, the second Tuesday in June and the first Tuesday in October; at Deadwood, the third Tuesday in May and the first Tuesday in September.* Author's section. § 346. — Tennessee, regular, intermediate and special terms and adjournments. In the eastern district terms of circuit and district court are held at Chattanooga for the southern division on the first IMondays in April and December ;^° at Knoxville for the northern division, on 2R. S. § 572. U. S. Comp. Stat. 6Ant«. § 284. 1901, p. 472. sAct I\rav 9, 1902, c. 785, 32 Stat. 4See act Dec. 21. 1898. c. 32. § 197. 4. 30 Stat. 7G9. U. S. Comp. Stat. loAct .June 18, 1906, c. 3341, 34 1901. p. 409. Stat. 298. 5 Act Mav 10. 1900. c. 390. 31 Stat. 174, U. S.'Comp. Stat. 1901, p. 410. 472 Procedure] TEXAS. § 347 the tirst Monday in March and second Monday in September, con- tinuing as long as the presiding judge may deem necessary ;i^ and at Greeneville for the northeastern division, on the first ^londays in June and Xovember. each term to continue as long as the presiding judge shall deem necessary.^ ^ In the middle district terms of circuit and district courts are held at Xashville on the first Mondays in May and October.^^ In the western district terms of circuit and district court are held at Jackson for the eastern division thereof, at least twice each year, at such times as the judge shall fix;^^ and at Mempliis for the western division on the fourth ^londays in May and Xovember.^-' When a judge in any Tennessee district court fails to hold a regular term intermediate terms may be held.^ ^ The district court clerks in Tennessee are given power to adjourn a term of court for nonattendance of the judge in certain cases, by K. S. § 584, quoted elsewhere.^ '^ ''In each of the districts of Ten- nessee the judges of the circuit court may appoint special terms thereof, to be held at the place where the regular terms are held : and notice of such special term shall be published for four con- secutive weeks in at least one newspaper printed at the place where the court is to be held.''^^ Author's section. § 347. —Texas. In the southern district of Texas terms of circuit and district court are held at Galveston on the second Monday of January and the first ]\Ionday of June; at Houston on the fourth ^londays of February and September; at Laredo on the third IMonday of April and second Monday of Xovember ; at Brownsville on the second Monday of j\Iay and the first ]\Ionday of December •^ and at Vic- toria twice in each year, tlie times to be fixed by the judges of said courts "of which they shall make publication and give due notice."^ In the northern district terms of circuit and district courts are held 11 Act Feb. 2, 1899. c. S.3. 30 Stat. i^R. S. §§ 572, 658, U. S. Comp. 814. U. S. Comp. Stat. IflOl, p. 418; Stat. 1901. p. 473. 538. act Apr. 28. 1904. c. 1797. 33 Stat. i^Seo post. § 361. 545, U. S. Comp. Stat. 1905. p. 110. iTAnt<>. § 314. i2Act June 18. 1906, c. 3.341. 34 isR. S. § 666, U. S. Comp. Stat. Stat. 298. 1901, p. 544. i3Act June 18, 1906. c. 3341, 34 lAct Mar. 11. 1902. c. 183. 32 Stat. Stat. 298. 66, et seq. U. S. Comp. Stat. 1905, 14 Act June 20, 1S7S. c. 359. 20 p. 117. Stat. 235. U. S. Comp. Stat. 1901, 2Act. Apr. 18, 1906. c. 1036, 34 p. 414. Stat. 121. 473 § 348 TERMS OF FEDERAL COURTS. [Code Fed. at Dallas, in the county of Dallas, on the second Monday of Jan- uary and the first Monday of May ; at Fort Worth, in the county of Tarrant, on the first Monday of N"ovember and the second Monday of March ; at Abilene, in the county of Taylor, on the first jMonday of October and the second Monday of April; and at San Angelo, in the county of Tom Green, on the third Monday of October and the fourth Monday of April. In the eastern district terms of cir- cuit and district courts are held at Tyler, in the county of Smith, on the fourth ]\Ionday of January and the fourth Monday of April ; at Jefferson, in the county of IMarion. on the first ]\Ionday of Octo- ber and the third ^londay of February ; at Beaumont, in the county of Jefferson, on the third Monday of November and the first Mon- day of April; at Sherman, in the county of Grayson, on the first j\Ionday of January and the third Monday of May; and at Paris, in the county of Lamar, on the fourth Monday of October and the second ]\Ionday of March. In the Avestern district terms of circuit and district courts are held at Del Eio twice eacli year, at times to be fixed by the judges, by due notice given and by publica- tion ;2 at Austin, in the county of Travis, on the fourth IMonday of January and the second Monday of June ; at Waco, in the county of McLennan, on the second Monday of November and the fourth Monday of February; at San Antonio, in the county of Bexar, on the third Monday of December and the first Monday of May ; and at El Paso, in the county of El Paso, on the first Monday of Octo- ber and the first Monday of April.-* By R. S. § ~^79 the district judges in Texas and a few other States, are authorized to ad- journ court "from time to time to meet the necessities or convenience of the business."^ Author's section. § 348. — Utah, at Ogden and Salt Lake. Circuit court terms for the Utah district are held at Ogden, for ihe northern division, on the first Mondays in March and Septem- ber ; and at Salt Lake, for the central division, on the first Mondays in May and December.'^ District court terms are held at Salt Lake City on the second Monday in April and November and at 3Act June ;}. 1006, c. 30G3. 34 Stat. 5R. S. § 579, U. S. Comp. Stat. 226. 1901. p. 477. ■•Act Mar. 11. 1902. c. 183, §§ 11- '^Act Mar. 2, 1897, c. 366, 29 Stat. 14, 32 Stat. 66 et seq. 621. 474 i'rocedure] VERMONT— VIRGINIA. § 350 Ogden City on the second Monday in March and September of each A'ear: Provided, That other terms of said court may be held at said Salt Lake City and Ogden City and at other places in said district when deemed necessary by the judge.^ Author's section. § 349. —Vermont. Circuit court terms for the Vermont district are held at Bur- lington on the fourth Tuesday in February; at Windsor on the fourth Tuesday in July; and at Rutland, on the third day of Oc- tober.i" District court terms are held at Burlington on the fourth Tuesday in February; at Windsor on the Monday following the fourth Tuesday in July; and at Rutland on the sixth day of Octo- ber.^ ^ One of the stated terms above specified may in each year when adjourned be adjourned to meet at Montpelier;^^ ^nd there is a similar provision for adjournment to ISTewport.^^ Author's section. R. S. ?§ 572 and 658 provide that if a term day specified fall on Sunday the term shall commence the next day. § 350. — Virginia, regular and special terms. In the eastern district of Virginia terms of circuit and district court are held at Richmond on the first Mondays of April and October; at N'orfolk on first Mondays of May and November; and at Alexandria, on first Mondays of January and July.^^ In the western district the times and places for holding district and cir- <'uit courts are as follows, to wit; At Charlottesville, the second Monday in January and the first Monday in July ; at Roanoke, the third Monday in February and the third Monday in June ; at L}Tich- burg, on the Tues^day after tlie second Monday in ^Mareh and Sep- tember; at Danville, on the Tuesday after the second ^Monday in -Vpril and Xovember; at Abingdon, on the Tuesday after the first Monday in ^lay and October; at Harrisonburg, on the Tuesday after the first Monday in June and December; at Big Stone Gap, on the ■*Aanu> place where any regular term is held, or at such other place in the dis- trict as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. And any business may be transacted at such special term which might be transacted at a regular term. R. S. § 581, U. S. Comp. Stat. 1901, p. 477. § 360. Monthly adjournments of district court for criminal causes. 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. R. S. § 578, U. S. Comp. Stat. 1901, p. 476. The above provision was enacted in 1842.9 § 361. Intermediate district court terms in California, Iowa and Tennessee. Whenever the judge of any district court in the districts of California, Iowa, and Tennessee fails to hold any regular term thereof, it shall be his duty, if it appears that the business of the •iUnited States v. Cornell, 2 Mason, "United States v. Williams, 4 Cr. m, Fed. Cas. Xo. 14,808. C. C. 372. Fed. Cas. ]So. 16,712. sUnited States v. Williams, 4 Cr. sAct Aug. 23. 1842, c. 188, § 3, C. C. 372. Fed. Cas. No. 16,712. 5 Stat. 517. sUnited States v. Insurgents, 3 Dall. 513. Fed. Cas. No. 15.442. 480 I Procedure] ADJOURNMENT OF CIRCUIT COURT. § 363 court requires it, to hold an intermediate term. Such intermediate term shall be appointed by an order under his hand and seal, ad- dressed to the clerk and marshal at least thirty days previons to the time fixed therein for holding it, and the order shall be published the same length of time in the several newspapers pub- lished within such districts respectively. And at such intermediate term the business of the court shall have reference to and be pro- ceeded with in the same manner as if it were a regular term. R. S. § 5S6, U. S. Comp. Stat. 1901, p. 479. § 362. Adjournment of circuit court sessions in absence of judges. If neither of the judges of a circuit court is present to open any session, the marshal may adjourn the court from day to day until d judge is present : Provided, that if neither of them attends be- fore the close of the fourth day after the time appointed for the commencement of the session, the marshal may adjourn the court to the next regular term. R. S. § 671, U. S. Comp. Stat. 1901, p. 545. The opening of the court by the marshal under the above provision is a ministerial act only, and the fact that it occurs on Sunday does not render it necessarily void.n § 363. Adjournment of circuit court by judge's written order. If neither of the judges of a circuit court be present to open and adjourn any regular or adjourned or special session, either of them may, by a written order, directed alternatively to the marshal, and, in his absence, to the clerk, adjourn the court from time to time, as the case may require, to any time before the next regular term. R. S. § 672, U. S. Comp. Stat. 1901, p. 546. The words "any regular adjourned or special session" refer to any day at which a court is appointed to sit.i3 A "written order" has been held to include a telegraph but not a telephone order.i^ Omission to make such an order does not cause the term to lapse, but if properly commenced it will continue until final adjournment, unless previously terminated by the court or by law. is iiPuleston V. United States, 85 i^Schofield v. Cattle Co. 65 Fed. Fed. 575. 43.3. i3Pitman v. Unitea States, 45 Fed. i5Idem; and see United States v. 159. Pitman, 147 U. S. 669. 37 L. ed. 324, 13 Sup. Ct. Rep. 425. Fed. Proc— 31. 481 S 364 TKIJMS OP FEDERAL COURTS. [Code Fed. § 364. Adjournment of district court for non-attendance of judge. If the judge of any district court is unable to attend at the commencement of anv regular, adjourned, or special lerm. the court may be adjourned by the marshal, by virtue of a written order directed to him by tlie judge, to the next regular term, or to any earlier day, as the order may direct. R. S. § 583, U. S. Comp. Stat. ]901, p. 478. § 365. Circuit court always open in equity for certain purposes. The circuit courts, as courts of equity, shall be deeme 1 always open for the purpose of filing any pleading, of issuing and return- ing mesne and final process, and of making and directing all in- terlocutory motions, orders, rules, and other proceedings, prepara- tory to the hearing, upon their merits, of all causes pending there- in. And any judge of a circuit court may, upon reasonable notice to the parties, make and direct and award, at chambers or in the clerk's office, and in vacation as well as in term, all sucit process, eommissions, orders, rules, and other proceedings, whenever the same are not grantable, of course, according to the rules and prac- tice of the court. R. S. § 6.38. U. S. Comp. Stat. 1901, p. 519. An act of 1890 provides that the circuit court shall always be opeii fir the purpose of hearing appeals from the board of general appraisers. it The district courts also are always open in admiralty and equity for cer- tain purposes. 18 Under this section a motion for an attachment for con- tempt in equity may be made at any time.19 The first equity rule, pro- mulgated by the Supreme Court in 1842,2 pro\'ides as follows: '"The circuit courts, as courts of equity, sliall be deemed always open for the purpose of filing bills, answers and other pleadings for issuing and returning mesne and final process and commissions, and for making and directing all inter- locutory motions, orders, rules and other proceedings, preparatory to the hearing of all causes vipon their merits." § 366. — always open for certain commerce proceedings. For tlie purposes of this act, [i. e., the Commerce act of 1887 as amended 1889] excepting its penal provisions, the circuit courts of the United States shall be deemed to be always in session. Part of § 16, act Feb. 4, 1887, c. 104, 24 Stat. 384, as amended June 29, 1906. e. 3591, 34 Stat. 59*2. I'Post. § .367. i9Vo.se v. Reed, 1 Woods, 647, Fed. isPost. § 368. Gas. No. 17.011. 2 "See post, § 802. 482 I'loceame] TERMS OF FEDERAL COURTS. S 369 The above is the concluding provision of § 16 of the act of 1887 as amended in 1906. The other portions are given in a subsequent chapter of this code.i § 367. — always open for appeals from general appraisers. For the purposes of this section [i. e., providing appeals from the Board of General Appraisers]^ the circuit courts of the United States shall be deemed always open. Part of § 15, act June 10, 1890, c. 407, 26 Stat. 138, U. S. Comp. Stat. 1901, p. 1934. § 368. District court always open in admiralty or equity for cer- tain purposes. The district courts, as courts of admiralty, and as courts of equity, so far as equity jurisdiction has been conferred upon them. shall be deemed always open, for the purpose of filing any plead- ing, of issuing and returning mesne and final process, and of mak- ing and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing, upon their merits, of all causes pending thei-ein. And any district judge may, upon rea- sonable notice to the parties, make, and direct and award, at chambers, or in the clerk's office, and in vacation as well as in tei-ni. 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. R. S. § 574, U. S. Comp. Stat. 1901, p. 475. This section was enacted in 1842.5 Its provisions are substantially the same as those provided for the circuit court under the first equity rule« and under R. S. § 638.' A session of the court is held whenever business, as described by this provision or by R. S. § 638, is transacted by a judge between regular terms. « § 369. Alteration of terms not to affect suit or process. No action, suit, proceeding, or process in any district [or circnit]^^ court shall abate or be rendered invalid by reason of any act chang- ing the time of holding such court; but the same shall be deemed iPost, §§ 134.5. et seq. 7Ante. § 365. 3See ante. § 140. sButler v. United States, 87 Fed. 5 Act Aug. 23. 1842. c. 188. § 5, 5 655. Stat. 517. ' lOR. S. § 660, U. S. Comp. Stai. 8 Central Trust Co. v. Coal etc. Co. 1901. p. 542. 60 Fed. 15. 483 § 370 TERMS OF FEDERAL COURTS. [Code Fed. to be returnable to, pending, and trialde in the terms established next after the return day thereof. R. S. § 573, U. S. Comp. Stat. li)01, p. 475. § 370. Causes not discontinued by new term. When the trial or hearing of any cause, civil or criminal, in a circuit or district court, has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said court; and the court may proceed therein and bring it to a con- clusion, in the same manner and with the same effect as if another stated term of the court had not intervened. R. S. § 746, U. S. Comp. Stat. 1901, p. 590. This section was carried into the Revised Statutes from an act of 1855. n A trial is commenced and is in progress within the meaning of its terms al- .though a full jury is not empaneled before the terra ends. 12 11 Act Mar. 2, 1855, c. 140, 10 Stat. i2United States v. Lougherty, 13 G30. Blatchf. 207, Fed. Cas. No. 15,631. 4S4 CHAPTEE 11. COURT RECORDS AND PLACES WHERE KEPT. § 378. Records of Supreme Court and Court of Claims. § S79. Records of circuit court of appeals. § 380. Records of the old court of appeals. § 381. Particular provisions as to circuit and district court records in various districts. § 382. General provision as to distict court records. § 383. Transfer of records of territorial courts on State's admission. § 384. Duty of district judge to demand territorial court records. § 385. Duty of clerk to keep indexes to records. § 386. Duty to keep bankruptcy indexes. § 387. Certified copy of original records lost or destroyed. § 388. Proof of substance of record where no copy obtainable. § 389. Record in appellate court may replace lost record below. § 390. IMode of giving notice, and proof thereof in proceedings to restore records. § 391. Copies to supply originals in cases where United States are parties. - — force and effect of copies substituted for lost originals. § 392. Restoration of records in cases where United States are parties, — compensation, etc. § 393. All official records and dockets open for investigation. § 394. Records of abolished circuit court commissioners. § 395. Records kept by United States commissioners. § 3Q6. Affidavit to supply State court record when certified copy refused. § 378. Records of Supreme Court and Court of Claims. The Supreme Court rules require the clerk to "reside and keep the office at the seat of the national government" and inferentially make him the custodian of its records by forbidding "any original record or paper to be taken from the court room, or from the office, without an order from the court."^ The law requires the Court of Claims to hold sessions at Washington,- and its rules make its clerk there resident, custodian of its records. Aiithor's section. § 379. Records of circuit court of appeals. Rules of the circuit courts of appeals in the several circuits iSee Supreme Court Rule 1 in ap- 2Ante. § .308. pendix. "See rules in appendix. 485 S o80 COl irr UKiOitDS. ICode Fed. require the clerk of the court to keep an otfice at the place in the circuit where the circuit coui't of ap[)eals act requires an annual tenu to be held :^ and to "carefully preserve in his office one copy of the printed record in every case submitted to the court for its considera- tion, and of all printed motions, briefs, and arguments filed there- in."^ The acts requiring terms at other places in certain districts have not required a deputy clerk's office at such places or the keep- ing of records there. "^ Author's section. § 380. Kecords of the old court of appeals. The records and proceedings of the court of appeals, appointed jirevious to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies tbereof 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. R. S. § 679, U. S. Comp. Stat. 1901, p. 559. This provision was enacted in 1792.*' § 381. Particular provisions as to circuit and dictrict court rec- ords in various districts. There are a number of special statutory provisions as to the place where circuit and district court records shall be kept where the courts meet at more than one place within a district and especially where districts have been divided into divisions. In other cases the failure to make such provision has resulted in the establishment of depositaries of the records of circuit and district courts without specific statutor}' authority which could be produced here. Thus, the district jvidges are authorized, where court is held at more than one place in the district, to designate places of keeping their records where Congress has failed to do so.-* Directions for the appoint- ment of deputy clerks to reside at places within a district where terms of court are held are found in the statutes regulating thn organization of the Federal courts in many States, and these very strongly imply an intent on the part of Congress to have the 4Ant« § 309. 8 Act May. 8, 1792, § 12, c. 36, 1 5 See Rules 5 and 27 of tliose courts Stat. 279. in Appendix. aPost, § 382. 6See ante, §§ 310, 311. 486 Procednre] PARTICULAR PROVISIONS AS TO RECORDS. § 381 [a] records of causes there cognizable, kept at such place. ^"^ A provision that process in suits against residents of certain counties shall l)e returnable to the terms of court held at a place therein, with di- rections for terms of court at that place, would not necessarily im- ply that records should be kept there, at least, in the absence of a provision requiring a deputy clerk there resident.^ ^ In the case of California, f^i Colorado, ^^i Georgia,f°^ Illinois, f*^' Indiana,^®^ Ken- tucky, "^^^ Michigan,!^"^ Minnesota,'^*'^ Mississippi, ^^^ Missouri,'^! North Carolina, f*"^ Pennsylvania,"^ Tennessee, i^™^ and Virginia, "^"^ there are more or less complete provisions as to the places of keeping court records. The practitioner must often ascertain the status in his own State, district, and division from a local rule of court or perhaps even from local custom. Aside from the statutory provisions on the subject of court records below referred to, there have frequently been special provisions temporary in character and operation, re- quiring that the records in causes transferred to a newly created judicial division or district be transmitted to the clerk in such new district or division to be there proceeded with.^- Provisions respecting records as evidence are contained in the chapter of evidence.^ ^ Author's section. [a] California. The clerks of the circuit and district courts of the northern district i>t California retained the records and files of said courts when tiiey had juri- dicfcion over all of California prior to its division into two districts, at Ihi- city of San Francisco. They are authorized at the request of the district judge of the southern district, and at the cost of the parties requiring the same, to make transcripts of any of the records, files or papers of the dis- trict and circuit courts of the United States remaining in their offices and of all matters or proceedings which relate to or concern liens upon or titles to real estate situated in the southern district, "and such transcripts, when so made by either of said clerks, shall be certified to be true and correct by the clerk making the same, and the same, when so made and certified and filed in the proper court, shall constitute the record in such court, ami shall be evidence in all courts and places equally with said originals."i4 The act creating two divisions in the southern district required the clerk's oflRce to be in Ix>s Angeles, "where all records for said courts may be kept lOSee post. § 5tJ!K 183. § 7. 32 Stat. m. V. S. Comp. iiSee act as to tlie two divisions Stat. 1003. p. 60. in the southern district of California. i3See post. § 1777 et seq. Act Mav 29. 1900. c. .")94. 31 Stat. i^Act Aug. -l. ISSli. c. 928, 24 Stat. 219. U. 'S. Comp. Stat. 1901. p. 320. 30S. V. S. Comp. Stat. 1901. p. 324. 12E. g. see act March 11, 1902. c. 487 § 381 ,[b] COURT RECORDS [Code Fed. and all duties performed, but should, in the judgment of the district judge and the clerk, the business of said courts hereafter warrant the employ- ment of a deputy clerk at Fresno" then a deputy may be appointed to reside and keep his office at Fresno. is [bj Colorado. The act of 1879 dividing Colorado into three districts for district court purposes provided for keeping district court records at Denver, Pueblo and Del Norte.i6 The act of 1880, abolishing the divisions, provided that the records of the district court in the several divisions "shall be kept and re- tained in the clerk's office of the district court of Colorado," i. e., at Den- ver.i" The act changing the place of holding court from Del Norte to Montrose provided for a transfer of all records, files and books of the circuit and district courts to Montrose.is [c] Georgia. The only reference to the place of keeping records, in the statutes af- fecting the courts in Georgia, is in the provision for the eastern division of the northern district that "all pleadings and other papers may be filed in the clerk's office of Atlanta."2 The appointment of deputy clerks for divisions is made optional.i [d] Illinois. There are provisions for deputy clerks with offices at diflFerent places in the northern and southern districts, where terms of court are held: 2 and a provision that in the southern district the clerks of circuit and dis- trict court shall keep an office at each place of holding court and "shall there keep the records, files and documents pertaining to the court of that division."3 [e] Indiana. The deputy clerks appointed for the circuit and district court offices at Hammond and Fort Wayne are required to "keep in their offices such rec- ords as appertain to their offices, and . . . full records of all actions, proceedings and judgments in said courts."^ Each of the deputies for tlie district court in New Albany and Evansville must "keep in his office full records of all actions and proceedings in the district court" held there. 5 isAct Mav 29, 1901, c. 594. § 9, iSee post, § 569. 31 Stat. 220,"^ U. S. Comp. Stat. 1901, 2Post, § 569. p. 328. 3 Act Mar. 3, 1905, c. 1427, § 10, i6Act Feb. 15. 1879, c. 82. § 5, 20 33 Stat. 994, U. S. Comp. Stat. 1905, Stat. 293. p. 92. 17 Act Apr. 20, 1880, c. 58, 21 Stat. 4 Act Mar. 3. 1881, c. 154, § 2, 21 76. Stat. 511. Act Feb. 14, 1899, c. 155, isAct Feb. 16. 1903. c. 5o5, 32 Stat. § 2. 30 Stat. 836. U. S. Comp. Stat. 8,33. 1901, p. 348. 349. 2 0Act Feb. 28, 1901. c. 621. 31 Stat. sR. S. § .559. U. S. Comp. Stat. 818, U. S. Comp. Stat. 1901, p. 341. 1901. p. 4.53. 488 Procedure] PARTICULAR PROA-ISIONS AS TO CIRCUIT COURT. § 381 [j] [f] Kentucky. The deputy district court clerk for the Owensboro division in Kentucky must "keep and preserve the records of the court at 0\vensborough."6 [g] Michigan. In the western district the deputy clerk appointed for the circuit and district courts held at Marquette must "keep in his office full records of all actions and proceedings in the said circuit and district courts for the northern division of said district held at that place."" In the eastern dis- trict the deputy clerks of the circuit and district courts at Bay City are required to keep "dockets and full records of all actions and proceedings" of those courts in the northern division of the district.8 [h] Minnesota. The clerks of the circuit and district courts in Minnesota and their deputies are required to keep the recordsio of those courts in each division at the place appointed for the terms of court.n [i] Mississippi. Jn the northern district the circuit and district court clerk must keep an office in each division of the district and, with his deputy, "keep the records, files and documents pertaining to the court of that division" at the place where court is held therein.12 In the southern district deputies are required to keep an office at various places therein, but nothing is said about records.is [jj Missouri. Jn Missouri there is a separate circuit and district court in each division of the two districts except the southwestern division of the western dis- trict,! 5 hence for each court there is a clerk at St. Louis, Hannibal, St. Joseph. Kansas City, Jeffereon City and Springfield, who is required to keep "the records, files and documents pertaining to the court of his divi- sion."! 6 The law creating the southwestern division of the western district provided that all records of that court may be kept at Springfield except when the court is in session at Joplin within the division, but permits the appointment of a deputy clerk for Joplin and new books and records for the courts there, when in the district judge's opinion the business so war- 6Act Aug. 8. 1888, c. 792, § 3, 25 uSee ante. § .330. Stat. 300. U. S. Comp. Stat. 1901, i2Act June 15. 1SS2. c. 218. § ^!. P- 3(iO. 22 Stat. 102, U. S. Comp. Stat. 'Act June 19. 1878. c. 326, § 4. 20 100], p. 379. Stat. 176, U. S. Comp. Stat. 1901, isPost. § 569. p. 371. isAnte. § 103. note. sAct Apr. 60. 1894. c. 66. § 4. 28 isAct Feb. 28. 1887, c. 271. § 5. 24 Stat. 07. U. S. Comp. Stat. 1901. Stat. 426. U. S. Comp. Stat. 1901. p. 374. p. .387. The clerks at St. Tx)uis and if.'Vct Apr. 26, 1890, c. 167, § 5, Jefterson Citv w<^re established prior 26 Stat. 73, U. S. Comp. Stat. 1901, to this act under tlie earlier law di- P- 376. viding Missouri into two districts. 489 S 381 [k] COURT REf!ORDS [Code Fed. rants. 1' A similar provision was made wlien the southoa.stern division of the eastern district was created with headquarters at Cape (Jirardean.l* There is a provision of an act of 1887 reorganizing and dividing the Mis- souri districts, requiring the clerk to certify the record in any case trans- ferred to another division and specifying his fees, but it is not clear that it applies to any except pending causes. 1 9 [k] North Carolina. In the eastern district a circuit and district court clerk was recently authorized for Wilmington, in addition to the one at Raleigh, who has "the custody and control of the records of said courts" at Wilmington.-' i Clerks at Wilkesboro and Washington, N. C, were provided for by an act estab- lishing terms at those places. i [1] Pennsylvania. The act creating a third district in Penn.sylvania. known as the middle district, provided for the enforcement of judgment and other liens in the new district based upon proceedings in one of the old districts by the ob- taining of certified copies thereof and entering them in the court of the middle district. 2 The act of 1902 provided that in the middle district, the records of circuit and district courts should be kept at Scranton. "but the said courts may provide by rtile for the keeping of provisional or tem- porary records at Harrisburg and Williamsport of such actions, suits or proceedings as may be there entered or brought. Nothing herein con- tained, however, shall be construed as requiring the removal to Scranton of the records of the late courts of the western district at Williamsport, but the same shall there remain as heretofore, under the control and direc- tion of the courts of the middle district, as provided in the ninth section of the act, to which this is an amendment, and in the charge and custody of the respective clerks thereof. "s [m] Tennessee. The act creating tlie northeastern division of the eastern district specific- ally provides that the clerk's office and records for said division may be kept at Knoxville. but that new books and records may be opened in Greeneville and a deputy there appointed if the district judge deem that business so warrants. < There is no other statutory provision as to records in Ten- I'Act Jan. 24. 1901. c. 164. § 3. 852: Act Mar. 3. 1905. c. 1437. .33 31 Stat. 73tJ. U. S. Comp. Stat. 1901, Stat. 1004, U. S. Comp. Stat. inO.i. p. ]). 390. 106. 107. isAct Jan. 31, 1905, c. 287, § 4, -'Act Mar. 2. 1901. c. 801. § 7, 31 33 Stat. 627. U. S. Comp. Stat. 1905, Stat. 881, U. S. Comp. Stat. 1901, |). 103. p. 407. i9Act Feb. 28. 1887. § 4. 24 Stat. 3Act June 30. 1902. c. 1.335. 32 Stat. 425. 549. r. S. Comp. Stat. 1905. p. 108. 2iAet Apr. 15, 1902. c. 508. 32 4Act Feb. 7. 1900. c. 10. § 3. 31 Stat. 106. Stat. 5, U. S. Comp. Stat. 1901, p. lAct Feb. 23, 1903. c. 749. 33 Stat. 419. 490 I'loeedure] AND PLACES WHERE KEPT. { 383 nessee. though there are several provisioos a3 to deputy clerks for different ■divisions. 5 [n] Virginia. In the eastern district of Virginia tlie records of the district court are required by act of 1899,s to be kept at the respective places where the said ■court meets therein." In establishing term? at Roanoke City and Bigstone r.ap deputy clerks to reside at those places were provided and required to take "charge and custody of the court records and papers.''^ § 382. General provision as to district court records. The records of a di-strict court shall be kept at the place where the court is held. When it is held at more than one place in any district, and the place of keeping the records is not specially pro- vided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. R. S. § 562. U. S. Comp. Stat. 1001, p. 4.54. This section was carried into the Revised Statutes from the judiciary act of 17Sf».9 § 383. Transfer of records of Territorial courts on State's ad- mission. 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 court of appeals of said Territory at the time of such admission, and all records of the proceedings in the several cases in wliich judgments or decrees had been rendered in said territorial court before that time, and from which ^^■rits 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, shall be transferred to and deposited in the district court for the said State. R. S. g 567. U. S. Comp. Stat. 1901, p. 462. Writs of error and appeals to the Supreme Court to review district court judgments in cases transferred to the district court are authorized by an- other section. 10 This section was carried into the Revised Statutes from sPost. § 569. Stat. 240. as amended June 28, 1906, « Act Mar. .3. 1809. c. 452. § .S. .30 c. 3.576. .34 Stat. .546. U. S. Comp. Stat. 1.368. I^. S. Comp. Stat. 1001. Stat. 1005 p. 123, 125. ,). 4.54. 9 Act Sept 24, 1789, c. 20 § 3, 1 ■'Seo ante. § 350. Stat. 73. i^Act .Tune .30. 1002. c. 1339. 32 Stat. lOAnte. § 49. 5.51, Act Apr. 22. 1004. c. 1421, 33 401 S 3S4 COURT IIKCOKDS [Code Fed. acts of 1S4711 and 1S4S.12 It was lielil that those acts applied to cases pending in the superior or appellate courts of a Territory, admitted as a State, if at the time of its admission it did not form part of a judicial cir- cuit, but if attached to a circuit the transfer should be to the circuit court. 13 The transfer of pending suits and of the files, records, etc., to the circuit, district or State courts, as the case may be, is usually provided for on the admission of a new State into the nnion.i* § 384. Duty of district judge to demand Territorial court records. 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 custod}'^ of the records therein mentioned, the delivery thereof, to be deposited in said district court; and. in case of the refusal of such clerk or person to comply with such de- mand, the said district judge shall compel the delivery of said rec- ords by attachments or otherwise, according to law. R. S. § 568, U. S. Comp. Stat. 1901, p. 462. § 385. Duty of clerk to keep indexes to records. The clerks of the several 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. § 2, of act Aug. 1, 1888, c. 729, 25 Stat. 357, U. S. Comp. Stat. 1901, p. 701. § 386. Duty to keep bankruptcy indexes. The clerks of the several district courts of the United State.s shall prepare and keep in their respective offices complete and convenient indexes of all petitions and discharges in bankrupt(\" heretofore or hereafter filed in the said courts, and shall, when requested so to do, issue certificates of search certifying as to whether or not any such petitions or discharges have been filed : and said clerks shall be entitled to receive for such certificates tlie same fees as now allowed by law for certificates as to judgments in iiAct Feb. 22. 1847. c. 17, § 1, 9 § IS. 26 Stat. 218: North and South Stat. 128. Dakota. ^Montana and Washington r i2Act Feb. 22, 1848, c. 12, § 2, 9 act Feb. 22. ISSO. c. 180, § 22. 25 St.at. St06. c. 33, 35, §§ 16. Ih, i4ldaho: act July 3, 1890, c. 6.56, 34 Stat. 276, 2.<. 492 4 Procedure] AND PLACES WHERE KEPT. § 3S8 said courts : Provided, That said bankruptcy indexes and dockets shall at all times be ojDen to inspection and examination by all per- sons or corporations without any fee or charge therefor. § 71 of Bankrapt act, added by act Feb. 5, 1903, c. 487, § 17, 32 Stat. 800, U. S. Comp. Stat. 1905, p. 691. § 387. Certified copy of orig-inal records lost or destroyed. Wlien the record of any judgment, decree, or other proceeding of any court of the United States is lost or destroyed, any party or person interested therein may, on application to such court, and ■on showing to its satisfaction that the same was lost or destroyed without his fault, obtain from it an order authorizing such defect to be supplied by a duly certified copy of the original record, where the same can be obtained ; and such certified copy shall there- after have, in all respects, the same effect as the original record ^\•ould have had. R. S. § 899, U. S. Comp. Stat. 1901, p. 075. This provision was enacted in 1871.1 It does not change the established rule as to secondary evidence. 2 Under it and the following section lost records in bankruptcy have been supplied. 3 § 388. Proof of substance of record where no copy obtainable. When any such record is lost or destroyed, and the defect can- not be supplied as provided in the preceding section, any party or person interested therein may make a written application to the court to which the record belonged, verified by affidavit, showing such loss or destruction; that the same occurred without his fault or neglect; that certified copies of such record cannot be obtained by him; and showing also the substance of the record so lost or destroyed, and that the loss or destruction thereof, unless supplied, Avill or may result in damage to him. The court shall cause said iipplication to be entered of record, and a copy of it shall be served personally upon every person interested therein, togethei" with \\ritten notice that on a day therein stated, which shall not be less tlian sixty days after such service, said application will be heard; and if, upon such hearing, the court is satisfied that the statements contained in the application are true, it shall make and cause to lAct Mar. 3, 1871. c. Ill, s 1, 16 Hn re Friedloh. 19 N. B. R. 122, Stat. 474. Fed. Cas. No. 5,118. 2Cornett v. Williams, 20 \Yall. 226. 22 L. ed. 254. 493 g 389 COrRT I{E('ORDS [Code Ped. be entered of record an order reciting the substance and cfffct of said lost or destroyed record. Said order shall have the same effect, so far as concerns the party or person making such H|)pli<"i- tion and the persons served as above provided, but subject to in- tervening rights, which the original record would have had, if tiie same had not been lost or destroyed. R. S. § 900, U. S. Comp. Stat. 1901, p. 675. § 389. Record in appellate court may replace lost record below. When any cause has been removed to the Sii])reme Coui't, and the original record thereof is afterward lost, a duly certitieil copy of the record remaining in said court may be filed in the court from which the cause was removed, on motion of any party or pei-son claiming to be interested therein ; and the copy so filed shall have the same effect as the original record would have had if tlie same had not been lost or destroyed. R. S. g 901, U. S. Comp. Stat. 1001. p. t)75. § 390. Mode of giving notice, and proof thereof, in proceedings to restore records. In any proceedings in conformity with law to restore the record.s of any court of the United States wliich liave been or may be here- after lost or destroyed, the notice required may be served on any non- resident of the district in which such court is held anywhere with- in the jurisdiction of the United States or in any foreign country; the proof of service of such notice, if made in a foreign county, to be certified by a minister or consul of the United States in such country, under his official seal. R. S. § 902, as amended by § 1 of act Jan. 'A]. 1879. c. no. 20 St;it. 277, U. S. Comp. Stat. 1901, p. G76. As originally enacted, this and the two following sections applicil only to the records of the district and circuit conrt for the northern district of Illinois, which had been destroyed. The amending act above cited ex- tended their application to all Federal courts, and added further provisions. § 391. Copies to supply originals in cases where United States are parties, — force and effect of copies substituted for lost originals. A certified copy of the official return, or any other official paper of the United States attorney, inarshal. or clerk or other certify- ing or recording officer of any court of tlie United States, made in 494 Procediirel AND PLACES WHERE KEPT. { 392 jjiiisiianee of law, and on file in any department of the government. I'elating to any cause or matter to which the United States was a party in any such court, the record of which has been or may lie lost or desti'oyed. may be filed in the court to which it appertains, and shall have the same force and effect as if it were an original report, return, paper or other document made to or filed in such court; and in any case in which the names of the parties and the date and amount of judgment or decree shall appear from such re- turn, paper or document, it shall be lawful for the court in which they are filed to issue the proper process to enforce such decree or judgment, in the same manner as if the original record remained in said court. And in all cases wdiere any of the files, papers or records of any court of the United States have been or shall be lost or destroyed, the files, records and papers which, pursuant to law, may have been or may be restored or supplied in place of such re(Nirds, files and papers, shall have the same force and effect, to all intents and purposes, as the originals thereof would have been entitled to. R. S. § 90:5. as ampTided by § 2. act Jan. 31, 1879, c. 39, 20 Stat. 277, U. S. Comp. Stat. 1901, p. 676. See note to preceding section. § 392k Restoration of records in cases where TJnited States are parties, — compensation, etc. Whenever any of the records or files in which the United Stafes are interested of any court of the United States have been or may be lost or destroyed, it shall be the duty of the attorney of the United States for the district or court to wdiich such files and records belong, so far as the judges of such courts respectively shall deem it essential to the interests of the United States that such records and files to be restored or supplied, to take such steps, under the direction of said judges, as may be necessary to effect such res- toration or substitution, including such dockets, indices, and other books and papers a,s said judges shall think proper. Said judges may direct the performance, by the clerks of said courts respect- ively and by the United States attorneys, of any duties incident thereto; and said clerks and attorneys shall be allowed such com- pensation for services in the matter and for lawful disburse-nonts as may be approved by the Attorney General of the United States, 495 s 393 COURT RECORDS [Code Fed. upon a certificate by tlie jutlges of said courts stating that such claim for services and disbursements is just and reasonable ; and the Slim so allowed shall be paid out of the judiciary fund. R. S. § 904, as amended by § 3, act Jan. 31, 1879, c. 39, 20 Stat. 278. U. S. Comp. Stat. 1901, pp. 676, 677. § 393. All official records and dockets open for investigation. The sundry civil appropriation acts since 1884 have contained an appropriation for the detection and prosecution of crimes against the United States preliminary to indictment; the investigation of official acts, records, and accounts of marshals, attorneys, clerks of the United States courts, and United States commissioners, "for which purpose all the records and dockets of said officers. without exception, shall be examined by the agents of the Attorney General at any time."^ Author's section. § 394. Records of abolished circuit court commissioners. The act abolishing the office of circuit court commissioner pro- vided that the commissioners should deposit "all the records and other official papers appertaining to their offices in the office of the clerk of the circuit court by which they were appointed."^ Author's section. § 395. Records kept by United States commissioners. [United States] commissioners shall keep a complete record of all proceedings before them in criminal cases, in a well-bound book, which record book shall be delivered to and preserved by the clerk of the district court for such district on the death, resignation, removal, or expiration of term of the commissioner, for which rec- ord the commissioner shall receive no compensation. Part of § 21, act May 28, 1896, c. 252, 29 Stat. 185, U. S. Comp. Stat. 1901, p. 653. § 396. Affidavit to supply State court record when certified copy refused. In any case where a party is entitled to copies of the record 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, 6See provision for 1906. in act 7Act IMav 28. 1896, c. 252. § 19, 29 June 30, 1906, c. 3914, 34 Stat. 752. Stat. 184. 496 Procedure] AND PLACES WHERE KEPT. § 396 upon demand, and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and pro- ceedings, the court of the United States in which such record 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 aud allow; and, thereupon, such proceeding, trial and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and pro- ceedings had been regularly before the said court. E. S. § 645, U. S. Comp. Stat. 1901, p. 523. Fed. Proc— 32. 497 CHAPTEK 12. VENUE IN CI^HL AND CRIIMINAL CAUSES. § 401. In what district suit may be brought. § 402. Place of suit in States containing several districts. § 403. Local suits where property lies in different districts of same State. § 404. — suits to enforce liens, etc., where property in different districts. § 405. Venue of civil causes and courts to which process is returnable in districts containing judicial divisions. § 406. Place of trial of offenses where district contains judicial divisions. § 407. Effect of change in territorial area of judicial district or of creation of divisions therein, upon pending causes. § 408. Provisions for trial of issues of fact where district contains ju- dicial divisions. Transfer of causes for trial to another place within district. Provisions for transfer of cause by consent to another division. Change of venue to proper division in Mississippi where improperly brought. Venue on removal from State court in districts containing judicial divisions. Concurrent jurisdiction of southern and eastern districts over New York harbor. Place of return of process in western New York district. Venue of proceedings by National Bank to enjoin comptroller. Venue of patent infringement suits. Venue of suits against surety companies on bonds and recogni- zances. Venue of suits for combinations in restraint of import trade. Venue of partition suit where United States are parties. Venue of suits for internal revenue taxes. Venue of suits for penalties and forfeitures. Venue of proceedings for forfeitures. — for trade with insurrectionary districts. — for forfeiture of captured insurrectionary property. Venue of suits, civil and criminal, under submarine cable law. Place of trial in criminal causes. Place of trial of offenses punishable with death. Offenses on high seas and out of any district, where tried. Crimes on Pacific Islands deemed on American vessel. 498 § 409. § 410. § 411. § 412. § 413. § 414. § 415. § 416. § 417. § 418. § 419. § 420. § 421. § 422. § 423. § 424. § 425. ? 426. § 427. § 428. § 429. Procedure] IN WHAT DISTRICT SUIT MAY BE BROUGOT. § 401 [bj § 430. Offenses begun in one disti'ict and completed in another. § 431. Venue of equity proceedings against carriers for discrimination. § 43i2. — of proceedings by carriers against Commerce Commission. § 433. — of forfeiture proceedings against carrier violating Commission's order. § 434. — of proceedings to enforce Commission's orders. § 435. Venue of oft'ense of issuing false passports. § 401. In what district suit may be brought. No persons shall be arrested in one distiict for trial in another in an}' civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any per- son 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. ^^^^^^ Part of §1, act Mar. 3, 1875, c. 137,* 18 Stat. 470, as amended act Mar. 3, 1887, c. 373, § 1, 24 Stat. 552, and corrected act Aug. 13, 1888, c. 86(5, § 1, 25 Stat. 434, U. S. Corap. Stat. 1901, p. 50S. [a] In general. The omitted portion of the above section that still remains in force, prescribes the jurisdiction of the circuit court and is set forth in an earlier chapter.i Part of it, relating to the appellate jurisdiction of the circuit courts, has been superseded by the act establishing the circuit court of ap- peals. 2 The section is somewhat similar in terms to a provision of the judiciary act of 1789.3 That provision was held not to distinguish between those that are inhabitants of a district and those domiciled abroad, so as to protect the former and not the latter, and to indicate the intention of Con- gress that the latter should not be subject to process of the circuit courts.* As this provision stood in the act of 1875, it contained an alternative clause following the word "inhabitant," and reading as follows: "Or in which he shall be found at the time of serving such process or commencing such pro- ceeding." The amending act of 1887 omitted this clause and inserted in- stead the clause beginning "but where the jurisdiction is founded," etc., which is added by way of provi.so to the next preceding clause. [b] To what suits applicable. 'i'he above provision does not apply to all Federal suits. Thus where ex- clusive jurisdiction is conferred on the Federal courts by special acts lAnte, §§ 129. et seq. 4Toland v. Sprague, 12 Pet. 329, 9 2See ante. § 77. L. ed. 1093. iJ^oi Sept. 24, 1789, c. 20 § 11. 1 Stat. 79. 499 $ 401 [c] VENUE IN CIVIL AND CRIMINAL CAUSES. [Code Fed. passed prior to the above enactment the jurisdiction thus conferred is not affected by the enactment. •> Apparently it is confined to cases in which the jurisdiction is concurrent with that of the State courts, the act from which it is taken dealing only with that class of cases.T Hence it does not apply to suits for infringement of patent, jurisdiction in such cases being derived from earlier and special acts.s Prior to an act of 1897 such suits could be prosecuted in any place where the defendant could be served. 9 By the act just mentioned, however, such suits can now be prosecuted only in the district in which the defendant is an inhabitant, or in the district where the act is committed and where the defendant has established a place of business. 10 So also, the section does not apply to suits for dam- ages for overcharging under the interstate commerce act,ii nor does it apply to admiralty suits; 12 and a libel in personam may be maintained against a corporation by attachment of its goods in a district not within the State of its incorporation. is A suit brought by the United States against an individual is not a suit ''between citizens of different States" within the meaning of the second clause of the above provision.i* [c] Suits by and against aliens. While the above provision in terms forbids the bringing of civil suit except one founded solely on diverse citizeiTsiiip "against any person" in any other district than that whereof he is an inhabitant, the words apply only to those persons who are inhabitants of the United States.15 Hence an alien defendant whether a natural person or a corporation being assumed not to reside in the United States may be sued in any district where valid service may be had.i^ But such alien can sue a citizen in the Federal courts only in the district in which the defendant is an inliabi- 6\':ui Patten v. Chicago, etc. R. i2ln re Lousville Underwriters, 134 Co. 74 Fed. 988. U. S. 488, 33 L. ed. 991, 10 Sup. Ct. ^See In re Hohorst, 150 U. S. 653, Rep. 587. The same construction 37 L. ed. 1211, 14 Sup. Ct. Rep. 221; was given to a similar provision of Van Patten v. Chicago, etc. R. Co. the judiciary act of 1789. in Atkins 74 Fed. 987; Westinghouse, etc. Co. v. Disintegrating Co. 18 Wall. 272, V. Great Northern Ry. 88 Fed. 2C0, 31 21 L. ed. 841. C. C. A. 525. 13 Atkins v. Disintegrating Co. 18 sin re Keasbey, etc. Co. IbO U. S. Wall. 272, 21 L. ed. 841. 221, 40 L. ed. 402. 16 Sup. Ct. Rep. i4United States v. Southern Pac. 273 ; Noonan v. Athletic Club Co. 75 R. Co. 49 Fed. 301 ; United States v. Fed. 335; Southern Pac. Co. v. Earl, Northern Pac. R. Co. 134 Fed. 718. 82 Fed. 694, 27 C. C. A. 185; West- 67 C. C. A. 269. inghouse. etc. Co. v. Great Northern i5ln re Hohorst, liTO U. S. 660, 37 Rv. 88 Fed. 261. 31 C. C. A. 525; L. ed. 1211, 14 Sup. Ct. Rep. 221. Lederer v Rankin, 9U Fed. 449. But lein re Hohorst. 150 U. S. 661. 37 see National, etc. Co. v. Pope, etc. L. ed. 1211. 14 Sup. Ct. Rep. 221; Co. 56 Fed. 849; Gorlinm, etc. Co. Barrow S. S. Co. v. Kane, 170 U. S. V. Watson, 74 Fed. 418. 112, 42 L. ed. 968, 18 Sup. Ct. Rep. 9Bowers v. Atlantic, etc. Co. 104 530; Galveston, etc. Rv. v. Gongales, Fed. 890. 151 U. S. .')07, 38 L. ed. 258. 14 Sup. 10 Post, § 416; Bowers v. Atlantic, Ot. Rep. 401 as to when V' lid service etc. Co. 104 Fed. 888. is made on corpo^Uion, see infra iiVan Pntten v. Chicairo, ate. R. [ccc], Co. 74 Fed. 986. 500 Procedure] IN WHAT DISTRICT SUIT MAY BE BROUGHT. § 401 [ccc] tiint.i' Hence such suit brought against a nonresident defendant will be dismissed,! s even though such defendant is a corporation and carries on business in the State in which suit is brought. 19 Where the State under the laws of which such defendant is incorporated is divided into dis- tricts it is held that suit must be brought in the district in which the prin- cipal place of business is located. 20 [cc] Suits against domestic corporations. Under the original act of 1875, allowing suit against a defendant in that district in which he was an inhabitant or '"in which he shall be found," a corporation could be sued in any district in which it carried on business and had a general agent.3 The amendment of 1887-1888 however struck out the above quoted clause and substituted the proviso as to diverse cit- izenship set forth in the above section. The result is that except in cases where jurisdiction is founded solely on diverse citizenship, and those cases in which the defendant corporation is an alien,* the defendant can be sued only in the district of its residences It being established that such cor- poration cannot be considered a citizen, inhabitant or resident of a State other than that of its incorporation^ it follows that such corporation can be sued only in that State although it carry on business elsewhere.'' In case the State of incorporation is divided into districts the suit must be brought in the district in which the general business of the corporation is done. 8 [ccc] When corporation deemed found within district. In all suits brought against corporations organized under the laws of a foreign country, whether jurisdiction is based upon alienage or the existence of a Federal question, and in suits wheie jurisdiction rests -exclusively on diverse citizenship and plaintiff has elected to sue in the district of his 1 'Galveston, etc. Rv. v. Conzales. 151 U. S. 50G. 38 L. ed. 248. 14 Sup! <'t. Eep. 401: Campbell v. Duluth. etc. Rv. .50 Fed. 242: Harold v. Iron. etc. Min. Co. 33 Fed. 529. isHarold v. Iron. etc. Co. 33 Fed. 529. i9Campbell v. Duluth. etc. Ry. 50 Fed. 242. 2oGalveston. etc. Rv. v. Conzales. 151 U. S. 4P6, 38 L. ed. 248. 14 Sup. '}t. Rep. 401. See. however, dissent- ing opinion holding such suit may be brought in any district of State. 3 In re Keasbev, etc. Co. 160 U. S. 228. 40 L. ed. 404. 10 Sup. Ct. Rep. 273. Foil. IOC. C. C. A. 432. 156; Chesapeake, etc. Co. v. Fire i''.'le to the courts, re- spectively, to be held at the city of Los Angeles; and all prosecutions for ►offenses committed in said southern division shall be tried in the appropriate 'Court of jurisdiction at said city of Los Angoles."2 2 JbJ Georgia. There is a general provision of a law of 1880 affecting Ceorgia districts, 'that "all suits not of a local nature in the circuit and district courts against .a single defendant, iniiabitaut of said State, must be brought in the di- ■vision of the district where he resides; but if there are two or more defend- ■•ants, residing in ditVerent divisions of the district, such suits may be iSAct :M:iv 2. 1S84. p. 38. § 4, 23 2iAct .March 18, 1902, c. 222. § 3, Stat. 18. U. S. Comp. Stat. 318. 32 Stat. 72, U. S. Comp. Stat. 190.5, ii»Act March 3, 190.5. c. 1419. § 3, p. 81. ■33 Stat. 988. U. S. Comp. Stat. 1905, 22§ 4 and § 5. act May 29, 1900. c. ■p- "8. 594. 31 Stat. 219, U. S. Comp. Stat. 20See ante, | 2.58, and statutes 1901, p. 327. there cited. 507 § 40o lb] VK.Mi: IN CIVIL [Code Feil. brought in either division."- 3 A later provision for the northern Tioori^'ia district declares that "all civil suits not of a local nature must be brought in said northeastern division where the defendant resides in said north- eastern division of the southern Federal judicial district of (ieorgia. But if there are two or more defendants, some residing in the northea^Jtcrn di- vision and others residing in any other portion of said soutliciii district <>r" Georgia, the action may be brought in any one of the divisions in which any one of the defendants resides. When the defendant is a nun rcsidi-nt of either division, action may, if plaintift' is a citizen of the distiict, be brouglit in that division wherein the defendaTit may be found."'! A ]iro- vision for the western division of the noithern district, dedan-s that "all process, civil and criminal, issued against citizens residing in said 'ouiitics, shall be made returnable to the said courts, respectively (i. e. circuit and district), at the said city of Columbus, and not otherwise.2 A provision for the northwestern division of the northern district declares that ■all civil suits which shall hereafter be brought against a defendant or defendants who reside in said northwestern division of said district shall l)e l)rought in said northwestern division; but if there are two or more defendants re- siding in different divisions of said district, such suit may be brouglit in either division of said district in which any defendant or defendants reside. and all mesne and final process sultjcct to the provisions of this Act issui'd in either of the divisions of the northern district of Georgia may be served a.nd executed in either or all of the divisions."3 A provision affecting the eastern division of the northern district declares "all actions at law and all suits in equity against a defendant Avho shall be a resident of said ea-^1 - ern division shall be brought therein. Suits for the recovery of lands shall be brought in the diA'ision of the district where the land is situated; but in all cases at law or in equity against more than one defendant, in which some of the defendants shall reside in the western and some in the eastern division, such action at law may be brought in either division, and such suit in equity may be brought in either division in which a defendant may re- side against whom substantial relief is prayed. "^ There is a furtln-r pro- vision in "an act to provide for circuit and district courts of tlu^ rnitcd States at Valdosta, Georgia," which seems broad enough to apply to all the divisions within the State, that "all suits not of a local nature in the circuit and district courts against a single defendant, inhaliitant of said State, must be brought in the division of the district where he resides; but if there are two or more defendants residing in diflerent divisions of tiie dis- 23Act Jan. 20. 1880. c. 17, § 4. 21 26 Stat. 1110, XL S. Comp. Stat. Stat. 62, U. S. Comp. Stat. lOOl. p. 1000. p. 338. 334. 3 Act April 12. 1000, c. IS-l. § 2. , A 4. 17 1, ic iQQo ifiQ R Q OK ''l ^^at. 74, U. S. Comp. Stat. 1001, lAct Feb. 15, 1889, c. 168. § 3, 25 .^^^ ^ St^t. 671, U. S. Comp. Stat. 1001, p. ''• ,^^^,- p.,,^ .^g j^q^^ ^ ^..,1 ^ 3^ 3^ 2^"- Stat. 818, U. S. Comp. Stat. I'oOl, 2Act March 3, 1891, c. 566, § 3, p. 341. 608 Procedure] AND CRIMINAL CAUSES. S 405 [c] trict such suits may be brought in either division."5 And finally there is a similar provision in the act providing for terms of court at Albany, < Georgia. 6 [c] Idaho, Illinois and Iowa. In Idaho "all civil suits not of a local character, which shall be brought in the district or circuit courts of the United States for the district of Idaho, in either of the said divisions, against a single defendant, or where all the defendants reside in the same division of said district, shall be brought in the division in which the defendant or defendants reside, or if there are two or more defendants residing in different divisions, such suit may be brought in either division."' In the noi'thern district of Illinois '"all civil suits not of a local nature, and all criminal prosecutions, shall be commenced and tried in the division of the said northern district of Illinois where the defendant or defendants reside, or the offense is committed; but if there are two or more defendants in civil suits residing in the different divisions or districts, the action may be brought in either in which either •of the defendants may reside. When the defendant is a nonresident of the district, action may be brought in either division of said district wherein the defendant may be found."'^ There is a similar provision with a minor change, respecting the southern district of Illinois. 9 A general provision as to loAA'a divisions in an act of 1880, declared that "all civil suits not of a local nature which shall hereafter be brought in the circuit or district court of the United States in said district of Iowa must be brought in the di- vision of the district where the defendant or defendants reside; but if there are two or more defendants residing in different divisions, the plain- tiff may sue in either one of the divisions in which a defendant resides. . . . Where the defendant is a nonresident of the district, suit may be brought in any division where property or the defendant is found." lo A later act provided that "all civil suits not of a local nature must be brought in the division of the northern or southern district where the defendant or defendants reside; but. if there :ire two or more defendants residing in different divisions, the action may he brovight in either of the divisions in which a defendant resides. When the defendant is a nonresident of either district, action may be brought in any division of either district wherein the defendant may be found."ii A statute creating the southern division of the southern district provided that "all civil suits which shall hereafter be brought against a defendant or defendants who reside in said southern division of said district shall be brought in said southern division; but 5 Act June .30. 1002. c. 13.38. § .3. .32 sAct March 3, 1905. c. 1427. § 6. Stat. o:)l. U. S. Comp. Stat. 100.3. 33 Stat. 993, U. S. Conip. Stat. lOO.",. p. .58. p. 90. 6Act :\larch 3. 190.5. c. 1431, § 3. 9Act March 3, 1905. supra. § 10. 33 Stat. 999. U. S. Comp. Stat. 1905, i^Act June 4. 1880. c. 120. § 2. p. 88. 21 Stat. 1.55. -.\ct Julv 5. 1892. c. 145. § 4. 27 nAct Julv 20. 1882. c. 312. § 0. 22 Stat. 73, U. S. Comp. Stat. 1901, p. Stat. 173, U. S. Comp. Stat. 1901, p. 343. 352. 500 § 405 [d] V1:NTTK in civil [Code Fe« if there are two or more dereiulaiils roidiii,:; in did'croiit divisions of said district, such suit may be brought in cither division of said district in which any defendant or defendants reside.12 An act of 1904 required process against persons resident in the counties constituting the Davenport division, to be returnable to the courts to be held there, and that offenses in those counties be there tried.is An act of IflOO transferring Clinton oovmty to' the southern district, required all process against residents of the county to be returnable before the courts to be held at Davenport.isyo [dj Kansas, Kentucky and Louisiana. In the divisions of the ]\ansas district "all civil suits not of a local' character, which shall be hereafter brought in either of said divisions against a single defendant, or where all the defendants reside in the same division of said district, shall be brought in the division in which the de- fendant or defendants reside; but if there are two or more defendants re- siding in different divisions, such suit may be brought in either division."! * The law creating the Owensboro division of what is now the western dis- trict of Kentucky provided that "where one or more defendants in any civil cause shall reside in said division, and one or more defendants to such cause shall reside out of said division, but in said district, then the plaintiff may insitiite his action either in the court having jurisdiction over the latter or in the said division."! 5 While Kentucky was a single district it was pro- vided that "in the district of Kentuckj' the clerks of the circuit and district courts, respectively, 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 a court, if he have information sufficient, and shall immediately, upon payment by the plaintiff of his fees accrued, send the papers tiled 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.! 6 In Louisiana the provision for both districts is- that "if there be more than one defendant, and they reside in different divisions of the district, the plaintiff may sue in either division, and send duplicate writ or writs to the other defendants; and the said writs, when executed and returned into the court from which thej' issued, shall consti- tute one suit and be proceeded in accordingly. "1 ' In creating the Lake i^Act June 1, 1000. c. 601. § 2. 31 similar: Act Mav 3, 1892. c. 59. Stat. 249. U. S. Comp. Stat. 1901, § 2. 27 Stat. 24, U. S. Comp. Stat, p. 354. 1901. p. .357. !3Act April 28. 1904. c. 1800. § isAct Aug. 8, 1888 c. 792. § 2. 25 3. 33 Stat. 547. U. S. Comp. Stat. Stat. 390. 1905, p. 98. I6R. S. § 745, U. S. Comp. Stat. !3y2Act .lune 19. 190(). c. 3437. 34 1901. p. 589. Stat. .304. i7See act Aug. 8. 1888. c. 789. § 14 Act .Tune 9. 1890. e. 403, § 2, 2, 25 Stat. 388: act Aug. 13. 1888, 26 Stat. 129. U. S. Comp. Stat. 1901J c. 869. § 3. 25 Stat. 438. U. S. Comp. p. 357. The provision enacted on the Stat. 1901, pp. 366, 367. creation of the third division is 510 Procedure] AND CRIMINAL CAUSES. § 405 [ej' Charles division of the western district it was provided that all civil process^ against persons resident in the parishes constituting the division be re- tnrnable to the courts there held. ^8 [e] Michigan and Minnesota. In the western district of Michigan "all suits and proceedings hereafter to be brought in the said i-ireuit or district courts not of a local nature- shall be brought in a court of the division of the district Avhere the de- fendant resides ; but if therr> be more than one defendant, and they reside- in different divisions of the district, the plaintiff may sue in either division ;md send duplicate -writ or writs to the other defendants, on which the ])laintiff or his attorney shall indorse that the writ thus sent is a copy of a writ sued out of a court nf the proper division of the said district; and the said writs, when executed and returned into the office from which they issued, shall constitute one suit, and be proceeded in accordingly." The- statute further provides that "all issues of fact shall be tried at the terms- of said courts to be held in the division where such suits shall hereafter be commenced; but nothing herein contained shall prevent the said circuit and district courts from regulating by general rule the venue of transitory actiims. either in law or in equity, and from changing the same for cause."2n- In the eastern ^Michigan district the statute provides that "all suits and l)roceedings heieafter to be tried in said circuit and district courts, not of a local nature, shall be brought in the court of the division of the district where the defendant, or one of the defendants if there be several, resides, and if there be several defendants, part of whom reside in one division and part in another of the district, the plaintiff may sue in either division and send a duplicate writ or writs to the other defendants on which the plain- tiff or his attorney shall indorse that the writ thus sent is a copy of a writ sued out in the proper division of said district, and said writs when executed and returned into the office from which they issued sliall consti- tute one suit and be proceeded in accordingly. Actions in rem in admiralty may be brought in whichever division of the district service can be had upon the res."2i In the Minnesota district, "all civil suits not of a local nature must be brought in the division where the defendant or defendants reside; but if there are two or more defendants residing in different divi- sions, the action may be brought in any division in wiiich a defendant re- sides. . . . All civil process from the circuit and district courts of the- United States for said district of Minnesota against defendants residing or found therein, shall be returned to the place appointed for the holding of said courts in the division where such defendant resides. ... If there be more than one defendant and they reside in different divisions of the district, the plaintiff may sue in either division, and send duplicate writ or isAct March 2. 190.5. c. 130S. § 3, •^. 20 Stat. 175. T7(i. I^. S. Comp. Stat. 33 Stat. 841, U. S. Comp. Stat. 1005, inOl. p. 370. p. 100. 21 Act April .30. 1S04. c. 00. § 3,. 2 Act June 19. 1879. c. 320. § 2. 28 Stat. G7. U. S. Comp. Stat. 1901,. p. 373. 511 § 405 [f] VENUE IN CIVIL [Code Fed. writs to the other defendants; and the said writs, when executed and re- turned into the court from which they issued, shall constitute one suit and be proceeded in accordingly."2 2 [fj Mississippi. In the northern Mississippi district the statute provides that "hereafter all suits to be brought in either of said courts, not of a local nature, shall be brought in the division where the defendants, or either of them, reside; but if there be more than one defendant, and they reside in dift'erent di- visions, or any of them reside in the southern judicial district of ]\Iissis- sippi, the plaintiff may sue in either division or district, and send du|)li cate writs to the other division or district, directed to the marshal of tin' district where he or they may reside, on which said writs shall be indorsed by the plaintifi', or his attoi-ney, that the same is a duplicate of the original writ sued out of the district court of the proper division or district; but whenever a defendant is sued out of the division of his residence, and is not joined with a co-defendant, whose residence is in the division where the suit is brought, he may, before pleading therein, on motion and on affidavit of the division of his residence, change the venue to the court of the division of his residence, which suit shall sttand for trial at the first term of the court to which the venue may be changed."i The statutes cre- ating the western and southern divisions of the southern district of Missis- sippi provide that "all laws regulating and defining how suits against persons or property located or found in judicial districts shall be brought shall be applicable to and govern the bringing of suits" in those divisions. - And an act of 1894 governing the venue in the southern Mississippi district provides that if "there be more than one defendant in a cause, and the defendants reside in diti'erent divisions of said southern district, or any of the defendants reside in the northern district, the plaintiff may sue in either division or district where any defendant resides and send duplicate writs for the other defendant or defendants to the other division or dis- trict, where such defendant or defendants reside, and said writs, when executed and returned into the court from which they issued, shall consti- tute one suit and be proceeded in accordingly." And that "all j)rocesses issued out of" the circuit and district courts at the place of holding court in the southern division of the eastern district against defendants residing in the counties constituting it, -J shall be returned to the courts at such place. l^gj Missouri. In Missouri "all suits to be brought in the courts of the United States in ^[issouri, not of a local nature, shall be brought in the division having juris- 2 2 Act April 26, 1890, e. 167, § 2, Stat. 630; act April 4, 1888. c. 08, 26 Stat. 72. U. S. Comp. Stat. 1901, § 2. 25 Stat. 78. U. S. Comp. Stat, p. 375. 1901. p. 381. lAct June 15. 1882. c. 218. § 3. sSee ante, § 274; act July 18. 22 Stat. 102, U. S. Comp. Stat. 1901. 1894. c. 144, § 5, 6. 28 Stat* 115, p. .378. U. S. Comp. Stat. 1901, p 3S3. 2Act Feb. 28, 1887, c. 279, § 2. 24 512 ■ I'loceduie] AND CRIMINAL CAUSES. § 405 [h] diction over the county where the defendants, or either of them, reside; "but if there be more than one defendant, and a part of them reside in different divisions or districts of said State, the plaintiff may sue in either division of either district where one of such defendants resides, and send duplicate writs to tlie other division or district, directed to the marshal of said district, on which said writs shall be indorsed, by the plaintiff or his attorney, that the same is a duplicate of the original writ sued out of the court of the proper division and district." 4 The act creating the southern division in the western district of Missouri and the act creating the south- eastern division of the eastern district, provide that "all suits not of a local nature in said circuit and district cor-ts against a single defendant, inhabitant of said State, must be brought in the division of the district where he resides; but if there are two or more defendants residing in dif- ferent divisions of the district such suits may be brought in either di- vision. "» The act attaching Audrain county, Missouri, to the eastern dis- trict requires "all process, civil and criminal, hereafter issued against persons residing" therein, "shall be made returnable to the courts held at Saint Louis."6 [h] North Dakota, Ohio and South Dakota. In North Dakota, "all civil suits not of a local character now pending, or which shall be brought in the district or circuit courts of the United States for the district of Xorth Dakota, in either of the said divisions against a single defendant, or where all the defendants reside in the same divisions of said district, shall be brought in the division in which the de- fendant or defendants reside, or if tiiere are two or more defendants resid- ing in different divisions, such suit may be brought in either division."" In the Ohio districts "all suits not of a local nature in the circuit or dis- trict courts, against a single defendant, inhabitant of such State, must be brought in the division of the district where he resides; but if there are two or more defendants, residing in different divisions of the district, such suits may be brought in either division."^ In the South Dakota district "all civil suits not of a local nature must be brought in the division of the district where the defendant or defendants reside: but if there are two or more defendants, residing in different divisions, the action may be brought in either of the divisions in which a defendant resides."9 4 Act Feb. 28, 1887, c. 271. § 4. 24 7 Act June 29. 1906. c. 359-5. § 4. Stat. 425. U. S. Comp. Stat. 1901, 34 Stat. fi09. p. 387. 8 Act June 8. 1878. c. KW. § 3. 20 5Act Jan. 24. 1901, c. 164, § 4, Stat. 102; act Feb. 4, 1880. c. 18. 31 Stat. 739, U. S. Comp. Stat. § 4, 21 Stat. 64. U. S. Comp. Stat. IflOl, p. 390: act Jan. 31. 19^5. c. 1901. pp. 402, 403. 287, § 4. 33 Stat. G27. U. S. Comp. 9 Act Nov. 3. 1893. c. 10. § 5. 28 Stat. 1905, p. 103. Stat, o, U. S. Comp. Stat. 1901. p. SAct Jan. 28. 1897. c. 106. § 2. 29 412. Stat. 502, U. S. Comp. Stat. 1901. p. 389. Fed. Proc— 33. 513 $ 405 [i] A'ENUE IX CIVIL [Code Fed. [ij Tennessee. The act ereating divisions in the eastern district of Tennessee provided that "all suits not of a local nature in the circuit and district courts, against a single defendant, inhabitant of said State, must be brought in the division of the district where he resides; but if there are two or more defendants, residing in different divisions of the district, such suits may be brought in either division.""ii The act dividing the western district pro- vided that "all suits not of a local character which shall be hereafter brought in the district or circuit court of the I'nited States for the west- ern district of Tennessee, against a single defendant, or where ail the de- fendants reside in the same division of said district, shall be l)rought in the division in which the defendant or defendants reside; but if there are two or more defendants residing in different divisions, such suit may be brought in either division, and duplicate writs may be sent to the other defendants. The clerk issuing such duplicate writs shall indorse thereon that it is a true copy of a writ sued out in the proper division of the district, and the original and duplicate writs, when executed and returned into the office from which they shall have issued, shall be proceeded in as one suit. "12 The act creating the northeastern division of the eastern dis- trict provided that "'all suits not of a local nature in said circuit and dis- trict courts against a single defendant, inhabitant of said State, must be brought in the division of the district where he resides; but if there are two or more defendants residing in different divisions of the district, such suits may be brought in either division."i3 In addition there have been statutes transferring Grundy and Fentress counties to different divisions which provided that all process hereafter issuing against citizens thereof should be returnable to the middle district and to the courts at Cliatta- nooga respectively ; 14 and an act transferring Dyer county and making "all process, civil and criminal, hereafter issued against persons residing"' therein returnable to the courts held at Memphis. is LjJ Texas. In Texas, "if there be more than one defendant, and they reside in dii- ferent divisions of the district, or in difl'erent districts, the plaintiff may sue in either division, or in either district in which one or more defendants may reside, and send duplicate writ or writs to the other defendant or defend- ants, on which the clerk issuing the writ shall indorse that the writ thus sent is a copy of a writ sued out of the court of the proper division of said district, and said writs, when executed and returned into the office from which they were issued, shall constitute one suit, and be proceeded in ac- iiAct June 11. 1880, c. 203. § ?,, i^Act ]3ec. 27. 1884, c. 7, § 1, 2. 21 Stat. 175. U. S. Corap. Stac. 1901, 23 Stat. 280. U. S. Comp. Stat. 1901, p. 41.5. p. 417. i2Act June 20, 1878, c. .359, § 1, isAct May 24, IflOO. c. .549. § I. 31 20 Stat. 235. U. S. Comp. Stat. 1901. Stat. 183, U. S. Comp. Stat. 1901, p. 414. p. 420. i3Act Feb. 7. 1900. c. 10. § 4. 31 Stat 6. U. « Comp. Stat. 1901. p. 419. .514 Procedure] AND CRIMINAL CAISES. § 406 [aj cordingly. Providod. that suits and actions afleotin<.' the title to or to fore- close liens on real estate shall be brou^rht in the district and in the division thereof in which said real estate is. in whole or in part. situate."i6 The statute dividing Texas into judieial divisions also provides in creating each division that all process against defendants residing therein shall be return- able to a designated place therein. it [kj Utah and Washington. In the Utah district "all civil suits not of a local character, which shall be brought in the district or circuit courts of the United States for the district of Utah, in either of said divisions, against a single defendant, or, where all the defendants reside in the same division of said district, shall be brought in the division in which the defendant or defendants reside, or if there are two or more defendants residing in different divisions, such suit may be brought in either division."i8 In the district of Washington "all civil suits not of a local character, which shall be brought in the dis- trict of Washington, in either of tne said divisions, against a single de- fendant, or where all the defendants reside in the same division of said district, shall be brought in the division in which the defendant or de- fendants reside, or. if there are two or more defendants residing in dif- ferent divisions, such suit may be brought in either division." 1 9 § 406. Place of trial of offenses where district contains judicial divisions. The statutory provisions respecting the place of trial of offenses in districts containing divisions are collated in a note to this sec- tion. They are all substantially to the same effect, and make criminal causes cognizable in the division wherein the offenses were committed. Such statutes usually contain other provisions to the effect that jurisdiction over offenses committed prior to a division or a change in its boundaries is not affected by the new law. Being temporary in their operation such provisions are not here included. Author's section. [al Alabama, Arkansas and California. In Alabama an act of 190.5 provided that "prosecutions for crime or of- fenses hereafter committed in any of the counties of the northern division shall be cognizable within such division; and all prosecutions for crime or offenses heretofore committed within either of said counties, taken, as aforesaid, from the middle and southern districts, or committed in the mid- iSAct March 11. 1902. c. 183, § 10, 29 Stat. 620, U. S. Comp. Stat. 1901, 32 Stat. 68. V. s. C'onip. Stat. 1903, p. 435. P- 71. 19 Act April 5, 1890. c. 65. § 4. 20 i7See ante. § 2SS. Also act April Stat. 45. U. S. Comp. Stat. 1901. 18. 1906. c. 16.36. 34 Stat. 122. p. 439. iSAct March 2. ]S97, c. 366. S 3. 515 s 406 [b] VENUE IN CIVIL [Code Fed. die or southern districts as hitherto constituted, shall be commenced and proceeded with as if this act had not been passed."2i An earlier act pro- vided that "all offenses hereafter committed in either of said divisions shall be cognizable and indictable within the division where committed"! In Arkansas, "all crimes or otl'enses hereafter committed in any of the di- visions of said districts shall be cognizable within such division. "2 In California "all prosecutions for offenses committed" in a division "shall be tried in the appropriate court of jurisdiction therein."3 £bj Georgia, Idaho, Illinois. In the southern district of Georgia "all prosecutions for crimes or of- fenses committed after the date this act takes eff'ect, in any of the counties of the northeastern division, shall be cognizable within this division ;"4 there i^re similar provisions for other subdivisions. 5 There is no provision for \'enue in criminal causes in the Idaho divisions. The provision in Illinois is ■contained in the section covering venue in civil causes.6 ;j^cj Iowa and Kansas. Ill the act dividing Iowa into districts and divisions it is provided that all i)r()secutions for crimes or offenses hereafter committed in either of said districts shall be cognizable within such district ; and all prosecutions tor crimes or offenses heretofore committed in the district of Iowa shall be commenced and proceeded Avith as if this act had not been passed."7 The act creating the southern division of the southern district provides that "all crimes and offenses against the laws of the United States com- i:iAct March 3, 1905. c. 1419. § 4, ?,3 Stat. 9S8, U. S. Comp. Stat. 1905. p. 78. There was also a provision in § 9 saving pending prosecutions and pre\ious offenses from the pro visions of the act. lAct Mav 2, 1884. c. 38, § 3. 23 Stat. 18, U. S. Coiiip. Stat. 1901. p. 318. An act of 190-3 respecting the Anniston division required that of- fenses in that division be tried in Anniston: Act Feb. 16. 1903. c. 554. § 4, 32 Stat. 832. U. S. Comp. Stat. 1905. p. 77. 2 Act Feb. 20, 1897. c. 2()9. § 7. 29 Stat. 592. U. S. Comp. Stat. 1901. p. 322. 3 Act Mav 29, 1900. c. 594, § 5. 31 Stat. 226. U. S. Comp. Stat. 1901. p. 327. 4Act Feb. 15, 1889. c. IGS. § 4. 25 Stat. 671. 5Act Jan. 29, 1880. c. 17. § 5, 21 Stat. 63 (eastern and western divi- sions) : act April 12, 1900. c. 185, § 3. 31 Stat. 74 (northwestern divi- sion) ; act Fetb. 28. 1901. c. 621. § 4. 31 Stat. 818 (eastern division) : act June 30, 1902, c. 1338, § 4. 32 Stat. nol. U. S. Comp. Stat. 1901, p. .335, 337. 340, 341 ; U. S. Comp. Stat. 1903. p. 58; act June 30. 1902, c. l.v.3b. § 4. 32 Stat. 551, U. S. Comp. Stat. 1905. p. 85 (southwestern division, northern district) ; act March 3, 1905, e. 1431. § 4. 33 Stat. 999. U. S. Comp. Stat. 1905, p. 88 (southwest division, southern district ) . 6Ante, S 405.[c] 7Act Julv 20. 1882, c. 312. g 10. 22 Stat. 173, U. S. Comp. Stat. 3.52. The act creating the Davenport divi- sion declared tliat prosecutions for offenses therein should be tried in t!:e appropriate court in Davenport: Act April 28, 1904. c. 1800, § 3, 33 Stat. 547, U. S. Comp. Stat. 1905, p. 98. The acts transferring Ap])aiioose and Clinton counties to different divisions provided, tliat offenses ttiereiii should be tried and determined at Keokuk and Davenport: Act April 21, 190(i, c. 1048. 34 Stat. 127: act June 19, 1900. c. 3437. 34 Stat. 304. 51;; Procedure] AND CRIMINAL CAL'SICS. § 406 [f] niittcil witliin the counties comprising the southern division," shall be "prosecuted, tried and determined at the terras of the circuit and district courts herein provided for."8 A provision for the third division of the Kansas district is similar to that just quoted.9 [dj Kentucky and Louisiana. The criminal jurisdiction of the Owensboro division is stated in the section defining the civil jurisdiction. lo In Louisiana "all prosecutions for crimes or offenses hereafter committed in either of the divisions shall be cognizable within such division."! i [e] Michigan, Minnesota and Mississippi. In the western district "any person charged with violating any of the penal or criminal statutes of the United States, of which the said circuit or district courts have jurisdiction, shall be proceeded against by indict- ment or otherwise, within the division of said district where the alleged offense or offenses shall be committed, and shall have his or her trial at a term of the said court held in said division, unless for cause shown tin- judge shall otherwise direct."i2 There is a similar provision for the di- visions in the eastern district.! 3 In Minnesota "all criminal proceedings instituted for the trial of offenses against the laws of the United States arising in the district of Minnesota shall be brought, had, and prosecuted in the division of said district in which such offenses were committed.''^ There are no provisions as to venue in the Mississijjpi divisions except those respecting civil causes. is [fj Missouri and North Dakota. In the western district of Missouri "all prosecutions for crimes or offenses hereafter committed in either of the divisions of said district shall be cognizable within such division."! 6 The only provision as to venue in the North Dakota districts affects civil causes. 17 sAct June 1, 1900. c. fiOL § 3. 31 Stat. 176, U. S. Comp. Stat. 1901. Stat. 24, U. S. Comp. Stat. 1901. p. p. .371. 354. 13 Act April 30. 1894, c. 66. § 6. 9Act May 3, 1892, e. 59. § 3, 27 28 Stat. 68, U. S. Comp. Stat. 190i. Stat 24, U. S. Comp. Stat. 1901, p. p. 374. 358- i4Act July 12, 1894, c. 132, § 1. loAct Aug. 8, 1888, c. 792. § 2. 25 28 Stat. 102," U. S. Comp. Stat. 1901. Stat. 389, U. S. Oomp. Stat. 1901, p. p. 376. 35^- 15 Ante, § 405 [f]. iiAct Aug. 8. 1888. c. 789. § 4, leAct Jan. 24. 1901. c. 164. § 5. 25 Stat. .388: Aug. 13. 1888, c. 809, -^i stat. 739, U. S. Comp. Stat. 1901. § 4, 25 Stat. 438. U. S. Comp. Stat. p. 390. See act Jan. 31. 1905, c. 287. 1901, pp. 366. 3()7. Similar provision § 5. 33 stat. 627, X'. S. Comp. Stat. for Lake Charles division in act 1905. p. 104. for similar provision March 2. 1905, c. 1.308, § 3, 33 Stat, respecting eastern district. 841, U. S. Comp. Stat. 1905, p. 100. 1 7 Ante. § 405. [h] 12 Act June 19, 1878, c. 326, § 6, 20 517 S 4(10 [g] VEXUK IX CIVIL [Code Fed. [gj Ohio, Oklahoma, South Carolina and South Dakota. In the northern district of Ohio '"all otFenses committed in either of the subdivisions shall be cognizable and indictable within said division. "is In the southern district '"all prosecutions for crimes or offenses hereafter com- mitted in eith*r of the subdivisions shall be cognizable within sucli di- vision. 1 9 In the Oklahoma districts, '"all prosecutions for crimes or of- fenses hereafter committed in either of said judicial districts as hereby constituted, shall be coonizable within the district in which committed. "20 The statutes affecting South Carolina do not contain provisions as to venue, either civil or criminal. The statutes governing South Dakota merely pro- vide the venue in civil causes.- 1 [h] Tennessee, Texas, Utah and Washington. In the eastern district of Tennessee "all prosecutions for crimes and of- fenses hereafter committed in either of the subdivisions shall be cog- nizable within such division. "2 2 In Texas "all prosecutions for crimes or offenses hereafter committed in either of said judicial districts ts hereby constituted shall be cognizable within the district in which committed:"! but there is in generals no provision making them cognizable in the di- vision of the district where committed. The statute merely makes •'all process issued against defendants residing in" a given group of counties or division, returnable to a designated place therein. 3 There is no provision for venue of causes in Utah or Washington divisions except civil causes. 4 § 407. Effect of change in Territorial area of judicial district or of creation of divisions therein, upon pending causes. The numerous statutes passed from time to time creating new judicial districts and changing the old, or creating two or more divisions in existing districts, have usually provided that pending causes, both civil and criminal, should remain for final disposition in the place where triable at the time suit was brought." A failure to so specify would probably work the same result, in view of the familiar rule that a statute is to be construed prospectively and as 18 Act June 8. 1878. c. 169. § 4. .32 Stat. 07. U. S. Comp. Stat. in03. 20 Stat. 102. U. S. Comp. Stat. 1901. p. 70. p. 402. 2But see recent acts: Feb. 9, 1908. i9Act Feb. 4. 1880. c. 18. § o. 21 c. o.32. § 3. .32 Stat. 820: act March Stat 64. U. S. Comp. Stat. 1901. p. 2. 1903. c. 974. § 3. 32 Stat. 927. U. 404. S. Comp. Stat. 190.5, p. 120, 121; 20Act June 16, 1906. c. 3335, § 14. act June 9. 1906, c. .3063, § 3, 34 ::4 Stat. 275. Stat. 226 (Del Rio division). 2 1 Ante. § 405.[ii] 3See ante. § 288. 2 2 Act Feb. 7, 1900, c. 10. § .<>, 31 lAnte, § 405. [k] Stat, 6, U. S. Comp. Stat. 1901. p. ^E. g. see act March IS. 1902. c. 419. 2>2. § 3. 32 Stat. 72, U. S. Comp. lAct March 11. 1902. c. 183. § 8, 1903, p. .54, as to Arkansas. 518 Procedure] AND CRIMINAL CAUSKS. S 408 applicable only to future causes unless a retrospective operation is specifically provided. In some cases, however, the statutes have permitted the transfer of such causes for trial in the new locus fori, by consent, or by order of the court for cause f and in others, pend- ing causes have l)een ordered transferred. ** All such provisions are temporary in cliaracter and largely negative in their operation. The existing laws that could be set forth here have in the main fulfilled the purposes of their enactment. It seems useless to re- produce them in this work. The practitioner must keep advised of late enactments affecting the organization of any particular judicial district. Author's section. § 408. Provisions for trial of issues of fact where district con- tains judicial divisions. In the laws respecting divisions of judicial districts in Ala- bama,^*' Georgia,^^ Ohio,^^ Tennessee, ^^ there is a provision that "all issues of fact in said suits [i. e., suits not of a local cluiractev in the circuit and district courts] shall be tried at a term of the court held in the division where the suit is so brought." In ^liehi- gan it is provided that "all issues of fact shall be tried at the terms of said courts [i. e., circuit and district] to be held in the division where such suits shall hereafter be commenced. "^^ But in the western district of Michiaan the courts mav bv rule reoulate and 8E. g. see as to Alabama act Fob. nAct Jan. 29, 1880, c. 17. § 4, 21 16. 1903. c. 354. § 4. ,32 Stat. 832. Stat. t>2, U. S. Comp. Stat. 1!H)I. p. U. S. Comp. Stat. 1903. p. 53; as to 334; act June 30. 1902. c. 1338. S 3. G«orsria; act Jime .30. 1902. r. 1338. 32 Stat. 551. U. S. Comp. Stat. 190.->. § 5, 32 Stat. 581, U. S. Comp. Stat. p. 58; act March 3. 1905. c. 1431. § 1903, p. .58: as to Victoria divisior, 3. 33 Stat. 999. U. S. Comp. Stat. in Texas: act April 18. l!)on. § 3. c. 1905. p. 88. l().3f). 34 Stat. 122: Towa (Appanoose 12 Act .Tune S. 1878. c. 1{)9, § 3. 20 county) act April 21. 190(i. c 1G48. Stat. 102: act Feb. 4. 1880. c. 18. § 34 Stat. 127. 4. 21 Stat. 104, U. S. Comp. Stat. •'So in Texas bv act Marcii II. 1901. p. 402. 403. 1902. c. 183. S 7, .32 Stat. (>(>. U. S. i^Act June 11. 1880. c. 203, S 5. Comp. Stat. 1903. p. 09: Oklalionia : 21 Stat. 176. U. S. Comp. Stat. 1901. Act June 10. 190(), c. .33.35. S 14. 34 p. 4I(i: act June 20, 1878, c. 359. § Stat. 275: Illinois: Act March 3. 1, 20 Stat. 235. U. S. Comp. Stat. 1905, c. 1427. § 17. 33 Stat. 995, U. 1901. p. 414. S. Comp. Stat. 1905. p. 94. But cases i4Act June 19. 1879. c. 320. § 2, in which evidence wa.'^ taken were not 20 Stat. 175: act April .30. 1S!U. c transferred. m. § 2. 28 Stat. 67, U. S. Comp. 1901, lOAct March 3. 1905. c. 1419, § 3. p. 372. 373. 33 Stat. 988. U. S. Comp. Stat. Ht05. p. 78. 519 S 4U'J VEXLK I.N CIVIL [Code Fed. change the venue of transitory actions.^ ^ The act autliorizing an additional district judge in Minnesota provides that "the senior circuit judge of the eighth circuit or the resident circuit judge within the district shall make all necessar}^ orders for the division of business and the assignment of cases for trial in said district;'"^® but this probaljlv refers to the duties of the judges and not the venue of causes. In several other districts there is a provision for trial of issues of fact in the division where the suit is brought, but with a riglit of trial elsewhere by consent.^ '^ Author's section. § 409. Transfer of causes for trial to another place within dis- trict. In districts undivided into divisions where court is or may be held at different places therein, there are occasional special statu- tory provisions for transfer of causes from one place of holding court therein to another. In the Montana district it is provided that "causes, civil or criminal, may be transferred by the court or the judge from Helena to Butte, or from Butte to Helena, in said district, when the convenience of parties or the ends of justice would be promoted by the transfer, and any interlocutory order ma3' be made by the court or judge thereof in either place."^ The statute as to terms in New Jersey makes provision for transfer of causes to Newark for trial.^ Author's geetion. § 410. Provisions for transfer of cause by consent to another division. In the laws relating to divisions in the judicial districts of Idaho, North Dakota, Utah and Washington it is provided that "all issues of fact in civil causes triable in any of the said courts [i. e., district or circuit courts] sliall be tried in the division where the defendant or one of the defendants resides, unless by consent of both parties the case sliall be removed to some other division.''* 15 See ante, § 405. fe] 2 See ante. § 335. i6Act Feb. 4. 1903, c. 402. § 2, 32 tpor Tda'ho see act July 5. 1892, Stat. 795. U. S. Comp. Stat. 1903, c. 145. § 4. 27 Stat. 73. North Da^ p. 61. k-ota: Act April 26, 1890, c. 161. § I'Post. § 410. 4. 26 Stat. 68: Act June 29, 1906, lAct July 7, ISnS. c. 571, § 1, 30 c .3595. § 4, 34 Stat. 609. Utah: Stat. 6S5. U. S. Comp. Stat. 1901, .\rt IMarch 2, 1897. c. 366. § 3. 29 p. 39. Stat. 620. Washington: Act April 520 Procedure] AND CRIMINAL CAUSES. § 410 [aj There is a similar provision for Iowa, except that "'civil" causes are not specified.'' In the laws relating to Minnesota and Louisiana it is provided that all causes triable in either of the courts of the district "shall be tried in the division to which the process is returnable under the provisions of this act, unless by consent of all parties the cause be removed to some other division of said dis- trict."^ In the statute respecting the northern district of Missis- sippi it is provided that any cause may on "written consent of both parties or their attorneys of record be transferred to the court of either division, without regard to the division of the residence of the defendants."''' The act respecting the districts and divisions^ of Missouri provides that "any cause may, by the written consent of both parties or their attorneys of record, be transferred to the court of either division or district, without regard to the residence of the defendants, and Avhether such cause be now pending or be instituted hereafter."^ More elaborate provisions respecting trans- fer of both civil and criminal cases for trial have been enacted for the western Arkansas district and are given below'^^l"^^^ Author's section. [a] Transfer of civil causes for trial in Arkansas by consent, — fees. In 1900 it was enacted that "civil cases in law or equity, now or here- after pending, in either the district or circuit court of the United States, for either of the divisions of the western district of Arkansas, may, on written stipulation of the parties or 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 another di- vision of the district for final trial; and in the event of such transfer, it shall be the duty of the clerk of the court in which such suit is pending to make out and transfer a certified copy of all the record entries in the case together with all the original papers in the case to the clerk of the court to which such case is transferred, for which he shall have such fee?^ as are now allowed for making transcripts, and the sum of two dollars ad- 5, 1890. c. 65. § 4. 26 Stat. 4.3 U. S. "Act June 15. 1882. c. 218. § 3, romp. Stat. 1901. p. .34.3. 400. 435. 22 Stat. 10-2, U. S. Comp. Stat. 1901. 439. p. 379. sAct June 4. 1880. c. 120. § 2, 21 sAct Feb. 28. 1887. c. 271. § 4. 24 Stat. 155. Stat. 425. U. S. Comp. Stat. 1901, «Loui5iana: Act Aug. 8. 1888. c. P- 387. There is a provision of the 789. § 3, 25 Stat, .388: act Aug. 13, section specifying the duty and fer>s 1888, c. 869, ? 4. 2o Stat. 438. Min- of the cWrk in certifying the record nesota: Act' April 26. 1890. c. 167, for transfer. ? 3. 26 Stat. 73. U. S. Comp. Stat. 1901, p. 361, 367, 375. 521 § 410 [bj VENll'; IN CIVIL AND CRIMINAL CAUSKS. | Cod.^ Fed. ditional for transferrint; the same, to be taxed as costs and paid as other costs in the case, and 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 like nature."'* [b] — transfer of criminal cases and fees of clerk. The same law further provided that "the defendants in criminal cases now or hereafter pending in the district courts of the Harrison or Texar- kana divisions of the western district of Arkansas and who are incarcerated at Fort Smith to await trial because of their inability to furnish bail and who desire to plead 'guilty' may, on their written motion showing those facts and filed in the case, in vacation, and upon the order of the judge, duly signed and filed in the case, have their cases transferred to the Fort .Smith division of the western district of Arkansas, to the end that trials may be had and sentences imposed as in other cases of like nature; and prisoners bound over to answer to indictments in the Harrison or Texar- kana divisions of the western district of Arkansas for offenses committed in those divisions and who are incarcerated in the Jail at Fort Smith, Ar- kansas, for inability to furnish bail, and who desire to plead 'guilty' to such offenses, may on their own motions have their cases submitted to a grand jury of the Fort Smith division for indictment and final disposition in the courts of that division, or in proper cases may plead to informations filed in the proper court in said division and have their cases disposed of as other eases of like nature when the ofl'ense was committed in the Fort Smith division. When a transfer is ordered, as provided in this section, the clerk shall make out and forthwith send a certified copy of the record entries, together with the indictment and all the original papers, to the clerk of the court to which such case is transferred, who shall file the same, and thereupon the case shall be proceeded with as other cases of like nature pending in such court. For making out said transcript and forwarding the same, together witli the original papers in said case, the clerk of the court shall have the usual compensation for making out tran- scripts, as now provided by law. and two d(dlars additional, to be taxed and paid as other costs in like cases."io § 411. Change of venue to proper division in Mississippi where improperly brought. The statute affecting the northern Mississippi district provides that ''whenever a defendant is sued out of the division of his resi- dence and is not joined with a codefendant, wliose residence is in the division where the suit is brought, he may, before pleading tlierein, on motion and on affidavit of the division of his residence, cliange the venue to the court of the division of his residence, which sAct June 2, 190G, c. 25G9, 34 Stat. lOAct June 2. 1906, c. 2569, § 2, 34 206. Stat. 207. 522 Procedure] VENUE OF REMOVED CAUSES. | 412 suit shall stand for trial at the first term of the court to which the venue may be changed." ^^ There are no other similar statutory provisions for other States. Author's section. I 412. Venue on removal from state court in districts contain- ing- judicial divisions. Some of the statutes creating divisions in judicial districts con- tain specific provisions governing removal of cau^ses from State courts therein. In the legislation as to divisions in the southern and middle districts of Alabama, soiithern district of California, the southern district of Georgia, eastern and western districts of Missouri, southern district of Ohio and eastern district of Tennes- •see it is provided that "in all cases of removal of suits from the ■courts of the State ... to the courts of the United States . . . such removal shall be to the United States courts in the division in which the county is situated from which the re-- nioval is made, and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms of the United States courts, shall be deemed to refer to the terms of the United States courts in such division."^^ j^ all of these States except California and Georgia there are other divisions of judicial districts for whicli no such provision is specifically made. In the legislation as to divisions in Georgia (northern district), ^'^ Iowa, Louisiana and Minnesota, there is provision requiring re- moval to be to the particular division where the State court in Avhich suit is brought is situate, but no provision as to the term to which the cause is returnable.^-* In the statutes affecting divisions in Mississippi ''all laws touching the removal of causes from State iiAct June 15. 1882. c. 218. § 3. p. .328, 391. 40J:, 419, U. S. Conip. 22 Stat. 102, U. S. ('(imp. Stat. 1!»01, Stat. 100.5, p. 88. 104. Alabama: Act p. 379. Marcli 3. 190.}. c. 1419. § 6. 33 Stat. i-'For California see act May 29. 988. I'. S. Comp. Stat. 1905, p. 79. 1900. e. 5M, § 7. 31 Stat. 220. i^Oeorgia: Act Feb. 28. 1901. c. Ceorfria: Act June 30, 1902. c. 1.338. G21. § 3, .3>1 Stat. 818. § 6, 32 Stat. 551; act March 3. 1905, i^For Iowa see act July 20, 1882, c. 1.341, § 6. 33 Stat. 1000. Missouri: c. ,312. § 9. 22 Stat. 173. Louisiana: .\ct Jan. 24. 1901. c. 1G4, § 7, 31 Act Aug. 8, 1888, c. 789. § 7. 25 Stat. St^U. 739. Obio: Act Feb. 4. 1880. 388; act Aug. 13, 1888. c. 8ti. § 8. 25 o. 18, § 8, 31 Stat. 04 : act Jan. 31. Stat. 438. ^Minnesota : .\ct April 1905. c. 287. § 7. 33 Stat. tV27. Ten- 2«. 1890. c. 167. § 2. 26 Stat. 72. nev^ee: Act Feb. 7. 1900. c. 10. ii 7, I'. S. Comp. Stat. 1901, pp. 341, 352, 31 Stat. 6, U. S. Comp. Stat. 1901. .366. 367, .375. 5-33 § 413 VENUE IN" CIVIL [Code Fed. courts" are declared applicable.'"' Tlie laws creating divisions in Arkansas, Illinois, Kansas, Kentucky, Michigan, North Dakota, South Carolina, Texas, Utah and Washington contain no special provisions as to venue of removal causes. Sometimes the provision of such statutes as to the place of trial, or place to which process is returnable, or from which process shall issue, is broad enough to appl}^ to and include removed causes. The practitioner should consult these, as elsewhere set forth, ^^ ■- and also keep advised as ta later legislation affecting the organization of any particular dis- trict. Though the legislative provision as to removals in all dis- tricts where divisions exist is not complete or specific, there is no evidence of an intent to make any distinction as to venue in such cases; and it would seem that in all districts removed cases are intended to be cognizable in the division where the State court from which the removal is made is situate, and that the time for perfecting the removal is always referable to the term of the Fed- eral court in such division. Author's section. § 413. Concurrent jurisdiction of southern and eastern districts over New York harbor. The district courts of the southern and eastern districts of New York shall have concurrent jurisdiction over the waters within tlie counties of New York, Kings, Queens, and Suffolk, and over all seizures made and all matters done in such waters ; and all processes. or orders issued out of either of said courts, or by any judge there- of, shall rim and be executed in any part of the said waters. R. S. § 542, U. S. Comp. Stat. 1901, p. 397. This provision was enacted in 186.5.16 § 414, Place of return of process in western New York district. All process in admiralty causes and proceedings in the western district of New York shall be made returnable at Buffalo.^ '^ Author's section. iBAct April 4. 1888. c. 58. § 2. 25 isAct Feb. 25. 1865, c. 54, § 2, IS Stat. 78: Act Julv 18. 1894, c. 144, Stat. 43-8. § 2, 28 Stat. 115, "U. S. Comp. Stat. i^Act Mav. 12, 1900, c. 381, § 5. 31 1901. pp. 382. 383. Stat. 176, U. S. Comp. Stat. 1901, 15%§ 504, et seq. p. 395. 024 ProceduieJ AND CRIMINAL CAUSES. § 417 •§ 415. Venue of proceedings by National Bank to enjoin comp- troller. All proceedings by any national banking association to enjoin ihe Comptroller of the Currency, nnder the provisions of any law relating to national banking associations, shall be had in the dis- trict wliere sucli association is located. R. S. S 73G, U. S. Comp. Stat. 1901, p. 586. This provision was enacted in 1864.18 § 416. Venue of patent infringement suits. In suits brought for the infringement of letters patent the cir- cuit courts of tlie 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 wliich the defendant, whether a person, part- nership or corporation, shall have committed acts of infringement and liave a regular and estal)lished 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 subpccna upon the de- fendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is bi'ought. Act Mar. 3, 1897, c. 395. 29 Slat. 095, U. S. Comp. Stat. 1901, p. 58fl. The provision of the act of 1887-1888, that no civil suit shall be brouoht in any other district than that wliereof the defendant is an inhabitant, does not apply to patent infringement suits. i Hence, until the above pro- vision was passed, suits could be prosecuted in any district where valid service could be had upon the defendant. 2 This provision, however, limits the place of suit to the district in which the act is committed if the de- fendant has there established a place of business, or to the district in which such defendant resides.^ It applies only to infringers who are in- habitants, and not to suits against aliens, whicli may be brought wherever the defendant is found. < § 417. Venue of suits against surety companies on bonds and recognizances. Any surety company doing biisiness under the provisions of this act [i. e., act relative to lionds, recognizances, etc., and to allow isAct June 3. 1804, c. 106, §§ 50, sidem. 57, 13 Stat. 115, 116. 4United States v. Duplessis, 134 iSee ante, § 401. Fed. 930. 2Bo\vprs V. Atlantic, etc. Co. 104 Fed. 890. 525 § 418 A'ENUE IN (.IVIL [("oilc I ed. certain corporations to act as sureties] may be sued -in respiK't thereof in any court of the United States wliich has now or here- after may ]iave jurisdiction of actions or suits upon such roco.uni- zance, stipulation, bond or undertaking, in the district in which such recognizance, stipulation, bond or undertaking was made or guaranteed, or in the district in which the priucipal office of such company is located. And for the purposes of this act sucli i-<"cogni- zance, stipulation, bond or undertaking shall be treated as made or guaranteed in the district in which the office is located, to which it is returnable or in which it is filed, or in the district in wliich the principal in such recognizance, stipulation, bond or undertaking resided when it was made or guaranteed. § 5, act Aug. 13, 1894, c. 282, 28 Stat. 280, U. S. Coiup. Stat. 1901, p. 2316. «, There is a special provision regarding suits on bonds to tlie United States given by contractors on public buildings and the venue of the same.5 § 418. Venue of suits for combinations in restraint of import trade. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act [an act declaring combina- tions and conspiracies in restraint of import trade imlawful] may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found. . . . Part of § 77. act Aug. 27. 1894, c. 349. 28 Stat. 570, U. S. Comp. Stat. 1901, p. 3203. This provision is identical witli a provision of an act of 1890, ])assed to protect trade and commerce against unlawful restraints and monopolies. « § 419. Venue of partition suit where United States are parties. [Suit for partition wliere the United States is a joint tenant or tenant in common must, if brought in the circuit court], be brought in the circuit court of the district in whicli sucli land is situate. Part of § 1, act May 17, 1898, c. 339. .30 Stat. 41(;. U. S. Comp. Stat. 1901. p. 516. § 420. Venue of suits for internal revenue taxes. Taxes accruing under any law providing internal revenue mar sPost. § 1420. et seq. Stat. 209, U. S. Comp. Stat. 1901, p. 6§ 7, act Julv 2, 1890, c. 047, 26 302. 526 ■ Procedure] AND CRIMINAL CAUSES. S 423 ])v suc'il lor and recovered either in tlie district where the liability for such tax occurs or in the district where tlie delinquent resides. R. S. § 733, U. S. Comp. Stat. 1901, p. 586. This seftioii was carried into the Revised Statutes from an act of 186"!."^ § 421. Venue of suits for penalties and forfeitures. Ail 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. R. S. § 732. U. S. Comp. Stat. 1001, p. 585. This provision is general and applies to a number of penalties and forfeitures concerning which there is no other provision as to venue. lo Under its terms, an action to recover a penalty for the importation of a foreign laborer in violation of an act of Congress may be brought in the di.strict in which such laborer enters, or in any district in which the de- fendant may be found. n § 422. Venue of proceedings for forfeitures. Proceedings on seizures, for forfeiture under any law of the United States, made on the high seas may be prosecuted in any district into which the property so seized is brought and proceed- ings instituted. Proceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, e.xcept in cases where it is otlierwise provided. R. S. § 734, U. S. Comp. Stat. 1901, p. 586. A seizure being made on the high seas, jurisdiction attaches in the court of any district into which the property is brought. 1 3 s< 423. — for trade with insurrectionary districts. Proceedings on seizures for forfeiture of any vessel or cargo en- tering any port of entry which has been closed by tlie 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 in- surrection, into other parts of the United States, or of any vessel or vehicle conveying such property or conveying jDersons to or from such State of .section, or of any vessel belonging, in wliole or in part, to any inhabitant of sucli State or section, may be prosecuted 8Act July 13. 1866. c. 184, 14 Stat. isPhe Merino. 9 Wheat. 391. 6 h. HI. ' cd. 118; the Abby. 1 :\Iason. .360. loPentlarge v. Kirby. 19 Fed. 501. I'ed. Cas. No. 14. iil'nited States v. Craig, 28 Fed. 799. SOO. 527 § 424 VEXUE IN CIVIL [Code Fed. in any district court 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. R. S. § 564, U. S. Comp. Stat. 1901, p. 460. The above provision was enacted in 1861.15 The President is authorized to close any port of entry in a collection district where duties cannot be collected on account of insurrection,! 6 and to proclaim any part of the country in insurrection. i'? § 424. — for forfeiture of captured insurrectionary property. Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of an} judicial district, or within any district, on account of its being purchased or acquired, sold or given, with intent to use or emplo} the same, or to suffer it to be used or employed, in aiding, abetting or prompting an insurrection against the government of the United States, or knowingly so used or employed by the owner thereof, oi' 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. R. S. § 735, U. S. Comp. Stat. 1901, p. 586. The above provision as carried into the first edition of the Revisei! Statutes from an act of 1861,20 contained the words "as prize" followint,^ the words "property captured" in the first clause. Those words were strick- en out by an amending act of 1875,i and the provision as above set forth, was embodied in the second edition, or "the Revised Statutes of 1878." The object of the "Prize acts" of which this provision is a part, was to promote the suppression of the Rebellion by subjecting property employed in the aid of it with the owner's consent, to confiscation. 2 All property, whether real or personal, is liable, s but seizure is necessary. 4 R. S. § 5309 contains a somewhat similar provision providing that "prizes and capture" of property employed in the aid of insurrection "shall be condemned in the district or circuit court of the United States having jurisdiction of tlu- amovmt or in admiralty in any district in which the same may be seized or into which they may be taken and proceedings first instituted." 15 Act Julv 13. 1861, c. 3, §§ 4, 5, ^Union Ins. Co. v. United States. 9. 12 Stat. 256. 6 Wall. 759. 18 L. ed. 879. 16R. S. § 5317. 3ldem: Titus v. United States, 20 17R. S. § 5301. Wall. 475, 22 L. ed. 400. 20Act Aug. 6. isni. c. 00, § 2, 12 ^United States v. Stevenson, 3 Ben. Stat. 319. 119. Fed. Cas. No. 16,396; Morris v. lAct Feb. IS. 1875, c. SO. 18 Stat. United States, 7 Wall. 578, 19 L. ed. 318. -281. 528 Procedure] AND CRIMINAL CAUSES. § 426 § 425. Venue of suits, civil and criminal, under submarine cable law. Criminal actions and proceedings for a violation of the provisions of this act shall be commenced and prosecuted in the district court for the district within which the offense was committed, and when not committed within any judicial district, then in the district court for the district within which the offender may be found; and suits of a civil nature may be commenced in the district court for any district within which the defendant may be found and shall be served with process. Part of § 13 of act Feb. 29, 1&88, c. 17, 25 Stat. 4S, U. S. Comp. Stat. 1901, p. 3500. § 426. Place of trial in criminal causes. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as tlie Congress may by law have directed. U. S. Const, art. 3, § 2, cl. 3. The trial of crimes by jury is considered in a following chapter.' The above provision is confined in its application to crimes, its obvious intent being to exclude petty criminal cases.* It forbids the finding of an indict- ment in one State for a crime committed in another, and where there can be no original indictment in a State there can be no complaint entertained tliere.9 The proper proceeding is to find an indictment in the State where the crime was committed and then demand the arrest in the State where the defendant is found. lo This provision is in conflict with that part of R. S. § 3894. which provides for the trial and punishment of offenses against the postal laws in any other district than where committed, and renders that portion of the section void.n The physical absence of a defendant from a state when the acceptance of his ofl'er to render services for com- pensation in violation of R. S. § 1782, was dispatched by mail, does not deprive the Federal courts of that State of jurisdiction. 1 2 When the clime is not committed within a State it is not local and the trial "shnll "Post. § 1571. of scq. 11 United States v. Conrad. 59 Fed. sSchick V. United States. 195 U. 46G. S. 69. 49 L. ed. 102, 24 Sup. Ct. Rep. i^Burton v. United States. 202 U. .S2f5. S. 344. .50 L. ed. 1057, 2G Sup. Ct. Hn re Ro«deitscher. 33 Fed. G57. Rep. OSS. lOTn re Rosdeitscher. 33 Fed. G57. Fed. Pr()c."34. 529 § 427 VENUE IN CIVIL [Code Fed. be at such place or places as Congi'ess may by law have directed. "i 3 That clause imposes no restriction as to the place of trial "except that the trial cannot occur until Congress designates a place and may occur at any place which shall have been designated by Congress previous to the trial."i4 § 427. Place of trial of offenses punishable with death. The trial of offenses punishable with death shall be had in the (Oimtv where the offense was committed, where that can be done without great inconvenience. R. S. § 729, U. S. Comp. Stat. 1901, p. 585. Special circuit court sessions for the trial of criminal causes are author- ized by a previous section. i* The benefit of the above provision is waived if the defendant goes to trial without asking for a trial in the particular county. IV § 428. Offenses on high seas and out of any district, where tried. 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. R. S. § 730, U. S. Comp. Stat. 1901, p. 585. The offense must be a violation of some law of the United States in order to be prosecuted under this provision. i It fixes the place of trial of a prosecution for an assault with a deadly weapon on the high seas; 2 of a charge of conducting a military expedition in violation of R. S. § 5286, where the only overt act was committed after the vessel left a United States port; 3 of a murder committed on land within the exclusive juris- diction of the United States, but not within any judicial district. 4 The government does not have the election as to which of two districts the suit shall be brought in, but where the defendant is apprehended out- side the jurisdiction the trial shall be in the district in which he shall first be brought. If apprehended in a particular district he must be tried in that isUnited States v. Jackalow, 1 lUnited States v. Williams. 2 Fed. Black, 486. 17 L. ed. 225; United 61, 6 Sawy. 244. State* V. Dawson. 15 How. 467. 14 2United States v. Arwo. 19 Wall. L. ed. 775. 486, 22 L. ed. 67. See also United i^Cook V. United States, 138 U. S. States v. Peterson, 64 Fed. 145. 182. 34 L. ed. 91.3, 11 Sup. Ct. Rep. sUnited States v. Hughes, 70 Fed. 268. 972. 16 Ante. § 357. -f Jones v. United States. 137 U. S. ivUnited States v. Cornell. 2 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80. Mason, 91, Fed. Cas. Xo. 14,868. 530 rrocedure] AND CRIMINAL CAUSES. § 430 district. 5 In order to be "brought" into the district it is necessary that the defendant be apprehended. 6 § 429. Crimes on Pacific islands deemed on American vessel. All offen.ses against this act [an act to prevent the sale of lire- arms, opium and intoxicating liquors in islands of the Pacific] committed on any of said islands or on the waters, rocks or keys adjacent thereto shall l^e deemed committed 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 ac- cordingly. § 3 of act Feb. 14, 190-2, c. 18, 32 Stat. 331, U. S. Comp. Stat. 1903, p. 443. § 430. Offenses begun in one district and completed in another. When any offense against the United States is begun in one judicial circuit and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined and punished in either district, in the same man- ner as if it had been actually and wholly committed therein. ■R. S. § 731. l\ S. Comp. Stat. 1901. p. 585. The section was enacted in 1867. * The word "circuit" as used therein is apparently used by mistake for the word '"district." Under its provisions the ofi'ense, under R. S., § 3894, as amended in 1890. of knowinoly causing lottery tickets to be delivered by mail is triable in the district in which such matter is received. 9 So also bribing through the mail.io or the tender of a contract for the payment of money in a letter, to induce an ofikial to violate his dutyii is triable in the district in whicli sucli money or contract is received. But the provision does not apply to a libel written in one district and jmblished in another.i-' Xor does it apply to an indictment, luidcr R. S., § 3893, for mailing obscene matter, the act of depositing constituting the entire offense.is So also the obtaining of reduced rates by false billing, 5United States v. Bird, 1 Spr. 299, i "Benson v. Henkel, 198 U. S. 1, Fed. Cas. No. 14.597. See. however, 49 L. ed. 919, 25 Sup. Ct. Rep. 509. United States v. Thompson. 1 Sum. lUn re Pal lister, 13« U. S. 257. 168. Fed. Cas. No. 16.492. But see U L. ed. 515. 10 Sup. Ct. Rep. 1034. Kerr v. Shine, 136 Fed. 61. 69 C. C. i2See In re Buell. 3 Dill. 116. Fed. A. 69. Cas. No. 2.102. 6Kcrr v. Shine. 136 Fed. 65. 69 C. isUnited States v. Comerford, 25 0. A. 69. Fed. 902, as to violation of inter- SAct March 2. 1867, c. 169. § .30, state commerce act in permitting 14 Stat. 484. unlawful charges see United States SHorner v. United States. 143 U. v. Fowkes, 53 Fed. 13, 3 C. C. A. S. 207. .36 L. ed. 126. 12 Sup. Ct. Rep. 394. 407. 531 § 431 VEXUE IN CIVIL [Code I e.I. in violation of an act of 18891* is not within the meaning of the above section, since it is the obtaining of the transportation by false pretenses which is prohibited and not the transportation itself. is § 431. Venue of equity proceedings against carriers for dis- crimination. Every violation of this section [punishing failure to publisli rate schedules and observe them, and rebates, concessions and discrimi- nations] shall be prosecuted in any court of the United States hav- ing jurisdiction of crimes within the district in which such viola- tion was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one juris- diction and completed in another it may be dealt with, inquired of, tried, determined and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. Part of § 1, act Feb. 19, 1903, 32 Stat. 847, as amended June 29, 190G, c. 3591, 34 Stat. 588. The procedure in causes involving the commerce laws is given else- where. 1 6 § 432. — of proceedings by carriers against Commerce Com- mission. The venue of suits brought in any of the circuit courts of the United States against the Commission to enjoin, set aside, annul or suspend any order or requirement of the Commission shall be in the district where the carrier against whom sucli order or re- quirement ina,j have been made has its principal operating office, and may be brought at any time after such order is pi'omulgated. And if the order or requirement has been made against two or more carriers then in the district where any one of said carriers has its principal operating office, and if the carrier has its principal operating office in the District of Columbia then the venue shall be in the district where said carrier has its principal office ; and juris- iliction to hear and determine such suits is hereby vested in such courts. Part of § 5, act June 29. ]90(j. c. 3591, 34 Stat. 592. 14 Act March 3, 1889, c. 382, § 10, i5Davis v. United States, 104 Fed. 25 Stat. 855. 136, 43 C. C. A. 448. 16 Post. § 1345. et seq. 532 Proie oiit in Jii^iiO'id § 442. "Officer" and "oath" defined. h yy-:i-'\\i /ajj ni 'i'- .'•viffi'i oni § 443. Relatives of judge not to be appointed officers. ,, >^ 444. Double compensation forbidden. J? 445. Extra compensation forbidden. '*' ' " ''" ?: 446. No compensation for doing another's duties or extra services. § 447. No extra compensation for disbursing monefS.''' *'J 'junriiiol A :§ 448. Judicial officers accounts Certified by district jtl&ggr" '"'« f-Jnuoona :$ 449. Approval t)i accbunts' dnd'c^St? bills by *cd«rtl'--^^''* "•■ "*■!•'*«"' ainii- ^^ 450. Accounts to be in duplicate — originals sent to Washington. ^ 451. Aqcpvii^ts tpfb«i submit ted to 'Attorney Generaij'jou.! io — • .^Z^ '/ s,j-:|52.j .fc||ipe^-visprY.,,po.\s;ej- ot'^, Attorney (jeneralipv^l-f^si-c^^^^f^j vne \l i^ 453. No pavnjents to officers in arrears. . ■ '. . u , ,,,,;■ ,r,, T:^ 4o4. '^statutes lurnished judges, etc. remain public property. 55' 4'55.^-iPs(ymeiifof e.^traofdiTiain^ expenses incurred by ministerial offi- § 45^,.,j^lo,w,anfie,rfp)> mUefige.')<-)r!i'> :>r!!tf:"io<{o (sqionhq 3Ji aBfl •l'*(Tn:- S 4^,,^ — jtQ,,9l^jJf8^ piar^hajp ,,4114 .disjtjrjct ^t.toppey^,,-^ 'io eoastbeJof-i i obio i'vni- S 441. Cross references and matters not herein treated. . ,, While the variou.s provisions of law governing the appointment. qualifications, tennre, duties and compensation of judicial officers are given in thig aijtd foliating richapters^^ia-aunlbeiv' of vstatwiw^^^ provisions dealing with judicial and other Federal officers^penfil in character and fprbidding political activity^ or the accepting of bribes- or otjieri lacts of • malfeasance,- criminal and ;otherwise,f' are omitted because beyond the sco]ie of this Code. <> i^ajaenK ad x*^"' Author's section. .j-,.;!, j..^ ■j'^nueinK -■>. -■•» H ..d -H \o Ji^l .r.^G .q .cmv ■■:>.}< .qtitoJ .a .u ,b8£ § 442. "Officer" and "oath" defined. In determining tlie meaning of the revised statutes, or of any act or resolution of Congress passed subsequent to February 35, 1871, . . . reference to any officer shall include any person authorized iSee act Jan. 16, 18S3. c. 27. §§ sE. g. R. S. § 1784 U. S. Conip. 11-15, 22 Stat. 406, U. S. Comp. Stat. Stat. inOl. p. 1214. forbidding .solicit- 1901. pp. 1223. 1224. ing contributions for nifts to superior 2R. S. § 5499, U. S. Comp. Stat, oflicers. 1901, p. ,3708. Procedure] JUDICIAL OFFICERS AND THEIR ACCOUNTS. § 445 l)v law to perform the duties of such office, unless the context shows such words were intended to be used in a more limited sense; and a requirement of an "oath" sliall be deemed complied with by making affirmation in judicial form. R. S., § 1, U. S. Comp. Stat. 1901, p. 3. § 443. Relatives of judge not to be appointed officers. No person related to any justice or judge of any court of the United States by affinity or consanguinity, within the degree of first cousin shall liereafter be appointed by such court or judge to, or -employed by such court or judge in, any office or duty in any court of which such justice or judge may be a member. § 7, act Mar. 3, 1887, c. 373, 24 Stat. 555, as amended § 7, act Aug. 13, 1888, c. 866, 25 Stat. 4.37, U. S. Comp. Stat. IflOl. p. .579. Since the provi.sion applies to appointments ''hereafter" made, a previous nppointment is not invalidated thereby. 6 An appointment, made in vio- lation of this provision, should be attacked by a direct motion to set aside the order; it cannot be attacked collaterally." A decree by such appointee is not absolutely void so that the court will have power to set aside on motion at a subsequent term. 8 § 444. Double compensation forbidden. No person who liolds an office, the salary or annual compensa- tion attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law. R. S. § 1763, U. S. Comp. Stat. 1901, p. 1205. The appointment of persons holding an office, such as is described in this section, to any other office to which compensation is attached, is restricted by provisions of act July 31, 1894, c. 174, § 2, and act June 3, 1896, c. 314. ^ 1, set forth below. This provision was enacted in 1852.l»t tOfT7?ij. § 445. Extra compensation forbidden. No ci\il officer of the government shall hereafter receive any (ompensation or perquisites, directly or indirectly, from the Treas- ury or property of the T^nitetl States beyond his salary or compensa- tion allowed by law; provided, that tliis shall not be construed t'i 6North western, etc. Ins. Co. v. M-'iiniierSj^.gtCjiCo. v. Water Co. 80 Seaman, 80 Fed. .^59. Fed. 467. TElgutter V. Northwestern, etc.. '"Act Aug. :'l. IS.ri. c. 108, 16 Ids. Co. 86 Fed. 500, .30 C. C. A. 218. Stat. 100. 535 I 446 JUDICIAL OFFICERS fOodo Fed. prevent the employment and payment by tlie department of jus- tice of district attorneys as now allowed by law for the performances of services not covered by their salaries or fees. § 3, act June 20, 1874, c. 32S, 18 Stat. 109, U. S. Comp. Slat. 1901, p. 1207. § 446. No compensation for doing another's duties or extra services. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department ; and no allow- ance or compensation shall be made for any extra services what- ever, which any officer or clerk may be required to perform, unless expressly authorized by law. R. S. § 1764, U. S. Comp. Stat. 1901, p. 1206. § 447. No extra compensation for disbursing moneys. No officer in any branch of the public service, or any other per- son whose salary, pay or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance or compensation. R. S. § 1765, U. S. Comp. Stat. 1901, p. 1207. § 448. Judicial officers' accounts certified by district judge. The accounts of district attorneys, clerks, marshals, and com- missioners of circuit courts shall be examined and certified by the district judge of the district for which they are appointed, before they are presented to the accounting officers of the Treasury de- partment for settlement. They shall then be subject to revision upon their merits by said accounting officers, as in case of other public accounts : provided, that no accounts of fees or costs paid to any witness or juror, upon the order of any judge or commis- sioner, shall be so re-examined as to charge any marshal for an erroneous taxation of such fees or costs. Part of R. S. § 846, U. S. Comp. Stat. 1901, p. 647. 5S6 ProcPdiuel AND THEIR ACCOUNTS. § 449 [a] 'Pile above provision was carried into the TJevised Statutes from an act of ] 856.1 < A proviso for payment of extraordinary expenses was added by act of 1875.1 s The first clause of the provision providing; for the ex- amination and certification of accounts by district judges is apparently superseded by the provisions of the following code section. Such accounts are examined also by the attorney-general. 1 6 It is the duty of the Su- preme Court clerk and clerks of the circuit courts of appeals to make an annual accounting of fees earned during the year.i" Appropriations for the investigation of accounts of judicial officers have been annually made since 1884, by the siuidry civil appropriation acts.is Cases arising under this and under the following section will be considered under the latter section. § 449. Approval of accounts and cost bills by court. Before any bill of cost shall be taxed by any judge or other officer, or any account payable out of the money of the United States shall be allowed by any officer of the Treasury, in favor of clerks, marslials or district attorneys, the part}'' claiming such account shall render the same, with the vouchers and items thereof, to a United States circuit or district court, and, in presence of the district attorney or his sworn assistant, whose presence shall be noted on the record, prove in open court, to the satisfaction of the court, by his own oath or that of otlier persons having knowledge of the facts to be attaclied to such account, that the services therein charged have been actually and necessarily performed as therein stated; and that the disbursements charged have been fully paid in lawful money -^^^ and the coui-t shall thereupon cause to be entered of record an order approving or disapproving the account, as may be according to law, and just. United States commissioners shall I'orwai-d their accounts, duly verihed by oath, to the district at- torneys of their respective districts, by whom they shall be submitted for approval in open court, and the court shall pass upon the same in the manner afoi'esaid.^^^ Part of § 1, act Feb. 22, 1875, c. 95, 18 Stat. 333, U. S. Comp. Stat. 1901, p. 648. [aj In general — proof of account. The a))ove provision that the accounts on approval thereof, be forwarded to the Treasury accounting officer.s is superseded by a following section 14 Act Aug. 16. 185(i. c. 124, §§ 1, isFor recent enactments see act 1,11 Stat. 49. June 28. 1902. c. 1301. § 1. 32 Stat. isPost. S 4.>5. 474. and act March 3, 1903, c. 1007, IK Post. § 451. § 1. 32 Stat. 1140. I -See post, §§ 587, 588. 537 I 450 JUDICIAL OFFICERS [Code Fed. providing that such accounts be first sent to tlic Attorney Oeneral and ex- amined by him.i Prior to this enactment accounts mentioned herein were regulated by the previous section, 2 and such accounts were apparently to be heard by the judge without formal proceedings in open court. 3 An account must be both "rendered" and "'proved." It is "rendered" when it is presented.^ [b] Accounts to be approved by court. The allowance of accounts by the courts is not a judicial act, 5 being little more than a certificate of regularity and geiuiineness of the accounts and vouchers.6 Since the allowance or disallowance is made subject to the revision of the accounting officers of the Treasury^ the action of the court is largely formal and ex parte.s But the approval of the account by the court is prima facie evidence of its correctness and is conclusive in the absence of clear and unequivocal proof. » The provision is not intended to relieve from the penalties, prescribed by R. S. § 5438, for presenting false claims against the United States, and the judge passing on the claim or accoinit is an officer of the civil service within the meaning of that section. 10 Commissioner's accounts are to be forwarded to the district at- torney of the particular district and by him presented to the court, and the Treasury department has a right to require some action by the district at- torney and the court before it considers such claim. n The court refusing to act in such a case, the Court of Claims has jurisdiction although there has been no presentation to the Treasury department. 12 § 450. Accounts to be in duplicate — originals sent to Washing- ton. Accounts and vouchers of clerks, marshals and district attorneys shall be made in duplicate, to be marked respectively "original'' and "duplicate." And it shall be the duty of the clerk to for- ward the original accounts and vouchers of the officers above speci- -fied, when approved, to the proper accounting officers of the Treas- ury, and to retain in his office the duplicates, where they .shall be open to public inspection at all times. Nothing contained in this 1 Post, § 451. , ^^t^fl .-■• .8United< S;ba,tes. y. McGourin, 10(i 2See United States v. Strobeck, 48 Fed. 291, 4^5 C. C' A. 291. Fed. !)02. 9 United States v. Jones. 134 U. S. 3 In re District Attorney. 23 Fed. 483. 33 L. ed. 1007. 10 Sup. Ct. Rep. 29. (515; United States v; McGourin, 10(i 4Butler v. United State^. 87 Fed. Fed. 288. 4.5 C. C. .\. 291; Hallett v. 655., -:;•;''.;[ K vm' i.c,'. ,'\>-vi'-' i< - ■• Uulted States, 63 Fed. 817; Kinnev sUnifed States v. Strobach, 4^ Fed. v. United States. 54 Fed. 315. !»02. 10 United States v. Strobach, 48 eUnited States v. Ralston. 17 Fed. Fed. 902.: .-( 'n\ .v,./ ■ • 895. iiUnited States V. Knox, 128 U. S. ."'"TMcMul'en v. United States, 146 230, 32 L. ed. 465, 9 Sup. Ct; Rep. 63. V. S. 360. 36 L. ed. 1007, 13 Sup. Ct. i2idem. Rep. 127. ,88S T^r. 538 fiocedure] AND THEIR ACCOUNTS. § 452 act shall be deemed in any wise to diminish or affect the right of revision of the accounts to which this act applies by the accoimtin^i' -officers of the Treasury, as exercised under the laws now in force. I>art of § 1, act Feb. 22, 1875. c. 95, IS Stat. 333, U. S. Comp. Stat. 1901, p. 649. The terin "duplieate" refers to the accounts and vouchers, and does not include the order of the court. i* This section and R. S. § S40i5 reserve to the Ti'easury officers the right to revise accounts passed upon by the court, but such officers liaving passed an account allowed by the court and the account being paid, there can be no demand for repayment. is There is no element of res adjiidicata in their actions, it and their rejection of a claim is not a determination of a "commission or department authorized to hear -and determine" within the meaning of the Tucker act. is Where a claim, having been presented, is suspended for further explanation, is or until the proper vouchers are furnished or other reasonable requirements are com- plied with, 2 the court should not assume jurisdiction until final action is taken by the department, or a reasonable time has elapsed. § 451. Accounts to be submitted to Attorney General. Before transmission to the department of the Treasury, the ac- counts of district attorneys, assistant attorneys, marshals, com- missioners, clerks, and other officers of the courts of the United States, except consular courts, made out and approved as required by law, and accounts relating to prisoners convicted or lield for trial in any court of the United States, and all other accounts Ire^ lating ito the business of the Department of Justice or of the coiirts of the United States other than consular courts, shall be sent with their vouchers to tlie Attorney General, and exaQained-. under his supervision. -nt cr, iud .'■':iv\jf]<< o^.^.dt 'io Part of § 13, act July 31. 1894, c. 174, 28 Stat. 210^ U; ScfGomp. Stat. 1901, p. 166. The omitted portion of the scctiou provides for the monthly payment of JTidges, Interstate Commerce Commissioners and other ofTuors. § 452. Supervisory power of Attorney General over accounts. Till' -Miorney General shall exercise general supervisory powers ■ - ■ ,' ' MUnited States v. Van Duzee. 52 isErwin v. I'nited States. 37 Fed. Fed. 9.10. 3 C. C. A. 361. Affirming 4S 470. 2 L.R.A. 229. Fed. 643. 1 '.'Marvin v. United States. 114 isAnte. § 44S. Fed. 227. ' ''''^' -■- '"'"'^- ■"' i«Tuthill V. I'nilcd States. 38 Fed! ^ofnited States v. Fletcher. '147 •138. I":: S. 61)7. 87 t. ed. ,322, 13 Sup. Ct. I'Barbcr V. United States, 3.1 Fed. Rci). 434. 886. 539 § 453 JI'DK lAL OKFICKRS [Code Fed. over the accounts of district attoi'iicvs, inarshals, dorks and other • iHicers of the courts of tlio United States. R. S. § 368, U. S. Comp. Stat. 1001. p. 210. Tliis provision was enacted in 1870.- The .supervisory powers authorized thereby are th(! same as those which were vested in the Secretary of the Interior before the creation of the Department of Jii-stice, being limited to the e.xamination and auditing of accounts and the certification of balances. They do not extend to the allowance or disallowance of accounts. 3 § 453. No payments to officers in arrears. Xo money shall be paid to any person for liis compensation who is in arrears to the United States, until he luis accounted for and ))aid into the treasury all sums for which he may be liable. In all. cases where the pay or salary of any person is withlield in pur- suance of this section, the accounting officers of the treasury, if required to do so by the party, his agent or attorney, shall report forthwith to the solicitor of the Treasury the balance due; and the solicitor shall, within sixty days thereafter, order suit to oe com- menced against such delinquent and his sureties. R. S. § 17G6, U. S. Comp. Stat. 1901, p. 1208. This provision was passed to secure and protect the government and to insure prompti;ess on the part of public officers.'* § 454. Statutes furnished judges, etc. remain public property. All statutes heretofore or hereafter furnished by the United States to district judges, district attorneys and clerks of the United States courts under this or any other law, shall not become the property of these officers, but on the expiration of their official term shall be by them turned over aud delivered to their respective successors in office. Part of § 1 , act Aug. 7, 1882, c. 433, 22 Stat. 330, U. S. Comp. Stat. 1901, p. 121. § 455. Payment of extraordinary expenses incurred by minis- terial officers. Where the ministerial officers of the United States have or shall incur extraordinary expense in executing the laws thereof, the 2Act June 22. 1870. c. 150, § 15, ^United States v. Potter, Fed. C:\^. 1() Stat. 164. No. 16,076. 3l'nited States v. Waters, 133 U, S. 214, 215, 33 L. ed. 596, 10 Sup. Ct. Rep. 249. 540 T,u idiiiel AND THEIR ACCOUNTS. S 457 jiayiueiit of whicli is not specifically provided for, the President of the United States is authorized to allow the pa3^ment thereof under the special taxation of the district or circuit court of the district in which the said services have been or shall be rendered, to be paid from the appropriation for defraying the expenses of the Judiciary. Proviso added to R. S. § 84G,s by act Feb. 18, 1875, c. SO, 18 Stat. 318. U. S. Comp. Stat. 1901, p. 647. The President alone is authorized to allow payment of this class of expenses, and his decision .should not be interfered with by the courts." § 456. Allowance for mileage. Hereafter only actual traveling expenses shall be allowed to any person holding- employment or appointment under tlie United States, except marshals, district attorneys and clerks of the courts of the United States and their deputies; and all allowances for mileages and transportation in excess of the amount actually paid, except as above excepted, are hereby declared illegal ; and no credit shall be allowed to any of the disbursing officers of the United States for payment or allowances in violation of this provision. § 1 of act Mar. 3, 187.5. c. 133. IS Stat. 4,52. U. S. Comp. Stat. 1901, p. 1207. Mileage as an element in fees charged or taxed is governed by other provisions. 9 This section is a proviso taken from the Army appropriation act for the year ending June 30. 1876. It supersedes a somewhat similar jjrovision contained in an act of lS74.io By the addition of the word "•hereafter" it is made permanent and the exception as to marshals, etc.. is also added. Its object is to establish the principle of paying the actual expenses of persons traveling in the service of the government, and to abolish a specific mileage allowance. It applies to everyone holding em- ployment or appointment under the government not within the exception.il An Indian agent is entitled under its provisions and under R. S. § 2077. to traveling expenses, including board wiiile in transit, but not for board after his arrival. 12 § 457. — to clerks, marshals and district attorneys. From and after tlie first day of January. 187.T. no such officer or person [i. e.. attorneys, marsluils. clerks or their deputies] shall 6See ante, § 44S. nUnited States v. :\rouat. 124 U. TStanton v. United States, .37 Fed. ^'^ •'^03. 31 L. ed. 463. 8 Sup. Ct. Rep. 2152. -505. 9See post. §§ 710, 712. 714, etc. i2United States v. Smit!'., 35 Fed. loAct .Tune Ifi. 1874. c. 285, § 1. 490. 18 Stat. 72. &4I S 457 JUDICIAL OFFICKKS IN GKNEKAL. [Code Fed. become entitled to any allowance for mileage or travel not actually and necessarily performed under the provisions of existing law. Part of § 7, act Feb. 22, 1875, c. 95, 18 Stat. 334, U. S. Comp. Stat. 1901,- p. 649. The omitted portion of this section provides that the provisions of § 1 of the act of June 16, 1874 (mentioned in the note to the preceding section), should not apply to attorneys, marshals, clerks or their deputies. "Mileage or travel not actually and necessarily performed," apparently refers to eases where process is sent; by mail to a deputy to be served at a. distant place,i3 and there is nothing to indicate there was an intention lo do away with the allowance for travel actually performed. 1 4 It does not deny the marshal full mileage on eacli writ served by him on different persons, although one journey only is necessary, 1 5 and the fact that all the writs concern the same suit is immaterial. i6 Sunday trips by a judicial officers to his home are not "travel actually and necessarily per- formed" witliin the meaning of the section. i'? Mileage may be allowed such officer, however, where there is an adjournment over intervening judicial days during the term. is isUnited States v. Fletcher, 147 But see contra. United States v. Ral- U. S. 034. 37 L. ed. 323, 13 Sup. Ct. ston, 17 Fed. 900-901. Rep. 434; Nixon v. United States, 82 isXixon v. United States. 82 Fed. Fed. 26. 29. 30. i4ln re Crittenden, 2 Flipp. 212, 1 7 United States v. Shields, 153 U. Fed. Cas. No. 3,393. S. 88, 38 L. ed. 646, 14 Sup. Ct. Rep. i5See Nixon v. United States, 82 735. Fed. 26; United States v. Harmon, i^Baxter v. United States, 51 Fed. 147 U. S. 279, 37 L. ed. 169, 13 Sup. 671, 2 C. C. A. 411. Ct. Rep. 329; 16 Op. Atty. (Jen. 165. 548 CHAPTER 14. UNITED STATES JUDGES. .S 466. Oath of United States judges. S 467. Tenure of office and compensation. § 468. Appointment and tenure of judges of Court of Claims. § 469. Salaries of United States judges. § 470. Salaries to be paid monthly. § 471. When judge resigning, entitled to salary for life. § 472. Expenses allowed visiting judge holding criminal term in Ne\\" York. § 473. Expenses of visiting district judge in New York. § 474. Expenses of judges attending circuit court of appeals. § 475. Expense allowances when district judges directed to hold court out- side their districts. § 476. Judges prohibited from practicing law. § 477. Judges how paid — to whom certificate of absence sent. § 478. Officers to perform duties though suit by pauper without fees. § 466. Oath of United States judges. The justices of the Supveme Court, the circuit judges and the district judges, hereafter appointed, shall take the following oatli 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 riglit to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my aln'lities and understanding, agreeably to the Con- stitution and laws of the United States: So help me God." R. S. § 712, U. S. Comp. Stat. 1001, p. 578. This provision was enacted in 17S9.1 § 467. Tenure of office and compensation. 'J'lie judges, both of the Supreme and inferior courts, shall hold tlieir offices during good behavior, and shall, at stated times, re- K\('t Sept. 24. 17Sn. c. 20. ii 8, 1 Stat. 76. 543 $ 468 UNITED STATES JUDGES. [Code Fed. ceive for their services, a compensation, which shall not be dimia- ished during their continuance in office. U. S. Const, art. 3, § 1, el. 2. In ordaining and establishing inferior courts Congress must coiikt on the judges thereof tlie constitutional tenure, i. e. "during good behavior. "'- Territorial courts are not "inferior courts" within the meaning of tiii.s pro- vision, hence judges of such courts are subject to removal and su.spensioii as other civil ofhcers appointed by the President,^ and their sa'ar}' may be diminished.* § 468. Appointment and tenure of judges of court of claims. The Court of Claims . . . shall consist of a chief justic! and four judges, who shall be appointed by the President. In- and \\'ith the advice and consent of the Senate, and hold their oHices during good behavior. Part of R. S. § 1049, U. S. Comp. Stat. 1901, p. 729. The omitted part of the above section prescribes the salary of such judges and provides that they shall take oath to support the Constitution and faithfully discharge their duties. The provision as to salary is superseded by the following code section. ^^ 469. Salaries of United States judges. The following salaries shall be paid to tlie several judges here- inafter mentioned in lieu of the salaries now provided for by law, namely: To tlie Cliief Justice of the Supreme Coiirt of the United States the sum of thirteen tliousaiid dollars a year, and to each of the associate justices thereof the sum of twelve thousand five hun- dred dollars a year. To each of the circuit judges the sum of seven thousand dollars a year. To each of the district judges the sum of six thousand dollars a year. To the cliief justice of the Court of Claims the sum of six thousand five hundred dolhvrs a year, and lo each of tlie other judges thereof the sum of six thousand dollars a year. To the chief justice of the court of appeals of the District of Columbia the sum of seven thousand five hundred dollars a year, and to each of the associate justices thereof the sum of seven thousand dollars a year. To the cliief justice and to each associate justice of the supreme court of the District of Columbia the sum of six thousand dollars a year. All of said salaries shall be 2Kentuckv. etc. Co. v. Louisville sHovvard v. United States, 22 Ct. R. Co. 37 Fed. 612, 2 L.R.A. 289. CI. 316. 4 See Fisher's Case, 15 Ct. CI. 324. 544 Procedure] UNITED STATES JUDGES. I 471 paid in monthly installments. One-half of the amount of said salaries which shall be paid to the chief justice and to the associate justices of the court of appeals of the District of Columbia and to the chief justice and to the associate justices of the supreme court of the District of Columbia shall be defrayed from the revenues of the District of Columbia. Act Feb. 12, 1903, c. 547, 32 Stat. 825, U. S. Comp. Stat. 1905. p. 155. § 470. Salaries to be paid monthly. Hereafter the salaries appropriated for the United States judges in the foregoing paragraph [i. e., Supreme Court justices, circuit and district judges and judges of the supreme court of the Dis- trict of Columbia], and judges of the Court of Claims, and of the Territories, may be paid monthly. Part of § 1, act Mar. 3, 1881, c. 130, 21 Stat. 412, U. S. Comp. Stat. 1901, p. 450. A somewhat similar provision relating to judges in certain districts is contained in an act of Mar. 3, 1891,7 and a general provision that "judges receiving salaries from the Treasury of the United States shall be paid monthly," in an act of 1894.8 The previous section also contains a general provision for the monthly payment of judges, but judges of the Territories are not mentioned therein. § 471. When judge resigning, entitled to salary for life. When any judge of any court of the United States resigns his office, after having held his commission as such at least ten years, ■and having attained the age of seventy years, he shall, during the residue of his natural life, receive the same salary which was by law payable to him at the time of his resignation. R. S. § 714, U. S. Comp. Stat. 1901, p. 578. This provision was carried into the Revised Statutes from an act of lS()9.io The word "salary" as used herein means a periodical payment de- pending upon the time, and not upon the amount of services rendered, hence the extra pay for the extra services performed, under R. S. § 6I3,ii is not witliin the meaning of the term. 12. 7Act March 3. 1891, c. .541, § 1. V. uSee following section. S. Comp. Stat. 1901, p. 451. laBenedict v. United States. 176 U. sPost, § 477. S. 360, 44 L. ed. 503, 20 Sup. Ct. Rep. lOAct April 10. 1809, c. 22, 16 Stat. 458. 45. Fed. Proc— 35. 545 J 472 UNITED STATES JUDGES. [Code Fed. § 472. Expenses allowed visiting judge holding criminal term in New York. At every such term [of the circuit court for tlie southern dis- trict of Xew York appointed exclusively for the trial and dis- posal of criminal business] held by said judge of said eastern dis- trict [of New York] he shall receive the sum of three hundred dol- lars, the same to be paid in the manner now prescribed by law for the pa3'ment of the expenses of another district judge while holding court in said district. Part of R. S. § 613, U. S. Comp. Stat. 1901, p. 494. The section was originally enacted in 1873.1 ■* The allowance therein of three hundred dollars per term to a jvidge of the eastern district holding criminal term in the southern district is not a part of the salary of such judge on his resignation under R. S. § 714.15 The remainder of the above section authorized the holding of such criminal terms and is given elsewhere.is § 473, Expenses of visiting district judge in New York. Whenever a district judge, from another district, holds a dis- trict or circuit court in the southern district of New York, in pur- suance of the preceding section, his expenses, not exceeding ten dollars a day, certified by him. shall be paid by the marshal of said district, as a part of the expenses of the court, and shall be allowed in the marshal's account. R. S. § 597, U. S. Comp. Stat. 1901, p. 483. This provision was enacted in 1872.it § 474. Expenses of judges attending circuit court of appeals. Any justice or judge, who, in pursuance of the provisions of this act, shall attend the circuit court of appeals held at any place other than where he resides shall, upon his written certificate, be paid by the marslial of the district in which the court shall be held his reasonable expenses for travel and attendance, not to exceed ten dollars per day, and such payments shall be allowed the marshal in the settlement of his accounts with the United States. § 8, act Mar. 3, 1891, c. 517, 26 Stat. 828, U. S. Comp. Stat. 1901, p. 551. i4Act Feb. 7. 1873. c. 120. 17 Stat. isAnte. § 109. 422. iTAct March 5, 1872, c. 35, 17 isPost. § 471: Benedict v. United Stat. 36. States, 17(; r. S. 357. 44 L. ed. 503. 20 Sup. Ct. Rep. 458. 546 rrocednre] UNITED STATES JUDGES. ! 478 § 475. Expense allowances when district judges directed to hold court outside their districts. It is usual to make provision in the annual appropriation acts each 3-ear for "reasonable expenses for travel and attendance of district judges directed to hold court outside of their districts, not to exceed ten dollars per da}' each, to be paid on written certificates of the judges, and such payments shall be allowed the marshal in the settlement of his accounts with the United States."^* Author's section. § 476. Judges prohibited from practicing law. It shall not be lawful for an}- judge appointed under the au- thority of the United States to exercise the profession or employ- ment of counsel or attorney, or to be engaged in the practice of the law. And any person offending against the prohibition of this sec- tion shall be deemed guilty of a high misdemeanor. R. S. § 713, U. S. Comp. Stat. 1901, p. 578. This section was carried into the Revised Statutes from an act of 1812.1 § 477. Judges, how paid — to whom certificate of absence sent. Judges receiving salaries from the Treasury of the United States shall be paid monthly by the disbursing officer of the Department of Justice, and to him all certificates of nonabsence or of the cause of absence of judges in the Territories shall be sent. Interstate Commerce Commissioners and other officers, now paid as judges are, shall be paid monthly by the proper disbursing officer or oflBcers. Part of § 13. act July 31, 1894, c. 174, 28 Stat. 210, U. S. Comp. Stat. 1901, p. 166. § 478. Officers to perform duties though suit by pauper without fees. The officers of court shall issue, serve all process and perform all duties in such cases [i. e., suits in forma pauperis] and wit- nesses shall attend as in other cases, and the plaintiff shall have the same remedies a.< are provided by law in other cases. S 3 of act .Inly 20. 1892, c. 209, 27 Stat. 252, U. S. Comp. Stat. 1901, p. 707. i9This is the provision of the ap- lAct Dec. 18, 1812, c. 5, 2 Stat, propriation act of March 3. 1903. c. 788. 1007, § 1, 32 Stat. 1141. 547 § 487. :§ 488. :§ 489. -§ 490. § 491. :§ 492. ■5 493. § 494. § 495. :§ 496. :§ 497. :§ 498. ■:§ 499. § 500. § 501. § 502. § 503. § 504. § 505. § 506. § 507. § 508. § 509. § 510. § 511. § 512. § 513. § 514. § 515. § 510. § 517. § 518. § 519. § 520. § 521. § 522. § 523. CHAPTER 15. ATTORNEYS AND COUNSEIXORS. Cross references and matters not herein treated. Admission to practice before Supreme Court. Oath on admission to bar of Supreme Court. Admission of women to practice before Supreme Court. Admission to practice before circuit court of appeals. Admission to practice in circuit and district courts. Parties may plead their own cases. Right of accused to counsel. Attorney may be requested to represent poor person. Officers forbidden to practice as attorneys. — penalty for practicing. Members of Congress not to practice in Court of Claims. Federal officers may not act for claimants against United States. Heads of departments not to employ counsel. Indians may liave counsel in suit against United States for dep- redations. One district attorney for every district. Assistant district attorneys. When district attorneys may employ clerks. Temporary appointment by district court to fill vacancy. Residence and duties of district attorney, and effect of removal or neglect. Designation of residence by Attorney (ieneral. Term and oath of district attorney. Salaries in lieu of fees, — services in circuit court of appeals. Salaries in particular districts. District Attorney's salary payable monthly. Salary in southern New York districts. Payn:ent of clerks and expenses in soutliern district of New York. Salary of district attorney in Indian Territory. Compensation of assistant district attorney. — assistants in certain districts may receive more. Office expenses allowed district attorneys. Allowances for traveling and other expenses. Duty to make quarterly expense accounts. vSemi -annual return of fees and expenses. All fees included in return with certaiii exceptions. Auditing of district attorney's expense accounts. Fees and accoimts of attorney for District- of Columbia. 548 Pio.edme] CKOSS REFERENCES. § 487 § 524. Duties of district attorneys in general. § .525. Duty to det'end officers of Congress. § 52G. — duties to furnish information as to titles to public property. § 527. — to render legal services in purchases for government. § 528. — to conduct government suits respecting national banks. § 529. Duty as to suits for monej' due Post Office Department. § 530. Duty to represent government in prize cases. S 531. Duty as to restoration of records and compensation therefor. § 532. Duty to represent Indians. t) 533. — to institute government condemnation proceedings. § 534. — to abate unlawful enclosure of public lands. § 535. - — to restrain combinations in restraint of import trade. J5 536. — to prevent violations of anti-trust act of 1890. § 537. — to prosecute violations of Commerce Commission's orders. § 538. — to prosecute violations of act prohibiting transportation of dis- eased cattle. § 539. ^to prosecute suits in equity against carriers violating published rates. § 540. Duty to proceed against marshal failing to pay over fines. § 541. — to prosecute offenders against alien immigration laws. § 542. — to prosecute owner of obstructing bridge, refusing to alter same. § 543. — to prosecute persons presenting false claims. § 544. — to prosecute revenue frauds. § 545. Duty to make return to Treasury of suits. § 546. Duty to transmit to Treasury, statement of suits for lines, etc. § 547. — to make return of revenue suits to commissioner. § 548. — to report on post office suits. § 549. Liability of district attorney on receiving a bond for suit. § 550. Rules respecting suits where United States are parties. § 551. Attorney General to supervise district attorneys and marshals. § 552. — to retain counsel to assist district attorneys. § 553. — to provide otlier departments with counsel § 554. Restrictions on payment of special counsel tees. § 555. Appointment and oath of special counsel. § 556. Solicitor (ienoral or other officers may be sent to any district. § 557. Attorney General to supervise accounts. § 557V2- Special counsel may be authorized to conduct proceedings in any district. § 487. Cross references and matters not herein treated. The qualifications and rules governing attorneys in practice be- fore executive departments as, for instance, in land department and pension matters, are outside the scope of this work. Neither does it seem advisable to attempt to include the statutes dealing with the duties of the Attorney General and the Department of Justice, or temporary statutes authorizing special counsel in 549 § 4SS ATTOUNKYS AND COUNSELLORS. [Code leJ. designated causes, or directing the law officers of the government to appear therein. In other portions of this work will be found reguhitions forbidding appointment of district attorneys or theii' assistants as receivers^ or as commissioners ;2 regulating their fees;"'' requiring them to pay costs excessively taxed ;^ forbidding bank- ruptcy referees from practicing in bankruptcy;^ and payments to and priority of claim of bankrupt's attorney f regulating the fee to be charged on admission to circuit and district courts f forbidding judges to practice law f providing for the assignment of counsel to defendants in treason and capital cases,^ and prescribing district attorney's duty in appealing suits against the United States under the act of 1887.io § 488. Admission to practice before Supreme Court, It shall be requisite to the admission of attorneys or counselors to practice in this court that they shall have been such for three years past in the supreme courts of the States to which they re- spectively belong, and that their private and professional charactci' shall appear to be fair. Clause 1 of rule 2 of Supreme Court, promulgated Feb. 5, 1790, revised Dec. term 1858.ii It is well settled that it rests with the court to determine who is qualified to become one of its officers as an attorney and counselor and for what cause he ought to be removed,i2 while Congress has a right to pre- scribe new qualifications it cannot exclude parties from the practice of law for past conduct, thus inflicting punishment for past offenses. is Pro ceedings against attorneys for malpractice or unprofessional conduct need not be founded on formal allegations.! "* They may be moved by third parties on affidavit, or taken by the court of its own motion; the only re quisite being that, when not taken for matters occurring in open court, no tice and opportunity be given for explanation and defense. is Proceedings for disbarment have been sustained for participating in a lynching,i6 for iPost, § 1123. 1219 How. 13, 15 L. ed. 565j Ran- 2Post, § 673. dall v. Brigham, 7 Wall. 535, 19 L. sPost, § 717, et seq. ed. 291. 4Post, § 1838. See also post, § isEx parte Garland, 4 Wall. 380. 1836. 18 L. ed. .366. sPost, § 2241. i4Randall v. Brigham, 7 Wall. 540. «Post, § 2221. 19 L. ed. 293. 7Post, § 711. iSRandall v. Brigham, 7 Wall. 540. 8 Ante, § 476. 19 L. ed.. 293. See also E.>c parte 'Post, § 1587. Garland. 4 Wall. 379, 18 L. ed. 366. lopost, § 1481. i6Ex parte Wall. 107 U. S. 281, 27 112 Dall. 399, 1 L. ed. 431, 21 How. L. ed. 559, 2 Sup. Ct. Rep. 5S2. V. 5t">0 Procedure] ADMISSION TO PRACTICE. i 491 filing brief amounting to a libel on the court, i' for violating the confidence of a former client. is While the court will not ordinarily disbar an attorney committing an indictable offense, not in his official character, prior to trial and conviction therefor, it may be done under special circumstances. is Damages for removal after hearing will not lie against the judge. 20 § 489. Oath on admission to bar of Supreme Court. They shall respectively take and subscribe the following oath or affirmation, viz. : I, • , do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, uprightly and according to law, and that 1 will support the Con- stitution of the United States. Clause 2 of Rule 2 of Supreme Court, promulgated Feb. 7, 1791.2 Conformably to an act of 18G53 the above oath was amended and the ap- plicant required to swear that he had never voluntarily borne arms against the United States since he had been a citizen thereof, nor exerci.sed the functions of any office under authority in hostility thereto, nor given aid and comfort to any persons in rebellion.* That act was declared un- constitutional, however,5 and the amendment was rescinded. 6 § 490. Admission of women to practice before Supreme Court. Any woman who shall have been a member of the bar of tho highest court of any State or Territory or of the supreme court ol' the District of Columbia for the space of three years, and shall havi" maintained a good standing before such court, and who shall l)i' a person of good moral character, shall, on motion, and the pro- duction of such record, be admitted to practice before the Supremo Court of the United States. Act Feb. 15, 1879, c. 81, 20 Stat. 292, U. S. Comp. Stat. 1901, p. 59( § 491. Admission to practice before circuit court of appeals. All attorneys and counselors admitted to practice in tlie Su- preme Court of the United States, or in any circuit court of the United States, shall become attorneys and counselors in this court on taking an oath or affirmation in the form prescribed by Eule 'i 1" United States v. Creen, 85 Fed. 1 Cranch, xvii. 1 Wheat, xiv, 1 Pet. 8fil. vi. 21 How. V. isi'nited States v. Costen. .38 Fed. sAct Jan. 24, I860. 13 Stat. 424. 24; In re Boone. 83 Fed. 949. ^2 Wall. vii. i9Ex parte Wall. 107 I'. S. 2Go. 27 ^Ex parte Garland. 4 Wall. .3.33. L. ed. 5.52. 2 Sup. Ct. Reo. .5i;9. 18 L. ed. 30(5; In re Shorter. Fc.i. ("as. 20Randal! v. Brigliani. - Wall. 5.35. Xo. 12.811. 19 L. ed. 291. fiDecember term ISOU. 4 Wall vii. 22 DaU. 399, 1 L. ed. 431. See also 551 S 492 ATTORNEYS AND COUNSELLORS. [Code Fed. of the Supreme Court of the United States, and on subscribing the roll, but no fee shall be charged therefor. Rule 7 of circuit courts of appeals. § 492, Admission to practice in circuit and district courts. The matter of admission to practice in the various circuit and district courts is governed by the rules of such courts, which should be consulted. By a provision of an act of 1902^ "no amount in ex- cess of one dollar shall be received from any attorney in connec- tion with his admission to practice in a circuit or district coui't." Author's section. § 493. Parties may plead their own cases. 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, re- spectively, are permitted to manage and conduct causes therein. R. S. § 747, U. S. Comp. Stcit. 1901, p. 590. This section was enacted in 1739.1 o It may be taken as an acknowlecl*]^- ment by Congress that the admission of attorneys and counselors to prac- tice is a matter within the judicial power of the United States.n An attorney being selected has exclusive control and management and his* client cannot appoint an agent to represent him in the suit.i2 The pre- sumption is that an attorney appearing for a party has authority to do so, and such authority must be questioned by direct attack.is In crim- inal practice the district attorney is the prosecutor, no private prosecutor ever having been recognized. i* § 494. Right of accused to counsel. Every person who is indicted of treason, or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign him such counsel, not exceeding two, as he may desire, and they shall have free access to him at all seasonaMe hours. . . . Part of R. S. § 1034. U. S. Comp. Stat. 1901. p. 722, section given in full, post § 1587. This provision is from an act of 1790.16 SAct June 28. 1902. c. 1301. § 1, isBonnifield v. Thorp. 71 Fed. 924. 32 Stat. 475. i4United States v. Stone, 8 Fed. H'Act Sept. 24, 1789, c. 20. § 35, 2.32. See also United States v. Blais- 1 Stat. 92. dell, 3 Ben. 143. Fed. Cas. No. 14,608. iiln re Shorter. Fed. Cas. No. 12.- i6Act April 30, 1790, c. 9, § 29, 811. 1 Stat. 118. 1 -'Nightingale v. Oregon, etc. R. R. 2 Sawy. 338, Fed. Cas. No. 10,264. Proieduiei ATTORNEYS AND COUNSELLORS. § 499' § 495. Attorney may be requested to represent poor person. The court may request any attorney of the court to represent such poor person [as, having taken the pauper's oath, shall com- mence an action], if it deems the cause worthy of a trial. Part of § 4, of act of July 20, 1892, c. 200, 27 Stat. 252, U. S. Comp. Stat. 1901, p. 707. ^Miiif an attorney assigned by the court under the above provision will receive nothing in case of nonsuccess, he may if successful apply to the court for an order fixing fair compensation to be paid out of the fund re- covered. 1 7 § 496. Officers forbidden to practice as attorneys. No clerk, a^ssistant or deputy clerk, of any Territorial, district or circuit court, or of the Court of Claims or the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney or counsel in any cause depending in either of said courts, or in any district for which he is acting as such officer. R. S. § 748, U. S. Comp. Stat. 1901, p. 590. § 497. — penalty for practicing. Whosoever violates the preceding section [see preceding section] shall be stricken from the roll of attorneys by the court upon com- plaint, upon wliich the respondent shall have due notice, and be heard in his defense; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dis- missal from office. R. S. § 749. U. S. Comp. Stat. 1901, p. 591. This provision was enacted in 1873.1 s § 488. Members of Congress not to practice in Court of Claims, ^lembers of eitlier house of Congress shall not practice in the Court of Claims. R. S. § lOoB. U. S. Comp. Stat. HjOI, p. 731. § 499. Federal officers may not act for claimants against United States. Every officer of the United States, or person liolding any place I'Whelan v. Manhattan K. Co. SC, isAct Jan. Ki. 1873, c. 3«), § 2, IT Fed. 219. SUit. 411. § 500 ATTORNEYS AND COUNSELLORS. [Code Fed. of trust or protit, or discharging any official function under, or in connection with, any executive department of the government of the United States, or under the Senate or House of Eepresentative of the United States, who acts as an agent or attorney for prose- cuting any claim against the United States, or in any manner or by any means, otherwise than in discharge of his proper official duties, aids or assists in the prosecution or support of any such claim, or receives any gratuity or any share of or interest in any claim from any claimant against the United States, with intent to aid or assist or in consideration of having aided or assisted, in the prosecution of such claim, shall pay a fine of not more tlian five thousand dollars, or suffer imprisonment not more than one year, or both. R. S. § 549S, U. S. Comp. Stat. 1901, p. 3707. This section was enacted in 1853.1 Members of the National Guard of the District of Columbia are not within its provisions.- § 500. Heads of departments not to employ counsel. No head of a department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same. R. S. § 189, U. S. Comp. Stat. 1901, p. 94. This provision was carried into the Revised Statutes from an act of 1870.3 The duties of officers of the Department of Justice to render serv- ices to the heads of Departments are prescribed by R. S. § 361. Prior to the adoption of the above provision the heads of Departments were accus- tomed to employ district attorneys to examine into titles to lands sought to be purchased for the United States,^ and since its adoption such serv- ices have been required of district attorneys by the Deparment of Jus- tice.5 § 501. Indians may have counsel in suit against United States for depredations. Any Indian or Indians interested in tlie proceedings [for col- lection of claims for Indian depredations] may appear and de- fend, by an attorney employed by such Indian or Indians with the lAct Feb. 26, 1853, c. 81, § 2, 10 3Act June 22, 1870, c. 150, § 17, Stat. 170. 16 Stat. 164. 2Act June 6, 1900, c. 789, § 1, 31 <19 Op. Atty. Gen. 63. Stat. 577. 5 Weed v. United States, 82 Fed. 419. 554 Procedure] ASSISTANT DISTRICT ATTORNEYS. { 803 approval of the Coiuiuissioner of Indian Affairs, if he or they shall ■choose so to do. Part of § 4. act Mar. 3, 1891, c. 538, 26 Stat. 852, U. S. Comp. Stat. 1901, p. 761. Indians appearing by their own attorney are not entitled to any other notice than the service of the petition upon the Attorney General.T § 502. One district attorney for every district. The provisions coutaineil in laws creating two districts where one previously existed, and providing for the appointment of district ■attorneys therein are not reproduced here, nor are the statutes pro- viding for such appointments in newly admitted States. R. 8. § 767 provided for a district attorney in every district except in Alabama, Georgia and South C^arolina. Later laws have j^rovided such officials for each district in Alabama and Georgia.** South <^arolina is really divided into two divisions rather than two dis- tricts.^ Existing laws provide for a district attorney for every ■district in the United States. The statutes dividing districts into divisions or prescribing terms to be held at different places in a •■district, have occasionally specified that the district attorney shall perform the duties pertaining to his office in the circuit and dis- trict courts when sitting in such divisions or places. ^"^ But in the majority of enactment's any such provision is omitted. It would ^eem to be merely declaratory of a duty which is sufficiently pre- T^cribed by the general laws upon the subject. The statutes govern- ing many district's and divisions provide for deputy marshals and clerks therein, but never for deputy district attorneys. Author's section. The validity of the appointment of a district attorney is not subject to collateral attack, hence caiuiot be considered on a plea to an indictment. n i^ 503. Assistant district attorneys. Whenever, in the opinion of the district judge of any district or the chief Justice of any Territory and the district attorney, evi- TJaeger v. United States, 27 Ct. CI. of Julv 18, 1894. c. 144. § 8. 28 Stat. -278. 115, U. S. Comp. Stat. 1901, p. 383. 8G-eorgia see act April 2."). 1S82, c. Missouri: Act Feb. 28, 1887. c. 271, •87, § 1. 22 Stat. 47. Alabama: S 5. 24 Stat. 425, U. S. Comp. Stat. Marcli 3. 1893. c. 220. 27 Stat. 745, 1901, p. 387. fL'. S. Comp. Stat. 1901. p. 319, 335. iiUnited States v. Mitchell, 136 9Ante, S 284. Fed. 906. ^oE. g. see act as to Mississippi 553 § 501 ATT01tXi:YS AND i'Ol'.NSlCLLOKS. [Code Ked_ denced by writing, the public interest requires it, one or more as- sistant district attorneys may be appointed, by the Attorney Gen- eral : but such opinion shall state to the Attorney General tiie facts as distinguished from conclusions, showing the necessity therefor. Part of § 8, act May 28, 1890, c. 252, 29 Stat. 181, U. S. Comp. Stat. 1901, p. 61.3. The remainder of the section prescribes the compensation of such as- sistants,! 2 the allowances for traveling and other expenses of the dis- trict attorney and his assistants,! 3 and the official residence of the dis- trict attorney.! 4 The provisions of the section do not apply to the ofHce of the district attorney and his assistants for the southern district of New York or for the District of Cohimbia.is Assistant District Attorneys appointed hereunder are officers of the United States for their respective districts. 16 § 504. When district attorneys may employ clerks. The district attorney of any judicial district, when the facts showing the necessity therefor are certified by the district judge to the Attorney General, may. with the approval of the Attorney Gen- eral, and no longer than such approval lasts, employ necessary clerical assistance at such salary or salaries as shall be from time to time fixed by the Attorney General. § 15, act May 28, 1896, c. 252, 29 Stat. 183, U. S. Gump. Stut. 1901, p. 617. By the express terms of § 24 of the above act this provision does not apply to the office of the district attorney for the southern district of New York, or for the District of Columbia.! s Whenever the Attorney (Jeneral deems it necessary he may retain attorneys to assist the district attorneys in the discliarge of their duties.! 9 But unless specially authorized by law, no compensation is allowed any person other than district attorneys or their assistants for legal services to the United States government or any branch or department thereof. When specially authorized it is allowed only on certilicaie o! the Attorney General. 20 55 505. Temporary appointment by district court to fill vacancy. In case of a vacancy in ... |the otfice of district attorney] the district court of the United States for the district when such vacancy exists, the supi-eme court of the Territory, and the Su- i2Post. § 515. i6ln re Leaken, 137 Fed. 680. ! 3 Post. 8 51 S. 18 Act Mav 28, 1896, § 24, c. 252, itPost. § 507. 29 Stat. 186." 15 Act Mav 28. 1896. c. 252, § 24. H'Pv. S. § 363. 29 Stat. ISO'. ^"i;. S. § 365. 556 Procedure] DISTRICT ATTORNEYS. § oOS ])reme Court of the District of Colunibia may appoint persons to exercise the duties of such offices Avithin their respective jurisdic- tions, until such vacancy shall be filled. Part of § 2, act June 24, 1898, c. 495, 30 Stat. 487, U. S. Coiiip. Stat. 1001, p. 618. The section also jnovides siniilaiiy as to marshals.2 A somewhat similar provision as to the appointment of a district attorney for the District of ■Columbia is found in an act of 1897.3 § 506. Residence and duties of district attorney, and eflfect of removal or neglect. Every . . . United States district attorney, shall reside permanently in the district where his official duties are to be per- formed, and shall give his personal attention thereto; and in case any such officer shall remove from his district, or shall fail to give personal attention to the duties of his office, except in case of sick- ness, such office sliall be deemed vacant : Provided, That in the southern district of Xew York said officers may reside within twenty miles of their districts. § 2 of act .Tune 20, 1874, c. 328. 18 Stat. 109, U. S. Comp. Stat. 1901, p. 622. The section contains ahso a similar provision as to cleiks of the circuit ■or district court, 5 and marshals. « The fact that a district attorney is not a permanent resident does not invalidate an indictment, where he is a de facto officer." § 507. Designation of residence by Attorney General. The Attorney General is authorized to fix and declare the place of the official residence of the district attorney and of each of his assistants : Provided. That the said assistants must be residents of the district for which they are appointed. Part of § 8, act May 28, 1890, c. 252, 29 Stat. 181, U. S. Comp. Stat. 190). p. 01.'.. § 508. Term and oath of district attorney. Tlie provision of revised statutes that "District attorneys shall be appointt'd for a term of four years, and their commissions sliall cease and expire at the expiration of four years from their respective 2See § 619. spost. § 6-23. xAct Feb. 27, 1897, c. 341, 29 Stat. 7Unit<-d States v. Mitchell, 136 600. Fed. 906. 5 Post. § 571. 557 S r,09 ATTORNEYS AND COUNSRIXORS. [Code Fed. dates;" and that "every district attoriie v. before entering npou lii- ottice. shall be sworn to a faithful execution thereof/'^ was qiuili- lied bv an act of 1898 providing that "the attorneys . . . of the United States, including the District of Columbia and the Territories, shall continue to discharge the duties of their respectivi- offices, unless sooner removed by the President, until their suc- cessors shall be appointed and qualify in their stead. l>ut they shall be appointed and commissioned for the term for four years as now provided by law.''^^ fp]-,e provision of the act of 189^ above mentioned applies also to marshals. .^^ The President has power to remove a district attorney within the four years and to appoint his successor. ^^ Autlior's section. § 509. Salaries in lieu of fees, — services in circuit court of ap- peals. On and after the first day of July, eighteen hundred and ninety- six . . . United States district attorneys ■. . . shall be paid for their official services, which, in the case of district attor- neys, shall include services in the circuit courts of appeals of their respective circuits wherever sitting, salaries and compensation here- inafter provided and not otherMise.f*^"^*^^ Part of § 6, act May, 28, 1896, c. 252, 29 Stat. 179, U. S. Conip. Stat. 1901, p. 611. [aj In general. This section applies also to marshals.i^ By § 24 of the same act the above section and two others were declared inapplicable to the southein district of New York and the District of Columbia. But an act of 1900 specified that so much of the above section as relates to sej-vices in the circuit court of appeals shall be applicable to the soiithern district nl' Xew York; 15 and an act of 1905 fixed the salary in that district at $10,000.16 Except in the District of Columbia, district attorneys are not allowed to receive fees in addition to their salary. it [b] Earlier provision that compensation to be from fees in each year. R. S. § 8431 s provided that "the allowances for personal compensation PR. S. § 769. U. S. Comp. Stat. 1901. 769. before the qualifving act of 1808. p. 600. s<-p Badffer v. I'liit^l States. 93 I^. lOAct June 24. 1898, c. 495, § 1. 30 S. 599. 23 L. ed. 991. Stat. 487, U. S. Comp. Stat. 1901, p. i4Post. § 63."^. 618. iBAet June 6. 1900. c. 785. 31 St.it. iiPost, § 617. 304. i2Parsons v. United States. 167 U. isSee post. § 512. S. 324. 12 L. ed. 185. 17 Sup. Ct. Rep. i^See post. § 552. 880; Taylor v. Kercheval, 82 Fed. isU. S. Com'p. Stat. 1901. p. 646. 502; as to interpretation of R. S. 558 I I'rocediirc] SALARIES IX PARTICULAR DISTRICTS. i 510 of district attorneys. . . . for each calendar year shall be made from ;he fees and emoluments of that year, and not otherwise." This seems to be superseded, though perhaps operative in the District of Columbia. It also specifies clerksis and marshals. Marshals, however, are now paid >alaries in lieu of fees, 20 and it is questionable whetlier the section applies 10 them. [c] Old provision forbidding allowances for rule day and double allow- ances when both courts in session. By putting district attorneys upon a salary basis, R. S. § 831 was also superseded. It provided that "no per diem or other allowance shall be made to any district attorney . . . for attendance at rule days c^f a circuit or district court; and when the circuit and district courts sit at the same time, no greater per diem or other allowance shall be made to any such officer than for an attendance on one court."2i [d] District attorneys not to receive fees in addition to salary. To remove any doubt as to the interpretation of the various enactments, Congress in 190.5 declared that "in no case except in the District of Co- lumbia shall United States District Attorneys hereafter receive fees of office in addition to the salary allowed them by Iaw."22 § 510. Salaries in particular districts. The United States district attorney for each of the follow- ing judicial districts of the United States shall be paid in lieu of the salaries, fees, per centums, and other compensations now^ al- lowed b}' law an annual salary as follows: For the northern and middle districts of the State of Alabama, each four thousand dol- lars ; for the southern district of the State of Alabama, three thou- sand dollars; for the Territory of Arizona, four thousand dollars: for the eastern di.strict of Arkansas, four thousand dollars ; for the western district of Arkansas, five thousand dollars ; for the northern district of California, four thousand five hundred dollars: . . . for the district of Colorado, four thousand dollars ; for the district of Connecticut, two thousand five hundred dollars; for the district of Delaware, two thousand dollars ; for the northern district of Flor- ida, three thousand five hundred dollars; for the southern district of Florida, three thousand five hundred dollars : for the northern dis- trict of Georgia, five thousand dollars; for the southern district of Georgia, three thousand five hundred dollars; . . . for the northern district of Illinois, five thousand dollars: for the southoi-n li'Post. § .582. 22Part of § 1. act March ."?. 190-5. c. 2('Post. § G.3.3. 148.3. .3.3 Stat. 1207. U. S. Comp. Stat. 21U. S. Comp. Stat. 1901, p. 640. 1905, p. 159. 559 § 510 ATTORNEYS AND COUNSELLORS. [Code Fed. district of Illinois, five thousand dollars; for the district of Indi- ana, five thousand dollars; for the northern and southern districts of Iowa, each four thousand five hundred dollars ; for the district of Kansas, four thousand five hundred dolUirs; for the district of Kentucky, five thousand dollars; for the eastern district of Louisi- ana, three thousand five hundred dollars ; for the western district of Louisiana, two thousand five hundred dollars; for the district of Maine, three thousand dollars; for the district of ilaryland, four thousand dollars; for the district of Massachusetts, five thousand dollars ; for the eastern district of Michigan, four thousand dollars ; for the western district of j\Iichigan, three thousand five hundred dollars; for the district of Minnesota, four thousand dollars ; for the northern and southern districts of Mississippi, each three thousand five hundred dollars ; for the eastern district of ]\Iissouri, four thou- sand five hundred dollars ; for the western district of Missouri , four thousand five hundred dollars ; for the district of Montana, four thousand dollars ; for the district of Xebraska, four thousand dol- lars ; for the district of Nevada, three thousand dollars ; for the dis- trict of New Hampshire, two thousand dollars ; for the district of Xew Jersey, three thousand dollars ; for the district of New Mexico, four thousand dollars ; for the northern district of New York, four thousand five hundred dollars; for the eastern district of New York, four thousand five hundred dollars ; for the eastern district of North C^'arolina, four thousand dollars ; for the western district of North Carolina, four thousand five hundred dollars; for the district of N'orth Dakota, four thousand dollars ; for the northern and southern districts of Ohio, each four thousand five hundred dollars; for the district of Oklahoma, five thousand dollars; for the district of Ore- uon, four thousand five hundred dollars ; for the eastern district of Pennsylvania, four thousand five hundred dollars ; for the western district of Pennsylvania, four thousand five hundred dollars : for the district of Ehode Island, two thousand five hundred dollars; for the eastern and western districts of the district of South Carolina, four thousand five hundred dollars, two thousand five hundred dollars of which shall be for the performance of the duties of dis- trict attorney for the western district ; for the district of South Da- kota, four thousand dollars ; for the eastern, middle and western districts of Tennessee, each four thousand five hundred dollars : for the northern district of Texas, three thousand five hundred dol- lars ; for the eastern district of Texas, five thousand dallars ; for the 560 I'i-...,.duieJ SALARY AND EXI'CXSES. § 51". western district of Texas, four thousand dollars; for the district of Utah, four thousand dollars: for the district of Vermont, thrw thousand dollars; for the ea^stern district of Virginia, four thou- sand dollars; for the western district of Virginia, four thousand five hundred dollars; for the district of Washington, four thousand five hundred dollars; for the district of West Virginia, four thou- sand five hundred dollars ; for the eastern district of Wisconsin, four thousand dollars; for the western district of Wisconsin, four thou- sand dollars: for the district of Wyoming, four thousand dollars. § 9, act May 28, 189G, c. 252, 29 Stat. 181, U. S. Comp. Stat. 1901. pp. 613-615. The omitted portions of the above section fixed the salary of the district attorney for the southern district of California at three thousand five hun- dred dollars, and that of the district attorney for the district of Idaho at three thousand dollars. An act of 1906 fixes the salary of these oflicers at four thousand dollars respectively.! The salary of the district attorney in the southern district of New York is the subject of a separate provision. 2 § 511. District Attorney's salary payable monthly. All salaries provided by sections six to fifteen, inclusive, of thi^ act [includes district attorneys and their assistants]-' shall be paid monthly by the Department of Justice. § 16 of act May 28, 1896, c. 2.01. 29 Stat. 183, U. S. Cuni[.. Stat. 1!)0I, p. 617. § 512. Salary in southern N. Y. district. The district attorney for the southern district of Xew York shall hereafter receive a salary of ten thousand dollars per annum. Part of § 1, act Mar. 3, 1905, c. 1483. 33 Stat. 1207, U. S. Comp. Stat 1905, p. 157. The above section supersedes the provision for a salary of six thousand dollars to the said district attorney contained in R. S. § 770. § 513. Payment of clerks and expenses in southern district of New York. Clerks and messengers in the office of the United States district attorney for the southern district of Xew York shall hereafter be paid from this appropriation and subsequent appi-ojiriations for sal- aries and expenses of district attorneys, by the disbursing clerk of the Department of Justice, in such numhei- and at such salaries a.s lAct .Tunc .".O. 1900, c. .3914. 34 2Pust. § 512. Stat. 75.3-754. :!Sec- ante, §S .■:04. .509. 510; post, ^ 515. Fed. Proc— 30. 561 § 514 ATTORNEYS AND COUNSELLORS. [Code Fed. may be fixed by the Attorney General, and that such office expenses of said district attorney as may be approved by the Attorney Gen- eral shall also be paid in the same manner and from the same ap- propriations as similar expenses in other judicial districts, not- withstanding the provisions of section eight hundred and thirty- six. Revised Statutes. From act June 30, 1906, c. 3914, 34 Stat. 754. The foregoing is a proviso in the sundry civil appropriation act. Previous- ly R. S. § S36 had provided that "There shall be paid to the district at- torney for the southern district of New York, in addition to his salary, at the rate of six thousand dollars a year, such sum as shall be necessary, together with the costs and fees allowed him by law, to pay such amount as may be fixed by the Attorney General for the proper expenses of his of- fice. But nothing in this or the preceding section shall forbid the allow- ance of additional compensation for services in prize causes, as provided in title 'Prize.' "5 R. g. § 835, limited the amount of fees which the district attorney could retain for his compensation. It is superseded by the act providing for the payment of salaries to the district attorneys in lieu of fees. 6 The additional compensation allowed in prize cases is elsewhere stated.7 § 514. Salary of district attorney in Oklahoma. The district attorneys in the two districts of Oklahoma are to receive the fees and compensation now allowed by law to of- ficers performing similar services for the United States in other districts." ^■'^ § 515. Compensation of assistant district attorney. Such assistant district attorneys shall be paid such salar)'^ as tlio Attorney General may from time to time determine as to each, which shall in no case exceed two thousand five hundred dollars per an- num. Part of § 8 of act May, 28 1896, c. 252, 29 Stat. 181, U. S. Comp. Stat. 1901, p. 613. § 516. — assistants in certain districts may receive more. The restriction of assistants' salaries to $2,500 does not apply to assistants in the southern district of New York or in the District of 5U. S. Comp. Stat. 1901, p. 644. TPost, SS 1330, 1331. «Ante, § 509, TVzAct June 19, 1906, c. 3335, § 13, 34 Stat. 275. 562 Jh. Procedure] ALLOWANCES AND DUTIES. § 519 Columbia.^ Xor does it apph' to the first assistant to the district attorney for the northern district of Illinois.® Author's section. § 517. Office expenses allowed district attorneys. The necessary office expenses of the district attorneys . . . shall be allowed when authorized by the attorney general. § 14, act Mar 28. 1890, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 617. The above provision applies also to marshals. lo Disbursements for printing supplies and stenographers' services can be allowed onlj- on proof that they were necessary.n § 518. Allowances for traveling and other expenses. The necessary expenses for lodging and subsistence actually paid, not exceeding four dollars per day and actual and necessary travel- ing expenses of the district attorney and his assistants, while ab- sent from their respective official residences and necessarily em- ])loyed 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 allowed and paid in tbe man- ner hereinafter provided. Part of § 8, act of May 28, 1896, c. 252, 29 Stat. 181, U. S. Comp. Stat. 1901, p. 613. By § 24 of this act. § 8, above, does not apply to the office of the district attorney and his assistants for the southern district of Xew York or for the District of Columbia. For the allowance and payment of ex- penses ''in the manner hereinafter provided" see post, § 522. This provi- sion supersedes an act of 1894,i3 providing as follows: "Hereafter the Unitc^d States district attorney shall bo allowed only mileage actually (raveled to and from the place of hearing for his attendance in person or by his assistant, before a United States Commissioner or other com- mitting magistrate, in each case, and no more." § 519. Duty to make quarterly expense accounts. Wbenever in this ajct an officer is allowed actual expenses [this sSee § 24 of act Mav 28. 1896. c. mPost. § 637. 252. U. S. Comp. Stat.' 1901. p. 618. "United States v. Colman. 76 sSee act INlnrch 3, 1903. c. 1007. § Fed. 214. 22 C. C. A. 1.35. 1. .32 Stat. 1141, U. S. Comp. Stat. i^Act Aug. 18, 1894. c. 301, 28 1903, p. 96. Stat. 372. 503 § 520 ATTORNEYS AND COUNSELLORS. [("oile Fed. inchules district attonievs and their assistants] the account there- for shall be made out quarterly, in accordance with rules and regu- lations prescribed bv the Attorney General. When made out the account shall be veritied on oath before an othcer authorized to ad- minister oaths. Part of § 13, act May 28, 189^, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 616. The omitted portion of the section provides for the auditing of dia- trict attorneys' expense accounts, i^ and prescribes also tlie duties of mar- shals as to their accounts.^s § 520. Semiannual return of fees and expenses. Ever\' district attorney . . . shall, on the iirst days of Jan- uary and July, in each year, or witliin thirty days thereafter, make to the AttoT-ney (leneral. in sueli form as he may prescribe, a writ- ten return for the half yeai" ending on said days, repsectively, of all the fees and emoluments of his office, of every name and charac- ter, and of all the necessary expenses of his office, including neces- sary clerk hire, together with the vouchers for the payment of the same for such last half year. He shall state separately in such re- turns the fees and emoluments received or payable under the bank- rupt act. . . . Said returns shall be verified by the oath of the officer making them. Part of R. S. S 833, V. S. Comp. Stat. 1901. p. 642. This section also includes marshals,! " but is superseded by a later law re- quiring quarterly returns as to expenses and giving salaries in lieu of fees. is This and the following section are superseded as to district attorneys other than the district attorney for the District of Columbia by the provision for the payment of salaries instead of fees.is Except in the District of Columbia no district attorney can receive fees in addition to his salary. 20 The section also includes clerks of the circuit and district courts, but may be regarded as superseded as to them by a similar provision of an act of -Tune 28, 1902.1 § 521. All fees included in return with certain exceptions. The preceding section shall not apply to the fees and compensa- tion allowed to district attorneys by sections eight hundred and twenty-five and eight hundred and twenty-seven. All other fees, itPost. § 522. isPost, § 74.1. See also preceding isPost. S 641. section. iTSee post. § 641. 20 Ante. § 509 [d] isPost, §§ 633, 634. iSee post, § 589. 564 Procedure] DUTIES IX GENERAL. S 524 (•har;.>e8 and emolmiionts to which a district attorney . . . may be entitled, by rea.son of the discharge of the duties of his office, a^^ now o]' hereafter prescribed by law, or in any case in which the C^nited States will ))e bound by the judgment rendered therein, wiiether prescribed by statute or allowed by a court, or any judge thereof, shall be included in the semiannual return required of said officers by the preceding section.^ R. S. § 834, U. S. Comp. Stat. 1901, p. 643. This section also specifies marshals but is superseded. ■* It is apparent- ly in force as to district attorneys only in the District of Columbia and the southern district of New York. 5 § 522. Auditing of district attorney's expense accounts. The expense accounts of the district attorneys and their assist- ants, when made out in accordance with this act, shall be submitted to and examined by the circuit court or district court of the dis- trict, and when approved l)y the court shall be audited and allowed as now provided for by law. Part of § 13 of act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 016. The section also requires expense accounts to be made out quarterly: •"> and prescribes the duties of marshals aa to their expense accounts. 'i' § 523. Fees and accounts of attorneys for District of Columbia. The emolument returns of the attorney of the United States foi- the District of Columbia shall be returned to the Attorney General., and the accounts of the said attorney shall be rendered, audited. and paid in the same numer as accounts of all other district at- torneys are rendered, audited and paid. Act Dec. 14, 1877, 20 Stat. 7, Sup. R. S. p. 149. This provision as to retmns seems covered by similar provisions set forth, elsewhere.^ § 524. Duties of district attorneys in general. It shall i)e the duty of every district attorney to prosecute, in his disti'ict. all delincpients for crimes and offenses cognizable under th(> niitliority of the United States, and all civil actions in which the ^Sop ])rc(i'(iiii^ si'clinn. 'Post, § 641. 4Seo po>t. SS 633. 634. 641. sSee ante, § 520. and note. Se<» 5See ante. § 520. and note. also § 521. 6 Ante. «5 519. 565 § 524 ATTORNEYS AND COUNSELLORS. [Code Fed. United States are concerned, and, unless otherwise instructed by the Secretary of the Treasury, to appear in behalf of the defendants in all suits or proceedings pending in hi.s district against collectors, or other officers of the revenue, for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the Treasury. R. S. § 771, U. S. Comp. Stat. 1901, p. 601. The authoritj^ of the district attorney is derived from the acts of Con- gress9 and is limited to his particular district,io hence when a case is trans- ferred to the appellate court it passes beyond his control and if he ap- pears in that court he acts only as special counsel, and not as district at- torneyii within his district. He is the only prosecutor recognized by la\vi2 and the courts will not recognize any suit, civil or criminal, by or on be- half of the United States as regularly before them unless prosecuted by the district attorney or some one properly authorized by him. is The duty to ■prosecute all civil actions" covers all cases in which the interests of the '■overnment are at stake, whether the subject of attack or defense.i'* Thus iit includes defense of habeas corpus to release Chinese from vessel; is ijroceedings to condemn land for the benefit of the United States; 16 pro- «eedings under statutory provisions to recover damages against the United States for injuries done by flowage.i'? It is the duty of the district at- torney also, under this section, to conduct proceedings to recover a pen- sion fraudulently received. is In a criminal case, after indictment and ))efore trial, he has power to enter a nolle prosequi. is But he has no con- trol over the course to be pursued while the charge is being examined by commissioner or grand jury. 20 But the fact that he was bitter in his prosecution and influenced the grand jury is no objection to an indictment. 1 V district attorney is not authorized to take a commissioner's warrant from the marshal's hands to determine whether it shall be executed.2 He has the power to employ a stenographer to take testimony in a criminal ease, without first applying to the Attorney General. 3 9LeAy Ct. V. Ringgold. .5 Pet. 453, S. 84.1. 41 L. ed. 184. 10 Sup. Ut. Rep. 8 L. ed. 189. 1018. lOUnited States v. Winston. 73 isUnited States v. Johnson. 173 U. Fed. 149, 19 C. C. A. 419. S. 363. 43 L. ed. 731, 19 Sup. Ct. iiUnited States v. Winston. 170 I>. Rep. 427. S. .522. 42 L. ed. 11.30, 18 Sup. Ct. I'Colman v. United States. 66 Rep. 701 : United States v. Garter, Fed. 699, 14 C. C. A. 6.5. 170 U. S. .529. 42 L. ed. 1133. 18 Sup. isRuhm v. United States, 66 Fed. Ct. Re.p. 703. 531. i2United States v. Stone. 8 Fed. isUnited States v. Schumann. 2 261; United States v. Doughty, 7 A'bb. .523. Fed. Cas. No. 16.235. Blatehf. 424. Fed. Cas. No. 14,986. 20ldem. isSee Confiscation Cases, 7 Wall. lUnited States v. Mitcliell. 1.36 454, 19 L. ed. 198. Fed. 906. ^United States v. Smith. 158 U. ^United States v. Scroggiiis. 3 S. 354, 39 L. ed. 1011, 15 Sup. Ct. \Vo<:>ds. 529, Fed. Cas. Xo. 16.244. Rep. 846. sFish v. United States. 36 Fed. 677. isHilborn v. United States. 163 U. 5fiG Procedure! VARIOUS DUTIES. § 526 § 525. Duty to defend officers of Congress. In any action now pending, or which may be brought 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 district attorney for the district within which the action is brought, on being thereto re- quested by the officer sued, shall enter an appearance in behalf of such officer; and all provisions of the eighth section of the act of July 28, 1866, entitled "An act to protect the revenue, and for other purposes," and also all provisions of the sections of former acts therein referred to, so far as the same relate to the removal of suits, the withholding of executions, and the paying of judgments against revenue or other officers of the United States, shall become appli- cable to such action and to all proceedings and matters whatsoever connected therewith, and the defense of such action shall thence- forth be conducted under the supervision and direction of the At- torney General. § 8 of act Mar. 3, 1875, c, 130, 18 Stat. 401, U. S. Comp. Stat. 1901, p. 602. This provision is taken from the sundry civil appropriation act for the year ending June 30, 1876. The section of an act of 1866 referred to above is not re-enacted in the Revised Statutes, but the "provisions of the sec- tions of former acts" which it refers to will be found elsewliere. They in- clude provisions for the removal of suits against revenue officers, 5 and for the witholding of executions against such officers and for the payment of judgments so recovered against them. 6 § 526. — duties to furnish information as to titles to public prop- erty. The district attorneys of the United States, upon the application ■of the Attorney General, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. Part of R. S. § 355, U. S. Comp. Stat. 1901, p. 206. This section was enacted in 1841.8 The omitted portion provides that the opinion of the Attorney General shall be given as to the validity of title to land upon which public buildinjrs are to be erected and for the procuring ■of additional evidence as to such title. sPost, § 114.5. 8Res. Sept. 11, 1841. No. 6, 5 Stat. 6 Post. § 1863. 468. 567 S 5:J7 ATTOKNKYS AM) COl'.NSKLI.ORS. [Coi\e Fed. § 527. — to render legal services in purchases for government. Hereafter all legal services connected with the procurement of titles to site for public buildings, other than for life-saving stations and pier-head head lights, shall be rendered by United States dis- trict attorneys: Provided, further, That hereafter, in the procure- ment of sites for such public buildings, it shall be the duty of the Attorney General to require of the grantors in each case to fui'nish, free of all expenses to the government, all requisite abstracts, of- ficial certilications, and evidences of title that the Attoi-ney GeneT'al nuiy deem necessary. Act Mar. 2, 1889, c. 411, § 1, 25 Stat. !)41, U. 8. Coinp. Stat. IHOl, p. 2.518. § 528. — to conduct government suits respecting national banks. All suits and proceedings arising out of the ]n-o\isions of law governing national banking associations, in which the United States or any of its otttcers or agents shall be parties, shall be conducted by the district attorne3^s of the several districts under the direction and supervision of the Solicitor of the Treasury. R. S. § .'580, U. S. Comp. Stat. lilOl, p. 213. The effect of this provision is to impose upon the district attorneys the duty of conducting suits arising out of the national banking association laws, the Ignited States or its agents being parties. It is immaterial whether the suit is brought in the name of the United States, or in that of the Comptroller, or in the name of a received, lo the latter being an •'officer or agent" within the meaning of the section, n or whether it is commenced before or after the appointment of tlie receiver.! 2 The provision in no way affects tlie jurisdiction of any court.is § 529. Duty as to suits for money due Post Office Department. In the prosecution of any suit for money due the Post-Otiice De- partment, the United States attorney conducting the same shall obey the dii-ections which may be given him by the Department of Justice. R. S. § 381, U. S. Comp. Stat. 1901, p. 213. This section was carried into the Revised Statutes from an act of 1872.1 » loVan Antwerp v. Hulburd, 7 i2Bethel Bani< v. Pahquioque Blatchf. 426, Fed. Cas. No. 16.826. Bank, 14 Wall. 400, 20 L. cd. 840. iKJibson v. Peters, 150 U. S. 344, ..isVan Antwerp v. Hulburd, 7 37 L. ed. 1104. 14 Sup. Ct. Rep. 134. Blatchf. 426, Fed. Cas. No. 16,826. See also Short v. llempburn 75 Fed. is Act June 8, 1872, c. 335, § 309, 17 113. 21 C. C. A. 2.52: Speckart v. Stat. 324. Bank, 85 Fed. 18; Brown v. Smith. 88 Fed. 565. 568 ■ ProcPdure] VARIOUS DUTIES. • S 5--5- § 530. Duty to represent government in prize cases. The district attorneys of the several judicial districts shall re]i- resent the interests of the United States in all prize-causes, and shall not act as separate counsel for the captors on any private retainei- or compensation from them, unless in a question between the claim- ants and the captors, on a demand for damages. They shall ex- amine all fees, costs and expenses, sought to be charged on any prize-fund, and protect the interests of the captors and of the United States. The district attorneys of all districts in which any prize- causes are or may be pending shall, as often as once in three months, send to the Secretary of the Navy a statement of the condition of all prize-causes pending in their districts, in such form and em- bracing such particulars as the Secretary of the Navy shall require. R. S. § 4619. U. S. Comp. Stat. 1901. p. 3128. The proceedings in prize eases are provided by other sections. 16 In prosecuting prize eases tlie district attorney acts as law officer of the government and not in any other capacity. 17 § 531. Duty as to restoration of records and compensation there- for. Judges [of United States courts] may direct tlie performance . . . by the United States attorneys, ... of any duty in- cident thereto [i. e. incident to the restoration of records lost or destroyed, in which the United States are interested] ; and said . . . attorneys shall be allowed such compensation for services in the matter and for lawful disbursements as may be approved by the Attorney General of the United States, upon a certificate by the judges of said courts stating that such claim for services and dis- bursements is just and reasonable: and the sum so allowed shall l)e paid out of the judiciary fund. Part of R. S. § 904, as amended .Tan. .'5], 1879. c. 39. 20 Stat. 2^77. Tliis provision applies also to Ignited States clerks. is Except in the District of Columbia fees are now no longer allowed district attorneys in addition to their salary. is § 532. Duty to represent Indians. In all States and Territories where there are reservations or al- 16R. R. § 4(118. isPost. S .J97. 17'Ihe Anna. Blatchf. Pr. Cas. 337. isAnte. § 509 [d] Fed. Cas. No. 402. 509 « 533 ATTORNEYS AND COUNSKLLORS. [Code Fed. lotted Indians the United States district attorney shall represent (hem in all suits at law and in equity. Act Mar. 2, 1893, o. 209, 27 Stat. 631. By the Indian Depredation Claims Act,i it is made the duty of the At- torney General to appear and defend the interests of the Indians and the ■government in suits arising thereunder. § 533. — to institute government condemnation proceedings. It shall be the duty of the Attorney (leneral of the United States, upon every application of the Secretary of the Treasury, under this act [an act authorizing condemnation of land for sites for public buildings, etc., by the Secretary of the Treasury, or other govern- ment officer], or such other officer, to cause proceedings to be com- menced for condemnation, within thirty days from the rec;eipt of the application at the Department of Justice. Part of § 1, act Aug. 1, 1888, c. 728, 26 Stat. 357, U. S. Comp. Stat. 1901, p. 2516. § 534. — to abate unlawful enclosure of public lands. It shall be the duty of the district attorney of the United States for the proper district, on affidavit filed with him by any citizen of the United States that section one of this act is being violated [i. e. by the enclosure or the assertion of right to public land without title] showing a description of the land inclosed with reasonable certainty, not necessarily by metes and bounds nor by governmental subdivisions of surveyed laJids, but only so that the inclosure may be identified, and the persons guilty of the violation as nearly as may be, and by description, if the name cannot on reasonable in- quiry be ascertained, to institute a civil suit in the proper United States district or circuit court, or Territorial district court, in the name of the United States, and against the paries named or de- scribed who shall be in charge of or controlling the inclosure com- plained of as defendants. Part of § 2, act Feb. 25, 1885, c. 149, 23 Stat. 321, U. S. Comp. Stat. 1901, p. 1525. The remainder of the section confers jurisdiction on the circuit and dis- trict courts and authorizes an order for the destruction of such enclosure.s lAot Mi"r<'h 3. 1891, c. 568. § 4, 26 Stat. 852, 853. 3 Ante. § 154. 570 ri.nPdiae] VARIOUS DUTIES. § 53T If tlip inclosure is of less than one hundred and sixty acres the Secretary of the Interior must first authorize suit.* ^ 535, — to restrain combinations in restraint of import trade. it .-hall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the At- torney General, to institute proceedings in equity to prevent and restrain . . . violations [of section 73 of the act of August 27, 1894, declaring combinations and conspiracies in restraint of import trade unlawful.] Part of § 74 of act of Aug. 27, 1894, c. 349, 28 Stat. 570, U. S. Comp. Stat. 1901, p. 3203. The omitted part of the section invests the circuit court with jurisdic- tion^' and prescribes the procedure. 6 § 536. — to prevent violations of anti-trust act of 1890. It shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the At- torney Genei'al, to institute proceedings in equity to prevent and restrain . . , violations [of the anti-trust act of 1890.] Part of § 4, act July 2, 1890. c. 647, 26 Stat. 209, U. S. Comp. Stat. 1901, p. 3201. The section also invests the circuit court with jurisdiction" and pre scribes the procedure.* § 537. — to prosecute violations of commerce commission's orders. It shall be the duty of the various district attorneys, under the direction of the attorney general of the United States, to prose- cute for the recovery of forfeitures [ provided by the Interstate Commerce law as amended] .^'^ Part of § 16, act Feb. 4, 1887, c. 104, 24 Stat. 384, as amended June 29, lOOO. § 5, c, 3591, 34 Stat. 591. ♦See § 7. of above act, U. S. Comp. "Ante, § 142. Stat. 1901. p. 1528. 8 Post, § 1345. 6 Ante. § 144. lopost, § 1349. «Post, § 13-15. 671 S .".-^.S A'J'rOKNKYS AMI < ( irNS!:i,I,(>i:S. [Code Fed. § 538. — to prosecute violations of act prohibiting transporta- tion of diseased cattle. It sliall 1)0 tlio duty of tlic several Tliiiteil States district attorneys to proswHite all violations of this act which shall l)0 brought ta tlioir notice or knowledge by any person making the coni])laint un- der oath : and the same shall he lieard before any district or cir- cuit coui-t of the Unitetl States or Territorial court holden within the district in which the violation of this act has been counnitted. § 9, act May 29, 1884, c. 60, 23 Stat. 33, U. S. Comp. Stat. 1901, p. 3185. § 539. — to prosecute suits in equity against carriers violating published rates. It shall be the duty of the several district attorneys of the Ignited States, whenever the Attorney General shall direct, either of his own motion or npon the request of the Intei'state Commerce Com- mission, to institute and prosecute such proceedings [i. e. proceed- ings in equity against carriers violating their published rat(\s|.''- Part of § 3, act Feb. 14, 1903, c. 708, 32 Stat. 848, U. S. Comp. Stat. 190.5. p. 601. The other ])ortions of § 3 are eoiitained in another chapter.is § 540. Duty to proceed against marshal failing to pay over fines. In ease of failure [i.e. of the marshal to pay all fines collected by hiTii or his deputy under E. S, § 1659, respecting the militia, into the Treasury within two months after he has received the same] it shall be the duty of the Comptroller of the Treasury to gi\e no- tice to the district attorney of the United States, who shall proceed against the marshal in the district court, by attacliment, for the re- covery of the same. Part of R. S. § 1600, U. S. Comp. Stat. 190L p. 1130. § 541. — to prosecute offenders against alien immigration laws. It shall be the duty of the district attorney of the proper district to prosecute every such suit [i. e. suits for penalties for violation of the alien immigrant law of 1903] wlien brought by the United States. 12-See post, § 1359. 13 Post, §§ 13.59. et seq. 572 I J^ocedure] VARIOUS DUTIES. I 544 Pail of § 5, act Mar. :5. 190:5, c. 1012, 32 Stat. 1214, U. S. Comp. Stat. 1905. p. 277. The omitted portion of the above provision prescribes the penalty for the violation of the above mentioned immigrant law. The whole provision supersedes a similar enactment of 1885.15 § 542. — to prosecute owner of obstructing bridge, refusing to alter same. If at the end of such time [as the Secretary of War has given to the owner of a bridge obvStructing navigation, to alter same] the ■alteration has not been made, the Secretary of War shall forthwith notify the United States district attorney for the di.strict in whicli sucli bridge is situated, to the end that the criminal proceedings [to puni.^li such failure to alter, as a misdemeanor] hereinafter men- lioncfl may be taken. Part of § 18, act Mar. 3, 1899, c. 425, 30 Stat. 1153, V. S. Comp. Stat. 1901, p. .3545. § 543. — to prosecute persons presenting false claims. It shall be the duty of the several district attorneys of the United States for the respective districts, for the District of Columbia, and for the several Territories, to be diligent in inquiring into anv vio- lation of the provisions of section thirty-four hundred and ninety [of the Revised Statutes punishing the making of false claims against the United States] Ijy persons liable to such suit, and found within their respective districts or Territories, and to cause them to be proceeded against in due form of law for the recovery of such forfeiture and damages. And such person may be arrested and lield to bail in such sum as tlie district judge may order, not ex- ceeding the sum of two thousand dollars, and twice the amount of the damages sworn to in the athdavit of the person bringing the suit. R. S. § 3492, U. S. t'oiiip. Siat. l!>01. p. 2329. This provision was enacted in 18i)3.iT § 544. — to prosecute revenue frauds. It sliall be the duty of every district attorney to whom any col- lectoi' of customs, or of internal revenue, shall report, according to law. any case in which any line, penalty or forfeiture has been in- curred in the district of such attorney for the violati.in of any hnv iSAct Feb. 20. 18S5. c. ItU. § 3. i "Act March 2. 18(i3, c. 07. 12 Sta<. U. S. Comp. Stat. 1901, p. 1291. T> + « KQQ printed in the Appendix, zpost, § 58«. sUnited States v. Harsha, 56 Fed. sPost, § 577. 953. 582 Procedure] APPOINTMENT OF DISTRICT COURT CLERKS. § 567 A clerk is essentially a ministerial officer, hence when process is directed to be issued it is his duty to comply, and he is liable for failure to do so.6 § 565. Appointment and removal of circuit court clerks in ninth circuit. In the ninth circuit of the United States a circuit judge may ap- point or remove the clerk of the circuit court for the district in which the circuit judge resides. In all other cases clerks of such courts shall be appointed as provided for by existing laws. §1 of appropriation act Mar. 3, 1893, c. 211, 27 Stat. 714, U. S. Corap. Stat. 1901, p. 497. § 566. Deputy circuit clerks — clerks' death — liability for de- faults. One or more deputies of any clerk of a circuit court may be ap- pointed by such court, on the application of the clerk, and may be removed at the pleasure of judges authorized to make the appoint- ment. 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 and 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 in 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. R. S. § 624, U. S. Comp. Stat. 1901, p. 498. There are various provisions as to the appointment of deputy clerks and their residence and as to liability for their misfeasances and defaults in special statutes applicable to particular districts. These are to be found in a note to a subsequent section of the code.s § 567. Appointment of district court clerks. A clerk shall be appointed for each district court by the judge thereof, except in cases otherwise provided for by law. R. S. § 555, U. S. Comp. Stat. 1901, p. 451. sUnited States v. Bell, 127 Fed. 1002. 8See post, § 569, and notes. 583 § 5C8 CLKRKS OF UNITED STATES COURTS. [Code Kod. § 568. Deputy district clerks — appointment and defaults — clerk's death. One or more deputies of any clerk of a district court may be a]i- pointed by tlie court, on the application of the clerk, and may be removed at the pleasure of judges authorized to make the appoint- ment. 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 after his death, the clerk, and his estate, and the sureties in 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. R. S. § 558, U. S. Comp. Stat. 1901, p. 452. Particular provisions regarding deputies in various districts will be found in a note to the next section of this code. § 569. Particular provisions as to circuit and district court clerks and deputies, in various districts. There are circuit and district court clerks in each of the various judicial districts in the several States, just as there are separate cir- cuit and district courts in every district.^ ° In some instances, how- ever, one person acts as clerk for both courts. It would serve no use- ful purpose to reproduce here the various statutes authorizing the appointment of clerks in district newly created, and tliey are omit- ted. But provisions for additional clerks or deputies, of either or both courts, at different places within a district; and provisions for the establishment of clerk's offices at designated places in a district, are contained in many statutes providing for terms of court in a district, or for the creation of judicial divisions of a district, and these are collected in a note hereto. Some of the statutes creating these judicial divisions omit provisions for clerks or deputies or clerk's officers thei'ein, leaving the regulation thereof to the general statutory law. Autlior's section. [a] Alabama, Arkansas and California. The act of 1903 creatinir a southern division of the northern district of lOAnte, § 10.3. 5S4 rrotedure] PARTICULAR PROVISIONS AS TO CLERKS. § 569 [b] Alabama requires tliat '"the clerks of the circuit and district courts of the- Boutliern division of the northern district of Alal)ama sliall maintain an office in charge of themselves or a deputy at said city of Anniston which shall be kept open at all times for the transaction of the business of said courts."'! 1 In the northern division of the southern district the clerk and marshal of the district are required to attend the terms at Selma, no ad- ditional clerk being authorized, though "if, in the opinion of the court, it shall become necessary, a deputy clerk may be appointed."! 2 There is the same provision for the terms at Tuscaloosa, in tlie western division of the northern district.! 3 By R. S. § o5(i, as amended in 1877.1* two district court clerks were authorized in the eastern district of Arkansas, one having office and re- siding at Little Rock and the other at Helena. By act of 1897 one ad- ditional circuit court clerk and one additional district court clerk wero authorized, to reside and keep office at Batesville in the eastern district; i» and additional clerks for each of those courts were authorized at Texarkana in the western disti-iet by act of 1898; ig and by act of 1902 creating the Harrison division of the western district it was provided ""that there shall be appointed, in the manner required by law, a clerk, who shall keep hi~ office at the city of Harrison."!" la the southern district of the state of California it is provided by act of 1900! 8 that "exceiit when covirt is in session, and a jud^f' present, [at Fresno] the clerk"s office of the said courts may be at Los Angeles, where all records for said courts may be kept, and all duties performed; but should, in the judgment of the district judge and the clerk,, the business of said courts hereafter warrant the employment of a deputy clerk at Fresno, California, a deputy clerk may be appointed to reside and keep his office at Fresno." An act of IflOd providing terms in tli • northern district at Eureka required the circuit and district court clerks and marshals in that district to perform the duties pertaining to their offices for the terms at Eureka.! 9 [b] Georgia. The act of 1880 dividing the southern di trict of Georgia into two divi- sions provided that "no additional clerk or marshal shall be appointed in said district."20 The act creating the northeastern, southwestern and 11 Act Feb. 16, 1903, c. 554, § 6, i^Act March 18. 1902. c. 269. § 5- 32 Stat. 832. U. 8. Comp. Stat. 1903, .32 Stat. 72, V. S. Comp. Stat. 1903. p. 53. p. 55. i-'Act March 3. 1905. c. U19. § 2, i8ActMav29. 1900. c. 594, 31 Stat. 33 StMt. 988. C. S. Comp. Stat. 1905, 220. U. S. Comp. Stat. 1901. p. 328. P- 78. 19 Act June 29. 1906, c. 3626, 3-t 13 Ibid. S 8. Stat. 631. itU. S. Comp. Stat. 1901. p. 451. 20Act Jan. 29. 1880. c. 17. § 2, 21 15 Act Feb. 20. 1897. c. 269. § 8. 29 Stat. 63. V. S. Comp. Stat. 1901. p, Stat. 592, U. S. Comp. St;it. 1901. p. ;j:54. .Mhanv division: Act March 322. .]. 1 !!().->. .-. 1431. 33 Stat. 999, as. isAct Julv 7. 1898. c. .371. S 1. 30 amended 34 Stat. 547. Stat. 682, U. S. Comp. Stat. 1901. p. 323. 585 § 569 [c] CLERKS OB' UNITED STATES COURTS. [Code Fed. Albany divisons of that district contained the same clause but with the further provision in the case of the northeastern and southwestern divi- sions, that "if in the opinion of the court it shall become necessary, a deputy clerk may be appointed."2i In the northern Georgia district, the act cre- ating the western division provided that "the clerk of the district and the clerk of the circuit court shall appoint a deputy clerk for the courts for said division, and the marshal of said northern district shall provide suitable rooms for the occupancy of said courts and the officers thereof. "2 2 The act creating the northwestern division thereof provided for similar appointment of deputies "who shall reside and maintain an office at the city of Rome each of whom, in the absence of the clerks, shall e.xercise all the powers and perform all the duties of his principal within the division for which he shall be appointed: Provided, That the appointment of such deputies shall be approved by the court for which they shall be respectively up pointed, and they may be removed by such court at pleasure."2 3 The act creating the eastern division thereof provided that no additional clerk be appointed, but "a deputy clerk may be appointed by the court to the duties of that oflfice in the eastern division . . . The compensation of the clerks shall not be changed or affected by the failure to appoint a deputy clerk at Athens."! [c] Idaho and Illinois. The act of 1892 respecting the divisions of the district of Idaho pro- vided "That the clerk of the circuit and district courts for said district shall each appoint a deputy clerk at the place where their respective courts are required to be held in the division of the district in which such clerk shall not himself reside, each of whom shall, in the absence of the clerk, exercise all the powers, and perform all the duties of clerk within the division for which he shall be appointed; provided, that the appointment of such deputies shall be approved by the court for which they shall respectively be appointed and may be anulled by such court at its pleasure, and the clerks shall be responsible for the official acts and negligence of all such deputies." 2 In the act of 1905 redistricting Illinois it is provided for the northern district that "the marshal and clerk of said disti-ict shall each, respectively, appoint at least one deputy to reside in said city of Freeport, unless he .shall reside there himself, and also maintain an office at that place of holding court. "3 The same act provides in the case of the southern dis- trict that "the clerks of the circuit and district courts of the southern dis- trict of Illinois shall be respectively the clerks of the courts of both divi- sions of the said district; that each of said clerks or his deputies shall 2iAct Feb. 15, 1889, c. 168, § 2, lAct Feb. 28, 1901, c. 621, § 2, 31 25 Stat. 671. U. S. Comp. Stat. 1901, Stat. 818, U. S! Comp. Stat. 1901, p. p. 337; act June 30, 1902, c. 1338, § 241. 2, 32 Stat. 550. 2Act July 5, 1892, c. 145, § 5, 27 22Act March 3, 1891, c. 566, § 4, 36 Stat. 73. U. S. Comp. Stat. 1901, p. Stat. 1110, U. S. Comp. Stat. 1901, 343. p. 339. 3Act :\larch 3, 1905. c. 1427. § 0, 33 23Act April 12, 1900, c. 185, § 4, 31 Stat. 993, U. S. Comp. Stat. 1905, Stat. 74, U. S. Comp. Stat. 1901, p. p. 91. 340. 586 Procedure] PARTH ULAK PROVISIONS AS TO CLERKS. § 569 [dj keep an office open at all times at each of the places of holding of saii court and shall there keep the record, files and documents pertaining to the ■court of that division; and said clerks shall be entitled to the same fees now allowed by law. In addition to his powers to appoint deputies, as now prescribed by law, each of said clerks shall be empowered to appoint, with the approval of the court, a chief deputy for a court of that divi. sion in which he himself may not reside, who shall have all the powers of the clerk in his absence. That the marshal and clerk for said southern district of Illinois shall respectively appoint at least one deputy residing in the said northern division, and also maintain an office at that place of holding court. "4 [d] Indiana and Iowa. By R. S. § 6258 in the district of Indiana a deputy clerk of the circuit court must be appointed for said court held at Xew A!l)aiiy, and a depnly clerk for said court held at Evansville, who shall reside and keep their offices at said places respectively. Each deputy shall keep in his office full records of all actions and proceedings in the circuit court held at the same place, and shall have the same power to issue all process from the :said court that is or may be given to the clerks of other circuit courts in like cases." There are similar provisions for the district court in R. S. § .559; 9 and in later acts for deputy clerks at Fort Wayne and Ham- mond. i* Prior to the establishment of two districts in Iowa R. S. § 500 provided that "in the district of Iowa a deputy clerk of the district court shall be appointed to each place in the four divisions of said district where said court is required to be held, each of whom, in the absence of the clerk, may exercise all the official powers of clerk, at the place and within tin- division for which he is appointed." An act of 1880 provided that "the clerk of the district court shall be the clerk of the circuit court at all the places where the same is held in said district, except at Des Moines. "n The act making two districts, each having judicial divisions, provided that "there shall be appointed by the judge of tlie northern district of Iowa, with the approval of the circuit judge of the eighth judicial circuit, a clerk for the district and circuit courts in and for said northern district of Iowa. The persons now acting as clerks for the district of Iowa shall be the clerks for the southern district of Iowa."i3 The statute of 1900 creating a southern division of the southern Iowa district provided that "the clerk of the circuit and district courts for said southern district and tlie marshal of .said district shall each appoint a deputy, who shall reside and maintain an office at Creston, in Union County: Provided, That the appointment of such deputy shall be approved by the court for which they shall be re- 4Tbid. § 10. ii.Act .fune 4, 1880. c. 110. 21 Stat. 8U. S. Cornp. Stat. 1901, p. 498. l.w. H*. S. Comp. Stat. 1901, p. 453. i^Act Julv 20. 1882, c. 312. § 4, lOAct March .3. ISSl, c. 1,54, § 2. 22 St:it. 172,' U. S. Comp. Stat. 1901, 21 Stat. 511; act Feb. 14. 1899, c. p. 350. 165, § 2, 30 Stat. 83(i. U. S. Comp. Stat. 1901, pp. 345, .349. 587 § 569 [e] CLEUKS OF UNITED STATES COURTS. [Podo Vc6. and the clerk and marshal shall be responsible f(ir the official aets a";! •^pectively appointed, and they may be removed by such court at pleasure; neglects of all their de])nties."i4 The act of 1904 creating the Daveniwrt division, provided that "the clerks of the circuit and district courts of said district shall maintain an office, in charge of themselves or a deputy, at the said city of Davenport, Iowa, for the transaction of tlie business of said division."! 5 [e] Kansas. By act of 1879 the clerk of the district court and marshal were re(iuired To appoint a deputy to reside and keep their offices at Fort Scott, and who in the absence of their principals were required to do and perform all the- duties appertaining to said offices for the circuit and district courts. i" Ther(> was later a similar provision for deputies at Salinais and an act of 1892 added this proviso as to deputies at Fort Scott, viz.: that '"the appointment of such deputy shall be approved by the court for which they shall be re- spectively appointed, and they may be removed by such court at pleasure,, and the clerk and marshal shall be responsible for the official acts and neg- lects of all their deputies."i9 An act of 1890 provided that "the clerks of the circuit and district courts for said district shall each appoint a deputy clerk at the city of Wichita, each of whom shall, in the absence of the clerk, exercise all the powers and perform all the duties of clerk within the division for which he shall be appointed: provided, that the appoint- ment of such deputies shall be approved by the court for which they shall be respectively appointed, and they may be removed by such court at pleas- ure; and the clerk shall be responsible for the official acts and neglects of all such deputies."2 The appointment of deputies to reside at Fort Scott under the same conditions is provided for by act of 1892.21 [f] Kentucky and Louisiana. By R. S. § 557,1 "in the district of Kentucky a c?erk of the district court shall be appointed at each place of holding the court, in the same manner and subject to the saine duties and responsibilities whicli are or rray be provided concerning clerks in independent districts." There is a similar provision as to circuit court clerks. 2 The act of 1888 establishing llie Owensborough division provided that "in and for the Owensborough divi- sion, the clerk of the district of Kentucky at Louisville shall appoint a i4Act June 1. 1900. c. (501. § 4. .31 isAct :\Iav 3. 1892, c. .59, § 4, 27 Stat. 2.50. U. S. Comp. Stat. 1901. p. Stat. 24. I'.' S. Conip. Stat. 1901. p. 354. 3.58. i5Act April 28. 1904. c. 18()0. § 4. -"Act June 9. 1890. c. 403. § 3. 26 33 Stat. 547, U. S. Comp. Stat. 1905. ^tat. 129. U. S. CV>mp. Stat. 1901. p. p. 98. •'•»1- ,,. ^ c , o ,o-n 1- . T "Act Mav 3. 1892, c. 59, § 4. 27 iTAct .vlareh 3. 18/9, c. l,i. ^ 2. ox, i.. 34 t- « Cnmn Stat 1901 n 20 Stat. 3.55, U. S. Comp. Stat. 1901, Jg^ P- ^^^- ir. S. Comp. Stat. 1901, p. 4.52. IS Act Aug. 9. 1888. c. 819. § 2. 25 2R. s. § 620. U. S. Comp. Stat. Stat. 392. 1901, p. 497. 588 rrceduie] PARTICULAR PROVISION'S AS TO CLERKS § 56fi [g] deputy who shall reside at Owensborough, and in case of the deatli or removal of said deputy, or from other cause it becomes necessary, he shall appoint a successor or successors to said deputy in like manner in all respects as by law he may now appoint and remove deputies; and he may require bond of said deputy to himself, with surety for the faithful dis- charge of his duties and for indemnity in case of breach, on which ac- tions may be maintained in said district court; and said deputy shall keep and preserve the records of the court at Owensborough; issue all writs, precepts, and process, and perform all other duties devolved upon his prin- ■cipal."3 For the divisions of the western district of Louisiana, it is provided that 'a deputy clerk of the district court shall be appointed at each place in the four divisions of said western district where said court is required to be held, each of whom, in the absence of the clerk, may exercise all the official powers of the clerk at the place and within the division for which he is appointed."* And for the divisions of the eastern district that ''a deputy clerk of the district court shall be appointed at each place in the two divisions of said eastern district where said court is required to be held, each of whom, in the absence of the clerk, may exercise all the official powers of clerk at the place and within the division for which he is ap- pointed."5 The act creating the Lake Charles division provided that "the flerks of the circuit and district courts of said district shall maintain an office in charge of themselves or deputy at the said city of Lake Charles, which shall be kept open at all times for the transaction of the business of said division: Provided, however. That suitable rooms and accommoda- tions are furnished for holding said courts free of expense to the government of the United .States."6 T^g] Maryland and Michigan. The act of 1892" requiring circuit and district court terms at Cumberland, provides that the clerk of the district is to appoint at least one deputy to reside in said city of Cumberland, "unless he shall reside there himself, and also maintatin an office at that place of holding court." In the western district of Michigan an act of 1878 provides that "the clerk of the circuit and district courts for the westcj-n district of Miciiigan shall apj)oint a deputy clerk for said courts, held at Marquette, who shall reside and keep his office at that place; and said deputj' shall keep in his office full records of all actions and proceedings in the said circuit and district courts for the northern division of said district held at that place, and «hall have the same power to issue all processes from the said courts and 3Act Aug. 8. 1SS8. c. 792. § 3. 25 Stat. 438. U. S. Comp. Stat. 1901. p. •Stat. .-^90. U. S. Comp. Stat. 1901. 307. p. 300. 6 Act IMarch 2. 190.-). c. 1308. § 4. 4 Act Aug. 8. 1888. c. 789. § (i. 25 33 Stat. 841. U. S. Comp. Stat. 190.b. Stat. 388. r. S. Comp. Stat. 1901, p. 101. p. 3f>(;. 7 Act March 21. 1892. c. 20 § 2. 2Y '-Alt Aug. 13. 1SS8. c. SH9. § (>. 2.'i Stat. 11, U. S. Comp. Stat. 1901. p. 308. 589 S 569 [h] CLERKS OP UNITED STATES COURTS. [Code Fed. perform any other duty that is or may be given to the clerks of other circuit and district courts in like cases."* By act of 1894 governing the eastern district "the clerks of the circuit and district courts for the eastern district of Michigan shall each keep his office at the city of Detroit,, and shall each appoint a deputy clerk for said courts held at Bay Cit}% who shall reside and keep his office at that place, and such deputy clerk or clerks shall keep in his office dockets and full records of all actions and proceedings in said circuit and district courts for the northern division of said district held at that place, and shall have the same power to issue- all processes from said courts, and perform any other duty that is or may be given to the clerks of other circuit and district courts in like cases."* [h] Minnesota and Mississippi. An act of 1890 provided that "the clerks of the circuit and district courts of the district of Minnesota shall each appoint a deputy clerk at the place where their respective courts are required to be held in the division of the district in which such clerk shall not himself reside, who shall keep his office and reside at the place appointed for holding said courts in the divi- sion of such residence, and shall keep the records of said courts for such division, and, in the absence of the clerk, may exercise all the official powers of the clerks within the division for which he is appointed; provided, that the appointment of such deputies shall be approved by the court for which they shall have been respectively appointed, and may be annulled by such court at its pleasure; and the clerks shall be responsible for the official acts and negligence of their respective deputies." lo In the northern Mississippi district an act of 1882 provides that "tlie clerk of the northern judicial district of Mississippi shall be sole clerk of the courts of both divi- sions of the said district, to be appointed in the manner now prescribed by law; that the said clerk or his deputies shall reside at each of the places of holding said courts, and shall there keep an office, and the records, files and documents pertaining to the court of that division ; and said clerk shall be entitled to the same fees now allowed to him by law. In ad- dition to his powers to appoint deputies as now prescribed by law, said clerk shall be required to appoint a chief deputy for the court of that divi- sion in which he himself may not reside, who shall have all the powers of the clerk in his absence, and shall reside at the place of holding the court for the other division where the chief clerk does not reside."ii In the southern Mississippi district an act of 1887 requires the marshal and clerks of the southern district to appoint deputies to reside at Vicksburg for the 8Act June 19, 1878. c. 326, § 4. 20 lOAct April 2(). 1890. c. 107. 8 5. 2C> Stat. 176, U. S. Comp. Stat. 1901, p. Stat 73, U. S. ("omp. Stat. 1901, p. 371. 376. sAct April 30. 1894, c. 66, § 4, 28 nAct June 15. 1882, c. 218. § 4» Stat. 67, U. S. Comp. Stat. 1901, 22 Stat. 102, U. S. Comp. Stat. 1901, p. 374. p. 379. 690 Procedure] PARTICULAR I'ROVISIONS AS TO CLERKS. § 569 [i] western judicial division and act in place of their principles.! 2 There arc similar provisions for deputies at Mississippi City in the southern division; and at Meridian in the eastern division. is [i] Missouri, North Carolina and North Dakota. In Missouri there is a clerk for each court at St. Louis, Hannibal, St. Joseph, Kansas City, Jefferson City and Springfield. 1 5 In the creation of the southwestern division of the western district it was provided that the courts should meet at Joplin therein, and the clerk's office should bo at Springneld; but "should in the judgment of the district judge, the business of said courts hereafter warrant a deputy clerk at Jop- lin ... a deputy clerk [may be] appointed to reside and keep his office at Joplin." 1 6 There was the same provision in an act of 1905. as to a deputy and new books at Cape Girardeau for the southeast- ern division of the eastern district, the clerks from St. Louis to act mean while. 17 R. S. § 62118 provides that "in the western district of Xorth Carolina the circuit and district judges shall appoint three clerks, each of whom shall be clerks both of the circuit and district courts for said western district of North Carolina. One shall reside and keep his ofiice at Statesvillo, one shall reside and keep his office at Asheville, and the third shall reside and keep his office at Greensborough." An act of 1902 provides that "the circuit and district judges for the eastern district shall appoint, besides a clerk of said court held at Raleigh, an additional clerk, who shall reside and keep his office at Wilmington, and be clerk both of the district and circuit court held at Wilmington, and who shall have the custody and con- trol of the records of said courts, shall give the same bond required of the clerk of circuit and district courts of said district, and shall receive tlie same fees and compensation for services performed by clerks of such courts now fixed by law."i9 A statute of 1903 establishing court terms at Wilkes- boro provides that "the clerk of the United States circuit and district courts at Statesville, North Carolina, shall be the clerk of the United States circuit and district courts at Wilkesboro, and he shall appoint a deputy clerk of said court, to reside at Wilkesboro, with the usual power of a deputy clerk in such cases, whose compensation shall be such propor- tion of the fees accruing from business done in said courts at Wilkes- boro as shall be fixed by the judge of said district.'" 20 in establishing terms of court at Washington, N. C. Congress provided by act of 1905 that "the clerk of the United States circuit and district courts at the city of i2Act Feb. 28. 1887. c. 279. § 4, i^Act Jan. .31. 1905. c. 287. § 3, 24 Stat. 431, U. S. Comp. Stat. 1901, 33 Stat. 627, U. S. Comp. Stat. 1905, p. 3S1. p. 103. IS Act April 4, 1888, c. 58, § 4. 2S isU. S. Comp. Stat. 1901. p. 497. Stat. 78: act Julv 18. 1894, c. 144, § isAct April 15. 1902. c. 508. 32 7. 28 Stat. 115, "U. S. Comp. Stat. Stat. 106. U. S. Comp. Stat. 1903. 1901. p. 382. 383. p. 62. ir.Antc. ^ 381 [)J. 20Act. Feb. 23. 1903. c. 749. § 2, isAct Jan. ^4. 1901. c. 164. 5 4, .32 Stat. 853. U. S. Comp. Stat. 1903, 31 Stat. 739, U. S. Comp. Stat. 1901, p. 62. p. 390. 591 S dO'J [j] CLKRKS OF UNITED STATES COURTS. [Code Fed. Raleigh, Xortli Carolina, shall be the clerk of the United States circuit and district courts at Washington, Xorth Carolina, and said courts, respectively, may, on the application of the clerk, appoint a deputy clerk, with the usual powers of a deputy clerk in such cases, who shall reside at Washing- ion, North Carolina, and whose compensation shall be such proportion of the fees accruing from business done in said courts at Washington, Xorth Carolina, as shall be fixed by the judge of said district: Provided, That the city of Washington, North Carolina, shall provide and furnish at its -own expense a suitable and convenient place for holding the circuit and district courts of the United States at Washington, Xorth Carolina."2i In the Xorth Dakota district an act of lOOli provides that "the clerk ol' the circuit and district courts for said district shall each apjmint a deputy clerk at the place where their respective courts are required to be held in the division of the district in which such clerk shall not himself reside, each of whom shall, in the absence of the clerk, exercise all the powers and perform all the duties of clerk within the division for which he shall be appointed: Provided, That the appointment of such deputies shall be 'approved by the court for which they shall have been respectively appointed, and may be annulled by such court at its pleasure, and tlie clerks sliall be responsible for the official acts and negligence of all such dcputie«."2 2 [j] Oklahoma, Ohio, South Carolina and South Dakota. In Oklahoma there are two districts and the act provides for the appoint- ment of a clerk for each district "who shall keep his office at Muscogee and Guthrie, respectively, for the time being."i The statutes providing judicial divisions in the Ohio districts expressly declare that no additional circuit or district court clerks shall be appointed. 3 In South Carolina — "The oftice of the clerk of said court [the circuit court] shall be kept in the cities of Charleston and of Greenville, and the clerk shall reside in one of the said cities and shall have a deputy in the other."'* "The office of the clerk of the district court shall be kept in the city of Greenville, and also in the city of Charleston, and the clerk shall reside in one of said cities, and shall have a deputy in the other.6 In South Dakota "the clerk of the circuit court and the clerk of the district court respectively shall reside and have their principal office at Sioux Falls, and each of said clerks may appoint a deputy to reside and liave an office at Pierre and Deadwood.'. 2iAct March 3. in05. c. 14:57. § 2. ^Act Apr. 26. ISOO. c. 165. S 2, 2(; 33 Stat. 1004, U. S. Comp. Stat. 1905. Stat. 71, U. S. Comp. Stat. 1901, p. p. 107. 408. 22Act June 251, 1000, c. 3595. § 6. 6Act Apr. 26, 1890, c. 165, § 5. 34 Stat. 010. 26 Stat. 72. U. S. Comp. Stat. 1901. i§ 13. act June 16. lOOO. c. .3335. 34 p. 409. Stat. 275. 7Act Feb. 27. ISW. c. 21. § 6. 2(i 3Act .Tune S. 1S7S. c. IfiO. § 2. 20 Stat. 15, U. S. Comp. Stat. 1901, p. Stat. 102: act Feb. 4. 1880, c. 18. § 411. 3, 21 Stat. M. U. S. Comp. Stat. J901, p. 402, 403. 592 I'lmodiiieJ PARTICULAR PROVISIONS AS TO CLERKS. § 569 [kj [k] Tennessee. In the western district of Tennessee 'the clerks of the circuit and dis trict courts for said district, and the marshal of the district, shall each appoint a deputy of their respective courts at the place in the eastern division of said district where their said courts are required to be held, who shall, in the absence of the clerk, exercise all the powers and perform all the duties of clerk within said division; provided, that the appointments of such deputies shall be approved by the court for which they shall be respectively appointed, and may be annulled by such court at its pleasure."- In the eastern district of Tennessee an act of 1880 respecting terms at Chattanooga, provided that no additional clerk or marshal be appointed but that "the clerks of the district and circuit courts for the eastern district of Tennessee, and the marshal and district attorney for said dis- trict, shall perform the duties appertaining to their offices respectively for said courts. And the said clerks and marshals shall each appoint a deputv to reside and keep their offices in the city of Chattanooga, and who shall. in the absence of their principals, do and perform all the duties appertain- ing to their offices respectively."! o And an act of 1900 creating a north- eastern division therein provided that no additional clerk or marshal be ap pointed but that "the clerks of the district and circuit courts for th«' eastern district of Tennessee, and the marshal and district attorney for said district, shall perform the duties appertaining to their offices, respectively, for said courts of said northeastern division judicial dis- trict, and except when court is in session, and a judge present, the clerk's office of the said courts may be at Knoxville, where all records for said courts may be kept as of the same court, and all duties per formed as though the clerk were at Greeneville, but should, in the judgment of the district judge and the clerk, the business of said courts hereafter warrant the employment of a deputy clerk at Greene ville, Tennessee, new books and records, may be opened for the court- herein created, and kept at Greeneville, and a depxity clerk appointed to reside and keep his office at Greeneville."ii An act of 1906 respecting the eastern district superseded these provisions and declared that "the clerks of said circuit and district courts for the eastern district of Tennessee may reside and keep their offices, respectively, in either the city of Knoxville, Chattanooga or Greenville; but said clerks shall each, respectively, ap- point a deputy to reside and keep their offices in each of the above-named cities other than the one in which said clerks shall respectively reside and keep their offices; that the said deputy clerks shall, in the absence of their principals, do and perform all the duties appertaining to their offices, respectively."! 2 sAct June 20. 1878, c, 359, § 1, nAct Feb. 7, 1900. c. 10. § .1. 31 20 Stat. 235. U. S. Comp. Stat. 1901, Stat. 5. U. S. Comp. Stat. 1901, p. p. 415. 419. lOAct June 11. ISSO. c. 203. § 4. 21 i2Act June 18, 190G, c, 3341, § 3, Stat, 175, r. S. Comp. St^t. 1901. p. 34 Stat. 298. 416. Fed. Proc— 38. 593 § 569 [1] CLERKS OF UNITED STATES COURTS. [Code Fed. LI] Texas. In the northern district of Texas, an act of 1879 provided that "the district judge of the northern district shall appoint a clerk of said court, who shall reside at one of the places designated in this act for holding the courts, and two deputies shall be appointed by the clerk, one of whom shall reside at each of the other places designated for holding the courts. "i a An act of 189G provided that "there shall be appointed in the manner re- (juired by law, a deputy clerk who shall keep his office at the city of Fort Worth," and also one each for Abilene and San Angelo.i^ In the eastern Texas district an act of 1897 required that "the clerks of the circuit and district courts for said district shall maintain an office in charge of them- selves or a deputy at . . . Beaumont, . . . which shall be kept open at all times for the transaction of the business of said division."i5 In 1901 provision was made for the Sherman division in the eastern district and it was declared that "the clerk of the circuit court of said eastern district shall maintain an office, in charge of himself or a deputy, at the said city of Sherman, which shall be kept open at all times for the trans- action of the business of said division; and the district judge for the said eastern district shall appoint a clerk of the district court who shall maintain an office at the said city of Sherman, which shall be kept open at all times for the transaction of the business of said division."i6 An act of 1903 required clerks of circuit and district courts to maintain offices at Texarkana for the Texarkana division "in charge of themselves or a deputy, which shall be kept open at all times for the transaction of the business of said division. i^ In the western district of Texas an act of of 1884 creating the El Paso division provided that a deputy clerk be ap- pointed in the manner provided by law, to keep his office in El Paso. is In 189fl a similar statute was passed for a Laredo division and deputy. 1 9 In the Del Rio division the respective clerks are required to keep an office open at all times for the transaction of the business of the division, in charge of themselves or a deputy. 20 There is the same provision for the Victoria division. 21 The act of 1902 creating the southern district of Texas provides that "the clerk of the district court appointed in the southern judicial district as created by this act shall reside at one of the places desig- nated therein for holding courts, and such clerk shall appoint at least three isAct Feb. 24, 1879, c. 97, § 9, 20 i^Act Mar. 2, 1903. c. 974. § 4, Stat. 320, U. S. Comp. Stat. 1901, 32 Stat. 927, U. S. Comp. Stat. 1903, p. 426. p. 75. i^Act June II, 1896, c. 422, § 4, isAct June 3. 1884. c. 64. § 3. 23 29 Stat. 457, U. S. Comp. Stat. 1901, Stat. 36, U. S. Comp. Stat. 1901, p. p. 430. 428. i5Act Feb. 8, 1897, c. 178, § 5. 29 iPAct Mar 2. 1S99. c. 393, § 3, 30 Stat. 516, U. S. Comp. Stat. 1901. Stat. 1002, U. S. Comp. Stat. 1901. p. p. 431. 432. i6Act Feb. 19, 1901, c. 382. § 5. 20Act June 9, 1900, c. 3063, § 4. 34 as amended Mar. 3, 1901. c. 881. 31 Stat. 226. Stat. 14.58, U. S. Comp. Stat. 1901, 21 Act Apr. 18, 1906, c. 1G36, § 4, p. 434. .34 Stat. 122. 594 Procedure] TARTICULAR PROVISIONS AS TO CLERKS. § 569 [n] deputies, one of wliom shall reside at each of the other places in said dis- trict designated for holding courts therein."i [m] Utah. In the Utah district an act of 1897 provided that "the clerks of the circuit and district courts for said district shall each appoint a deputy clerk at each of the places where their respective courts are required to be held in the divisons of the district, except in the division in which such clerk shall himself reside, each of which deputies shall, in the absence of the clerk, exercise all the powers and perform all the duties of the clerk within the di\ision for which he shall be appointed; provided, that the appointment of such deputies shall be approved by the court, for which they shall have been respectively appointed, and may be annulled by such court at its pleasure."2 The act of 1894 admitting Utah required the clerks of the circuit and district courts to keep their offices at the capital of the State.3 [n] Virginia. By R. S. § 6224 it was provided that 'in the western district of Virginia the circuit and district judges shall appoint four clerks, each of whom shall be clerks both of the circuit and district courts of said district. One of these clerks shall reside and keep his office at Lynchburg, another shall reside and keep his office at Abingdon, another shall reside and keep his office at Danville, and the fourth shall reside and keep his office at Harrisonburgh, in said district." But an act of 1902 provided that "in the western district of Virginia the clerk of the circuit and district courts at Lynchburg shall appoint two deputy clerks, each of whom shall be deputy clerk both of the circuit and district courts, and one of whom slmll reside and keep his office in the city of Cliarlottesville, and the other in the city of Roanoke, for the purpose, in said respective cities, of taking t-haige and custodj' of the court records and papers, attending the sessions of the said courts, issuing all proper process, and discharging all the clerical duties in connection with the business of said courts."5 By an act of 1906 the clerk at Lynchburg was given the same authority to appoint a clerk at Bigstone Cap.6 The eastern district of Virginia is regulated by an act of 1899 which provided that "within and for the eastern district of Virginia, there shall be only one clerk, to be appointed by the judge of the district court, and said clerk may have as many deputies as may be necessary, to be appointed lAct Mar. 11, 1902. c. 183, § 16, 4U. S. Comp. Stat. 1901. p. 497. 32 Stat. 69. U. S. Comp. Stat. 1903. 5 Act June .30. 1902, c. 1339. § 2. 32 p. 73. Stat. 552, U. S. Comp. Stat. 1903. p. 2 Act Mar. 2, 1897. c. 366. § 4, 76. 29 .Stat. 620, U. S. Comp. Stat. 1901, «Act June 28. 1906. c. 3576. 34 p. 4.35. Stat. 547. amending act Apr. 22. 1904, 3 Act July 16, 1894. c. 138, § 16, 28 c. 1421. § 2. 33 Stat. 249, U. S. Comp. Stat. 110, U. S. Comip. Stat. 1901, p. Stat. 1905, p. 125. 435. 595 § r>G'.> [oj CLEKKS OF UNITED STATES COUUTS. [Code Fed. as now provided by law."' The statute further validated the acts of persons previously acting as clerks therein. [o] Washington. An act of 1890 provided that "the clerk of the circuit and district courts for said district shall each appoint a deputy clerk at the place where their respective courts are required to be held in the division of the district in which such clerk shall not himself reside, each of whom shall, in the absence of the clerk, exercise all the powers and perform all the duties of the clerk w^ithin the division for which lie shall be appointed; provided, that the appointment of such deputies shall be approved by the court for which they shall have been respectiveh' appointed, and may be annulled by such court at its pleasure, and the clerks shall be responsiljlc for the official acts and negligence of all such deputies. "9 In 1905 Wash- ington was divided into two districts but no provision as to residence or appointment of deputy clerks was made. The act required that the offices of clerks, marshals, etc., in each district, be filled "in the manner provided by law." It also declared that "the clerks for said districts shall receive the same fees and emoluments as are now prescribed by law for the clerks of the circuit and district courts of the northern district of California."! o [p] Wisconsin and Wyoming. By R. S. § 623,11 U. S. Comp. Stat. 1901, p. 498, "in the western district of Wisconsin the circuit and district judges shall appoint two clerks, each of whom shall be clerks both of the circuit and dis- trict courts for said district. One shall reside and keep his office at Madison, and the other shall reside and keep his office at La Crosse." An act of 1900 providing for circuit and district court terms at Su- perior, declared that "the clerk of the United States circuit and district courts at Madison, Wisconsin, shall be the clerk of the United States cir- cuit and district courts, at Superior, Wisconsin, and he shall appoint a deput}^ clerk of said courts to reside at Superior, Wisconsin, with the usual powers of a deputy clerk in such cases, whose compensation shall be such proportion of the fees accruing from business done in the said courts at Superior as shall be fixed by the judge of said western district."i2 The act organizing the Federal courts in Wyoming upon its admission as a State provided that "clerks shall be appointed for said courts [i. e. the circuit and district coiu-ts] in the district of Wyoming, who shall longer applies to such officers, payment being made by them to the clerk of the court. This section is not a revenue law Avithin the meaning of R. S. § 699, providing for a writ of error without regard to the value in dis- pute upon a judgment in a civil action for enforcement of a revenue law.c § 592. Auditing of returns which may show a surplus. In every case where the return of a . . . clerk. . . . shows that a surplus may exist, the Attorney General shall cause such returns to be carefully examined, and the accounts of dis- iPost § 711. 4§ 13, act June 29, 1906. e. 3592. 2 See Post, § 606. 34 Stat. 600, 601. See post, § 752, 3§ 8, act Mar. 15, 1898, c. 68, 30 et seq. Stat. 317, U. S. Comp. Stat. 1901, p. spost, § 745. 651. See Cnited States v. McMillan. eUnited States v. Hill, 123 U. S. 165 r. S. 517, 41 L. ed. 810, 17 Sup. 681, 31 L. ed. 275, 8 Sup. Ct. Rep. Ct. Rep. 395. 308. 606 iTocedure] DUTY TO ACCOUNT. § 595' bursements to be regularly audited by the proper officer of liis De- partment, and an account to be opened with such officer in proper books to be provided for that purpose, R. S. § 845, U. S. Comp. Stat. 1901, p. 647. The section specifies district attorneys and marshals also. § 593. Court of Claims clerk to report as to judgments ren- dered and decisions of court. On the first day of every December session of Congress, the clerk of the Court of Claims shall transmit to Congress a full and com- plete 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 synopsis of the nature of the claims upon which they were rendered. And at the end of every term of the court he shall transmit a copy of its de- cisions to the heads of departments; to the solicitor, the comptrol- lers, and the auditors of the Treasury; to the commissioners 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. R. S. § 1057, U. S. Comp. Stat. 1901, p. 731. § 594. Power of Court of Claims clerk to disburse funds — set- tlement of accounts. The said clerk [of the Court of Claims] 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 otlier disbursing agents of the gov- ernment are settled. R. S. § 1056, U. S. Comp. Stat. 1901, p. 731. § 595. Duty of clerks to account to court for moneys deposited in causes during term. At each regular session of any court of the United States, the clerk shall present to the court an account of all moneys remain- ing therein, or subject to its order, stating in detail in what causes they were deposited, and in what causes payments have been made; and said account and the vouchers thereof sliall be filed in the court. R. S. § 798, U. S. Comp. Stat. 1901, p. 621. 607 § 596 CLERKS OF UNITED STATES COUKTS. [Code Fed. § 596. Circuit and district clerks to report to Treasury judg- ments in cases where United States are parties. Every clerk of a circuit or district court shall, within thirty days after the adjournment of each terra thereof, forward to the Solicitor of the Treasury a list of all judgments and tlecrees, to whicli the United States are parties, which have been entered in said courts, respectively, during such term, showing the amount adjudged or decreed, in each case, for or against the United States, and the term to which execution thereon will be returnable. R. S. § 797, U. S. Comp. Stat. 190L p. 620. In 1879 the section was amended by the addition of a provision re(iuiring the clerk to make out a report to the internal revenue commissioner -and prescribing its contents. s § 597. Duty as to restoration of records and compensation there- for. Judges [of United States courts] may direct the performance, by the clerks of said courts [of the United States] respectively . . . of any duties ino'dent thereto [i. e. incident to the restoration of lecords lost or destroyed, in which the United States are interested] ; and said clerks . . . shall be allowed such compensation for services in the matter and for lawful disbursements as may be ap- proved by the Attorney General of the United States, upon a cer- tificate by the judges of said courts stating that such claim for services and disbursements is just and reasonable; and the sum so allowed shall be paid out of the judiciary fund. Part of R. S. § 904, U. S. Comp. Stat. 1901, p. 677. § 598. Removal of clerk failing to report, etc., — appointment of successor. If any clerk of any district or circuit court of the United .States shall wilfully refuse or neglect to make any report, certificate, statement or other document required by law to be by him made, or sliall wilfully refuse or neglect to forward any such report, cer- tificate, statement or document to tlie department, officer oi- person to whom, by law, the same should be forwarded, the President of the United States is empowered, and it is hereby made his duty, in every such case, to remove such clerk so offending from office, by an order in writing for that purpose. And upon the presentation of «Post, § 60.3. 608 Procedure] PUNISHMENT FOR FAILING TO REPORT, ETC. § 600 such order, or a copy thereof, authenticated by the Attorney General of the United States, to the judge of the court whereof such of- fender is clerk, such clerk shall thereupon be deemed to bo out of office, and shall not exercise the functions thereof. And such (ii>- trict judge, in the case of the clerk of a district court, shall ap- point a successor ; and in the case of the clerk of a circuit court, the circuit judge shall appoint a successor. And such person so re- moved shall not be eligible to any appointment as clerk or deputy clerk for the period of two years next after such removal. § 5, act Feb. 22, 1875, c. 9.5. 18 Stat. 334, U. S. Comp. Stat. 1901, p. 621. § 599. Criminal punishment of clerk failing- to report. If any clerk mentioned in the preceding section^'' shall wilfully refuse or neglect to make or to forward any such report, c-?rtificate, statement or document therein mentioned, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding one year, in the discretion of the court; but a conviction under this section shall not be necessary as a condition precedent to the removal from office provided for in this act. § 6, act Feb. 22, 1875, c. 95, 18 Stat. 3.3^. U. S. Comp. Stat. 1901, p. 622. § 600. Punishment for failing to deposit moneys in registry. Every clerk of other officer of a court of the United States, who fails forthwith to deposit any money belonging in the registry of the court, or hereafter paid into court or received by the officer.^ thereof, with the Treasurer, assistant treasurer, of a designated de- positary of the United States, in the name and to the credit of such court, or who retains or converts to his own use or to tlie use of another any such money, is guilty of embezzlement and sliall be punished by fine not less than five hundred dollars, and not more than the amount embezzled, or by imprisonment not less than one year nor more than ten years, or by both such fine and imprison- ment ; but nothing herein shall be held to prevent the delivery of any such money upon security, according to agreement, of parties under the direction of the court. R. S. § 5504, as amended Feb. 18, 1875, 18 Stat. 320, U. S. Comp. Stat. 1901, p. 3710. lOAnte, § .598. Fed. Proc— 39. 609 S 601 CLERKS OF UNITED STATES COURTS. [Code Fed. By R. S. §§ 3616, 3617,ii it is the duty of marshals, district attorneys, clerks etc., to pay moneys received into a United States depositary with- out deduction. Persons receiving money which ought to have been deposited are guilty of embezzlement.12 § 601. Power of clerks to administer oaths. All clerks and all deputy clerks of United States courts are here- by authorized to administer oaths. Part of § 1, act Mar. 2, 1901, c. 514, 31 Stat. 956, amending § 19, act May 28, 1896, c. 252, U. S. Comp. Stat. 1901, p. 499. The above provision specifies also United States commissioners.! 3 § 602. — power to administer oaths in admiralty cases. The clerks of tlie district and circuit courts may, in the absence or in case of the disability of the judges, administer oaths to all persons identifying papers found on board of vessels or elsewhere, to be used on trials in admiralty causes. R. S. § 799, U. S. Comp. Stat. 1901, p. 622. This provision was carried into the Revised Statutes from an act of 1792.14 § 603. Circuit or district court clerk not to act as receiver or master. No clerk of the district or circuit courts of the United States, or their deputies shall be appointed a receiver or a master in any case except where the judge of said court shall determine that special reasons exist therefor to be assigned in the order of appointment. Act Mar. 3, 1879, c. 183, 20 Stat. 415, U. S. Comp. Stat. 1901, p. 591. The appointment of a clerk as master without special reason, although irregular, makes such officer a de facto incumbent, and he cannot be ousted in a collateral proceeding. 1 6 § 604. Duty to be in office on first Mondays, for equity cases. The clerk's office shall be open, and the clerk shall be in attend- ance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course, and applied for, or had by the parties, or their solicitors, in all iiU. S. Comp. Stat. 1901, p. 2413. i^Act May 8, 1792, c. 36, § 10, 1 12R. S. § 5505, U. S. Comp. Stat. Stat. 278. 1901, p. 3711. isNorthwestern, etc. Co. v. Seaman, isPost, § 676. 80 Fed. 357. 610 Procedure] REPORTS AND ACCOUNTS. § 606 causes pending in equity, in pursuance of the rules hereby pre- scribed. Equity rule 2, promulgated October term, 1842.18 § 605. — to report moneys paid in revenue cases. Every clerk of a circuit or district court , . . shall . . . at the close of each quarter, or within ten days thereafter, report to the Commissioner of Internal Eevenue all moneys paid into court on account of cases arising under the internal revenue laws, as well as all moneys paid on suits on bonds of collectors of internal rev- enue. The report shall show the name and nature of each case, the date of payment into court, the amount paid on account of debt, tax or penalty, and also the amount on account of costs. If such money, or any portion thereof, has been paid by the clerk to any internal revenue officer or other person, the report shall show to whom each of such payments was made; and if to an internal revenue officer, it shall be accompanied by the receipt of such officer. R. S. § 797, as amended Mar. 1, 1879, c. 125, § 2, 20 Stat. 327, U. S. Comp. Stat. 1901, p. 621. § 606. Attorney General to require clerks to account for mon- eys — docket books. The Attorney General shall hereafter, under rules and regula- tions prescribed by him, require the clerks of the United States circuit and district courts, clerks of the Territorial courts, clerks of the United States courts for the Indian Territory, and the clerks of the United States courts in Alaska to report and account for all moneys received by them on accoimt of or as security for fees and costs, and to report and account for all amounts collected or received by them on behalf of the United States on account of judgments, fines, forfeitures, penalties and costs. The Attorney General shall also hereafter require such clerks to report and account for any other moneys received by them in their official capacity, whether on behalf of the United States or otherwise, and the Attorney General shall hereafter prescribe such docket or dockets or other books as lie may deem proper to be kept and used by such clerks in recording, report- ing and accounting for moneys mentioned above in this paragraph, and in recording all fees and emoluments earned by them, which isSee Post, § 802, as to equity rules. 611 § 606 CLERKS OF UNITED STATES COURTS [Code Fed. dockets or other books shall be kept and used b}^ said clcVs in ac- cordance with rules and regulations prescribed by the Attuii^ey General. Act June 30, 1906, c. 3914, 34 Stat. 754. This provision is later than that of the act of 1S98 given above,i and to a certain extent, at least, supersedes it. iSee ante, § 589. 612 CHAPTER 17. UNITED STATES MARSHALS. § 613. Cross references and matters affecting marshals not included lierein. § 614. Power of Supreme Court to appoint a marslial. § 615. Compensation and duties of Supreme Court marshal. § 616. District marshal to act for circuit court of appeals. § 617. Terms of office of marshals. § 618. Appointment of marshals and deputies in the various districts. § 619. Temporary appointments to fill vacancy. § 620. Appointments, compensation and expenses of office deputies. § 621. —of field deputies. § 622. Deputies to continue after marshal's death — liability for their misfeasances. § 623. Residence and duties of marshals and effect of removals or neglect. § 624. Designation of official residence by A.ttorney General, § 625. Oaths of marshals and deputies. S 626. ^Vho may administer the oath. § 627. Marshal's bonds, recording and evidence thereof. § 628. Increase of bond. § 629. Suit on marshal's bond — costs. § 630. Bond not exhausted by one suit, but continues. § 631. Limitation of action on bond. § 632. Deputies bond in Kentucky and suit thereon. § 633. Salaries in lieu of fees. § 634. Marshal's salaries in particular cases. § 635. Salaries payable monthly. § 636. Certain compensation and fees denied to deputies. § 637. Oifice expenses of marshals. § 638. Traveling expenses and for transportation of prisoners. § 639. Certain expense allowances to marshal. § 640. Allowances for expenses in case of prize. § 641. Quarterly expense accounts, verification, approval, allowance and returns. § 642. Effect of removal or expiration of term on unserved process. § 643. — effect upon persons in custody. § 644. Duties of marshal in general. § 645. Duty to provide court rooms. § 646. Duty to execute awards of foreign consuls. § 647. — returns to Treasury on executions for money drie United States. 613 § 6)3 UNITED STATES MARSHALS. [Code Fed. § 648. — returns to Post Office Department on executions in post office cases. § 649. — returns to Department of Justice on executions in post office cases. § 650. Duty as to places of confinement of prisoners. § 651. Duty to make other provision for safekeeping prisoners. § 652. — to prosecute for violations of law as to transport of animals. § 653. Duty in deportation of Chinese. § 654. Duty to deliver offender's body for dissection. § 655. Duty of marshal in removing alien enemies. § 656. — to seize piratical vessels. § 657. Miscellaneous duties imposed on marshals. § 658. Treasury department rules as to suits by United States for moneys. § 659'. Custody of goods seized under revenue laws. § 600. Powers of marshals in executing laws. § 661. Other powers of marshals. § 662. Forbidden to accept gifts, etc., to compromise revenue suits. § 663. Unserved process surrendered by retiring marshal or deputy. § 613. Cross references and matters affecting marshals not in- cluded herein. The statutory provisions as to marshal's fees are given in a subse- quent chapter. 1 The provisions as to mileage^ and other provisions applicable generally to judicial officers will be found elsewhere.^ Elsewhere also will be found enactments dealing with transmission of accounts to Attorney General;^ with the execution of writs of removal of prisoners and other matters of criminal procedure -.^ with the duty of the marshal to satisfy execution in judgments ■.)r duties and the money in which he shall accept payment;''' with the duty of the marshal in executing attachments in postal suits f with his duty to execute a deed on purchase by the United States at execution sale;^ with the power of the marshal to adjourn court j^** appointment of jury attendants by marshals.^ ^ Elsewhere will be found sections dealing with the prohibition against marshals prac- tising law/ 2 with the service of writs of venire facias, and other duties respecting juries/ ^ with the service of process and the par- iPost § 712 et seq. ; as to fees in sPost, § 1401. bankruptcy, see post §§ 2222, 2223. 9 Post, § 2318. 2 Post, 714; ante, § 456. loSee ante §§ 362-364. sAnte, §§ 441, et seq. iiPost, § 687. 5 Ante, § 451. 12 Ante, § 496. ePost, S§ 1583, 1611, 1612. isPost, §§ 1706. 7Post, § 1396, 614 Procedure] SUPREME COURT MARSHAL. § 615 ties by whom process is served in case of the marshal's disability/* with the power of marshals to stay a warrant of arrest on proceed- ings in rem in admiralty/^ with his duty in cases where defendant giving bail in one district is committed in another ;^^ and in cases of execution and attachment ;^'^ and in cases where court is ad- journed to some other place by reason of epidemic.^ ^ There are other provisions affecting marshals which are not within the scope of this work. The provisions of law as to deposits of public moneys by them are not included ;^^ nor the penal section punishing the using and not depositing of moneys belonging to the registry ;2^ nor the provisions as to his duties in prize causes ;^ nor the provision punishing his refusal to receive or execute process in behalf of civil rights f nor the provision for delivery to him of persons found on board seized slave vessels.^ The statutes respecting marshals in consular courts are omitted.* Author's section. § 614- Power of Supreme Court to appoint a marshal. The Supreme Court shall have power to appoint . . .a mar- shal for said court . . . R. S. § 677, U. S. Comp. Stat. 1901, p. 559. The section specifies also a clerks and a reporter. § 615. Compensation and duties of Supreme Court marshal. The marshal is entitled to receive a salary at the rate of three thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the chief justice or an associate justice in pur- suance of law; and shall take charge of. all property of the United States used by the court or its members. With the approval of the chief justice, he may appoint assistants and messengers to attend i4Post, §§ 853-. S. Comip. Stat. 1901, p. 3130, 3131, isPost, § 12-20. 3132. lePost, § 1553. 2See R. b. § 5517, U. S. Comp. Stat. iTPost, § 1858, et seq. 1901, p. 3713. isAnte, § 30(). sSee R. S. § 5559, U. S. Comp. Stat. isSee R. S. §§ 3(51(5, 3617, 3619, U. 1901. p. 3735. S. Comp. Stat. 1901, pp. 2413, 2415. ^See R. S. §§ 4111-4110, U. S. 2 0See R. S. § 5504, U. S. Comp. Comp. Stat. 1901, p. 2776. Stat. 1901, p. 3710. 5Ante, § 559. iSee R. S. §§ 4623, 4628, 4629, U. 613 { G16 UNITED STATES MARSHALS. [Code Fed. the court, with the compensation allowed to officers of the House of Representatives of similar grade. R. S. § G80, U. S. Comp. Stat. 1901, p. 560. The fees of marshal of the Supreme Court are set forth eUowhere.^ § 616, District marshal to act for circuit court of appeals. So much of section 3 of the act approved March 3, 1891, to es- tablish circuit courts of appeals as authorizes the appointment of a marshal to each of said courts at a salary of two thousand five hundred dollars be and the same is hereby, repealed, and the duties and powers imposed upon said marshals under the said act shall be performed by the United States marshals in and for the dis- tricts where terms of said courts may be held, and to this end said marshals shall be the marshals of said circuit court of appeals. § 1, act July 16, 1892, c. 196, 27 Stat. 222, U. S. Comp. Stat. J901, p. 555. The sixth rule originally promulgated lor the circuit courts of appeal in all the circuits made provision as to the duties of the marshal and criers in that court. In the first, eighth and ninth circuits this rule has since been modilied.7 § 617. Terms of office of marshals. By E. S. § 779 it was provided that "marshals shall be appointed for a term of four years." To obviate the inconveniences of an in- terval between the expiration of one term and a new appointment, a law of 1898 declared that "The attorneys and marshals of the United States, including the District of Columbia and the Terri- tories, shall continue to discharge the duties of their respective of- fices, unless sooner removed by the President, until their successors shall be appointed and qualify in their stead. But they shall be appointed and commissioned for the term of four years as now pro- vided by liaw."^ Author's section. § 618. Appointment of marshals and deputies in the various dis- tricts. By R. S. § 776 the appointment of a marshal for each district was provided "except in the middle district of Alabama, and the northern district of Georgia, and the western district of South ePost, § 713. sAct June 24. 1898, c. 495, § 1, ■?See the rules as printed in the 30 Stat. 487. appendix. 616 Procedure] APPOINTMENT OF MARSHALS AND DEPUTIES. § 618 Carolina" the marshal in other districts of those States being re- quired to act in the excepted districts. The exceptions as to Ala- bama'' and as to Georgiai*^ ^re superseded by later laws. South Carolina really constitutes but one district having eastern and western divisions. ^^ Various special provisions as to marshals and their place of residence in particular districts and the appoint- ment of deputies therein are collected in the note to this sec- tion. An act of 1889 abolishing circuit court powers previously ex- ercised by district courts in the western district of Arkansas, north- ern district of Mississippi, and western district of South C*aro- lina, and creating circuit courts therein required that "the mar- shals of the United States in and for said respective districts shall act as marshals of said circuit courts."^ ^ There are also statutory provisions for the appointment of marshals in the Federal judicial districts created upon the admission of new States to the Union/* or created by the division of existing districts. The statutes creat- ing new districts by the subdivision of an existing district or dis- tricts usually designate the district to which the existing marshal shall be assigned and provide another appointment for tlio other district.^* Sometimes these statutes provide that the act creating the new district shall not affect the tenure of office of existing of- ficers.^^ N^one of these enactments vary the general pro^dsions of law as to appointment, tenure, powers, duties or compensation of marshals, and in their operation are executed rather than executory. It would serve no useful purpose to set them forth at length in this work. The existing laws require one marshal for each district. The practitioner should advise himself of any reorganization of or change in judicial districts hereafter made. Author's section. 9Act Mar. 3, 1893, c. 220. 27 Stat. i^E. g. West Virginia : act Jan. 22, 745, U. S. Conip. Stat. 1901. p. 319. 1901, c. 105, §S 4. 6. 31 Stat. 736, loAct Apr. 25. 1882, c. 87, S 1, 22 U. S. Conip. Stat. 1901, p. 441. llli- Stat. 47, U. S. Comp. Stat. 1901. p. nois: act Mar. 3. 1905, c. 1427. 33 335. Stat. 990. iiSee ante, § 103. isE. g. Calfornia: act Aug. 5, 1886, i2Act Feb. 6, 1889. c. 113. 25 Stat, c. 928, S 10, 24 Stat. 310, U. S. Conip. 655, U. S. Comp. Stat. 1901. p. 493. Stat. 1901. p. 326. Texas: act Mar. 13E. g. see Colorado: act June 26, 3. 1901, c. 881, § 19. 32 Stat. 69, U. 1876. c. 147. § 4, 19 Stat. 61, U. S. S. Comp. Stat. 1903. p. 74. Comp. SUt. 1901, p. 329. 617 § ClS[a] UNITED STATES MARSHAliS. [Code FedL [a] Georgia, Illinois and Indiana. The acts creating the eastern division of the northern district of Georgia and the southwestern and Albany divisions of the southern district pro- vide that no additional marshal or other officer be appointed, but that the existing officers perform the duties of their positions thereia.is A statute governing the northern district of Illinois provides for a deputy marshal and his place of residence; and other statutes provide similarly as to deputies and place of residence in the southern district of Illinois. i^ In the Indiana district the act providing for terms of court at Fort Wayne and Hammond require the marshal to discharge the duties of his office for the terms of court there held, and also require him to appoint deputies to reside and keep office there and keep the records pertaining to their offices at those places. is [b] Iowa, Kansas and Kentucky. The act creating the southern division of the southern district of Iowa provided for the appointment and residence of a deputy marshal at Creston.2o In Kansas provisions as to deputy marshals at Fort Scott and Salina, and their residence and duties and the liability of the marshal for the acts of the Fort Scott deputy, are given in a preceding section, i The act creating the Owensboro division in Kentucky provided that the marshal "shall, by himself or deputy, attend upon the terms of the court in said division; and he may appoint a deputy to reside at Owensborough (and shall do so if ordered by the court), who shall discharge all the duties of marshal; and the marshal may require a bond of indemnity to himself with surety for the faithful discharge of his duties and for in- demnity in case of breach, on which actions may be maintained in said district court."2 [c] Maryland and Michigan. There is a provision for a deputy marshal in the Maryland dis- trict, at Cumberland, similar to the provision for a deputy clerk there.s In the western district of Michigan a statute specifically requires the marshal to perform the duties of his office in both the northern and southern divisions and to keep an office and a deputy at Marquette in the northern 16 Act Feb. 28, 1901, c. G21, § 2, § 2. 30 Stat. 836, U. S. Comp. Stat. 31 Stat. 818, U. S. Comp. Stat. 1001, 1901, p. 348, 349. p. 341; act June 30, 1902, c. 1338, § 20See act quoted and cited ante, 2, 32 Stat. 550, U. S. Comp. Stat. § 560. [d]. 1903, p. 57; act Mar. 3, 1905, c. 1431, iSee act quoteu and cited ante, § 33 Stat. 979, U. S. Comp. Stat. 1905, 569. [e] p. 87 as amended by act of 1906. 2Act Aug. 8, 1888, c. 792, § 4, 25 iTSee acts quoted"^ and cited ante, Stat. 390, U. S. Comp. Stat. 1901, p. § 569.[o] 360. isAct Mar. 3, 1881, c. 154, § 2. 21 sSee act quoted and cited ante, § Stat. 511; act Feb. 14, 1899, c. 155, 560.[g] 618 Procedure] APPOINTMENT OF MARSHALS AND DEPUTIES. § 618 [d] division. 4 There is a similar provision in the eastern 3Iichigan district re- garding the two divisions for a deputy at Bay City.s [d] Mississippi and Missouri. In the northern district of ]VIississippi a statute specifically declares that the marshal shall act for both divisions thereof with the fees and duties prescribed by law; that process shall be directed to him and be served by him or his deputies upon the parties whenever found in the northern dis- trict; and he is required to "have an office and at least one general deputy residing at the place of holding court in each division unless he shall reside there himself."'' In the southern district of Mississippi the marshal is re- quired to appoint a deputy who shall reside at Vicksburg and act as marshal of the courts there in place of his principal ; " and another deputy with sim- ilar powers at Mississippi City; 8 and another with similar powers at Merid- ian. 9 The statute governing the eastern and western districts of Missouri specifically reqmres that the marshal in each district act in all the divisions thereof, with the fees, duties and liabilities, provided by general law ; that process for a division be directed to the marshal of the district where- in it lies, who may serve it anywhere in the district; and that he "shall keep an office and at least one general deputy residing at the place of holding courts in each division, excepting the division in which he may himself reside."io A later statute creating the southwestern division of the western district required the marshal of the district to perform the duties of his office therein.n Provisions as to the powers and duties of marshals in the eastern and western districts of Tennessee and for a deputy at Chattanooga and at Jackson are quoted elsewhere.i2 The act creating the northeastern divi- sion of the eastern district required the marshal of the district to perform his duties therein, but made no provision for a deputy. is An act providing for terms of circuit and district court at Charlottesville and Roanoke in Virginia requires the marshal for the western district to discharge the duties of his office for the terms of court there held-i* In the act govern- 4Act June 19, 1878, c. 326, § 5, 20 9Act July 18, 18&4, c. 144, § 7, 28 Stat. 176, U. S. Comp. Stat. 1901, Stat. 115, U. S. Comp. Stat. 1901. p. p. 371. 383. 5Act Feb. 28. 1887. c. 269, § 2, 24 lOAet Feb. 28. 1887. e. 271, § 5, Stat. 433: act Apr. 30, 1894, c. 66, 24 Stat. 426, U. S. Comp. Stat. 1901, § 5, 28 Stat. 68, U. S. Comp. Stat. p. 387. 1901. p. 372. 374. iiAct Jan. 24, 1901. 164, § 3. 31 6Act June 15, 1882, c. 218, § 5, Stat. 739. U. S. Comp. Stat. 1901, 22 Stat. 102, U. S. Comp. Stat. 1901, p. 390. p. 379. i2Ante, § 569. [k] 7 Act Feb. 28, 1887, c. 279, § 4. 24 isAct Feb. 7, 1900, c. 10. § 3. 31 Stat. 431, U. S. Comp. Stat. 1901, Stat. 5, U. S. Comp. Stat. 1901, p. p. 381. 419. 8 Act Apr. 4, 1888. c. 58 § 4, 25 i4Act Feb. 3, 1903, c. 398, § 2, 32 Stat. 79, U. S. Comp. Stat. 1901. p. Stnt. 794, U. S. Comp. Stat. 1903, 382. p. 77. 619 f 619 UNITED STATES MARSHALS. [Code Fed. ing AVj-oming tlieie is a provision for a deputy at Evanston;!^ and the statute respecting the Yellowstone National Park provides that "the mar- shal of the United States for the district of Wyoming may appoint one or more deputy marshals for said park, who shall reside in said park."iti § 619. Temporary appointments to fill vacancy. In case of a vacancy in either of said offices [i. e. United .Stales attorney or marshal], the district court of the United States for the district where such vacancy exists, the supreme court of the Terri- tory, and the supreme court of the District of Columbia may ap- point persons to exercise the duties of such offices within their re- spective jurisdictions, until such vacancy shall be filled. § 2 of act June 24, 1898, c. 495, 30 Stat. 487, U. S. Ck)mp. Stat. 1901, p. 618. It would seem that this enactment supersedes R. S. § 793,i8 which pro- vided that "in ease of a vacancy in the office of district attorney or marshal within any circuit, the circuit justice of such circuit may fill the same, and the person appointed by him shall serve vnitil an appointment is made by the President, and the appointee is duly qualified, and no longer. The appointment made by said justice shall be in writing and shall be filed in the clerk's office of the circuit court, and a copy thereof shall be entered upon the journal of said court. Any marshal so appointed shall give bond, as if appointed by the President, and the bond shall be approved by said justice. It shall then be filed in the clerk's office of said court, and a copj' shall be entered on the journal of the court. A certified copy of such entry shall be prima facie proof of the execution of such bond, and of the con- tents thereof." It is held that the intent of the section just quoted is not to enable the circuit court justice to oust the power of the President,! 9 but that it merely authorizes him to fill the vacancy until the President shall act. 2 § 620. Appointments, compensation and expenses of office depu- ties. 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 conclu- sions, showing necessity for the same, allow the marshals to employ necessary office deputies and clerical assistance, upon salaries to be fixed by the Attorney General from time to time, and paid as here- inafter provided. When any of such office deputies is engaged in i5Quoted and cited ante. § 569. [p] i»V. S. Comp. Stat. 1901, p. 610. isAct May 7, 1894. c. 72. § 6, 28 1 9 Such power is given under Const. Stat. 75, U. S. Comp. Stat. 1901, p. § 2, art. 2. 15{>4. 2 In re Farrow, 3 Fed. 112. 620 Procedure] FIELD DEPUTIES. § 621 the service or attempted service of an}' 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 exceed two dollars per day, and the necessary actual expenses in transporting prisoners, including necessary guard hire ; and he shall make and render ac- counts thereof as hereinafter provided. § 10, act May 28, 1896, c. 252, 29 Stat. 182, U. S. Comp. Stat. 1901, p. 615. It would seem that this section and the one next following supersede 11. S. § 780 which provided that '"every marshal may appoint one or more deputies, who shall be removable from office by the judge of the dis- trict court or by the circuit court for the district, at the pleasure of either." Prior to the above enactment of 1396, deputy marshals were all on the same footing, holding office at the pleasure of the marshal unless removed by the court. 2 They were not officers of the United States 3 and stood on the same footing with regard to the marshal as an ordinary employee.^ It is held that the above provision does not change their position, as regards tenure of office, which expires at the expiration of the marshals term.5 § 621. — of field deputies. 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 kno\\Ti 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 compensation, receive three-fourths of the gross fees, including mileage, as provided by law, earned by him, not to exceed one thou- sand five hundred dollars per fi.^cal 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 endeavoring 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, that in special cases where, zPriddie v. Thompson, 82 Fed. 186. 5Dudley v. .Tames. 8:5 Fed. 345. sPow^ll V. United States, 60 Fed. See contra, Priddic v. Thompson, 82 687. Fed. 186. lioldiiig marshal cannot re- 4 Douglas V. Wallace, 161 U. S. 346, move office deiputy. 40 L. ed. 727, 16 Sup. Ct. Rep. 485. 621 § 622 UNITED STATES MARSHALS. [Code Fed. in his judgment, justice requires, the Attorney General may make an additional allowance, not, however, in any case to make the ag- gregate annual compensation of any field deputy in excess of twen- ty-five hundred dollars, nor more than three-fourths of 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 distin- guished from conclusions constituting the reason for such appoint- ment, and t he Attorney General may at any time cancel any such appointment as the public interest may require. Part of § 11, act May 28, 1896, c. 252, 29 Stat. 182, U. S. Comp. Stat. 1901, p. 615. The omitted part of the above provision provided for double fees for field deputies in certain districts during the fiscal year 1897. § 622. Deputies to continue after marshal's death — liability for their misfeasances. In case of the death of any marshal, his deputy or deputies shall continue in office, unless otherwise specially removed, and slia'l execute the same in the name of the deceased until another marshal is appointed, as provided in this chapter, and duly qualified. The defaults or misfeasances in office of such deputies in the meantime shall be adjudged a breach of the condition of the bond given by the marshal who appointed them; and the executor or administrator of the deceased marshal shall have like remedy for the defaiilts and misfeasances in office of such deputies, during such interval, as he would be entitled to if the marshal had continued in life and in the exercise of his said office until his successor was appointed and duly qualified. R. S. § 789, U. S. Comp. Stat. 1901, p. 609. This section was first enacted in 1789.7 § 623. Residence and duties of marshals and effect of removals or neglect. Every . . . United States marshal . . . shall reside permanently in the district wliere his official duties are to be per- formed, and shall give his personal attention thereto; and in case any such officer shall remove from his district, or shall fail to give TAct «ept. 24, 1789, c. 20, § 28, 1 Stat. 87. 622 Procedure] RESIDENCE AND OATH. § 625 personal attention to the duties of his office, except in case of sick- ness, such office shall be deemed vacant : Pro\dded, That in the southern district of New York said officers may reside within twenty miles of their districts. § 2, of act June 20, 1874, c. 328, 18 Stat. 109, U. S. Comp. Stat. 1901, p. 622. Tlie provision specifies also clerks of the district and circuit courts and district attorneys. « § 624. Designation of official residence by Attorney General. The marshal's official residence shall be deemed to be at one of the places of holding court in the district, and the Attorney General shall be authorized to fix and declare the place of such official resi- dence. Part of § 12. act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 616. It is provided by § 24 of the same act that this and other provisions shall not apply to Alaska. § 625. Oaths of marshals and deputies. Every marshal and deputy marshal shall, before he enters upon the duties of his appointment, take, before the district judge of the district, an oath of affirmation in the following form: "I, A. B.. do solemnly swear (or affirm) that I will faithfully execute all lawful precepts directed to the marshal of the district of , under the authority of the United States, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of the office of marshal (or marshal's deputy, as the case may be) of the district of , during my continuance in said office, and take only my lawful fees. So help me God." The words "so help me God" shall be omitted in all cases where an affirmation is admitted instead of an oath: Provided, that when any person who is appointed deputy marshal resides and is more than twenty miles from the place where the district judge resides and is, the said oath of office may be taken by him before any judge or justice of any State court within the same district, or before any justic(> of the peace having authority therein, or before any notary public duly ap- pointed in such State, or before any commissioner of a circuit court for such district, and shall, when certified by such officer to the 8 Ante. §§ 506, 571. 623 § 626 UNITED STATES MARSHALS. [Code Fed. said district judge, be as effectual as if taken before such district judge. R. S. § 782, U. S. Coi»p. Stat. 1901, p. 606. In administering the above oath the district judge does not perform a judicial function, and he cannot pass upon the President's right to make the appointment. 9 The commission, and the performance of duties by a deputy marshal, raise a presumption that the required oath has been taken, which is conclusive in the absence of contrary proof. lo Tlie fact that a deputy marshal in charge of a jury is not specially sworn is no ground for setting aside a criminal verdict in the absence of objection and after the court's caution to the jury not to separate or talk with stra,ngers.ii § 626. Who may administer the oath. That the oath or oaths required to be taken by marshals and deputy marshals before entering upon the duties of their respective offices may be administered by any officer of the United States or of any State authorized by law to administer oaths. From appropriation act of Dec. 22, 1896, c. 3, 29 Stat. 481, U. S. Comp. Stat. 1901, p. 606. § 627. Marshal's bond, recording and evidence thereof. Every marshal, before he enters on the duties of his office, shall give bond before the district judge of the district, jointly and sev- erally with two good and sufficient sureties, inhabitants and inn^- holders of such district, to be approved by said judge, in the sum of twenty thousand dollars, 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 district court or circuit court sitting within the district, and copies thereof, certified by the clerk, under the seal of the said court, shall be competent evidence in any court of justice. R. S. § 783, U. S. Comp. Stat. 1901, p. 607. A later act creating the southern district in Texas provides that "the marshals and their deputies shall give the bond required of marshals and deputy marshals under the provisions of existing law." is Under the above provison two sureties are necessary to the bond, which must be approved 9ln re Yancey, 28 Fed. 445. isAct Mar. 11, 1902, c. 183, § 15, loUnited States v. Hudson. 1 Hask. 32 Stat. 69, U, S. Comp. Stat. 1903, 527, Fed. Oas. No. 15,412. p. 73. iiUnited States v. Ball. 163 U. S. 674, 41 L. ed. 300, 16 Sup. Ct. Rep. 119i2. 624 Procedure] BONDS. § 630 by the district judge, and a mai'slial is not qualified until such bond is given and until it is received by the proper official, i* § 628. Increase of bond. Whenever the business of the courts in any judicial district shall make it necessary in the opinion of the Attorney General, for the . . . marshal to furnish greater securities than the official bond now required by law, a bond in a sum not to exceed forty thousand dollars shall be given when required by the Attorney General, who shall fix the amount thereof. § 2, act Feb. 22, 1875, e. 95, 18 Stat. 333, U. S. Comp. Stat. 1901, p. G20. This provision specifies clerks also.is § 629. Suit on marshal's bond — costs. In case of a breach of the condition of the marshal's bond, any person thereby injured may institute in his own name and for his sole use a suit on said bond, and thereupon recover such damage.^ as shall be legally assessed, with costs of suit, for which execution may issue for him in due forin. If such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant; and the United States shall in no case be liable for the same. R. S. § 784, U. S. Comp. Stat. 1901, p. 607. The section was enacted in 1800.16 While it authorizes the injured party to bring suit in his own name, the suit may also be brought by the United States.i7 In such case the judgment is for the penalty and it apparently may be held by the United States as security for the party injured.is But if the suit is brought in the name of a private person it is for his sole use, and his recovery is the damages legally assessed.is If the government has no right to sue on the bond, an individual has none, hence no action lies on the bond by a deputy for money due him retained by the marslial.2 § 630. Bond not exhausted by one suit, but continues. The said bond shall remain, after any judgment rendered there- on, as a security for the benefit of any person injured by Ijreach of the condition of the same, until the whole penalty has been recov- i4jackson v. Simonton, 4 Cr. C. C. 433, Fed. Cas. No. 14,921 ; Hagood v. 255, Fed. Cas. No. 7147. Blvthe. 37 Fed. 252. 15 Ante, § 575. isHagood v. Blythe, 37 Fed. 252. l6Act April 10, ISOG. c. 21. § 2. isTdcm. 2 Stat. 373. 20Bollin v. Blythe, 46 Fed. 181. ifUnited States v. Davidson, 1 Biss. Fed. Proc— 40. 625 § 631 UNITED STATES MARSHALS. [Code Fed. ered ; and the proceedings shall always be as directed in the preced- ing section. R. S. § 785, U. S. Comp. Stat. 1901, p. 607. This provision was originally enacted in 1806.2 its meaning is that the person injured may bring suit on the bond in his own name, notwithstand- ing a judgment already had on it.s § 631. Limitation of action on bond. No suit on a marshal's bond shall be maintained unless it is commenced within six years after the right of action accrues, sav- ing, nevertheless, the rights of infants, married women and insane persons, so that they sue within three years after their disabilities are removed. R. S. § 786, U. S. Comp. Stat. 1901, p. 607. This section, enacted in 1806,5 aoes not apply to suits by the United «States,6 nor does it begin to run against a claim for proceeds of marshals' Bale suspended by appeal until after affirmance of the decree.'? § 632. Deputies' bond in Kentucky and suit thereon. The marshal may require a bond of indemnity to himself [from the deputy at Owensboro, Kentucky] with surety for the faithful discharge of his duties and for indemnity in case of breach, on which actions may be maintained in said district court [of the United States.] Part of § 4, axjt Aug. 8, 1888, c. 792, 25 Stat. 390, U. S. Comp. Stat. 1901, p. 360. § 633. Salaries in lieu of fees. On and after the 1st day of July. 1896 . . . ITnited States marshals , , . shall be paid for their official services . . . salaries and compensation hereinafter provided and not otherwise. Part of § 6 of act May 28, 1896, c. 252, 29 Stat. 179, U. S. Comp. Stat. 1901, p. 611. The section also provided that the fees previously allowed marshals and district attorneys should be paid thereafter to the clerk and be by him paid into the Treasury. » 2 Act April 6, 1806, c. 21, § 3, 2 States v. Giodbold. 3 Woods, 550, Stat. 374 Fed. Cas. No. 15,219. SHagood V. Ely the, 37 Fed. 252. VMontgomerv v. Hernandez, 12 5 Act April lO", 1806, c. 21, § 4, 2 Wheat. 129, 6" L. ed. 575. Stat. 374. sSee post, § 745. See also ante S 6Unite4 States v. Rand, 4 Sa^vy. 509. 272, Fed. Cas. No. 16,116; United C2G Procedure] SALARIES IN PARTICULAR CASES. § 634 § 634. Marshal's salaries in particular cases. The United State.s marshal for each judicial district of the United States shall be paid, in lieu of the salaries, fees, per centunis and other compensation now allowed by law, an annual salary as follows : For the northern and middle districts of the State of Ala- bama, each four thousand dollars; for the southern district of the State of Alabama, three thousand dollars ; for the Territory of Ari- zona, four thousand dollars; for the eastern district of Arkansas, four thousand dollars; for the western district of Arkansas, five thousand dollars ; for the northern district of California, four thou- sand dollars ; ... for the district of Colorado, four thousand dollars; for the district of Connecticut, tv\-o thousand dollars; for the district of Delaware, two thousand dollars; for the District of Columbia, five thousand five hundred dollars ; for the northern and southern districts of Florida, each three thousand dollars; for the northern district of Georgia, five thousand dollars ; for the southern district of Georgia, three thousand five hundred dollars; . . . for the northern district of Illinois, five thousand dollars ; for the southern district of Illinois, four thousand five hundred dollars ; for the district of Indiana, four thousand five hundred dollars ; for the northern and southern districts of Iowa, each four thousand dol- lars; for the district of Kansas, four thousand dollars; for the district of Kentucky, five thousand dollars; for the eastern dis- trict of Louisiana., three thousand dollars; for the western dis- trict of Louisian, two thousand five hundred dollars; for the dis- trict of Maine, three thousand dollars; for the district of ^Maryland, three thousand five hundred dollars; for the district of Massa- chusetts, five thousand dollars; for the eastern district of ]\Iichi- gan, four thousand dollars, for the western district of Michigan, three thousand dollars; for the district of Minnesota, four thousand dollars; for the northern and southern districts of Mississippi, each three thousand dollars; for the eastern district of Missouri, four thousand dollars; for the western district of Missouri, four thousand dollars; for the district of Xew Jersey, three thousand five hundred dollars; for the district of Nebraska, three thousand five hundred dollars; for the district of ISTev^ada, two thousand five hundred dollars; for the district of New Hampshsire, two thousand dollars; for the district of New Jersey, three thousand dollars ; for the district of New Mexico, four thousand dollars ; for the northern district of New York, five thousand dollars; for the 027 § 634 UNITED STATES MARSHALS. [Code Fed. eastern district of New York, four thousand dollars ; for the south- ern disrict of Xew York, five thoiisand dollars ; for the eastern dis- trict of North Carolina, four thousand dollars ; for the western dis- trict of North Carolina, four thousand five hundred dollars ; for the district of North Dakota, four thousand dollars; for the northern and southern districts of Ohio, each four thoiisand dollars; for the district of Oklahoma, five thousand dollars ; for the district of Ore- gon, four thousand dollars ; for the eastern district of Pennsylvania, four thousand dollars ; for the western district of Pennsylvania, four thousand dollars; for the district of Rhode Island, two thou- sand dollars ; for the eastern and western districts of the district of South Carolina, four thousand five hundred dollars, two thousand five hundred dollars of which shall be for the performance of the duties of marshal of the western district; for the district of South Dakota, four thousand dollars ; for the eastern, middle and western districts of Tennessee, each four thousand dollars ; for the northern district of Texas, three thousand dollars; for the eastern district of Texas, five thousand dollars; for the western district of Texas, four thousand dollars ; for the district of Utah, three thousand five hundred dollars; for the district of Vermont, two thousand five hundred dollars ; for the eastern district of Virginia, three thousand five hundred dollars ; for the western district of Virginia, four thou- sand dollars ; for the district of Washington, four thousand dollars ; for the district of West Virginia, four thousand dollars; for the eastern district of Wisconsin, four thousand dollars ; for the western district of Wisconsin, four thousand dollars ; for the district of Wyo- ming, three thousand five hundred dollars. § 9, act May 28, 1896, c. 252, 29 Stat. 181, U. S. Comp. Stat. 1901, p. 613-615. The omitted portions of the above section provide an annual salary of three thousand dollars for the marshal of the southera district of Cali- fornia and the district of Idaho. The sundry civil appropriation act of 1906 raises the salary of these officers to four thousand dollars. 9 By § 24 of the same act it is provided tliat the above section does not apply to Alaska. The salaries of each of the marshals in Oklahoma are to be tlie same aa in other districts. lo Tlie above enactment necessarily superseded R. S. § 841, fixing the maximum compensation allowable to marshals out of fees collected. It also superseded R. S. § 842 n in so far as allowing marshals 9Act June 30, 1906, c. 3914, 34 loAct June 19, 1906, § 13, c. 3335, Stat. 753. 34 Stat. 275. iiSee ante, § 581. 628 Procedure] SALARIES AND EXPENSES. 8 638 additional compensation in prize cases; and R. S. § 84312 in so far as ap- plicable to marshals. A later law creating a middle district in Pennsylvania provides that the marshal's salary shall be the same as in the western district, i. e., $4,000:13 and in the new eastern district of Kentucky the same as in the older Kentucky district, i. e., $.5,000 ;14 and in the new westejTi district of New York the same as in the northern district, i. e., $6,000. '6 The marshal in the new southern district of Texas is given a salary of $3,500 per annum, payable as the marshals ... in other dis- tricts are paid under the provisions of existing law."i6 § 635. Salaries payable monthly. All salaries provided by section six to fifteen, [includes marshals salaries] inclusive, of this act, shall be paid monthl}' by the Depart- ment of Justice. § 16 of act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 617. § 636. Certain compensation and fees denied to deputies. No officer or field deputy shall receive compensation as bailiff, and no field deputy shall receive fees for representing the marshal in court. Proviso of § 13, act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 617. § 637. Office expenses of marshals. The necessary office expenses of the . . . marshals shall be allowed when authorized by the Attorney General. § 14 of act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 617. This provision applies to district attorneys also.is § 638. Traveling expenses and for transportation of prisoners. The marshal when attending court, at any place otlier than his official residence, and when engaged in the service or attempted service of any process, writ or subpoena, and when otherwise neces- sarily absent from his official residence, on official business, sliall be allowed his necessary expenses for lodging and subsistence not ex- 12 Ante. § 582. i^Vct Mav 12. 1900, c. 391, § 0, isAct Mar. 2. 1901. c. 801. § 5. 31 31 Stat. 176,' U. S. Comp. Stat. 1901, Stat. 881, U. S. Comp. Stat. 1901. p. p. 396. 406. i«Act Mar. 11. 1902, c. 183, § 15, n.Act Feb. 12, 1901. c. 355. S 7, 31 32 Stat. 69. I". S. Comp. Stat. 1903, Stat. 782, U. S. Comp. Stat. 1901. p. p. 73. 362. 19 Ante, § 517. 629 § 639 UNITED STATES MARSHALS. [Code Fed. ceeding four dollars per day and his actual necessary traveling ex- penses. He shall also be allowed the actual necessary expenses in transporting prisoners, including necessary guard hire. An ac- count of such expenses shall be made out and paid as hereinafter provided. Part of § 12 of act May 28, 1896, c. 25:!!, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 616. The omitted portion prescribes the official residence of the marshal.i R. S. § 5546 and an act of 18912 deal with the duty of marshals in trans- porting prisoners. The provision as to expenses for transporting prisoners contained in the act of 1891 would seem to be superseded by the above section. § 639. Certain expense allowances to marshal. There shall be paid to the marshal his fees for services rendered for the United States, for summoning jurors and witnesses in be- half of the United States, and in behalf of any prisoner to be tried for a capital offense, for the maintenance of prisoners of the United States confined in jail for any criminal offense; also, for his rea- sonable actual expense for the transportation of criminals, and of the marshal and guards, to prisons designated by the Attorney Gen- eral, and for hire and subsistence in that behalf, as hereinbefore provided ; also, his fees for the commitment or discharge of prison- ers; his expenses necessarily incurred for fuel, lights, and other contingencies that may accrue in holding the courts within his district, and providing the books necessary to record the proceedings thereof ; provided, that he shall not incur, or be allowed, an expense of more than twenty dollars in any one year for furniture, or fifty dollars for rent of a building and making improvements thereon, without first submitting a statement and estimates to the Attorney General and getting his instructions in the premises. R. S. § 830, U. S. Comp. Stat. 1901, p. 639. Much of the above section is superseded by later enactments. In so far as it provides fees payable by the United States in criminal cases it is superseded by the law of 1896, giving salaries in lieu of fees.3 The provi- sion as to expense allowance for transportation of criminals is also super- seded.4 The clause as to office expenses must be construed in connection lAnte, § 624. 3 Ante. §§ 633, 634. 2Act Mar. 3, 1891, c. 529, § 5, 26 4Ante, § 638. Stat. 839, U. S. Comp. Stat. 1901, p. 3723, 3726. 630 Procedure] QUARTERLY EXPENSE ACCOUNTS. § 641 with the later enactment allowing office expenses only when approved by the Attorney General. 5 The provision regarding expenses for fuel, light and record books for the courts se(?ms to be unaffected by later statutes. Hack and carriage hire have been allowed the marshal in the transporta- tion of criminals,6 also the actual expenses incurred by hiring guardsj including money paid for their meals. ^ He is also allowed for the main- tenance of prisoners in custody awaiting examination, but not in jail, 9 and for money expended for meals to jurors while they are deliberating on their verdict. lo The expenses of hiring bailiffs ordered by the court have been allowed as "other contingencies that may accrue in holding courts" within the meaning of the section. n § 640. Allowances for expenses in case of prize. The marshall be allowed his actual and necessary expenses for the custody, care, preservation, insurance, sale or other disposal of the prize-property, and for executing any order of the court respect- ing the same . . . No charges of the marshal for expenses or disbursements shall be allowed, except upon his oath that the same have been actually and necessarily incurred for the purp ).-e stated. Part of R. S. § 4645, U. S. Comp. Stat. 1901, p. 3137. The remainder of the section confers certain commissions upon the marshal by way of compensation; but it must be regarded as superseded by the act of 189G12 as to salaries. § 641. Quarterly expense accounts, verification, approval, allow- ance and returns. Whenever in this act an officer [this includes marshals and their deputies] is allowed actual expenses, the account therefor shall be made out quarterly, in accordance with rules and regulations pre- scribed by the Attorney General. When made out the account shall be verified on oath before an officer authorized to administer oaths. The expense accounts of the marshals and their office deputies and the accounts of the field deputies shall l)e paid by the marshals ; said accounts . . . when made out in accordance with this act, shall sAnte, § 637. 313. See also Swift v. United States, SKinnev v. United States. .54 Fed. 128 Fed. 763. 313; Uni'ted States v. Harmon, 147 sDonahower v. United States, 77 U. S. 268, 37 L. ed. 1G4. 13 Sui). Ct. F^d. 153. Rep 307 lOIdem. And see Campbell v. ,tt'-I ^ o. . r^u ,n -c ^ United States, 65 Fed. 777, 13 C. C. ^United States v. El>bs, 49 Fed. _^ j.,g 149; United States v. Dill, 86 Fed. ' 'nunited States v. Swift, 139 Fed. 79, 29 C. C. A. 5S6. 225, (C. C. A.) sKinnev v. United States, 54 Fed. i2See ante, §§ 6.33, 634. 631 § 642 UNITED STATES MAUSHAbS. [Code Fed. be submitted to and examined by the circuit court or district court of the district, and when approved by the court shall be audited and allowed as now provided for by law. Each marshal shall make such returns of the earnings and expenses of his office as shall be required under rules and regulations prescribed by the Attorney General. Part of § 13, act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 616. This seems to supersede R. S. 833, 1 4 requiring semiannual returns as to fees and expenses, in so far as applicable to marshals. That section provided that "every . . .is marshal shall, on the first days of Janu- ary and July in each year, or within thirty days thereafter, make to the Attorney General, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emolu- ments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. He shall state separately in return the fees and emoluments received or payable under the bankrupt act; and every marshal shall state separately therein the fees and emoluments received or payable for services rendered by him- self personally, those received or payable for services rendered by each of his deputies, naming him, and the proportion of such fees and emoluments which, by the terms of his service, each deputy is to receive. Said returns shall be verified by the oath of the officer making them." But R. S. § 846, as to inspection and approval of accounts by the judges, is still in force.16 § 642. Effect of removal or expiration of term on unserved proc- ess. The first portion of E. S. § 790 provided that: "every marshal or his deputy, when removed from office, or when the term for which the marshal is appointed expires, shall have power, notwith- standing, to execute all such precepts as may be in their hands respectively at the time of such removal or expiration of office." But this would seem to be superseded by a provision in a stat- ute of 1899 requiring that "hereafter all unserved process re- maining in the hands of a United States marshal or his deputies, when the marshal ceases to be such, shall be immediately delivered to the succeeding marshal upon request ; and wlien a deputy United States marshal resigns or is removed he shall, upon request, deliver 14U. S. Comp. Stat. 1901, p. 642. ante. § 520; and clerks, ante, § 589. islncludes also district attorneys, i^See Ante § 448. 632 Procedure] DUTIES IN GENERAI^. | 644 to the United States marshal for the district all process remaining in his hands."^® The remaining portion of E. S. § 790 is unaffected by this law of 1899 and is given elsewhere.^ ^ Author "o section. Although the term of office of a marshal has expired, it is still his duty to settle his accounts with the government, which dutj' is discharged under the sanction of his official oath and the obligation of his bond. 20 § 643. — effect upon persons in custody. The marshal shall be held responsible for the delivery to his successor of all prisoners who may be in his custody at the time of his removal, or when the term for which he is appointed expires; and for that purpose he may retain such prisoners in his custody until his successor is appointed and duly qualified. Part of R. S. § 790, U. S. Comp. Stat. 1901, p. G09. § 644. Duties of marshal in general. It shall be the duty of the marshal of each district to attend the district and circuits courts wdien sitting therein, and to execute, throughout the district all lawful precepts directed to him, and is- sued under the authority of the United States; and he shall have power to command all necessary assistance in the execution of his duty. R. S. § 787, U. S. Comp. Stat. 1901, p. COS. The authority of marshals to execute process of the Federal courts is derived from the Federal law.2 They are, however, merely ministerial officers and cannot judge whether such process shall be issued, 3 but are justified in acting if the process is regular and legal on its face.* In making an arrest they may use all necessary force and summon assistance if required. 5 On the execution of an attachment the responsibility rests with them and they are liable to an injured party for neglect or improper performance. 6 Propertj- seized by them must be kept free from injury. 7 While a subpoena for a witness s or a notice to a party may be served by a private person,^ original process must be served by the marshalio or his isDeficiency appropiiation act Mar. afnited States v. Fullhart. 47 Fed. 3, ISnn. c. 427. 30 Stat. 1214. S02. isPnst. § 643. CBroderick v. Brown. 68 Fed. 346. 20United States v. Strobach. 48 "Burke v. The Briir Rich. 1 Cliff. Fed. 902. .109. Fed. Cas. Xo. 2.162. 2United States v. Fullhart. 47 Fed. f^Cordon v. Scott, Fed. Cas. No. 802. 5.620. 2 X. B. R. 86. sLevv Ct. V. Ringgold. 5 Pet. 454. sSchwabacher v. Reillv. 2 Dill. 127, 8 L. ed. 188. Fed. Cas. Xo. 12,501. lUiiited States v. Harris, Fed. Cas. i oSchwabaeher v. Reillv, 2 Dill. No. 15,313. 127. Fed. Cas. Xo. 12,501. ' 633 § 645 UNITED STATES MARSHALS. [Code Fed. deputy.ii A marshal is liable for false imprisonment for the arrest of a person not named or described in the warrant. 12 He is liable also for at- taching property of a person not named in the writ.is for the delivery of attached property to the wrong person,!* and for the death of a prisoner whom he knowingly instructed to the care of an unfit deputy. is If he receives bank notes in satisfaction of execution he is liable to the judg- ment creditor in lawful aoney.is He cannot, however, be held for the escape of prisoners regularly committed to jail. 1 7 The equity rules pro- vide for service of process by the marshal. § 645. Duty to provide court rooms. There are occasional provisions of law making it the duty of the marshal for a district to provide court rooms for the ocupancy of the court and its officers. Thus the act creating the circuit court of appeals made it the duty of the marshals of the several districts where that court is held to provide court rooms with the approval of the Attorney General, and pay incidental expenses, either in public buildings of the United States where possible, or if not, then by leasing rooms elsewhere.^'' So also another act of the same date relating to the northern judicial district of Georgia, required the marshal to provide suitable rooms for the occupancy of the circuit and district courts and their officers.^^ Author's section. § 646. Duty to execute awards of foreign consuls. The marshals of the United States shall serve all such process [to carry into effect awards or decrees of foreign consuls], and dc all other acts necessary and proper to carry into effect the prem- ises, under the authority of the said courts and commissioners [i. e. district and circuit courts and circuit court commissioners]. Part of R. S. § 728, U. S. Comp. Stat. 1901, p. 584. § 647. — returns to Treasury on executions for money due Unit- ed States. Every marshal shall, within thirty days before the commencement 11 See United States v. Tinkle- leGivin v. Breedlove, 2 How. ,34, paugh, 3 Blatchf. 425, Fed. Cas. No. 11 L. ed. 170. 16,526. i^United States v. Hudson, 1 Hask. i2West v. Cabell, 153 U. S. 85, 527, Fed. Cas. No. 15,412; Randolph 38 L. ed. 643, 14 Sup. Ct. Rep. 752. v. Donaldson, 9 Cranch, 76. 3 L. ed. i3Lammon v. Feu^ier, 111 U. S. 18, T'qo en * tvt _ o icm „ -1- 00 T J 00- 1 a f^i. T3 .-,Qo i9See § 9, act Mar. 3, 181)1. c. oh, 28 L. ed. 33/, 4 Sup. Ct. Rep. 286; op o. . o-yn tt q n^,J^ «+.f moi „,. T rr • =:i t:^ j mi r> n 2o Stat. 0^9, b. b. Lomp. btat. I'JUl, Wise V. Jpffens. 51 Fed. 641, 2 C. ---, ' ^- ^- *'^- 2 Act Mar. 3, 1891. c. 560, § 41. 2() i4Bernard v. Bowe, 41 Fed. 31. gtat. 1110, U. S. Comp. Stat. 1901, i5Asher v. Cabell, 50 Fed. 818. p. 339. 634 Procedure] VARIOUS DUTIES § 650 of each term of the circuit and district courts in his district, make returns to the Solicitor of the Treasury of the proceedings had upon all writs of execution, or other process which have been placed in his hands for the collection of moneys adjudged and decreed to the United States in said courts, respectively. R. S. § 791, U. S. Comp. Stat. 1901, p. 610. § 648. — returns to Postoffice Department on executions in post- office cases. Every marshal to whom any execution upon a judgment in any suit for moneys due on account of the Postoffice Department has been directed, shall make returns to the sixth auditor, at such times as he may direct, of the proceedings which have talvon place upon the said process of execution. R. S. § 792, U. S. Comp. Stat. 1901, p. 010. The duty of the marshal in executing attachments in postal cases i; provided in another section.2 The sixth auditor above mentioned is desig- nated auditor for the Postoffice Department by an act of 1894.3 § 649. — returns to Department of Justice on executions in post- office cases. The United States marshal to whom [execution on a judgment in government suit for postoffice moneys] ... is directed shall make returns of the proceedings thereon to the Department of Jus- tice at such times as it may direct. Part of R. S. § 775, U. S. Comp. Stat. 1901, p. 604. § 650. Duty as to places of confinement of prisoners. In a State where the use of jails, penitentiaries, or other houses is not allowed for the imprisonment of persons arrested or commit- ted under the authority of the United States, any marshal in such State, under direction of the judge of the district, may hire, or otherwise procure, within the limits of such State, a convenient place to serve as a temporary jail. R. S. § 5537, U. S. Comp. Stat. 1901, p. 3719. R. S. § 5540 and an act of 1891 < deal with the duties of a marshal in tne transportation of prisoners to the penitentiary. 2Post, § 1401. ■•Act Mar. 3, 1891, c. 529, § 5, 26 3§ 3, act July 1. 1894, U. S. Comp. Stat. 839, U. S. Comp. Stat. 1901, Stat. 1901, p. 154. p. 3726. 635 S 651 UNITED STATES MARSHALS. [Code Fed. § 651. Duty to make other provision for safekeeping prisoners. The marshal shall make such other provision as he may deem ex- pedient and necessary for the safe-keeping of the prisoners arrested or committed under the authority of the United States, until perma- nent provision for that purpose is made by law. R. S. § 5538, U. S. Comp. Stat. 1901, p. 3719. § 652. — to prosecute for violations of law as to transport of animals. It shall be the duty of all United States marshals, their deputies and subordinates, to prosecute all violations [of the law requiring animals in transport to be fed, watered, unloaded, etc.,] which come to their notice or knowledge. Part of R. S. § 4389, U. S. Comp. Stat. 1901, p. 2997. § 653. Duty in deportation of Chinese. Such order of deportation [i. e of a Chinese laborer] shall b'* executed by the United States marshal of the district within which such order is made, and he shall execute the same with all con- venient dispatch; and pending the execution of such order such Chinese person shall remain in the custody of the United States marshal, and shall not be admitted to bail. Part of § 2, act Nov. 3, 1893, c. 14, 28 Stat. 18, U. S. Comp. Stat. 1901, p. 132.3. § 654. Duty to deliver offender's body for dissection. The marslial who executes such judgment [of death upon con- viction of murder, accompanied by an order for the delivery of the offender's body to a surgeon for dissection] shall deliver the body, after execution, to such surgeon as the court may direct. Part of R. S. § 5340, U. S. Comp. Stat. 1901, p. 362S. § 655. Duty of marshal in removing alien enemies. When an alien enemy is required by the President, or by order of any court, judge or justice, to depart and to be removed, it shall be the duty of the marshal of the district in which he shall be appre- hended to provide therefor, and to execute such order in person, or by his deputy, or other discreet person to be employed b\' 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 036 Procedure] MISCELLANEOUS DUTIES. § 637 the President, or of the court, judge or justice ordering the same, as the case may be. R. S. § 4070, U. S. Comp. Stat. 1901, p. 2763. § 656. — to seize piratical vessels. 'i'ae collectors . . . surveyors . . . and the marshals of the several judicial districts within the United States, shall seize any vessel or boat built, purchased, fitted out, or held as mentioned in section 4297 [regarding seizure of piratical vessels] which may be found within their respective ports or districts, and to cause the same to be proceeded against and disposed of as provided by that section. R. S. § 4299, U. S. Comp. Stat. 1901, p. 2952. This section was enacted in 1861.7 § 657. Miscellaneous duties imposed on marshals. In addition to the statutory provisions already set forth, other enactments prescribe various duties to be performed by marshals. Thus the law governing the militia called into actual service of the United States requires the marshal to levy fines imposed by court martial, or commit the offenders to jail in default thereof ; and to pay over the fines to the Treasury.^ The enactments subsequent to the Civil War for the protection of civil rights, especially re- quired marshals and their deputies to institute proceedings against every person violating such laws and cause their arrest and to obey and execute all warrants or other process in that behalf.^ A section of the Eevised Statutes respecting seizure of American vessels un- lawfully importing coolies requires any such vessel to be delivered over to the marshal of the district.^ "^ The section providing for the summary distress warrants against revenue collectors in default imposed duties in the levy thereof and sale thereunder, upon the marshal. ^1 So also the marshal is required to obliterate tax-paid stamps on liquor forfeited to the government.^ ^ The law as to pro- ceedings in prize causes imposes a variety of duties upon the mar- 7 Act Aug. 5. 1861. c. 18, § 3, 12 336, U. S. Comp. Stat. 1901, pp. 1260, Stat. 315. 1264, 1265, 3713. ST. Q SR ^rrn ^rcn tt q <- ^"R- S. 2163, U. S. Comp. Stat. 9f!f-;oJ- utn ^"P- 1^01' P- 1284. otat. lym, p. ii6V. iiPost §§ 2419, 2420, 2085. 9See R. S. §§ 1982, 1985, 5517, also 12R. S. § 3334, U. S. Comp. Stat. act Mar. 1, 1875, c. 114, § 3, 18 Stat. 1901, p. 21&3. 637 § G58 UNITED STATES MARSHALS. [Code Fed. shal, which are not set forth at length here/^ as well as a duty to pay any witness fees all owed. i'* The marshal in the District of Columbia is required to post the names of servants for foreign pub- lic ministers in an accessible place.^'^ Other duties imposed will be found among the cross refei-ences in a preceding section.^'' § 658. Treasury Department rules as to suits by United States for moneys. The Solicitor of the Treasury shall establish such regulations, not inconsistent with law, . . . with the approbation of the At- torney General, for the observance of district attorneys and mar- shals respecting suits in which the United States are parties, as may be deemed necessary for the just responsibility of those officers, and the prompt collection of all revenues and debts due and accru- ing to the United States. But this section does not apply to suits for taxes, forfeitures or penalties arising under the internal revenue laws. R. S. § 377, U. S. Comp. Stat. 1901, p. 212. By R. S. § 32151 s the commissioner of internal revenue has similar power to prescribe rules in suits under internal revenue laws to which the United States are parties. § 659. Custody of goods seized under revenue laws. Any goods, wares, merchandise, articles or objects which may be seized, under the provisions of section thirty-four hundred and fifty- tliree [Eevised Statutes], by any collector or deputy collector, may, at the option of the collector, be delivered to the marshal of the dis- trict, and remain in the care and custody and under the control of said marshal, until he shall obtain possession by process of law. Part of R. S. § 3458, U. S. Comp. Stat. 1901, p. 2281. § 660. Powers of marshals in executing laws. The marshals and their deputies shall have, in each State, the same powers, in executing the laws of the United States, as the sher- iffs and their deputies in such State may have, by law, in executing the laws thereof. R. S. § 788, U. S. Comp. Stat. 1901, p. G08. isSee R. S. §§ 4623, 4028. 4G29. leAnte, § G13. i4See post, § 738. isU. S. Comp. Stat. 1901, p. 2084. isSee K. S. §§ 4065, 40GG, U. S. Comp. Stat. 1901, p. 2761. 638 Procedure] POWERS AND DUTIES. § 662 Under the above provision a marshal in executing Federal laws has the power of a sheriff in executing State laws.i Thus he or his deputy may make an arrest without warrants or arrest a person with liquor in his possession,3 or appoint a person to perform special service,^ where the sheriff of the particular State would have such power. So also he has the same power to keep the peace of the United States that a sheritY has to keep the peace of the State. 5 The section apparently confers an additional right in the manner of appointment and qualification of a deputy marshal, and such officer may act without taking oath, where none is required of the deputy sheriff. 6 It should not be construed, however, as restricting the power of the marshal to that of the sheriff. So, since under the Federal law a marshal may make a deputation for the service of writs, the power of the sheriff in that respect is immaterial." The section refers only to the district in which the marshal is appointed, and gives him no authority to act outside it.s Thus, when found in another district he may be held for carrying concealed w'eapons, although priA'ileged to do so in his own dis- trict.9 The section does not apply to policemen. lo The removal of a prisoner by the marshal from a county jail to the place of trial without due process, while unsafe practice, is not censurable if the practice of the State sheriff.ii § 661. Other powers of marshals. By E. S. §§ 3990, 399113 the marshal or his deputy is empowered to seize, detain and forfeit letters carried contrary to law. The bankruptcy law confers certain powers as to custody of bankrupt proporty.i^ The marshal is empowered in certain cases to stay a warrant of arrest in proceedings in rem in admiralty .^^ Author's section. § 662. Forbidden to accept gifts, etc., to compromise revenue suits. Every district attorney or marshal who demands, or accepts, or attempts to collect, directly or indirectly, as payment or gift or otherwise, any sum of money or other property of value for the lEx parte Ringgold, 3 Cr. C. C. 86, 7The Tug Gorgas, 10 Ben. 4G0, Fed. Fed. Cas. No. 11.841. Cas. Xo. 4,585. 2ln re Acker. 66 Fed. 290. See also *In re Anderson, 94 Fed. 487. United States v. Fuelhart, 106 Fed. nValker v. Lea. 47 Fed. 649. 914. lOBad Elk v. United State's. 177 U, sCarico v. Wilmore. 51 Fed. 196. S. 535, 44 L. ed. 877, 20 Sup. Ct. Rep 7''9 4Hyman v. Chales, 12 Fed. 855. /iVnitea States v. Harden, 10 Fed. 5In re Xeagle. 135 U. S. 1. 34 L. 809. ed. 55. 10 Sup. Ct. Rep. 658. isu. S. Comp. Stat. 1901, p. 2715. sPuleston v. United States, 85 Fed. i^See port § 2200, et seq. 677. 1 e; Post, § 122. 639 § GG3 UNITED STATES MARSHALS. [Code Fed. compromise, adjustment or settlement of any charge or complaint for any violation or alleged violation of any provision of the in- ternal revenue laws, except as expressly authorized by law to do so, shall be held to be guilty of a misdemeanor, and shall be fined in double the sum or value of the money or property received or demanded and be imprisoned for not less than one nor more than ten years. R. S. § 3170, U. S. Comp. Stat. 1901, p. •201)3. § 663. Unserved process surrendered by retiring marshal or dep- uty. Hereafter all unserved process remaining in the hands of a United States marshal or his deputies, when the marshal ceases to be such, shall be immediately delivered to the succeeding marshal upon request; and when a deputy United States marshal resigns or is removed he shall, upon request, deliver to the United States marshal for the. district all process remaining in his hands. Act Mar. 3, 1899, c. -127, 30 Stat. 1237, U. S. Comp. Stat. 1901, p. 609. C40 CHAPTER 18. COMJnSSIO^TERS AXD OTHER JUDICIAL OFFICERS. § 671. Appointment and duties of United States Commissioners — circuit commissioners abolished. § 672. — seal of commissioners. § 673. Persons disqualified to act as commissioners. § 674. Are governed by previous law applicable to circuit commissioners. § 675. Increase in number of commissioners, for purpose of civil rights cases. § 676. Powers of commissioners to administer oaths. ? 677. Territorial court commissioners. § 678. Powers of Territorial commissioners. § 679. Commissioners to administer oaths to appraisers. § 680. Power of Supreme Court to appoint a reporter. § 681. Duties of Supreme Court reporter — reports. § 682. Reporter's salary and price of reports. § 683. Marshal's assistants and messengers of Supreme Court. § 684. Bailiff and messenger of Court of Claims. § 68.5. — their salaries. § 686. Criers, bailiffs and messenger of Court of Claims. § 687. Circuit and district court criers — jury attendants. § 688. — when deemed in actual attendance, — not employed in vacation. § 689. Court stenographers. § 690. Masters in chancery. § 691. Referees and trustees in bankruptcy. § 671. Appointment and duties of United States Commissioners — circuit commissioners abolished. The terms ... of all commissioners of the circuit courts . . . shall expire on the 30th day of June, 1897 ; and such office shall on that day cease to exist. ... 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 tif the circuit courts. The appointment of such United States Fed. Proc— 41. 641 S C71 [aj COMMISSIONERS AND OTHER OFFIOEUS. [Code Fed. 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, respectively, 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 the United States court and a United States commissioner without the approval of the Attor- ney General. Part of § 19 act May 28, 189G, c. 252, 29 Stat. 184, U. S. Comp. Stat. 1901, p. 499. [a] In general. By § 24 of the same act the foregoing provision was declared inapplicable to Alaska and Indian Territory. i Other provisions of the act require them to keep records2 and empower them to issue search warrants and warrants of arrest in internal revenue cases.s The fees of commissioners are treated of in the chapter on fees.* Provisions respecting tha rendering and ap- proval of commissioners' accounts,5 the taking of depositions de bene esse; 6 I heir power to hold to security for the peace;' to issue warrants of arrest, apprehend fugitives from justice, and to imprison or admit to bail; 9 and tlieir powers and duties in Chinese exclusion casesiP are given elsewhere. By R. S. § 177811 circuit court commissioners are given the same power as justices of the peace in the taking of oaths and acknowledgments. They may also take final proofs in timber culture entries. 12 By R. S. § 728 U. S. Comp. Stat. 1901, p. 584, they are given certain powers in the execution of awards of foreign consuls. [b] Commissioners in Yellowstone Park. The act for the government of the Yellowstone Park provides for the ap- pointment by the circuit court in the Wyoming district, of a commissioner resident of the Yellowstone Park, and with certain criminal jurisdiction therein. 13 In addition to the fees allowed by law to commissioners, the appointee in the Park was entitled to a salary of $1,000 annually by thai act, afterwards increased to $1,500.1* § 672. — seal of commissioners. Each United States commissioner shall provide himself with an lOther provisions were subsequent- sPost, § 1537. Iv made applicable to Indian Terri- loPost. § 2407. t'ory. but not this one. See act Feb. nU. S. Comp. Stat. 1901. p. 1211. 19," 1897. c. 265, 29 Stat. 597. 12 Act Mar. 4. 1896. c. 40, 29 Stat. 2Ante, § 395. 43. U. S. Comp. Stat. 1901. p. 1537. sPost. § 1542. isSee § 5. act Mav 7, 1894. c. 72, 4Post, § 723. 28 Stat. 74. U. S. Comp. Stat. 1901, 5 Ante. § 449. p. 1503. ePost § 1762. i4Aet Apr. 17, 1900, c. 192, § 1, 31 7Post, § 1593. Stat. 133. 642 II Frocedure] COMMISSIONERS. § 674 official impression seal, to be prescribed by the Attorne}' General, which said seal shall be affixed to each jurat or certificate of the official acts of said commissioner, but no increase of fees shall be allowed by reason thereof. Act June 28, 1906, c. 3573, 34 Stat. 546. § 673. Persons disqualified to act as commissioners. No marshal or deputy marshal, attorney or assistant at- torney of any district, jury commissioner, clerk of marshal, no bailiff, crier, juror, janitor of any government building, nor any civil or military employee of the government, except as in this act provided, and no clerk or emploA^ee of any United States justice or judge, shall have, hold or exercise the duties of the United States commissioner. Part of § 20 act ilay 2S, 1896, c. 252, 29 Stat. 184, U, S. Comp. Stat. 1901, p. 501. The section also forbids such officers acting as receivers. is United States clerks and their deputies may act as commissioners, but only with the ap- proval of the attorney-general. 16 § 674. Are governed by previous laws applicable to circuit com- missioners. All acts and parts of acts applicable to commissioners of the cir- cuit courts, except as to appointment and fees, shall be applicable to United States commissioners appointed under this act. Part of § 19, act May 28, 1896, c. 252, 29 Stat. 184, U. S. Comp. Stat. 1901, p. 499. The powers and duties of United States commissioners are found in the earlier provisions concerning circuit court commissioners. it the above act conferring no power except authority to administer oaths. is Their powers are stricti juris, and there is no provision conferring on them authority to punish for contempt. 1 9 The Supreme Court has made the following summary' of the powers and duties of the circuit court commissioners: "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 (Rev. Stat. § 1014) : to hold to security of the peace and for good behavior (§ 727); to carry into effect the award or arbitration or decree of any consul of any foreign nation; to sit as judge or arbitrator in such differences as may arise between the isSee post. § 1123. isPost. § 676. ifiSee "ante. § 671. i9In re Perkins. 100 Fed. 954; Unit- i7ln re P;^rkins, 100 Fed. 953. ed States v. Beavers, 125 Fed. 778. 643 § 675 COMMISSIONERS AND OTHER OFFICERS. [Corlc Fed. (1 plains and crews of any vessels belonging to the nations whose interests ;ire committed to its cliarge: and to enforce obedience by imprisonment until such award, arbitration or decree is complied with (§ 728) ; to take bail and affidavits in civil cases (8 045); to discharge poor convicts im- prisoned for nonpayment of fines (§ 1042); to take oaths and acknowledg- ments (§ 177S); to institute prosecutions under the laws relating to crimes against the elective francliise. and civil rights of citizens, and to appoint persons to execute warrants thereunder (§§ 1982 to 1985); to issue search '.\arrants authorizing internal revenue officers to search premises where a a'raud upon the revenue has been committed (§ 3462) ; to issue warrants for deserting foreign seamen (§ 5280); to summon masters of vessels to ap- |jear before iiim and show cause why process should not issue against such vessel (§ 4546) ; to issue warrants for and examine persons charged with lieing fugitives from justice (§§ 5271 and 5272), and to take testimonj .and proof of debt in bankruptcy proceedings (§8 5003 and 5076). 20 In considering circuit court commissioners the courts have held that while (exercising judicial functionsi they were not judges within the constitutional ..sense,2 and had no fixed tenure of office being removable at the court'>. legal discretion. 3 A United States commissioner is held to be a judge with in the meaning of the sixth section of the Chinese exclusion act of 1892,* and ;an order of deportation of a Chinese may be made by him. 5 The proceed- ings when begun before the commissioner in such cases are independent of any court and hence a district court has no power to issue a dedinius potes- tatem to take testimony.*! § 675. Increase in number of commissioners, for purpose of civil rights cases. The circuit courts of the United States and tlie district courts \)f the Territories, from time to time, shall increase the number h v. United States. 88 Fed. U. S. 109, 35 L. ed. 399, 11 Sup. Ct. 879; Butler v. United States, 87 Fed. Rep. 758. 655. !2United States v. Van Duzee, sUnited States v. Van Diizoe. 52 52 Fed. 930. 3 C. C. A. 301. Fed. 9.30. 3 C. C. A. 361. ! 3 Idem. sUnited States v. Dundy, 76 Fed. i4United States v. Mar.sh, 112 Fed. 357. 22 C. C. A. 221. 929. 50 C. C. A. 621. 7 Fuller v. United States. 58 Fed. isGillum V. Stewart, 112 Fed. 30. 329. isMarvin V. United States, 114 Fed. sUnited States v. Van Duzee, 140 225. U. S. 171, 35 L. ed. 399, 11 Sup. Ct. i7United States v. Van Duzee, 140 Rep. 758. U. S. 169. 35 L. ed. 399, 11 Sup. Ct. Rep. 758. Fed. Proc— 42. 657 § 706 [d] FEES. [Code Fed- provision. 9 The charge for an oath does not include a charge for a jurat and both may be taxed. lo The clerk is entitied to fifteen cents for making out the accounts of jurors and witnesses in addition to ten cents for swearing the witness or juror and fifteen cents for the jurat. n A clerk is entitled to fees for taking acknowledgments of sureties on recognizances. 12 He can, however, charge only one fee for taking an acknowledgment of a defendant in a criminal case and his sureties, unless, it was necessary to take them separately.is [d] — Entries and records. Clerks are entitled to fees for entering a recognizance taken in open (■ourti6 or entering a record of the names of jurors and their residence* where such is the practice of the court,!'? or for entering orders approving marshal's account,i8 or orders for trial and for recording verdicts in criminal cases. i9 An original entry distinct from all others though less than a folio, is to be charged as a full folio. 20 The approval by the clerk of a recognizance, by the certificate of approval on the face or back of the bond, is an entry for which a folio fee of fifteen cents is chargeable. 1 The clerk is entitled to fees for services actually and necessarily per- formed in making up a criminal record, where the practice of a particular State or district requires such record to be made. 2 In the absence of rule proceedings before a commissioner form no part of the record,? nor do affidavits, warrants, subpoenas or capiases, except the one on which the arrest was made.'* But bonds taken after indictment, captious of terras and days upon which journal entries are made are properly allowed, and the comptroller cannot limit the clerk to a certain number of folios.5 The clerk is not entitled to a separate fee for entering the oral appearances sUnited States v. Marsh, 106 Fed. isUnited States v. Van Duzee, 140 474, 45 C. C. A. 436. But see Clough U. S. 109, 35 L. ed. 402, 11 Sup. Ct. V. United States, 55 Fed. 921. Rep. 941. lOThe Schooner ]\Ierwin, 10 Ben. 2 0Ca.vender v. Cavender, 10 Fed. 403, Fed. Cas. No. 4,893. 828. iiUnited States V. Morgan, 66 Fed. lUnited States v. Van Duzee, 52 279. 13 C. C. A. 435. Fed. 934, 3 C. C. A. 361. i2Goodrich v. United States, 47 2United States v. Tavlor, 147 U. Fed. 267 ; United States v. Goodrich, S. 69'5, 37 L. ed. 335. 13 Sup. Ct. Rep. 54 Fed. 21, 4 C. C. A. 160. 479; United States v. Van Duvzee, i3United States v. Tavlor. 147 U. 140 U. S. 199, 35 L. ed. 402, 11 Sup. S. 695, 37 L. ed. 335, 13 Sup. Ct. Ct. Rep. 941. Rep. 479. See also, United States 3United States v. Taylor, 147 U. V. King, 147 U. S. 684, 37 L. ed. 695, 37 L. ed. 335, 13 Sup. Ct. Rep. .328. 13 Sup. Ct. Rep. 439. 479: United States v. King. 147 U. leUnited States v. Payne. 147 U. S. 676, 37 L. ed. 328, 13 Sup. Ct. S. 687, 37 L. ed. 332, 13 Sup. Ct. Rep. 439. Rep. 442. 4United States v. Tavlor, 147 U. ivUnited States v. Kurtz. 164 U. S. 695, 37 L. ed. 335, 13 Sup. Ct, Rep. S. 49, 41 L. ed. 346, 17 Sup. Ct. 479. Rep. 15. 5ldem. isUnited States v. Jones, 147 U. S. 672, 37 L. ed. 325, 13 Sup. Ct. Rep. 437. 658 I Procedure] CLERKS' FEES. § 706 [f] of attorneys in criminal cases, this being included in the docket fee.6 But where under order of the court, each order, motion, and proceeding is en- tered in a paragraph separate from the others, the clerk may charge for each although they may relate to the same case.7 He is entitled to a fee of fifteen cents per folio for making up the record on writ of error.* [e] Docket fees. A docket fee of three dollars claimed under clause ten of the above section allowing such fee "where issue is joined and testimony given, is allowable although the record fails to show that testimony was given at the" trial or argument.io A scire facies on a recognizance is a "cause" within the meaning of the section,ii as is also a proceeding against wit- nesses for contempt. 12 But a proceeding for the removal of a prisoner from one district to another is not.i3 Criminal cases should not be docketed until the grand jury or district attorney have taken some af- firmative action, 14 hence the clerk's right to a fee does not attach where the grand jury have ignored the indictmentis nor does the provision of the above section which allows fees for making dockets, etc., in a case which is ''dismissed or discontinued" entitled the clerk to a fee in cases sent up by a commissioner where the grand jury fails to find an in- dictment. 1 6 His right to a fee "where issue is joined" attaches when such issue is in fact joined, and is not lost by a subsequent withdrawal of the plea constituting the issue. 1 7 The docket fee of one dollar under the above provision in a case which is dismissed or discontinue;! applies onh' to dismissal or discontinuance before issue joined. is [f] Seals. If a copy of a clerk's official record is required to be duly authenticated, the clerk's seal should be affixed and he is entitled to his fees therefor.i Hence under a rule of court he is entitled to fees for attaching his seal to copies of the indictment furnished to the defendant on demand, 2 or to copies of mittimus writs to be delivered to the jailer.3 But charges for placing seals on copies of orders directing payment of witnesses or jurors, sMarvin v. United States, 44 Fed. U. S. 169. .35 L. ed. .309. 11 Sup. Ct. 40.5. Rep. 7.58. TMarsh v. United States, 88 Fed. i5United States v. Pavne, 147 U. S. 879. 687. 37 L. ed. 3.32, 13 Sup. ^ i. Rep. "Thornton v. Insurance Co. 125 442: United States v. ^IcCandless, Fed. 250. See also Mohrstadt v. In- 147 U. S. 692, 37 L. ed. 334, 13 Sup. surance Co. 145 Fed. 751. Ct. Rep. 465. loUnited States v. Pavne, 147 U. lel'nited States v. Van Duzee, 140 S. G87, 37 L. ed. .3.32. 13 Sup. Ct. F. S. 169. 35 L. ed. 399, 11 Sup. Ct. Rep. 442. Rep. 758. 11 Idem. i7United States v. Kurtz. 1(>4 U. i2Erwin v. United States, 37 Fed. S. 49, 41 L. ed. 346, 17 Sup. Ct. Rep. 470. And see. Taylor v. United 15. States, 45 Fed. 5.31; Goodrich v. isTdem. T'nited States. 42 Fed. 392. i Marsh v. United States. 88 Fed. i3United States v. Jones, 147 U. 879. S. 676, 37 L. ed. 328. 13 Sup. Ct. Rep. 2United States v. Van Duzee. 52 439. Vvi\. 930, 3 C. C. A. 301. ^United States v. Van Duzee, 140 sidem. 659 § 7U0 [g] FEES. [Code Fed. or approving the accounts of judicial officers will not be allowed unless the Treasury Department requires such authentication.* Xor will charges be allowed for seals on copies of orders on the marshal to procure meals for the jury,5 or on commissions of supervisors of elections.s or on a certiticate of search unless required by law or by the practice of the de- part nient.^ Generally where there has been no express waiver the clerk nuiy charge twenty cents for attixing his seal to affidavits taken before him. 8 [gj Searches. Records in the clerks office are open to inspection by the public and he can charge for searching the records only when he is required to make the search himself. lo For such search he is entitled to a fee of fifteen cents. 11 For his statement to the Attorney General of judgments, etc., for the preceding year he is not entitled to the regular fee for searches but receives compensation at fifteen cents per folio. 12 Compensation for searching for petitions in bankruptcy is not expressly provided for in this section. Fifteen cents for each name searched against has been held a reasonable compensation. is [h] Commissions on money deposited. The clause of the above section allowing the clerk a commission "for receiving, keeping and paying out money in pursuance of any statute or order of the court" applies only to money which passes through his hands, 14 either actually or constructively.! 5 Hence the clerk is not en- titled to a commission under a decree for salvage, the claims being paid without saleis or under a foreclosure sale by a special master who under courts order himself pays the proceeds to the mortgagee :i^ or on moneys of a receivership deposited and paid out by the receiver under orders of the court; 18 or on moneys in the hands of an assignee in bankruptcy. 1 9 A judgment is an order of the court within the meaning of the clause, and the clerk is entitled to his commission on money received by him un- der such judgment. 20 It is held that he is entitled to commission on money collected by a marshal under executions, whether deposited to the credit of 4l"nited States v. .Tones. 147 U. i^.Tohnson v. Soutliern. etc. Ass'n. S. 672. 37 L. ed. .32.5. 1-3 Sup. Ct. 95 Fed. 922; Easton v. Houston, etc. Rep. 4.37: United States v. Van D« Rv. 44 Fed. 721: Upton v. Trible zee. 140 U. S. 174, 35 L. ed. 399. 11 cock. 4 Dill. 232. Fed. Cas. No. 5..541 Sup. Ct. Rep. 758. note: Tn re Goodrich. 4 Dill. 230, Fed. sMarsh v. United States. 88 Fed. Cas. No. 5.541. 879. isLeech v. Kay, 4 Fed. 72. eClough V. United States. 55 Fed. i«Smith v. The Morgan Citv, 39 921. Fed. 572. "In re Woodbury, 7 Fed. 705. iv North western Ins. Co. v. Quinii. SMarsh v. United States. 88 Fed. 69 Fed. 462: Michigan Central v. 8'79. Harsha, 1.34 Fed. 217. 67 C. C. A. 145. loln re Chambers, 44 Fed. 786. isFarmers Loan, etc. Co. v. Dart. iiln re Woodburv. 7 Fed. 705. 91 Fed. 451. 33 C. C. 572. i2Marvin v. United States. 44 Fed. isLeech v. Kav. 4 Fed. 72. 405. 2«Blake v. Hawkins, 19 Fed. 204. 13 In re Vermenle. 10 Ben. 1. Fed. Cas. No. 16,916. 600 no.edure] SUPREME COURT CLERK'S FEES. { 708 the court by the marshal or by the clerk. i Railroad bonds deposited in court are not "money" and the clerk is not entitled to commission thereon. 2 The clerk must also be deemed to have authority to receive money paid into court by a private suitor in a pending case, with the sanction of the court. 3 [ij Per diem compensation. The allowance of five dollars a day to the clerk "for his attendance in the court while actually in session" entitles him to the fee not only when the judge is present in person but when under his written order the court is adjourned by the marshal or clerk.* He is entitled to his fee whether any business is transacted or not.s He is entitled to his fees also for days between regular terms on which he is required to attend and does attend.*^ § 707. Statute authorizing Supreme Court clerk's fees. The Supreme Court is hereby autliorized and empowered to pre- pare the tables of fees to be charged by the clerk thereof, and until the same is thus prepared the fees therein charged for recording or copying any paper or record shall not exceed fourteen cents per folio. From appropriation act Mar. 3, 1883, c. 143, § 1, 22 Stat. 631, U. S. Comp. Stat. 1901, p. 650. § 708. Supreme Court clerk's fees. In pursuance of the act of March 3, 1883, authorizing and empowering this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted : For docket- ing a case and filing and indorsing the transcript of the record, five dollars. For entering an appearance, twenty-five cents. For enter- ing 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 enter- ing a judgment or decree, one dollar. For every search of the rec- ords of the court, one dollar. For a certificate and seal, two dol- lars. For receiving, keeping and paying money in pursuance of any statute or order of court, two per cent on the amount so re- ceived, kept and paid. For an admission to the bar and certificate iFagan v. CuMen. 28 Fed. 843. S. GfiO. .37 L. ed. 324, 13 Sup. Ct. ^.Michigan Central R. Co. v. Har- Rep. 42ii. sha, 134 Fed. 217, 67 C. C. A. 145. sGoodrieh v. United States, 35 Fed. 3Ho\vard v. United States. 184 U. 19'3. And see Erwin v. United States. S. 1)76. 46 L. ed. 7o4. 22 Sup. Ct. Rep. 37 Fed. 470. 543. fiButler v. United States, 87 Fe.. ^United States v. Pitman, 147 T'. ti.io. 061 § 709 FEES. [Code Fed. under seal, ten dollars. For preparing the record or a transcript thereof for the printer, indexing the same, supervising the print- ing, and distributing the printed copies to the justices, the reporter, the law librar}^ and the parties or their counsel, fifteen cents per folio. For making a manuscript copy of the record, when required under Kule 10, twenty cents per folio, but nothing in addition for supervising the printing. For issuing a writ of error and ac- companying papers, five dollars. For a mandate or other process, five dollars. For filing briefs, five dollars for each party appearing. For every copy of an opinion of the court or any justice thereof, certified under seal, one dollar for every printed page, but not to t'xceed five dollars in the whole for any copy. § 7 of Supreme Court rule 24, promulgated Mar. 28, 1887.8 By a provision of § 9 of Supreme Court rule 10, it is provided, that, "The tfees of the clerk under rule 24, section 7 shall be computed, as at present, lon the folios in the record as filed, and shall be in full for the performance of nis duties in the execution hereof." Supreme Court rule 38 SV!; declares that "the provisions of rule 24 of this court in regard to fees shall apply to writs of error and appeals and reviews under the provisions of sections 5 and 6 of the said act" [i. e. the act of 1891 creating the circuit court of appeals]. This was probably superseded by an order made in 1898.8% § 709. Statute authorizing circuit court of appeals' fees. The costs and fees in each circuit court of appeals shall be fixed and established by said court in a table of fees, to be adopted within three months after the passage of this act: Provided, that the costs and fees so fixed by any court of appeals shall not, with respect to any item, exceed the costs and fees now charged in the Supreme Court; and the same shall be expended, accounted for, and paid for, and paid over to the Treasury Department of the United States in the same manner as is provided in respect to the costs and fees in the Supreme Court. Eacli circuit court of appeals shall, within three months after the fixing and establishing costs and fees as aforesaid, transmit such table to the Chief Justice of the United States, and within one year tliereof the Supreme Court of the United States shall revise said table, making the same, so far as may seem just and reasonable, uniform throughout the United 8120 U. S. 7S5. 8y2Promuloated May 11, 1891. Soe 130 U. S. 707. s%Soe post, § 710. 662 Procedure] FEES IN CIRCUIT COURT OF APPEALS. f 710 States. The table of fees, when so revised, shall thereupon be in force in each circuit. Part of § 2 act Mar. 3 1891, c. 517, 26 Stat. 826, amended Feb. 19, 1897, c. 263, 29 Stat. 536, U. S. Comp. Stat. 1901, p. 547. Prior to the amendment of 1897 the act made the costs and fees in the Supreme Court the costs and fees in the circuit court of appeals. § 710. Fees in circuit coiirt of appeals. Ordered in pursuance of the Act of Congress of Febrnary 19, 1897,^ that the following table of fees and costs in the circuit court of appeals be, and the same is hereby established to take eTeet on the first day of ]\Iarch, 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 25 Transferring a case to the printed calendar _ 1.00 Entering a continuance 25 Filing a motion, order or other paper 25 Entering any rule or making or copying any record or other paper, for each one hundred words 20 Entering a judgment or decree _ 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 Eeceiving, keeping and paying money, in pursuance of any statute or order of the Court, one per cent on the amount so received, kept and paid. Preparing the record for the printer, indexing the same, super%ising the printing, and distributing the copies, for each printed page of the record and index 25 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 man- date or other process 5.00 Filing briefs for each party appearing 5.00 •Ante, § 709. 663 S 711 FEES. [Code Fed. Cop3' of an opinion of the court, eortified under seal, for eacli printed page (but not to exceed $5.00 in the whole for any cop}-) 1.00 Attorney's docket fee 20.00 Supreme Court table of fees established by order of Jan. 10, 1898, as amended Feb. 28, 18!)8.io The amendment above mentioned raised the fee for preparing the record for the printer, from fifteen cents to twenty-five cents. A similar pro- vision will be found in the ninth paragraph of rule 2.3 of the circuit court of appeals for the ninth circuit. Irrelevant evidence carried into the rec- ord by a successful party may be taxed against him.ii Following the Supreme Court practice an attorney's docket fee may be taxed where costs are given. 12 The above order probably superseded the provisions of Rule .38 quoted above,i3 so far as affecting fees in the circuit court of appeals. § 711. Circuit and district clerk's fees for admission to practice. No amount in excess of one dollar shall be received from any attorney in connection with his admission to practice in a circuit or district court. Part of § 1 aet June 28, 1902, c. 1301, 32 Stat. 476, U. S. Comp. Stat. 1905, p. 160. This is a proviso to the section requiring a semi-annual accounting by circuit and district court clerks as to fees and expenses. 1* § 712. Marshal's fees. For service of any warrant, attachment, summons, capias, or other writ, except execution, venire or a summons or subpoena for a witness, two dollars for each person on whom service is made. For the keeping of personal property attached on mesne process, such compensation as the court, on petition setting forth the facts under oath, may allow. For serving venires and summoning every twelve men as grand or petit Jurors, four dollars, or thirty-three and one-third cents each. In States where, by the laws thereof, jurors are drawn by lot, by constables or other officers of corporate places, the marshal shall receive, for each jury, two dollars for the use of the officers employed in drawing and summoning the jurors and returning each venire, and two dollars for his own services in 10169 U. S. 740. iiShilliti Co. v. MeOlung, 66 Fed. iiEcaubert. v. Appleton. 67 Fed. 22. 13 C. C. A. 284. 925, 15 C. C. A. 73. isSee ante. § 708, note. I'^Ante. § 589. 664 I'rocediire] MAKSIIAl.S' FEES. 5 712 distributing the venires. But the fees for distributing and serving venires, drawing and summoning Jurors by township officers, in- chiding the mileage chargeable by the marshal for each service, shall not at any court exceed fifty dollars. For holding a court of inquiry or other proceedings before a jury, including the summon- ing of a jury, five dollars. For serving a writ of subpoena on a wit- ness, fifty cents; and no further compensation shall be allowed for any copy, summons, or notice for a witness. For serving a writ of possession, partition, execution, or any final process, the same mileage as is allowed for the service of any other writ, and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set-off or otherwise according to law. receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the States, respectively, in which the service is rendered. For each bail bond, fifty cents. For summoning appraisers, fifty cents each. For executing a deed prepared by a party or his attorney, one dollar. For drawing and executing a deed, five dollars. For copies of writs or papers furnished at the request of any party, ten cents a folio. For every proclamation in admiralty, thirty cents. For serving an attachment in rem or a libel in admiralty, two dollars. For the necessary expenses of keeping boats, vessels or other prop- erty attached or libeled in admiralty, not exceeding two dollai-s and fifty cents a day. When the debt or claim in admiralty is set- tled by the parties without a sale of the property, the marshal shall l)e entitled to a commission of one per centum on the first five liundred dollars of the claim or decree, and one-half of one per centum on the excess of any sum thereof over five hundred dollars : Provided, that, when the value of the property is less than the claiiii, such commission shall be allowed only on the appraised value thereof. For sale of vessels or other property under process in admiralty, or under the order of a court of admiralty, and for receiving and paying over the money, two and one half per centum on any sum under five hundred dollars, and one and one-quarter per centum on the excess of any sum over five hundred dollars. For disbursing money to jurors and witnesses, and for other expenses, two per centum. For expenses while employed in endeavoring to arrest, under process, any person charged with or convicted of a crime, the sum actually expended, not to exceed two dollars a day in addition to his compensation for services G65 § 712 [a] FEES. [Code Fed. and travel. For every commitment or discharge of a prisoner, fifty cents. For transporting criminals, ten cents a mile for him- self and for each prisoner and necessary guard; except in the case provided for in the next paragraph. For transporting criminals convicted of a crime in any district or Territory where there is no .penitentiary available for the confinement of convicts of the United States, to a prison in another district or Territory desig- nated by the Attorney General, the reasonable actual expense of transportation of the criminals, the marshal, and the guards, and the necessary subsistence and hire. For attending the circuit and district courts, when both are in session, or either of them when only one is in session and for bringing in and committing prisoners and witnesses during the term, five dollars a day. For attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime, and witnesses, two dol- lars a day; and for each deputy not exceeding two, necessarily at- tending, two dollars a day. For traveling from his residence to the place of holding court, to attend a term thereof, ten cents a mile for going only. For travel, in going only, to serve any process, warrant, attachment or other writ, including writs of subpoena in civil or criminal cases, six cents a mile, to be computed from the place where the process is returned to the place of service, or, when more than one person is served therewith, to the place of service which is most remote, adding thereto the extra travel which is necessary to serve it on the others. But when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two 'of such writs; and to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause in such subpoena as convenience in serving the same will permit. In all cases where milegage is allowed to the marshal he may elect to receive the same or his actual traveling expenses, to be proved on his oath, to the satisfaction of the court-^^^''^®^ R. S. § 829, U. S. Comp. Stat. 1901, pp. 636-638. [a] Effect of act of 1896 and cross references. This section, so far as it operated to establish the compensation of marshals, was superseded everywhere except in the southern district of New York and the District of Columbia, by an act of 1896. That act still required that the fees be collected except from the United States, GG6 1 SProcedure] MARSHALS' FEES. §712 [c] but directed that the marshal turn them over to the clerk to be by hira covered into the Treasury. It prohibited the collection of fees by the marshal, from the United States, except in the case of field deputies under certain restrictions. is The act of 189G and various other provisions from time to time have regulated and defined the allowances to marshals and ex- penses and disbursements of one kind and another that might be charged on their accounts and be entitled to approval upon the auditing of those accounts. These are elsewhere considered.! 9 An act of 18792 changed the mode of drawing Federal jurors, and made the provision of R. S. § 829, supra, fixing fees where jurors are drawn according to certain local rules, inoperative. [b] Service of process, etc. It is the marshals duty to execute process of the court, even if super- tluousS and such duty is unaffected by the opinion of the con.ptroller that it is unnecessary. 7 He may charge fees therefore in advance. s but cannot charge for unofficial acts.9 He may charge a two dollar fee for serving a summons under the above section, and a reasonable compensation for serving the complaint. lo He may charge mileage also at the rate of .six cents per mile but when two papers are served on the same party he cannot charge separately for each.ii ,[cj Execution fees. A marshal is entitled to his fees on an irregular execution. Under New York Cases, however, he is not entitled to poundage, but the court may make allowance for his trouble and expense in caring for the property. 12 An inventory for the sale of property need not be prepared by him but must be paid for at the expense of the party desiring it.i3 There is no authorization under the section for the employment of an auctioneer to .sell property under admiralty process or decree.i* Under the laws of the State of Washington a marshal who has offered or sold property under execution is entitled not only to fees for levying, but also to percentages on money paid into his hands.i On an execution against the person in New York, it is held that the marshal is entitled to poundage on the whole ii mount. 2 isPost. 745, and ante, § 621. loSwancoat v. Remsen. 76 Fed isPost, § 714, ante, 637, 638, 640, 930. •641. 11 Idem. 20See post, § 1703. i2Amato v. Jacobus, 58 Fed. 855, cPuleston v. United States 88 Fed. 7 C. C. A. 545. ■970; Lovering v. United States. 117 isThe Trial, 1 Blatchf. & H. 94, Fed. 565. Fed. Cas. No. 14,170. ^Harmon v. United States, 43 Fed. ^The John E. Mulford, 18 Fed. 560. 455. 8Duy V. Knowlton. 14 Fed. 107. iDexter. etc. Co. v. Sayward, 7S sDoiiahower v. United States, 77 Fed. 275. iFed. 153. 2United States v. Haas, 5 Fed. 29. 667 S 712 [dj FEES. [Code Fed. [dj Admiralty services. Tlie inarsliai is entitled only to actual expenses in ship keeping^ whiih must be established to the satisfaction of the court* and which must not exceed two dollars and fifty cents per days except in extraordinary circum- stances. 6 This does not include wharfage,' or reasonable dockage fees,"* which may be charged against the vessels. He has no right to insure the vessel without consent of the owners,!) nor to direct repairs beyond what are necessary to her preservation lo where such repairs are neces^iuy the marshal is entitled to reimbursement from the proceeds of lln- sale.n Where the vessel is held under several processes, the proper rule is to etjually divide the per diem custody fee.i2 [ej In Bankruptcy. Where in a bankruptcy case he serves the petition and affidavits, and the order to show cause, together, under a rule of court, he is entitled to a reasonable compensation for the service of the petition and affidavit as well as for the order. is § 713. Fees of marshal of Supreme Court. The marshal of the Supreme Court of the United States shall ht' entitled to receive for the service of any warrant, attachment, sum- mons, capias, or other wa-it, except execution, venire, or a summons, or subpoena for a witness, one dollar for each person on whom such services may be made. His fees for all other services shall be tlie same as are herein allowed to other marshals ; but he shall pay into the treasury of the United States all fees received by him, and render a true account thereof at the close of each term to the Attorney General. R. S. § 832, U. S. Comp. Stat. 1901, p. 641. The compensation and salary of the Supreme Court marshal are set forth in an earlier section. 1 7 3See The Vandercook, 77 Fed. 865. lOThe SiiltMua. Brown. 3.";. Fed. 4The Free Trader. Brown, Adm. 72, Cas. No. 13,603. Fed. Cas. No. 5,091. iiln re The Allegheny, 85 Fed. 463. sThe Steamship Circassian, 6 Ben i2The Circassian. 6 Ben. 512. Fed. 512. Fed. Cas. No. 2,725. Cas. No. 2.725. And see The John 6The Captain John. 41 Fed. 147. Walls, 1 Sprague. 178. Fed. Cas. No. TThe Merwin. 10 Ben. 403. Fed. 7.432. Cas. 4.893. iBin re Damon, 104 Fed. 775 See 8The Noveltv, 9 Ben. 195. Fed. Cas. also In re Burnell, 7 Biss. 275. Fed. No. 10,368. ' Cas. No. 2.171. flBurke v. Rich, 1 Cliff. 509, Fed. it Ante, § 615. Cas. No. 2,162. 668 Procedure] CLERKS' AND MARSHALS' FEES. § 715 § 714. Marshal's allowance for mileage and execution of writs of arrest, etc. Tlie sundry civil appropriation act of 1894 provided that "Here- after no marshal or deputy marshal [shall] be allowed more than one mileage for each mile actually and necessarily traveled, irrespec- tive of the number of writs he may execute in making such travel ; nor shall any marshal or deputy marshal be allowed any additional mileage incident to the execution or return of any writ of arrest. commitment or removal other than the ten cents a mile now al- lowed by law for each deputy, prisoner, and guard ; and no mileage shall be allowed upon any writ not executed or when the travel was without cost to marshal or deputy ."^^ A later act of 1896 provided that only actual necessary traveling expenses and necessary actiuil expenses in transporting prisoners, ^^ might be allowed in serving- process, etc., and transporting prisoners, and to that extent super- seded the earlier provision. In the appropriation act of 1900 the last clause of the provision of 1894 is repeated with a modification as follows : "'No mileage shall be allowed upon any writ not execiited nor when the travel is without cost to marshal or office deputy."^' Author's section. Field deputies are still on a fee basis. is § 715. No clerks or marshals fees for arrest of persons under recognizance. Hereafter no part of the appropriations made for the payment of fees for United States marshal or clerks shall be used to pay the fees of United States marshals or clerks iipon any writ or bencli warrant for the arrest of any person or persons who may l)e in- dicted by any United States grand jury, or against whom an in- formation ma}' be field, where such person or persons is or are under a recognizance taken by or before any United States commissioner. isAct Aug. 18. 1804. e. .301. 28 Stat. 070: United States v. Dill. 8fi Fed. 416. U. S. Comp. Stat. IPOl. p. 039. 79, 29 C. C. A. 580; Nixon v. United isAnte. § 6.38. States. 82 Fed. 2.3: Hitch v. United iTAct June 6, 1900. c. 701, 31 Stat. States. 66 Fed. 937; United States (;;59. V. Harmon. 147 U. S. 2<58, 37 L. '**Ante. § &21. For cases concern- ed. 164. 13 Sup. Ct. Rep. 327; United inpr niileap;e of marshals prior to act States v. Fletcher, 147 U. S. 6((4. of ISO;-,, see Dnnaliower v. United 37 L. ed. 322. 13 Sup. Ct. Rep. 434; Stales. 85 Fed. 54.5. 29 C. C. A. 3.39; Campbell v. United States, Go Fed. I'ul.-Mon V. United States. 88 Fed. 777. 13 C. C. A. 128. is 71G FEES [Code Fed.. or other officer authorized by law to take such recognizance, requir- ing the appearance of such person or persons before the court in whicli such indictment is found or information is filed, and when such recognizance has not been forfeited or said defendant is not in default, unless the court in which such indictment or informa- tion is pending, orders a warrant to issue. From appropriation act of Mar. 3, 1SS7, c. 362, 24 Stat. 541, U. S. Comp, Stat. 1901, p. 640. Similarly R. S. § 1030, provides that no fee be charged for bringing a per- son in custody into court.is The charging of fees against the United States except in certain districts was done away with by the act of 1896.2 § 716. Fees of attorneys, solicitors and proctors. On a trial before a jury, in civil or criminal causes or before- referees,'^^^"'^'^^ or on a final hearing in equity or admiralty, ^^'^ a docket fee of twenty dollars : Provided, that in cases of admiralty and maritime jurisdiction, where the libelant recovers less than fifty dollars, the docket fee of his proctor shall be but ten dollars. In cases at law, when judgment is rendered without jury, ten dol- lars. In cases at law, when the cause is discontinued, five dollars. For scire facias, and other proceedings, on recognizances, five dol- lars. For each deposition taken and admitted in evidence in a cause, two dollars and fifty cents. f*^^ For services rendered in cases removed from a district to a circuit court by writ of error or ap- peal, five dollars. For examination by a district attorney, before a judge or commissioner, of persons charged with crime, five dol- lars a day for the time necessarily employed. For each day of his necessary attendance in a court of the United States, on the business of the United States, when the court is held at the place of his abode, five dollars; and for his attendance when the court is held elsewhere, five dollars for each day of the term. For traveling from the place of his abode to the place of holding any court of the United States in his district, or to the place of any examina- tion before a judge or commissioner, of a person charged with crime, ten cents a mile for going and ten cents a mile for return- ing. When an indictment for crime is tried before a jury and con- viction is had, the district attorney may be allowed, in addition 19 See post. S 1584. 20Post, § 745. fi70 I Procedure] OF ATTORNEYS, SOLICITORS AND PROCTORS. § 716 [bj to the attorney's fees herein provided, a counsel fee, in proportion tO' the importance and difficulty of the cause, not exceeding thirty dollars. R. S. § 824, U. S. Comp. Stat. 1901, p. 632. [aj In general. E,. S. § 8381 contains certain provision for fees for district attorneys in revenue suits. The application of this and the three following sections to the compensation of district attorneys is superseded except in the District of Colurabia,2 since by an act of 1896, such officers now receive salaries in lieu of fees.3 That act, however, expressly provides that the fees of such officers shall be collected as far as possible, except as against the United States, and covered into the United States Treasury. 4 Where several suits are brought instead of a joint action the district attorney is limited to one bill of costs. 5 Prior to an act of 1853 from which the above provision was taken, the state practice was followed in the taxing of costs,6 and the object of this provision was to secure a uniformity in such taxation.^ It does not pre- vent attorneys, solicitors and proctors from making a reasonable charge in addition. 8 [bj Docket fee on trial before jury or referee. A docket fee is to be taxed upon a final trial before a jury. 12 It is taxable where a verdict is reachedi3 and three docket fees have been al- lowed in the same suit where there have been three verdicts, 14 but it can- not be taxed where the jury disagrees, 1 5 or is waived by the parties. is An action at law referred by consent to a special master is a trial before a referee within the meaning of the provision.i^ But an informal refer- ence to a collector to adjust amount of recovery of excess duties is not. is iSee ante, § 542. sPost. § 1836. 2Ante, § 509 [d] eprimrose v. Fenno, 113 Fed. 376. 3Ante, § 633. 7Celluloid Mfg. Co. v. Chandler, 27 ■iPost § 745; for decisions respect- Fed. 12. ing district attornevs fees prior to ^The Ealfimore, 8 Wall. 392, 19 act of 1896, see Bashaw v. United L. ed. 463. States, 47 Fed. 40; Stanton V. United 12 Williams v. Morrison, 32 Fed. States, 37 Fed. 252; United States 682. v. Perry, 50 Fed. 745, 1 C. C. A. 648; isWooster v. Handy, 23 Fed. 49. United States v. Colman, 76 Fed. i^Schmieder v. Barney, 7 Fed. 451. 214, 22 C. C. A. 135; Ignited States isStrafer v. Carr. 6 Fed. 466; V. Jones, 1.34 U. S. 4S3. 33 L. ed. Huntress v. Epsom, 15 Fed. 732; 1007, 10 Sup. Ct. Rep. 615; United Cleaver v. Traders Ins. Co. 40 Fed. States V. Smith. 1,58 U. S. 346, 39 863. L. ed. 1011, 15 Sup. Ct. Rep. 846; lejones v. Schell, 8 Blatchf. 79, Sill V. United States. 87 Fed. 699, 31 Fed. Cas. No. 7.493. C. C. A. 200; United States v. Stan- ivSt. Matthews, etc. Bank v. Fidel- ton, 70 Fed. 890. 17 C. C. A. 475; Van ity, etc. Co. 105 Fed. 161. Hoorebiker v. United States, 46 Fed. isField v. Schell, 4 Blatchf. 437, 468. Fed. Cas. No. 4,771. 671 § 716 [c] FEES (Code Fed. "Referee" does not inulude masters in chancery. 19 A docket fee cannot be taxed in favor of a person appearing in his own behalf. 20 It is the in- dividual property of the attorney or proctor.21 The practice on allowance of docket fees on remand of removed causes to state court, is not uniform. In the seventh circuit, they are disallowed under the uniform practice,22 in the western district of Michigan the full fee has been allowed,i while in South Carolina and in the eastern district of Wasliinglon a ten dollar fee has been allowed as for a judgment rendered without a jury. 2 [c] — on final hearing in equity or admiralty. A final hearing within the meaning of the provision is a submission of a case for determination upon its merits, or the submission of some ques- tion the disposition of which finally ends the case.* The sustaining of a demurrer and the dismissal of the bill is a final hearing on which a docket fee may be taxed, 5 as is also a final decree on an order pro eonfesso.6 A docket fee may be charged in a libel of intervention where the parties stipulate for a decree in favor of the intervenors;' but it has been re- fused an intervenor whose claim has been allowed against a receiver in a suit. 8 There apparently must be something more than a mere formal ac- tion of the court, to entitle a party to a docket fee.9 None may be charged where the defendant pays into court the amount of the claim in a suit for salvage, 10 nor on a proceeding before a commissioner on reference.il No docket fee is taxable where the suit is voluntarily discontinued by the plaintiflf;i3 as upon a consent stipulation before decision; i* or where is- sue has been joined on demurrer only, no evidence having been taken; is or after overruling of demurrer but before replication filed; 16 or after issue joined but before taking of proof, it or where a decree is final only as to an interlocutory motion. is But the docket fee may be taxed where the plaintiff discontinues after the court has substantially decided the merits of the case, either by an opinion expressed at the hearing on the i9See Central Trust Co. v. Wa- sMerritt, etc. Co. v. Catskill. etc. bash. etc. R. Co. 32 Fed. 68-5. Co. 112 Fed. 442; Kaempfer v. Tav- 20Gorse v. Parker, 3G Fed. 840. lor. 78 Fed. 795. 2iThe Mount Eden, 87 Fed. 48.'? ; lOMerritt, etc. Co. v. Catskill. etc. Aiken v. Smith, 57 Fed. 423, 6 C. Co. 112 Fed. 442. C. A. 414. iiThe Mount Eden. 87 Fed. 483. 2 2Smith V. Western, etc. Tel. Co. isYiile Lock. etc. Co. v. Colvin, SI Fed. 242. 14 Fed. 269; Luxfer. etc. Co. v. El- iJosslyn V. Phillips. 27 Fed. 481. kins. 99 Fed. 29: Ryan v. Gould, 32 2Riser v. Southern Ry. llfi Fed. Fed. 754: but see Goodvear v. Saw- 1014; Pellett v. Great Northern Rv. ver, 17 Fed. 2. 105 Fed. 195. ' " i4De Roux v. Girard. 92 Fed. 948; 4See Wooster v. Handy. 23 Fed. 5(5; Cahn v. Qung Lung. 28 Fed. 396. Gov v. Perkins, 13 Fed. 112; The isCoy v. Perkins. 13 Fed. 111. Mount Eden, 87 Fed. 483. isMercartney v. Crittenden, 24 Fed. BPrice v. Coleman. 22 Fed. 694; 401. McLean v. Clark, 23 Fed. 861. 1 '^Consolidated, etc. Co. v. Ameri- 6Andrews v. Cole. 20 Fed. 410. can. etc. Co. 24 Fed. 658. 7The H. C. Grady. 87 Fed. 483. is Peck. etc. Co. v. Fray, 92 Fed. sMissouri, etc. Ry. v. Texas, etc 947. Ry. 3S Fed. 775. G72 Procedure] OF ATTORNEYS, SOLICITORS AND PROCTORS. § 716 [dl merits,! 9 or on a previous interlocutory decree,20 or where the court on the hearing of a provisional injunction, has expressed views unfavorable to complainant. 21 It has been taxed on a motion by defendant to dis- miss, for want of prosecution, upon the death of plaintiff. i \\Tiere there has been a final hearing and a rehearing in an equity case two docket fees have been allowed.3 Docket fees are allowed also by the Supreme Court to the prevailing party on appeal, and this practice has been followed by the circuit court of appeals.* [dj Taking of depositions. The deposition must be taken in a cause and admitted in evidence, to entitle an attorney to his fee under this section. » It is immaterial before what officer it is taken. 9 Thus, he is entitled where evidence is taken by a master, referee, or examiner, by courts order, and used at a trial before the court.io But oral testimony given before a master, in a case tried by him, although taken by a stenographer and returned with his report is not a deposition.il The deposition must have been admitted in evidence. 12 Hence when a case is dismissed without a hearingis or ordered discon- tinued,! •* or verdict is directed on opening statement of the attorney,! 5 deposition fees cannot be allowed; nor can they be allowed where the party conducts his own litigation.' 6 Since the depositions must be "taken" aa well as "admitted in evidence" in the cause, it would seem that fees can- not be taxed therefor when used in another suit,! 7 especially where the party seeking to tax them has incurred no expense.! « But where a deposi- tion is entitled in each case and the witness sworn in each, it has been held taxable in each.! 9 Depositions to be taxable, must have been taken for use in final pro- ceedings. 20 Those taken by an intervener to support his claim against a receiver,2 or taken for use on motion for a preliminary injunction, 3 or for a collateral proceeding for contempt,* or for use in distribution of an ad- isThe Bay City, 3 Fed. 47. isCahn v. Qung Lmng, 28 Fed. 396. zoOoodyear, etc. Co. v. Osgood. Fed. i^Kaempler v. Tavlor, 78 Fed. 735. Cas. No. '5,594. isCahn v. Monroe. 29 Fed. 675. 2!Carter v. Sweet, 84 Fed. 17. isGorse v. Parker, 36 Fed. 840. iPartee v. Thomas, 27 Fed. 433. iTWooster v. Handy, 23 Fed. 49; sAmerican, etc. Co. v. Sheldon, 28 American, etc. Boring Co. v. Shel- Fed. 217. See also Wooster v. Handv, don. 28 Fed. 217; Carj- v. Lovell Mfg. 23 Fed. 49. ' Co. 39 Fed. 163. But see contra Jer- ♦Shillito Co. V. McClung, 66 Fed. man v. Stewart, 12 Fed. 271. 22, 13 C. C. A. 284. isWinegur v. Cahn. 29 Fed. 676. sindianapolis Water Co. v. Straw- 19 Wooster v. Handy, 23 Fed. 49. Board Co. 65 Fed. 535. See also. Archer v. Hartford Ins. Co. sFerguson v. Dent. 46 Fed. 88. 31 Fed. 600. lost. Matthews, etc. Bank v. Fi- 20Stinipson v. Brooks, 3 Blatchf. delity, etc. Co. 105 Fed. 162 : The 456, Fed. Cas. No. 13,454. Sallie P. Linderman, 22 Fed. 557. 2.-,ee Ferguson v. Dent. 46 Fed. 93. list. Matthew, etc. Bank v. Fidel- sCentral Trust Co. v. Wabash, etc. itv Co. 105 Fed. 161. Rv. 32 Fed. 684. 'i2Barnardin v. Northall. 83 Fed. '4Spill v. Celluloid Mfg. Co. 28 241. Fed. 870. Fed. Proc— 43. 673 § 717 FEES. [Code Fed. miralty fund,5 have been held nontaxable. But depositions taken for hear- ing on a preliminary injunction not used except upon final hearing have been held taxable. 6 When taken separately each is taxable, although re- turned to court in one enclosure.^ Informalities in the taking may be waived. 8 § 717. Percentage of recovery for district attorneys in reve- nue cases in lieu of fees. There shall be taxed and paid to every district attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws, and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding. R. S. § 825, U. S. Comp. Stat. 1901, p. 634. In 1896 Congress inaugurated the practice of paying salaries to district attorneys in lieu of fees and forbidding the charging of fees against the United States, except in the District of Columbia and the southern district of New York. 10 In 1905 fees in addition to salary were everywhere for- bidden to district attorneys except in the District of Columbia.!! Hence the above section can only apply now to the District of Columbia. § 718. When no district attorneys fee on bonds. No fee shall accrue to any district attorney on any bond left with him for collection, or in a suit commenced on any bond for the renewal of which provision is made by law, unless the party neglects to apply for such renewal for more than twenty days after the maturity of the bond. R. S. § 826, U. S. Comp. Stat. 1901, p. 634. The provision is now apparently applicable only in the District of Co- lumbia.! 2 § 719. Allowance to district attorney for defense of revenue officers. When a district attorney appears by direction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the revenue in any suit against such officer, for any act done by him, BDalzell V. The Daniel Kaine, 31 !0See post, § 745. Fed. 747. iiAnte, § 509 [d]. This provi- 6 Indianapolis Water Co. v. Ameri- sion was presumably directed can, etc. Co. 65 Fed. 534. against the ofRce in the southern TBroyles v. Buck, 37 Fed. 137. district of New York. sindianapolis Water Co. v. Ameri- i2Ante, § 717, note, can, etc. Co. 65 Fed. 534. 674 fl Procedure] NO ALLOWANCE FOR RULE DAYS. § 721 or for the recovery of any money received by him and paid in- to the Treasury in the performance of his official duty, he shall receive such compensation as may be certified to be proper by the court in which the suit is brought, and approved by the Sec- retary of the Treasury. R. S. § 827, U. S. Comp. Stat. 1901, p. 634. District attorneys are now on a salary basis except in the District of Columbia. 13 § 720. Double district attorney and marshal fees in Oregon and Nevada. The district attorneys and marshals for the districts of Oregon and Nevada shall be entitled to receive, for the like services, double the fees hereinbefore provided; but neither of them shall be allowed to retain of such fees any sum exceeding the aggregate compensa- tion of such officer as hereinbefore provided. R. S. § 837, U. S. Comp. Stat. 1901, p. 644. Marshals and district attorneys in the districts mentioned are now on a salary basis,i4 hence the section no longer applies to their compensation, although it would seem still to fix the fees there taxable to litigants § 721. No allovi'ance to attorney, clerk, or marshal for rule days, nor double allowance when both courts sit at same time. No per diem or other allowance shall be made to any district attorney, clerk of circuit court, clerk of a district court, marshal or deputy marshal, for attendance at rule days of a circuit or district court; and when the circuit and district courts sit at the same time no greater per diem or other allowance shall be made to any such officer than for an attendance on one court. R. S. § 831, U. S. Comp. Stat. 1902, p. 640. Clerks per diem fees are set forth in a previous section. 1 6 District at- torneys ami marshals are now paid salaries,i7 except in the District of Columbia.i? The section does not prohibit a per diem charge both by the clerk and his deputy where the former attends court in one place and the latter in another, at the same time.is isAnte, § 717, note. isAnte. § 717 note. KAnte, S§ 033. 509. isUnited States v. King, 147 U. i6Ante, § 706. S. 676, 37 L. ed. 328, 13 Sup. Ct. l7Aiite, §§ 633, 509. Rep. 439. 675 i T^'-i FEES [Code Fed. § 722. Attorneys, clerks and marshal's fees under civil rights law. The district attorneys, marshals, their deputies, and the clerks of the courts of the United States and territorial courts shall be paid for their services, in cases under the foregoing provisions [i. e., under the civl rights law], the same fees as are allowed to them for like services in other cases. Part of R. S. § 198G, U. S. Corap. Stat. 1901, p. 1265. Clerks fees are set forth in previous sections. i District attorneys and marshals are now paid sahiries,2 though the fees previously provided are still required to be collected except in the case of the United States.s The omitted part of the section prescribed a fee of ten dollars to commissionera for services in civil rights cases, but it may be regarded as superseded by the following section. § 723. Fees of United States commissioners. Each United States commissioner shall be entitled to the follow- ing named fees, and none other: drawing a complaint, with oath and jurat to same, fifty cents; copy of complaint, with certificate to same, thirty cents; issuing warrant of arrest, seventy-five cents; issuing a commitment and making copy of same, one dollar ; enter- ing a return, fifteen cents; issuing subpoena or subpoenas in any one case, with five cents for each necessary witness in addition to the first, twenty-five cents ; drawing a bond of defendant and ^-u^e- ties, taking acknowledgment of same and justification of sureties, seventy-five cents; for administering an oath (except to Avitness as to attendance and travel), ten cents; recognizance of all wit- nesses in a case, when the defendant or defendants are held "for court, fifty cents; transcripts of proceedings, when required by order of court and transmission of orignal papers to court, sixty cents; copy of warrant of arrest, with certificate to same, when de- fendant is held for court, and the original papers are not sent to court, forty cents ; order in duplicate to pay all witnesses in a case : For first witness, thirty cents, and for each additional witness, five cents, and for oath to each witness as to attendance and travel, five cents; for hearing and deciding on criminal charges and re- ducing the testimony to writing when required by law or order of court, five dollars a day for the time necessarily employed ; Pro- lAnte. §§ 706. 708, 710. 3Ante, § 712 [a]; post, § 745. 2Ante §§ 509, 633. 676 II Froeediire] OF UNITED STATES COMMISSIONERS. § 723 vided. that not more than one per diem shall be allowed in a case, unless the account shall show that the hearing could not be com- pleted in one day, when one additional per diem may be especially approved and allowed by the court: Provided, further, that not more than one per diem shall be allowed for any one day : Provided, further, that no per diem shall be allowed for taking a bond or recognizance and passing on the sufficiency of the bond or recogni- zance and the sureties thereon when the bond or recognizance was taken after the defendant had been committed to prison upon a final commitment, or has given bond or been recognized for his appearance at court, or when the defendant has been arrested on a capias or bench warrant, or was in custody under any process or order of a court of record. For the examination and certificate in cases of application for discharge of poor convicts imprisoned for nonpayment of fine or fine and costs, and all services connected therewith, three dollars ; for attending to a reference in a litigated matter, in a civil cause at law, in efjuity, or in admiralty, in pur- suance of an order of the court, three dollars a day ; for taking and certifying depositions to file in civil cases, ten cents for each folio; for each copy of the same furnished to a party on request, ten cents for each folio ; for issuing any warrant under the tenth article of the treaty of August 9, 1842, between the United States and the Queen of the United Kingdom of Great Britain and Ireland, against any parties charged with any crime or offense set forth in said article, two dollars; for issuing any warrant under the pro- vision of the convention for the surrender of criminals between the United States and the the King of the French, concluded at Wash- ington, November 9, 1843, two dollars: for hearing and deciding upon the case of any person charged with any crime or offense, and arrested under the provisions of said treaty or of said convention, five dollars a day for the time necessarily employed. Part of § 21, act May 28, 1896, c. 252, 29 Stat. 184, U. S. Comp. Stat. 1901, pp. 652, 653. This section supersedes the provision of the extradition act of 1882 as to commissioners fees,5 also the general provisions of R. S. § 847, and part of R. S. § 1986.6 It supersedes also the provision of an act of 1886. t pro- scribing compensation for issuing warrants etc., which superseded a chiuse 6See § 2, a«t Aug. 3, 1882, c. 378, ^Act Aug 4, 1S86, c. 903, 24 Stat. 22 Stat. 215. 274. 6See ante. § 722. note. 677 § 724 FEES. [Code Fed. of R. S. § 8-17. By § 24 of the act from which this section is taken, it does not apply to Alaslva,^ nor does it apply to the Indian Territory. 9 The general provisions as to commissioners, their appointment and duties, etc. have already been eonsidered.io Gratuitous services are not to be implied in the case of a Federal officer receiving compensation on a fee basis,! i and the construction of a general statute prescribing compensation should be in his favor.i2 The old fee bill as prescribed in R. S. § 847, remained in force until July 1, 1897, when United States commissioners were ap- pointed. is Some of the leading cases construing that section will be found in the foot note.i* § 724. — in cases under Chinese exclusion laws. A United States commissioner shall be entitled to receive a fee of five dollars for hearing and deciding a case arising under the Chinese exclusion laws. § 2 of act Mar. 3, 1901, c. 845, 31 Stat. 1093, U. S. Comp. Stat. 1901, p.l328. § 725. Witness fees. For each day's attendance in court, or before an}^ officer pur- suant 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 returning. When a witness is subpoenaed in more than one cause beween the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed 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 8Act May 28, 1896, c. 252, § 24, 29 United States v. Allred, 155 U. S. Stat. 186. 591, 39 L. ed. 273, 15 Sup. Ct. Rep. 9 Act Feb. 19', 1897, c. 265, § 1, 29 231; In re Gourdin, 45 Fed. 842; Stat. 577. Clough v. United States, 55 Fed. 921 ; loAnte, § 672, et seq. United States v. Ewin. 140 U. S. 142, iiPoinier v United States, 40 Fed. 35 L. ed. 388, 11 Svi«p. Ct. Rep. 141. 743; United States v. Barber, 140 i2United States v Morse, 3 Story, U. S. 164. 35 L. ed. 396, 11 Sup. Ct. 87, Fed. Gas. No. 15,820. Rep. 749; mittimus writs, Clough isM'Gourin v. United States, 102 v. United States, 47 Fed. 791; Hey- Fed 559. ward v. United States, 37 Fed. 764; i^Complaints and affidavits. Rand Marvin v. United States, 44 Fed. v. United States, 48 Fed. 357 ; Mc- 405 ; recognizances, Hallett v. United Dermott v. United States, 40 Fed States, 63 Fed. 817; per diems, Unit- 217: United States v. Ewing. 140 U. ed States v. Rand, 53 Fed. 348, 3 C. S. 142, .35 L. ed. 388, 11 Sup. Ct. C. A. 556; McGourin v. United Rep. 743; subpoenas, McKinstrv States. 102 Fed. 553; United States V. United States. 34 Fed. 211*; v. Ewing, 140 U. S. 142, 35 L. ed. Jones V. Unitea States, 30 Fed. S8S, 11 Sup. Ct. Rep. 743. 410; Oaths and acknowledgments, 678 I Procedure] WITNESS FEES. § 725 witness is detained in prison for want of security for his appear- ance, he shall be entitled, in addition to his subsistence, to a com- pensation of one dollar a day. R. S. § 848, U. S. Comp. Stat. 1901, p. 654. This provision was enacted in 1853.16 The extradition act of 1882 con- tains provision for payment by United States of fees of indigent defend- ant.!^ By an act of 1892, increased mileage is allowed witnesses in certain states. 18 A witness is entitled to fees and mileage although the attend- ance is voluntary, if in good faith, 1 9 nor is it necessary that he be called and sworn. 2 A witness in a civil suit cannot be compelled by subpoena to attend court when living out of the district at a distance exceeding one hundred miles from the place of trial, i and the authorities are at variance as to whether full mileage of such a witness, living at a greater distance is taxable on his voluntary attendance. In the first circuit full mileage is taxed, 2 and the same rule is followed in the District of Columbia. 3 In the sec- ond circuit mileage is taxable in such a case only up to one hundred miles, * and the same rule is followed in the ninth circuit, 5 and in the circuit courts in Tennessee,^ South Carolina,'^ Wisconsin,s Iowa,9 and Arkansas.! o The fact that depositions may be taken in such a case has been the reason as- signed for the latter rule.n Whether taxable or not however, a volun- tary witness is entitled to hold the party at whose instance he comes, to mileage, whatever the distance traveled, and to fees,i2 in the absence of other agreement.13 Where under an agreement with a witness, a party secures his services at less than the statutory amount, only the amount i6Act Feb. 26, 1853, c. 80 , § 3, 6,213; United States v. Sanborn, 10 Stat. 167. 28 Fed. 299. iTSee post, § 1744. 3 Washington, etc. R. R. v. Car Co. IS Post, § 734, witness for payment 5 App. Cas. 528. of fees in prize cases and where Unit- •iBeckwith v. Easton, 4 Ben. 358; ed States is a party, see post, §§ Fed. Cas. No. 1.212; Buffalo Ins. Co. 743, 738. V. Providence, etc. Co. 29 Fed. 237; isPinson v. Atchison, etc. R. R. The Syracuse 36 Fed. 830. 54 Fed. 464; United States v. San- sRanchett v. Humphrey, 93 Fed. born, 28 Fed. 299; Hanchctt v. 895. Humphrey, 93 Fed. 895; Eastman v. sBurrow v. Kansas City R. Co. 54 Sherry, 37 Fed. 845; Burrow v. Kan- Fed. 278. sas, etc. R. Co. 54 Fed. 278; Sloss, 'In re Williams, 37 Fed. 325. etc. Co. V. South Carolina, etc. R. ^Eastman v. Sherry, 37 Fed. 844. Co. 75 Fed. 106. See however, oSmith v. Chicago, etc. Ry. Co. Spaulding v. Tucker. 2 Sawy. 50, Fed. 38 Fed. 321. Cas. Xo. 13.221 ; Haines v. McLaugh- loGriirgsbv v. Louisiana, etc. Co. lin, 29 Fed. 70; Lillinethall v. Rail- 123 Fed. 751. way Co. 61 Fed. 622. iiSee Hanchett v. Humphrey, 93 20Clark v. American, etc. Co. 25 Fed. 895. Fed. 641. i2Smith v. Chicago, etc. R. Co. 38 iPost, § 1742. Fed. 321. 2Proutv V. Draper. 2 Storv. 190, 1 3 See Spaulding v. Tucker, 2 Sa^vy. Fed. Cas. Xo. 11,447; ^Miipple v. 50, Fed. Cas. Xo. 11.447; Burrow v. Cumberland, etc. Co. 3 Storv. 84, Kansas City, etc. R. Co. 54 Fed. Fed. Cas. Xo. 17.515; Hathawav v. 284. Roach. 2 W. & M. 63. Fed. Cas. Xo. 679 i 726 FEES [Code Fed. agreed upon can be taxed.i^ The claim of the witness to fees is enforce- able onlj' against the party for whom the services were renderel, and is not a debt due directly from the losing party.is Extra compensation for expert witnesses cannot be allowed or taxed,i6 nor fees for the time used in going to and returning froTu court, i' but a witness is entitled to fees in each suit when between different parties.is Where unnecessary witnesses are called in an equity case, fees and costs for the examination of only a reasonable number will be allowed. 1 9 § 726. Witness fees before Interstate Commerce Commission. Witnesses summoned before the [Interstate Commerce] Com- mission shall be paid the same fees and mileage that are paid wit- nesses in the courts of the United States. Part of § 18, act Feb. 4, 1887, c. 104, 24 Stat. 386, U. S. Corap. Stat. 1901, p. 3168. § 727. Witness fees for depositions in District of Columbia. Every witness appearing and testifying under the said provisions [for taking depostions, etc.] 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. R. S. § 874, U. S. Comp. Stat. 1901, p. 666. § 728. — fees and mileage under letters rogatory from foreigpi country. Every witness who shall so appear and testify [i. e., in deposi- tions to be used in suits for the recovery of money or property, de- pending in court of foreign country in which the government of such country is interested]^ 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. R. S. § 4074, U. S. Comp. Stat. 1901, p. 2764. § 729. No officer of court to have witness fees. N^o officer of the United States courts, in any State or Territory, KBurrow v. Kansas City, etc. R. isWooster v. Handy, 23 Fed. 49; Co. 54 Fed. 284. Archer v. Hartford Ins. Co. 31 Fed. 150'Neil V. Kansas City, etc. R. 660: see also L. E. Waterman Oo. v. Co. 31 Fed. 663. ' Lockwood, 128 Fed. 174. i6ln re Carolina, etc. Co. 96 Fed. isKane v. Luckman, 131 Fed. 609. 604. iSee R. S. §§ 4071-4073. iTCarter v. Sweet. 84 Fed. 16. 680 Procedure] OF WITNESSES. § 731 or in the District of Columbia, shall be entitled to witness fees for attending before any court or commissioner where he is officiating. R. S. § 849, U. S. Comp. Stat. 1901, p. 655. A marshal's office clerk is not an officer of the court and is therefore en- titled to fees under the section, but a deputy clerk of court is not so en- titled. A deputy marshal, while an officer of the court, may be allowed witness fees, when not in actual attendance. 3 § 730. Expenses allowed clerks, etc., as witnesses. When any clerk or other officer of the United States is sent away from his place of business as a witness for the government, his necessary expenses, stated in items and sworn to, in going, retiirn- ing, and attendance on the court, shall be audited and paid ; but no mileage, or other compensation in addition to his salary, shall in any case be allowed. R. S. § 850, U. S. Comp. Stat. 1901, p. 655. This provision was carried into the Revised Statutes from an act of 1853.5 Army oflBcers and soldiers have been held to be within its pro- vision3,6 as have also clerks of departments,^ and marshals clerks.s A clerk appointed and paid by a postmaster is not. 9 The expense account of a witness under this provision is audited by or under the direction of the court upon which he attends, and when the United States is successful it is taxable as costs. lo § 731. Compensation of seamen sent home as witnesses. 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 testimony 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, not exceeding one dollar for each day necessarily emplo3'ed 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 3Ex parte Burdell, 32 Fed. G81. sDural v. United States, 23 Ct. BAct Feb. 26. 1853, c. SO. § 3, 10 <"'• ^^^^■ Stat 167 168 ^I" re Waller, 49 Fed. 271. ,' ^ '' r. ■,-,» loUnited States v. Sanborn. 135 616 Op. Atty. Gen. 113. ;- g 2S.i, 34 L. ed. 112, 10 Sup. Ct. 721 Op. Atty. Gen. 263. Rep. 812. 681 § 732 FEES. [Code KeJ. States. When such seaman or person is transported in an armed vessel of the United States, no charge for subsistence or transporta- tion shall be allowed. When he is transported in any other ves- sel, the compensation for his transportation and subsistence, nor exceeding in an}' case fifty cents a day, may be fixed by the court, and shall be paid to the captain of said vessel accordingly. R. S. § 851, U. S. Comp. Stat. 1901, p. 655. Tliis provision was talcen from an act of 1853.1 1 § 732. Fees of grand and petit jurors. 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 attendance. For the distance neces- sarily traveled from their residence in going to and returning from said court by the shortest practicable route, five cents a mile : R. S. § 852, U. S. Comp. Stat. 1901, p. G56. This section was enacted in 1870. is By an act of 1879,14 the per diem compensation of jurors was changed to two dollars, but by a later enact- ment it was again placed at three dollars as in the above section. 1 5 Pro- visions governing the qualifications, and drawing of jurors, etc., are set forth in a following chapter.ie Where the United States are parties jurors fees are paid by the marshal.i" Grand jurors are entitled to double mileage fees when summoned, discharged, and again summoned to court.is § 733. Per diem compensation of jurors. On and after the passage of this act the per diem pay of each juror, grand and petit, in any court of the United States, shall be three dollars a day instead of two dollars a day, as now provided by law. Act June 21, 1902, c. 1138, 32 Stat. 390, U. S. Comp. Stat. 1905, p. 162. This provision rendered R. S. § 8522 again operative. § 734. Jurors and witnesses mileage in Pacific states. Jurors and witnesses in the United States courts in the States of Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho and Colorado, and in the Territories of New Mexico, Arizona iiAct Aug. 20, 1853. c. SO. § 3. 10 isSee post, § 733. Stat. 168. lePost, §§ 1701, et seq. isAct July 15, 1870. c. 29S. § 1, 10 i^Post, § 738. Stat. 363. isin re Grand Jurors' Mileage, 120 14 Act June 30, 1879, c. 52, § 2, 21 Fed. .307. Stat. 43. 2 0See ante, § 732. 682 Procedure] PRINTERS' FEES. § 73G and Utah, shall be entitled to and receive fifteen cents for each mile necessarily traveled over any stage line or by private conveyance, and five cents for each mile over any railway in going to and re- turning from said courts : Provided, that no constructive or double mileage fees shall be allowed by reason of any person being sum- moned both as witness and juror, or as witness in two or more cases pending in the same court and triable at the same term thereof. Act Aug. 3, 1892, c. 361, 27 Stat. 347, U. S. Comp. Stat. 655. This act supersedes an act of 1880 making a similar provision as to mileage of jurors and witnesses in Colorado.i § 735. Printer's fees. For publishing any notice or order required by law, or the law- ful order of any court, department, bureau or other person, in any newspaper, except as mentioned in sections thirty-eight hundred and twenty-three, thirty-eight hundred and twenty-four, and thirty-eight hundred and twenty-five, title, "Public Printing, Ad- vertisements and Public Documents," forty cents per folio for the fi.rst insertion, and twenty cents per folio for each subsequent in- sertion. The compensation herein provided shall include the fur- nishing of lawful evidence, under oath, of publication, to be made and furnished by the printer or publisher making such publication. R. S. § 853, U. S. Comp. Stat. 190L p. 656. This and the following section are taken from an act of 1853.2 The provisions of the Revised Statutes to which it refers provide for the selec- tion of newspapers in which shall be published United States treaties and laws and also advertisements whose publication is ordered. There are largely superseded by later statutes. § 736. — meaning of term "folio." 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 coimted 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. R. S. § 854, U. S. Comp. Stat. 1901, p. 657. lAct June 16, ISSO, c. 247, 21 Stat. 2Act Feb. 26, 1853, c. 80, § 3, 10 290. Stat. 168. 083 § 737 FEES. [Code Fed. Under this section each separate or distinct order or separate proceeding may be counted separately as a folio, although containing less than fifty words. 3 ? 737. Fees of appraisers on execution sale. When such appraisers attend [i. e., the appraisers appointed for the State courts in States where an appraisal is prerequisite to execution sale attend on an execution sale in the Federal court] they shall be entitled to the like fees as in cases of appraisement under the laws of the State. Part of R. S. § 99.3, U. S. Comp. Stat. 1901, p. 710. § 738. Jurors and witnesses paid by marshal where United States are parties. In cases where the United States are parties, the marshal shall, on the order of the court, to be entered 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. R. S. § 855, U. S. Comp. Stat. 1901, p. 657. The order of the court under the above section is the voucher upon which the marshal relies.4 Except as above provided the courts have no authority to order the payment of witness' or jurors' fees. 5 § 739. Payment of fees of commissioners on Court of Claims de- position. When testimony is taken for the claimant [in a case in the Court of Claims], 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, together with all postage incurred by the Assistant At- torney General, shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Congress for that purpose. R. S. § 1085, U. S. Comp. Stat. 1901, p. 744. § 740. Payment of fees in suits on postmaster's bonds. Hereafter all fees for United States attorneys, marshals, clerks of courts and special counsel necessarily employed in prosecuting sErwin v. United States, 37 Fed. 4Van Duzee, 59 Fed. 440. 492. sstate v. Felts, 133 Fed. 95. 684 Procedure] PAYMENT OF FEES AND COSTS. ! 742 civil suits instituted by the auditor for the Postoffice Department through the Solicitor of the Treasury against the sureties on the official bonds of late postmasters, as provided for by section two hundred and ninety-two, Revised Statutes of the United States, shall be paid from the appropriations for expenses of the United States courts. From appropriation act Feb. 26, 1S96, c. 33, 29 Stat. 25, U. S. Comp. Stat. 1901, p. 657. The section of the Revised Statutes referred to above, provides that the auditor for the postoffice department shall superintend the collection of debts of that department. § 741. — of witnesses for indigent defendants in criminal cases. Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evi- dence is material to his defense; that he cannot safely go to trial without them ; what he expects to prove by each of them ; that they are within the district in which the court is held, or within one hundred miles of the place of trial ; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such wit- nesses, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States. R. S. § 878, U. S. Comp. Stat. 1901, p. 668. By an act of 1892 poor persons may sue without being liable for fees or costs.8 The summoning of witnesses under this section is in the discretion of the trial court, not reviewable on appeal.9 The section gives no right to summon witnesses before an indictment is found.io While it does not cover charges for the transcript on writ of error, such charges have been allowed when ordered by the court.n § 742. Payment of fees and costs in extradition proceedings. All witnesses fees and costs of every nature in cases of ex- 8Se« post, § 1823. loUnited States v. Stewart. 44 Fed. 9Gkildsby v. Ignited States. 160 U. 483. S. 73, 40 "L. ed. .343, 16 Sup. Ct. nUnited States v. Jones. 193 U. Rep. 216; Crumpton v. United S. 530. 48 L. ed. 777, 24 Sup. Ct. States, 138 U. S. 364, 34 L. ed. 958, Rep. 561. 11 Sup. Ct. Rep. 355. 685 § 743 FEES [Code Fed. tradition, 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 appropriation to defray the expenses of the judiciary ; and the Secretary of State shall cause the amount of said fees and costs so allowed to be re- imbursed to the government of the United States by the foreign government by whom the proceedings for extradition may have been instituted, ' § 4 of act Aug. 3, 1882, 22 Stat. 21G, c. 378, U. S. Comp. Stat. 1901, p. 3595. § 743. Payment of witness fees in prize causes. 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 marshal, and shall be repaid to bin 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. R. S. § 4651, U. S. Comp. Stat. 1901. p. 3139. This section was carried into the Revised Statutes from an act of 1864.H § 744. — of clerks, commissioners, etc., where United States are liable therefor. The fees of district attorneys, clerks, marshals and commissioners, in cases where the United States are liable to pay the same, shall be paid on settling their accounts at the Treasury. R. S. § 856, U. S. Comp. Stat. 1901, p. 657. The above section is taken from an act of 1853.1* By a later act of 1896, district attorneys and marshals are put on an exclusively salary basis, except in New York and the District of Columbia,! 5 but they are still to charge and collect fees, except as against the United States. 1 6 The government is liable for the payment of services rendered by the clerk whether it succeeds in collecting costs from the defendant or not.i7 13 Act June 30, 1864, c. 174, § 25, the southern district of New York 13 Stat. 313. gets only a salary. i4Act Feb. 26. 1853, c 80, § 3, 10 isPost. 745. St.it. 168. 1 "United States v. Wolters, 51 Fed. 15 Ante. §§ 509. 633, post, § 745. 896. Since 1905 the district attorney in 686 Procedure] TO BE COVERED INTO TREASURY. § 746 § 745. Fees of marshals and district attorneys to be covered, into Treasury. On and after the first day of July, 1896, all fees and emoluments authorized by law to be paid to United States district attorneys and United States marshals shall be charged as hertofore, and shall be collected, as far as possible, and paid to the clerk of the court having jurisdiction, and by him covered into the Treasury of the United States ; and the said officers shall be paid for their official services, which, in the case of district attorneys, shall include serv- ices in the circuit court of appeals of their respective circuits wherever sitting, salaries and compensations hereinafter provided and not otherwise : Provided, that this section shall not be con- strued to require or authorize fees to be charged against or collected from the United States, except as provided by sections eleven and thirteen of this act relating to field deputies and their payments § 6 act of May 2S, 189G, c. 252, 29 Stat. 179, U. S. Comp. Stat. lOOL p. 611. By § 24 of the same act it is provided that none of the provisions of the above section "shall apply to the office of the United States district at- torney and his assistants for the southern district of New York, or for the District of Columbia," or to the Territory of Alaska.is By a later act the provision of the above section making the services of district attorney's in- clude services in the circuit court of appeals, is made applicable to the dis- trict attorney for the southern district of New York.is'i By an act of 1905, the salary of the district attorney in the southern district of Xew York is fixed at $10,000.19 § 746. No fees for arrest and prosecutions under revenue laws unless from defendants. Hereafter no part of any money appropriated to pay any fees to the United States commissioners, marshals or clerks shal' be used for any warrant issued or arrest made, or other fees in prosecu- tions under the internal revenue laws, unless said fees have biv-n taxed against and collected from the defendant, or unless the pros- ecution has been commenced upon a sworn complaint setting forth the facts constituting the offense and alleging them to be within the personal knowledge of the affiant, or upon a sworn complaint by a i8§ 24, act May 28. 1896. c. 252. iPAnte, § 512. See also § 509. 29 Stat. 186, U. S. Comp. Stat. 1901. [d] p. 618. is'/z Appropriation act June 6, 1900, 31 Stat. 304. 687 § 747 FEES. [Code Fed. United States district attorney, collector or deputy collector of in- ternal revenue or revenue agent, setting forth the facts upon in- formation and belief, and approved either before or after such arrest by a circuit or district judge or the attorney of the United States in the district where the offense is alleged to have been committed or the indictment is found. See appropriation acts, Mar. 3, 1893, c. 208, 27 Stat. 609; Aug. 18, 1894, c. 301, 28 Stat. 416, U. S. Comp. Stat. 1901, p. 641. § 747. When informer liable for fees incurred in prosecution. 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 judg- ment is rendered in favor of the defendant, such informer shall be alone liable to the clerk, marshal and attorney for the fees of such proscution, unless he is an officer of the United States Vt'liose duty it is to commence 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. R. S. § 976, U. S. Comp. Stat. 1901, p. 704. Prosecutions in the name of the United States for the use of the in- former are within the meaning of the section. i § 748. Penalty for accepting compensation for services other than that provided. Any officer whose compensation is fixed by sections six to fifteen, inclusive, of this act who shall directly or indirectly demand, re- ceive or accept any fee or compensation for the performance of any official service other than is herein provided, or shall wilfully fail or neglect to account for or pay over to the proper officer any fee received or collected by him shall, upon conviction thereof, be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment, at the discretion of the court, not exceeding five years, or by both such fine and imprisonment. § 18 act May 28, 1896, c. 252, 29 Stat. 183, U. S. Comp. Stat. 1901, p. 617. 1 United States v. The Steamboat Planter, Newb. Adm. 262, Fed. Cas. No. 16,054. 088 Procedure] ATTACHMENT FOR IX SUPREME COURT. § 751 The officers whose compensations are fixed by the sections referred to, are district attorneyss and marshalss assistant district attorneys, < and marshals office and field deputies. 5 § 749. Purchase of claims for fees, etc., prohibited. It shall hereafter be unlawful for any United States marshal or deputy marshal, or any clerk or deputy clerk of any court of the United States or of any Territory thereof, or any United States attorney or assistant attorney, or any United States judge, or United States commissioner, or other person holding any office, employment, or position of trust or profit under the government of the United States to purchase, at less than the full face value thereof, either directly or indirectly, any claim for fee, mileage, or expenses of any witness, juror, deputy marshal, or of any other officer of court whatsoever against the United States government. § 1 act Feb. 25, 1897, c. 316, 29 Stat. 595, U. S. Comp. Stat. 1901, p. 1213. § 750. Fees, how recovered. The fees and compensations of the officers and persons herein- before mentioned, except those which are directed to be paid out of the Treasury, shall be recovered in like manner as the fees of the officers of the States respectively for like services are recovered. R. S. § 857, U. S. Comp. Stat. 1901, p. 658. Fees other than those which are to be paid out of the treasury are those which are- taxed and collected in suits and these are to be recovered as like fees are recovered by similar state officers. 7 Thus a marshal may be reimbursed for expenditures in caring for a vessel without waiting for final decree. 8 But a statute applying only to part of a state is not made ap- plicable by this section. 9 The section regulates only the mode of recovery, not the amount. 10 § 751. Attachment for fees in Supreme Court. Upon the clerk's producing satisfactory evidence, by affivadit 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 2Ante, § 510. sThe Alleghenv, 85 Fed. 463. sAnte, § 634. sAiken v. Smith, 57 Fed. 423, 6 C. ■»Ante, § 515. C. A. 414. sAnte, §§ 620. 621. lOThe Mary H. Broekway, 49 Fed. ^United States v. Cigars, 2 Fed. 161. 496. Fed. Proc— 44. 689 i 752 FEES. [Code Fed. against such parties or sureties, respectively, to compel payment of the said fees. Section 8 of Supreme Court rule 10, as amended Mar. 28, 1887. § 752. Clerk's fees in naturalization proceedings. The clerk of each and every court exercising jurisdiction in naturalization cases shall charge, collect, and account for the follow- ing fees in each proceeding: For receiving and filing a declaration of intention and issuing a duplicate theerof, one dollar. For making, filing, and docketing the petition of an alien for admis- sion as a citizen of the United States and for the final hearing thereon, two dollars; and for entering the final order and the issuance of the certificate of citizenship thereunder, if granted, two dollars. First part of § 13 act June 29, 1906, c. 3592, 34 Stat. 600. The provisions of the naturalization act respecting procedure are given elsewhere. 1 § 753. — duty to account for one half. The clerk of any court collecting such fees is hereby authorized to retain one-half of the fees collected by him in such naturalization proceeding; the remaining one-half of the naturalization fees in each case collected by such clerks, respectively, shall be accounted for in their quarterly accounts, which they are hereby required to render the Bureau of Immigration and Naturalization, and paid over to such Bureau within thirty days from the close of each quar- ter in each and every fiscal year, and the moneys so received shall be paid over to the disbursing clerk of the Department of Commerce and Labor, who shall thereupon deposit them in the Treasury of the United States, rendering an account therefor quarterly to the auditor for the State and other departments, and the said disburs- ing clerk shall be held responsible under his bond for said fees so received. Second part of § 13, act June 29, 1906, c. 3592, 34 Stat. 600. § 754, — deposit for witness fees — retention by clerk — addition- al assistance. In addition to the fees herein required, the petitioner shall, upon the filing of his petition to become a citizen of the United States, iPost, § 2380, et seq. Procedure] HOW SUPRKME COURT CLERKS' FEES COMPUTED. § 755 deposit with and pay to the clerk of the court a sum of money suffi- cient to cover the expenses of subpoenaing and paying the legal fees of any witnesses for whom he may request a subpoena, and upon the final discharge of such witnesses they shall receive, if they demand the same from the clerk, the customary and usual witness fees from the moneys which the petitioner shall have paid to such clerk for such purpose, and the residue, if any, shall be returned by the clerk to the petitioner : Provided, That the clerks of courts exercising jurisdiction in naturalization proceedings shall be per- mitted to retain one-half of the fees in any fiscal year up to the sum of three thousand dollars, and that all fees received by such clerks in naturalization proceedings in excess of such amount shall be accounted for and paid over to said bureau as in case of other fees to which the United States may be entitled under the pro- visions of this act. The clerks of the various courts exercising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties im- posed by this act upon the clerks of courts from fees received by such clerks in naturalization proceedings. And in case the clerk of any court collects fees in excess of the sum of six thousand dol- lars in any one year, the Secretary of Commerce and Labor may allow to such clerk from the money which the United States shall receive additional compensation for the employment of additional clerical assistance, but for no other purpose, if in the opinion of the said Secretary the business of such clerk warrants such allow- ance. Part of § 13 act June 29, 1906, c. 3592. 34 Stat. GOO, 601. § 755. Supreme Court clerks fees computed on folios of record as filed. 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. Last clause of Supreme Court rule 10. The table of fees above referred to is given in a preceding code section.3 3 See ante, § 708. 601 PART II. FEDERAL PROCEDURE. CHAPTER 21. GENERAL AND IVnSCELLANEOUS PROVISIONS. § 799. Source and scope of power to prescribe Federal procedure. § 800. The fundamental distinction between law and equity. § 801. General nature and scope of Federal Courts' power to make rules. § 802. — Supreme Courts' power to make equity and admiralty rules for lower courts. § 803. — to make bankruptcy rules. ^ § 804. Power of circuit court of appeals to make rules. § 805. Power of circuit and district courts to make rules. § 806. Circuit courts' power to make rules in equity. § 807. Power to impose oaths and punish contempts. § 808. Contempt power of Court of Claims. § 809. Bankruptcy courts' power to punish for contempt. § 810. Contempts before bankruptcy referees. § 811. Contempt proceedings against defaulting garnishee. § 81"2. Contempt of order to appear before Commerce Commission. § 813. Formal defects of procedure disregarded — amendments permitted. § 814. Effect of death of party before final judgment — revivor. § 815. Death of one of several parties. § 816. No abatement by officer's death, expiration of term, etc. § 817. Non-joinder of, or failure to serve parties as ground of abatement. § 818. Dismissal or remand for want of jurisdiction or collusion therein. § 819. Either party may notice cause for trial. § 820. Priority in hearing of State cases. § 821. Deposit of moneys paid into court. § 822. Withdrawal of deposit — transfer to credit of United States. § 823. Consolidation of causes. § 824. Actions for mining claims governed by law of possession. § 825. Procedure upon arbitration award between carrier and its em- ployees — filing award and exceptions. § 820. — judgment and appeal. § 799. Source and scope of power to prescribe Federal procedure. Power to prescribe the procedure of Federal courts follows from the power of Congress to establish such courts. "^^^ It permits the national government to provide for the practice, forms and modes of court proceedings from the institution of suit down to the en- forcement and satisfaction of the judgments rendered. ^^^ But this 69i> i § 7i)9 [a] GENERAL AND MISCELLANEOl/S PROVISIONS. [Code Fed. power to prescribe procedure does not authorize any declaration of the substantive rules of law which shall be administered in the decision of causes in Federal courts. "^^^ Author's section. [aj Origin of power to provide Federal procedure. The clause of the Constitution enabling Congress to pass all laws neces- sary and proper to carry out its granted powers,i very clearly authorizes legislation which will enable the courts it is authorized to create, to exer- cise effectively the jurisdiction which the Federal Constitution confers.2 As already shown this power is exclusive in the national government and not subject to state regulation or restraint.3 [b] Scope of power. Since jurisdiction does not terminate with judgment, but continues until its enforcemenf or satisfaction thereafter,5 it follows that the power to prescribe procedure, includes power to make laws for carrying Federal judgments into execution. 6 Hence the statute authorizing Federal courts to issue writs agreeable to the principles and usages of law, for the effective exercise of jurisdiction includes writs subsequent to judgment, such as expcutionT and mandamus. s It would seem equally clear that the power to enforce judgment and direct execution includes the power to designate the property subject to execution; 9 and hence that Congress in the exercise of this power, may extend, or qualify, or abrogate the state scheme of exemp- tions from execution in so far as Federal judgments are concerned. lo Plainly the power to prescribe procedure is a broad one and of great im- portance. The vindication of rights is always deeply affected and often con- trolled by the laws of procedure established for their determination. Under this power Congress might legislate independently of the States and at utter variance with their practice, as to the admissibility of evidence or the com- petency of parties and others as witnesses; as to the form and effect of judg- ments and their lien ; as to the form and effect of execution, the property on which it may be levied, the method of sale, or imprisonment of the debtor. These considerations serve to emphasize the wisdom of the legislation that iCons. Art. 1. sec. 8, CI. 18. sBank of United States v. Hjil- 2Nayman v. Southard, 10 Wheat, stead. 10 Wheat. 61. 6 L. ed. 207. 22, 6 L. ed. 258; Bank of U. S. v. "See Fink v. O'Neil, lOG U. S. Halstead, 10 Wheat. 54. 6 L. ed. 265. 279, 27 L. ed. 196. 1 Sup. Ct. Rep. 3 See ante, § 5. ^^^- Y"^^^ the legislation of Con- ^ci xoo i.rjjT gress. however, the State scheme of 5See ante §3 note[dd]. exemptions applies in Federal court. rr o;^f ^1 9*'"'^^ Jo. .?.'"''■'''"• ^^ See also Nichols v. Levy, 5 Wall. 433, How. 376, 16 L. ed. 735; Wayman v. jg ^ ed. 596; Spindle v. Shreve, 111 Southard, 10 Wheat, 22, 6 L. ed. 258; jj g 540 9g ^ eo 51'' 4 Sup Ct Bank of U. S. v. Halstead, 10 Wheat. Rep. '522? First Nat. Bank v. Glass^ 53, 6 L. ed. 265. 79 ppj. 708. 25 C. C. A. 151 ; Thomp- ''Ibid. son V. McConnell. 107 Fed. 36, 46 C. sKnox Co. V. Aspinwall, 24 How. C. A. 124; Manufacturers' etc. Bank 384, 16 L. ed. 739. v. Bayless, 16 Fed. Case 664. 696 i Procedure] DISTINCTIOX BETWEEN LAW AND EQUITY. § 800 has been enacted. In common law causes the procedure in Federal courts is required to conform to the practice prevailing in the State where the court is sitting.ii Rules as to evidence and competency of witnesses con- form, with slight modifications, to the State laws.12 The duration of the judgment, the property subject thereto, and the execution issued for the enforcement are all assimilated to the State laws in such behalf. It is only the equity and admiralty practice that are distinctively Federal; and the admiralty jurisdiction being exclusive provokes no conflict or embarrass- ment. [c] Substantive law in Federal courts not derivable from power as to procedure. The law administered in the decision of causes in Federal courts and by which rights are measured and adjudged, is to be distinguished from the rules and modes of procedure.i* It is plain that the substantive law to be administered cannot be provided by Congress vmder the power to pre- scribe modes of procedure. It cannot be contended, for instance, that the grant to Federal courts of jurisdiction over suits between citizens of dif- ferent States, enables Congress to provide the rules of law which shall govern and determine such suits. To so hold would be to declare that Congress ca;i trespass beyond the legislative powers granted to it, abrogate established rules of property in the States, and remove the obligation of its citizens to submit to the operation of its laws passed within the ad- mitted scope of State powers. The scheme of distribution of legislative powers between the Federal and the State governments forbids any such extension of the powers of the Federal government. 1^ The judicial power of Federal courts is much broader than the legislative power of the Fed- eral Congress; 16 and in consequence the courts are frequently called upon to administer the State laws.17 § 800. The fundamental distinction between law and equity. In Federal practice the ancient distinction between common law and equity is fundamental and is consistently maintained. ISJ'o practitioner can properly conduct a cause in the Federal courts without a clear understanding of this fact, for the distinction con- fronts him at the threshold of his proceedings and determines its entire course. It makes no difference that the State where a Fed- eral court is sitting has modified or abolished the ancient distinc- tion between law and equity. The modes of proceeding in Federal courts are independent of State control, and it is law and equity 11 See post. § 000. leSee Beauregard v. New Orleans, i2See post, §§ 1776. 1735. 18 How. 497. 15 L. ed. 469: Brine v. i4See McClaskey v. Barr. 48 Fed. Hartford Ins. Co. flfi U. S. 634. 24 130. L. ed.. 861 : Independent Dist. v. isSuvdam v. Williamson, 24 How. Beard, 83 Fed. 16; ante, § 1. 433, 16' L. ed. 745. i"Ante. § 10. 697 § 800 [a] GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. that the Federal courts administer as the two were distinguished at the time of the Revolution.^ If, by that test, a proceeding is properly at law. Congress has, it is true, provided for its conduct in the Federal court in much the same manner as in the courts of the State where it is brought. ^^^ But if, by that test, it is properly equi- table, then the State practice is to be ignored and the cause pro- ceeds according to rules of equity procedure that are uniform in all Federal courts throughout the land.'^'^^ It is important to bear in mind that the distinction between law and equity is concerned with the mode of enforcing rights and not with their existence. The Federal government through legislation of Congress and rules adopt- ed by the courts has full power to regulate the procedure or mode of enforcing rights in its courts.- But neither Congress nor the courts, under the guise of regulating procedure, can enlarge the leg- islative powers conferred by the Constitution or trench upon legis- lative powers reserved by the States. As to matters within the States' law making powers equitable rights are measured by the local laws in Federal courts as much as in State courts;^ and where a State, by enactments within its law making power, enlarges or changes equitable rights, the Federal courts while they may choose their own mode of doing so, are as much bound to administer such enlargement or change as are the tribunals of the State.'^''^ Author's section. [aj Procedure in actions at law. Subsequent chapters 5 contain various provisions governing procedure in common law causes, but certain general principles may be noted here. The distinction between law and equity not only requires the bringing of an action at law on the law side of the court, but it forbids the pleading of equitable defenses therein. 6 It forbids the joinder of legal and equitable causes of action in one complaint though permissible by the State practice; 7 and an agreed statement of fact waiving questions of pleading cannot cure defects of this character. 8 Similarly it forbids the pleading of iSee ante. § 5[b] ; post, § 935. 513. 7 Sup. Ct. Rep. 323; Johnson v. 2See § 799. Christian, 128 U. S. 374, 32 L. ed. 3See ante, § 10[a]. 413. 9 Sup. Ct. Rep. 87; Mulqueen sPost, § 900, et seq. v. Schlichter Co. 108 Fed. 931 ; see sRobinson v. Campbell, 3 Wheat, also Schurmeier v. Conn, etc.; Ins. 212, 4 L. ed. 373; Bagnell v. Erode- Co. 137 Fed. 42, 69 C. C. A. 22. rick, 13 Pet. 436. 10 L. ed. 235; Foster ^Phelps v. Elliott, 26 Fed. 882: V. Mora, 98 U. S. 425, 25 L. ed. 191; La Mothe v. National Co.; Potts v. Hurt V. Hollingsworth, 100 U. S. A<>cident Ins. Co. 35 Fed. ri^u. 100, 25 L. ed. SeO; Northern P. R. R. sWillard v. Wood, 135 U. S. 310, V. Paine, 119 U. S. 561, 30 L. ed. 34 L. ed. 213, 10 Sup. Ct. Rep. 831. 698 Pocednre] DISTINCTION BETWEEN LAW AND EQUITY § 800 [b] equitable defenses in an action at law. a If by Federal standards an action should be in equitj', a State statute permitting suit at law will not be fol- lowed.io In most of the States the blending of law and equity procedure has restdted in forms and modes of pleading embodying both systems almost in- distinguishably. Thus the modern counterclaim comprises both the recoup- ment permissible anciently at law and the cross bill of courts of equity. Hence, it is said, the counterclaim of the State practice is only permissible in the Federal court if under the facts it really represents the recoupment of the ancient common law.n When a State permits ejectment to be main- tained upon a merely equitable title.is or permits an equitable title to be set up as a defense in ejectment, this practice cannot prevail in the P'ederal court, and one having an equitable title must there go into equity for due recognition or enforcement thereof. 1 3 [bj Federal equity procedure. The equity procedure of the Federal Courts is very largely governed by the equity rules promulgated by the Supreme Court,!'* and these are em- bodied in subsequent chapters.is The equity practice is independent of, and unaffected by State laws as to procedure in the State courts. is Hence a married woman must in equity sue by prochein ami in the Federal court even though the state law permits suit in her OAvn name. 1 7 Proceeding by an agreed case is not permissible in the Federal court on its equity side though sanctioned by State law. is Conversely one having merely an equit- able title must proceed in equity and cannot maintain the legal action of ejectment even though the State practice so permits.is So where the State law forbids resort to an equitable remedy such as injunction, this will not deprive a suitor of that remedy in the Federal court if by Federal equity sGeorge v. Tait, 102 U. S. 564, 570, 423, 16 L. ed. 741 ; Hooper v. Seheim- 26 L. ed. 232: Scott v. Armstrong, er, 23 How. 235, 16 L. ed. 452. 146 U. S. 512. 36 L. ed. 1059, 13 Sup. i2Greer v. Mezes, 24 How. 268, 16 Ct. Rep. 148; Hill v. Northern P. L. ed. 661; Doe v. Roe, 31 Fed. 97: Rv. 113 Fed. 917, 51 C. C. A. 544; Schoolfield v. Riiodes, 82 Fed. 153, Kosztelnik v. Bethlehem I. Co. 91 27 C. C. A. 95; Daniel v. Felt, 100 Fed. 606; Wilcox, etc. Co. v. Phenix Fed. 727. Ins. Co. 61 Fed. 199, Vandervelden i3Norttiern P. R. R. v. Paine, 119 V. Chicago, etc. Ry. 61 Fed. 57. See U. S. 502, 30 L. ed. 513, 7 Sup. Ct. however, Cheatham v. Edgefield Rep. 323. Mfg. Co. 131 Fed. 121, and cases i4Post, § 935, et seq. cited, where facts setting up an isPost, §§ 935. et seq. equitable estoppel were alloaved in a i6Payne v. Hoolc. 7 Wall. 430, 19 legal action of eieetment. L. ed. 201 ; Scott v. Neelv, 140 U. S. loSheffield F. Co. v. Witherow, 149 106. .35 L. ed. 35S. 11 Sup. Ct. Rep. U. S. 579, 37 L. ed. 853, 13 Sup. Ct. 712: see ante. S 5[bl. Rep. 9.36. 17 Wills v. Pauly, 51 Fed. 257. ii.Iewett Car Co. v. Kirkpatrick, isXickerson v. Atchison, etc. Rv. etc. Co. 107 Fed. 622; but see Snvder 30 Fed. 85. v. Pharo. 25 Fed. .398: Church v. laQibson v. Chouteau. 13 Wall, Spiegelburg, 31 Fed. 601, 24 Blatchf. 102, 20 L. ed. 534; Langdon v. Sher- 540; Herklotz v. Chase. 32 Fed. 433; wood. 124 U. S. 74. 31 L. ed. 344, 8 and see post, § 903 [d] : Fenn v. Sup. Ct. Rep. 429: Redfield v. Parks, Holme, 21 How. 488. 16 L. ed. 201; 132 U. S. 239, 33 L. ed. 327, 10 Sup. Sheirboum v. DeCordova, 24 How. Ct. Rep. 83. 699 § 801 GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. staiitlards lie is entitled thereto. 20 All these are mere questions of the mode of procedure. Where the State law affects substantive rights and not mere modes of procedure, other considerations control. It has been re- peatedly decided that an enlargement of equitable rights created by a State will be as fully respected and administered in the Federal as in the State courts. 2 Thus the modern action to quiet title is essentially equit- able and akin to the equitable bill, maintainable by one in possession, to remove a cloud. If the State permit its statutory action to quiet title to be maintained by one out of possession, this enlargement of a right essential- ly equitable, will prevail in the Federal court in that State, which will ac- cordingly entertain a bill in the absence of adequate remedy at law, by one out of possession. 3 The essential nature of new statutory rights de- termines the jurisdiction as between law and equity. ^ But if by Federal equity standards, there is an adequate remedy at law in the Federal court, the fact that a State gives a new equitable remedy will not justify the Federal court in enforcing it. 5 § 801. General nature and scope of Federal Courts' power to make rules. Courts undoubtedly possess a certain inherent power to mals(' rules not inconsistent with law, for the purpose of promoting the or- derl)' administration of justice. The legislature, also, may authorize courts to make rules of practice without violating the constitutional principle which forbids them to delegate legislative powers to the courts ; and in the case of the Federal courts a very large power in the making of rules to govern practice therein has been conferred by Congress.^ A legislative enumeration of the matters which courts are authorized to provide for by rule would seem to limit the power to make rules to such matters and exclude other s.^^^'i^^^ Author's section. [a] Power of Federal Courts to make rules. The power of courts to make rules to promote the orderly administration of justice is inherent. 9 There is no existing statute conferring authority upon the Supreme Court to make rules to govern practice therein, although there were provisions in early statutes conferring general authority on all 20Tavlor v. Louisville, etc. R. R. sWhitehead v. Shattuck, 138 U. 88 Fed.' 357, 31 C. C. A. 537. S. 152, 34 L. ed. 873, 11 Sup. Ct. Rep. 2Antp. § 10 [aa]. 276; Scott v. Neelv, 140 U. S. 117, sHolland v. Challen, 110 U. S. 15. 35 L. ed. 362. 11 Sup. Ct. Rep. 716; 28 L. ed. 52, 3 Sup. Ct. Rep. 495; Cates v. Allen. 149 U. S. 459. 37 L. Wehrman v. Conklin, 155 U. S. 324, ed. 808, 13 Sup. Ct. Rep. 885. See 39 L. ed. 172. 15 Sup. Ct. Rep. 132. also, post, § 935, et seq. 4Van Norden v. Morton, 99 U. S. sSee post, § 802, 803, 804, 805. 380. 25 L. ed. 453; Cummings v. Na- sDuke v. Trippe. 6 Ga. 323; Crump tional Bank, 101 U. S. 157, 25 L. ed. v. People, 2 Colo. 319; see Washing 905. ton. etc. Packet Co. v. Sickles, )9 Wall. 615, 22 L. ed. 203. 700 Procedure] POWER TO MAKE RULES. § 801 [b] the Federal courts to make rules. lo These general provisions were not carried forward into the Revised Statutes.!! Many matters pertaining to appellate practice in that tribunal however, have been regulated by rules of court from the beginning and their validity is not open to question.! 2 The procedure in original suits in the Supreme Court where States are parties, has been left by Congress to the control of the court, and is regulated by court rules, 1 3 at first adopted with hesitation and declared to be subject to the "interposition, alteration and control" of Congress. i4 While rules do not have to be reduced to writing to be effective,! 5 yet as the Supreme Court rules are written, and accessible to all suitors,! 6 strict compliance therewith is insisted upon.!"* The inferior Federal courts have frequently adopted State practice without formal rule.!? Valid rules have the force of law binding both upon the court and the parties and may not be dis- regarded by a trial court.! 9 Long practical construction of a rule is per- suasive of the correctness of that construction. 20 A court may in its dis- cretion dispense with the requirements of a rule! or relieve against in- justice in its operation. 2 The power of Congress to direct the Federal courts to frame i-ules governing their practice, was sustained in several early cases.3 It also has power to alter rules adopted by or for any Federal courts, at any time.'^ And a statute may abrogate a rule without an order of coourt to that effect. 5 [b] Limitations upon power to make rules. It is plain that courts have no power to make rules inconsistent with !0See act Sept. 24. 1789. § 17, 1 Stat. S3; act March 2, 1793, § 7, 1 Stat. 335. !iSteam Stone Cutters Co. v. Jones, 13 Fed. 579, 21 Blatchf. 138; see Hudson v. Parker, 156 U. S. 281, 39 L. ed. 425, 15 Sup. a. Rep. 452. i2ln re Chateaugay, etc. Co. 128 U. S. 544, 32 L. ed. 508. 9 Sup. Ct. Rep. 150: Fishburn v. Railwav Co. 137 U. C. 60, 34 L. ed. 585, 11 Sup. Ct. Rep. 8; Hudson v. Parker, 156 U. S. 282, 39 L. ed. 425, 15 Sup. Ct. Rep. 452. isFlorida v. Georgia. 17 How-. 478, 15 L. ed. 189; California v. Southern Pac. Co. 157 U. S. 248, 39 L. ed. 690, 15 Sup. Ct. Rep. 591. !4Gravson v. Virginia, 3 Dall. 320, 1 L. ed. 619. !5Fullerton v. Bank of U. S. 1 Pet. 613. 7 L. ed. 280; Duncan v. United States, 7 Pet. 451, 8 L. ed. 739. leRichardson v. Green, 130 U. S. 112, 32 L. ed. 872, 9 Sup. Ct. Rep. 443. iTSchool Dist. V. Insurance Co. 101 U. S. 472, 25 L. ed. 868. IS See post, § 805. fc] i9Rio Grande Irrigation Co. v. Gildersleeve. 174 U. S. 608. 43 L. ed. 1103, 19 Sup. Ct. Rep. 761 ; Sevmour V. Phillips, 7 Biss. 460, Fed. Cas. No. 12,689. 2 0Osbom V. United States, 131 U. S. CXXXVII., 23 L. ed. 871. !United States v. Breitling, 20 How. 252, 15 L. ed. 900; Russell v. McLellan, 3 Wood & M. 157, Fed. Cas. No. 12,158; Wallace v. Clark, 3 Wood. & M. 359, Fed. Cas. No. 17,098; Southern Pac. Co. v. .lohnson, 69 Fed. 5.59, 16 C. C. A. 317. sPoultney v. La Fayette. 12 Pet. 472. 9 L. ed. 1161. sWayman v. Southard, 10 Wheat. 48, 6 L. ed. 264; Bank of U. S. v. Halstead. 10 Wheat. 64. 6 L. ed. 268; Beers v. Haughton, 9 Pet. 359, 9 L. ed. 157. ^United States v. Union Pac. R. R. 98 U. S. 604. 25 L. ed. 143. 5 Connecticut, etc. Ins. Co. v. Cush- man, 108 U. S. 66, 27 L. ed. 648, 2 Sup. Ct. Rep. 236. 701 § 802 GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. existing laws," nor to alter or impair their operation. The district court may not by rule declare that among admiralty claims of equal dignity, the first libelling shall be paid first. « The Supreme Court would have no right to enlarge or restrict the jurisdiction conferred by law upon that court or any other.9 Competent evidence may not be excluded.io The statutory right to plead to statute of limitations cannot be made to de- pend upon the pleasure or discretion of the court expressed in its rules.n Yet the time and manner of filing pleas in a cause may be regulated by rule; 12 and a regulation of the character of the process to be used in ad- miralty is not a regulation of the court's jurisdiction.! 3 § 802. — Supreme Courts' power to make equity and admiralty rules for lower courts- The Supreme court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtain- ing evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or admiralty, by the cir- cuit and district court. ^^^'i^^^ R. S. § 917, U. S. Comp. Stat. 1901, p. 684. [a] Scope and exercise of the power. R. S. § 91315 also recognizes the power of the Supreme Court to control the forms and modes of proceeding in equity and admiralty. The above section of the revised statutes, is carried forward from an act of August, 1842.16 Prior to the law of August, 1842, there was a statute of 1792,i7 upon which the Supreme Court expressly rested its authority to make the equity rules of 1822; is and under which early statute it further promulgat- ed the equity rules now in force. Curiously enough the equity rules were promulgated in March, 1842, only five months prior to the enactment of the very comprehensive provision of the act of August, 1842, which is now vThe Kentucky, 4 Blatchf. 448, Fed. loPatterson v. Winn, 5 Pet. 233, Cas. No. 7,717; Gray v. Chicago, etc. 8 L. ed. 108. R. R. 1 Woolw. 63, Fed. Cas. Xo. n Washington, etc. Co. v. Sickles, 5,713. 19 Wall. 611, 22 L. ed. 203. sSaylor v. Taylor, 77 Fed. 476, 23 lll^^^- rp i t>i i .oa n n \ 343 isMeyer v. Tupper, 1 Black, 526, 17 L. ed. 183. sPoultney v. La Favette, 12 Pet. is See post, § 936. 472, 9 L. e'd. 1161; Meyer v. Tupper, iBAct Aug. 23, 1842, § 6, 5 Stat. 1 Black, 526, 17 L. ed. 182; Hudson 518. V. Parker. 156 U. S. 284. 39 L. ed. i^See act May 8, 1792, c. 36, § 2. 426, 15 Sup. Ct. Rep. 450. isSee 7 Wheat. 5, 5 L. ed. 375. 702 irTocedure] SUPREME COURTS' POWER TO MAKE RULES. § 802 [b] R. S. § 917, supra. The present admiralty rules are of date subsequent to the law of 1842, and hence were promulgated pursuant thereto. The equity and admiralty rules constitute a very complete code of equity and ad- miralty procedure and will be found herein, in the chapters treating those topics. 19 The above provision authorizes the promulgation of rules of practice, but docs not permit the Supreme Court to declare the rule of decision which the courts shall apply. 20 The validity of a few of the rules has been challenged, but all have been uniformly sustained. 1 The power conferred is not only to make rules, but to make them from time to time.2 The rules so made are obligatory on the circuit court,3 and no practice in the circuit court inconsistent therewith is admissible to control them.4 But rules pre- scribed by the supreme court do not exclude other rules and usages of the circuit courts,^ though the latter have no power to make rules inconsistent with the rules prescribed by the supreme court; 6 as, a rule adopting a State law as to the rights and obligations of parties to injunction bonds. Rules prescribed by the Supreme Court have the force and effect of statu- tory provisions. 8 It is of course not competent for the courts to make rules to conflict with an act of Congress. 9 as a rule making judgments or decrees for money a lien on land, or to displace any lien where the same is con- ferred by law. 10 In New Jersey the circuit court has adopted the State equity rules when not in conflict with the Federal rules. n [b] History of Federal equity rules. At the February, 1822, term, the Supreme Court adopted a set of "Rules of practice for the courts of equity of the United States," pursuant to the i9Sec post, §§ 935, et seq. §§ llDo, eStory v. Livingston, 13 Pet. 359, et seq. 10 L. ed. 200: Oaines v. Relf. 15 Pet. 20The Selt, 3 Biss. 344. Fed. Cas. 9. 10 L. ed. fi42 : Bein v. Heath, 12 No. 12.(i49; Barron v. Locke, 7 Leg. How. 168, 13 L. ed. 940; Jenkins v. Int. 203. Fed. Cas. No. 1,054. Greenwald. 1 Bond, 126, Fed. Cas. iln re Providence, etc. S. S. Co. 6 No. 7,270; see also post. § 805. Ben. 124, Fed. Cas. No. 11,451, Ad- TBien v. Heath, 12 How. 168, 13 miralty rule as to limited liability; L. ed. 940. Pierpont v. Fowle. 2 Wood. & M. 23, sThe Delaware, Olcott, 240, Fed. Fed. Cas. No. 11,152, equity rule 32; Cas. No. 3,762; Scott v. The Young Hodge V. Bemis, Fed. Cas. No. 6,557 ; American. Newb. Adm. 107. Fed. Cas. Gardner v. Isaacson, Abb. Adm. 141, No. 12,550: Russell v. The Asa R. Fed. Cas. No. 5.230; The Bremena v. Swift. Newb. Adm. 553. Fed. Cas. Card, 38 Fed. 144; Louisiana Ins. Co. No. 12,144; Gaines v. Travis, Abb. v. Niekerson. 2 Low. 310, Fed. Cas. Adm. 422, Fed. Cas. No. 5,180; The No. 8,539; all respecting admiralty Illinois, 1 Brown Adm. 13, Fed. Cas. rules on arrest and attachment. No. 7.003 ; Northwestern M. L. Co. 2Meyer v. Tupper, 1 Black, 522, 17 v. Keith. 77 Fed. 374, 23 C. C. A. L. ed. 180. 196; American G. Co. v. National P. sPoultnev v. La Favette. 12 Pet. Co. 127 Fed. 349. 472, 9 L. ed. 1161; Ex parte Whit- 9Grav v. Chicago. I & N. R. R. Co. ney, 13 Pet. 404, 10 L. ed. 221. 1 Wool. 63, Fed. Cas. No. 5.173. 4Bank v. White, 8 Pet. 2G2, 8 L. 10 Ward v. Chamberlain, 2 Black, ed. 9.38. 4.':;0. 17 L. ed. 319. 5Van Hook v. Pendleton, 2 Blatchf. nMeader v. Wild West Show, 132 85, Fed. Cas. No. 16,852. Fed. 281. 703 § 803 GENERAL AND MISCELLANEOUS TROVISIONS. [Code Fed. authority conferred by an act of 1792.12 There were thirty-three rules then adopted and they went into force July 1st, 1822.13 The present equity rules were promulgated in March, 1842, and in August of that same year the provision which is now R. S. § 017, supra, was enacted conferring very ample powers upon the courts to make such rules. As originally adopted there were ninety-two rules, the last merely providing "These rules shall take effect and be of force in all the circuit courts of the United States from and after the first day of August next; but they may be previously adopted by an circuit court in its discretion ; and when and as soon as these rules shall so take effect, and be of force, the rules of practice for the circuit courts in equity suits promulgated and prescribed by this court in March, 1822, shall henceforth cease and be of no further force and effect."i4 Only three general eqviity rules have since been added. is The present equity rules are many of them modeled closely after certain English orders in chancery drawn in 1841.16 § 803. — to make bankruptcy rules. All necessary rules, forms and orders as to procedure and for carrying this act into force and effect shall be prescribed, and may be amended from time to time, by the Supreme Court of the United States. § 30 of act .July 1, 1898, c. 541, 30 Stat. 554, U. S. Comp. Stat. 1901, p. 3434. General orders and forms in bankruptcy were adopted pursuant to the above authority, on Nov. 28, 1898 to take effect January 2, 1899. This section has not been deemed to exclude power in the district courts and the circuit court.s of appeals to adopt further bankruptcy rules, and such have been adopted in some districts and circuits. The Supreme C!ourts orders and forms in bankruptcy will be found elsewhere.is § 804. Power of circuit court of appeals to make rules. The [circuit] court [of appeals] shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. 12 Act May 8, 1792, c. 3G, § 2, 1 Manual, p. 4. The rules are also to Stat. . be found in 1 How. 1. I'jQ^^ "7 \n7;,^„f K (3 K T ^A o"" isRulc 92. Dec. term, 186,3, post. isfeee / Wheat. 5-b, 5 L. ed. 6io- „ ,„„.t ^ u- xu • • i J>r. j « — g lOn.i. supplanting the origmal 92nd rule. Rule 93, Oct. term. 1878, post, i4The rules were printed by Rich- § 2022. Rule 94, Oct. term, 1881. ard Peters in the ajipendix to 17 Pet. post. § 9.53. U. S. Rep. 61. wliioh, however, is not isPor reference to the sources from part of the official set because How- which the equity rules were drawn, ard had then succeeded Peters as re- see post, § 937 [b]. porter and the matter in 17 Pet. is all isSee title bankruptcy, post, §§ contained in 1 How. See Lawy. Ref. 2200, et seq, and see Index. 704 I Procedure] CIRCUIT AND DISTRICT COURT RULES. § 803 [a] Part of § 2 act of Mar. 3, 1891, c. 517, 26 Stat. S27, § 2, cl. 2, U. S. Ck)mp. Stat. 1901, p. 547. A set of thirty-four rules was drawn up shortly after the passage of the act of 1891, for the courts in several circuits. These are the basis of ex- isting rules in the several circuits, although they have been supplemented and amended in various ways in different circuits. 20 § 805. Power of circuit and district courts to make rules. The several circuit and district courts may, from time to time, .and in any maner 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 malcing 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 pre- vention of delays in proceedings. t^^"[<^i E. S. § 918, U. S. Comp. Stat. 1901, p. 685. I^a] Related statutory provisions. This section is carried forward from acts of 1793 and 1842.3 A statute creating two divisions in the western judicial district of Michigan, recog- nizes the power of the circuit and district court therein to regulate "by general rule the venue of transitory actions, either in law or in equity,'' and to change the same for cause. 4 The circuit courts are expressly au- thorized to formulate rules governing appeals from the board of general appraisers. s R. S. § 915 regarding attachment and other process in Federal courts provides that the circuit and district courts may "by general rules" adopt any changes that may be made in the local law on the subject. 6 R. S. § 916" confers a similar discretion in the matter of State executive laws. Both these provisions give the Federal court a discretion, and there- fore a latitude in the making of rules, when the State "-'langes its laws touching execution and attachment.8 So also R. S. § 914, with which the above provision must be construed,^ respecting Federal common law pro- •cedure in general, recognizes the power of the circuit and district courts to make rules by requiring conformity only "as near as may be," to the local State practice "any rule of court to the contrary notwithstanding."! This 20See Index. sSce post. ^ nO.T. 2See ante, § 802. ^See post. § 925. 3 Act Mar. 2, 17'93. c. 22, § 7, 1 sSee Lancaster v. Keeler. 123 U. Stat. 3.35: act Aug. 23, 1842. c. 188. S. 376. 31 L. ed. 238. 8 Sup. Ct. Rep. § 6. 5 Stat. 518. 197. 4Soe act June 19, 1878. c. 326. § aimporters. etc. Co. v. Lyons, 134 -2. 20 Stat. 176. U. S. Comp. Stat. Fed. 510. 1901. p. 572. loSee post. § 900. sPost, § 1447. Fed. Proc— 45. 705 § 80r. [b] GENERAT- AND MISCBI-LANEOI'S rilOVISlONS. [Code Fed. last provision, however, whicli was lirst enacted in 1872, I'eslriets the powei- of making rules for common law causes which had previously been granted to the lower Federal courts except as respects attachment and executions, which are governed by R. S. §§ 915, !)l(j. The early process acts pursued the policy of adopting the State procedure a.s existing at a given date, and permitted the Federal courts by rule to adopt later charges in the State practice if they saw fit.n The power to make rules was consequently broader.i2 The effect of R. S. § 914 is to make changes in State practice operative in the Federal courts forthwith, if at all, "any rule of court to the contrary notwithstanding."! 3 I^ the requirement as to conformity ap- plies at all, it applies at once upon tne adoption of the change in the State practice, a conflicting rule of court is abrogated ipso facto. i* This is not true as to change in the State law respecting attachment or executioTi.i* [b] Scope of power to make rules. The extent to which Federal circuit and district courts can still make rules for their practice in common law causes, notwithstanding R. S. § 914, IS not susceptible of precise statement. is As to matters which are covered by specific State statutes or rules of the State courts, it depends upon the phrase "as near as may be," and merges itself in the broader question of the interpretation of R. S. § 914.1" If the subject matter of a State law or State rule of practice is such that it is not in force in Federal courts under the conformity clause, then the fact of its existence does not prevent the making of a Federal rule on the same subject, or abrogate one already made. Many cases deal with State provisions respecting practice that are or are not held in force in the Federal courts,i8 but few have involved an existing ai»d divergent Federal rule. In one case a State law changing and regulating the return time of process was held not to supersede the rules as to the time and place of return of process in the Federal court there sitting.19 Where the Federal court makes a rule notwith.standing an ex- isting State law or State rule, the practitioner is justified in following such rule, because the adoption of the rule evinces an opinion that it is within the discretion conferred by "as near as may be." But every change in the local practice subsequent to a rule raises, anew, the question whether such change does not, under R. S. § 914, change the Federal practice and abrogate the rule. 20 iiSee act May 19, 1828, c. OS, § 1, L. ed. 425. 15 Sup. Ct. Rep. 4.52; 4 Stat. 278. " Osborne v. Detroit. 28 Fed. 385. 1 oc- ^T-11 T) 111 Aii7u„„+ ^oi I'lRppoiblic Ins. Co. v. Williams. S i2See Mills v. Bank. 11 Wheat. 4J], ^. .,L„ ^^ , ^ -vt n ~r.T y, T 1 -i.T J- • • 1 ]• Biss. ,](0. Fed. Cas. No. 11, /07: see 6 L. ed. .t12. sutaming a rule dis- t., • r> i t- n- t- i .,, r f i.- „; .Morrison v. Bernards Twp. 3o Ped. pensing with proof of execution of „„ ^ a bond, not denied under oath ; Pome- .\y , ^^ , ,_„ ,, ., oi 4 r) „,i 1 \n7„ii n(\o 17 T i'J..amaster v. Keeler. 123 L. S. rov V. State Bank. 1 Wall. 5!)2. 1/ L. .,_,, „. ^ , £,„„ _ „ r<4. t> o/it V ^oo 1 i If -^'b. 31 L. ed. 238. 8 Sup. Ct. Rep. 247. ed. 638, rule as to common law form ,.c n oi i * i of bill of excentions ^^^ generally, Shepard v. Adams, ot Dill ot exceptions. ^^g ^^ ^ ^^5. 42 L. ed. 604, 18 Sup. isRosenbach v. Dreyfuss. 2 Fed. Ct. Rep. 214. 23: Ricard v. New Provid'ence. 5 Fed. iTSee post. § 900. 433; Republic Ins. Co. v. Williams, ispost, § 900. 3 Biss. 370, Fed. Cas. No. 11.707: 1 "Ewing v. Burnham, 74 Fed. 384. Hudson v. Parker, 156 U. S. 281, 39 2 "Republic Ins. Co. v. Williams, 3 706 I'loeiHluie] CIRCT'lT AND DISTIUOT COL'UT RULES. § 80.J [bl As respects matters not tovered by specilic State statute or State rule, the Federal circuit and district courts undoubtedly have power to adopt rules of practice in common law causes not inconsistent with the Federal Constitution and laws. Congress did not intend "to place the courts of the United States in each State, in reference to their own practice and pro- cedure, upon the footing merely of subordinate State courts, required to look from time to time to the Supreme Court of the State for authoritative niles for their guidance in those details."2 They may adopt a rule for hear- ing issues of law within five days instead of at the next term, if there be no State statute to the contrary, 3 and merely a State practice not based upon statute or written rule.* They are not bound by the construction a State supreme court puts upon a law regarding practice.s Xor are they bound by general State decisions upon questions of practice which are not in construction of specific statutes. 6 They have power, in the absence of any State law, to make a rule respecting special appearance providing that the party agree to appear generally if the piirpose of the special appear- ance is not sanctioned or allowed by the court. v They may adopt a rule which includes and goes further than the State law as to mode of service of process. 8 The details of the methods of doing the business of Federal '■ourts is still under their control and may be governed by their rules. 9 The power to require printed briefs has been upheld ;io and to dispense with proof of instruments in suit where execution not denied. n The power of tlie circuit courts to make rules in equity is considered elsewhere. 12 Power to make admiralty rules is derivable from R. S. § 918.13 Undoubted- ly these must be consistent with the admiralty rules promulgated by the Supreme Court. Rules respecting the making up of the trial calendar :i-» and for the collection and disposition of moneysis have been upheld by nisi prius decisions. Bi.ss. 370. Fed. Cas. No. 11.707. TTpon appeal the suprcTue court lias as- siimed that a failure to change a rule after change in tne State law was nursiiant to the discretion conferred by "as near as mav be." Shepard v. Adams, IfiS U. S. 627, 42 L. ed. 002. IS' Sup. Ct. Rep. 214. 2Erstein v. Rothschild, 22 Fed. (51. 3But if there is a statute, it should be followed: Rosenbacli v. Drevfuss. 2 Fed. 2.3: Republic Ins. Co. v." Wil- liams. .3 Biss. 370. Fed. Cas. No. 11,- 707: Osborne v. Detroit. 28 Fed. 385. 4T-:rstein v. Rothschild. 22 Fed. 01. 5 See ante. § 10 [ 1 fiWall V. Chesai)eake & O. Rv. 95 Fed. 398. ihi C. C. A. 308; Sanford v. ^Alahr v. Union P. R. R. 140 Fed. 925. sLowry \\ Story. 31 Fed. 771. sEwing V. Buriiliam, 74 Fed. 384. lONefT V. Pennover, 3 Sawv. 335, Fed. Cas. No. 10. 184. 11 Mills V. Ignited States Bank. 11 Wheat. 431. 6 L. ed. 512. i2Post, S S06. 13 Norton v. Rich. 3 ^ilason. 443. Fed. Cas. No. 10.352; The Epsilon. Ben. 378. Fed. Tas. No. 4.50(i ; The Alice Tainter. 14 Blatchf. 225. Fed. Cas. No. 196. KScott V. The Young Ainerican. Newb. 107. Fed. Cas. No. 12.5.30: Ward V. Chamberlain. Fed. Cas. No. 17.152. isThe Alice Tainter, 14 Blatchf. Portsmnnth, 2 Flipp. 105, Fed. C^is. 225. Fed. Cas. No. 196; The Laurens, No. 12.315. 1 Abb. Adm. 508, Fed. Cas. No. 8,1_2. 707 § 8051/2 GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. [c] Rules need not be in writing. The rules of tlie circuit and district courts have not always been formal or in writing.i" Uniform practice through a series of years, and judicial decision may constitute suflicient evidence of the existence of a rule. is § 8051/2- — to make rules in admiralty. In all cases not provided for in the foregoing rules, [i. e. the general admiralty rules promulgated by the Supreme Court] the district and circuit courts are to regulate the practice of the said courts respectively in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. 4Gth admiralty rule. § 806. Circuit courts' power to make rules in equity. The circuit courts (a majority of all the judges thereof, including the justice of the Supreme Court, the circuit judges, and the district judge for the district concurring therein) may make any other and iurther rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts, not inconsist- ent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. 89th equity rule, as amended Apr. 16, 1894, 152 U. S. 710. R. S. § 9181 applies to equity cases as well as common law causes. Tn addition the equity rules promulgated by the Supreme Court contain the above delegation to the circuit courts of power to make further regulations. The power would seem to flow more logically from R. S. § 918, than from the above rule, as it is not perceived that the section authorizing the Su- preme Ck)urt to make equity rules empowers them to delegate that function to the circuit courts. In any event the existence of power in the circuit courts to make rules in equity not inconsistent with any law of the United States or with any rule of the Supreme Court and subject to the right of the Supreme Court to supersede or alter the same at any time, cannot be questioned. 2 The scope of the circuit court's power to establish rules in equity is quite carfully examined by Blatch- ford, J., in a case sustaining the power to adopt the State attachment law iTLowrv V. Story. 31 Fed. 771. 7.924: Sellers v. Corwin. 5 Ohio. 398; isFullerton v. 'Bank. 1 Pet. 604. 24 Am. Doc. .301 ; Wall v. Chesapeake 613, 7 L. ed. 280; Duncan v. United & 0. Rv. m Fed. 403: Valorino v. States. 7 Pet. 43.5. 4.il. 8 L. ed. 739: Thompson. 28 Fed. Cas. 867: Citizens United States v. Douglass. 2 Blatchf. Bank v. Farwell. 56 Fed. 574, 6 C. C. 214. Fed. Cas. No. 14.989; United A. 24. States V. Stevenson, 1 Abb. U. S. 495, lAnte, § 805. Fed. Cas. No. 16.395; Koning v. 2Steam S. C. Co. v. Jones, 13 Fed. Bayard, 2 Paine, 251, Fed. Cas. No. 581, 21 Blatchf. 138. 708 Proceduiej I'OWER TO I'UXISH CONTEMPTS. § 807 [a] to govern the issue of writ of sequestration as mesne process in equity. a The circ-uit court cannot, however, make equity rules inconsistent with those of the Supreme Court; 4 nor has it power to rescind the rules made by the Supreme Court. 5 Yet it has power to relieve a party in a particular case against a requirement of the rules, as to time for pleading, that would work a hardship; 6 and it may refuse to dismiss though complainant is technically in default under the equity rules." § 807. Power to impose oaths and punish contempts. The said courts [i. e. courts of the United States] shall have pow- er to impose and administer all necessary oaths, and to punish. l)y fine or imprisonment, at the discretion of the court, contempts of their authority if^^'f"^^ provided, that such power to punish contempt- shall not be construed to extend to any cases except the misl^ehavior of any person in tlieii- 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 transaction,^'^^ 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. '^^^"'^'^ R. S. § 725, U. S. Comp. Stat. 1901, p. 583. [a] History of the statutory provision. The original judiciary act invested the Federal courts with "power to punish by fine or imprisonment at the discretion of said courts, all con- tempts of authority in any cause or hearing before the same."io An act of 183111 qualified the broad language of the original provision by declar- ing that •"tiie power of the several courts of the United States to issue at- tachments and inflict summary punishments for contempt" should not ex- tend to the cases mentioned in the foregoing proviso of R. S. § 725. R. S. § 725 is framed from these two enactments, though it will be noted that the word "summary" is omitted from the present law. It has been decided however, that the courts may still proceed summarily notwithstanding the omission.i2 The purpose of the qualification introduced by the act of 1831 has been said to be the prevention of punishment of newspaper criticism as "Steam Stone L. Co. v. Jones. 13 TRyan v. Seaboard & R. R. Co. SO Fed. 581. 21 Blatchf. 138. Fed. '403: Electrolibration Co. v. ■«Bank of U. S. v. Wliito. 8 Pet. 202, Jackson. .52 Fed. 773. 26<>. 8 L. ed. 940. 941 : Northwestern lOAct Sept. 24. 1789. c. 20. § 17. M. L. I. Co. V. Keith. 77 Fed. 375, 23 1 Stat. 83. C. C. A. 196. and cases cited. iiAct March 2. 1831. c. 99. 4 Stat. s.Tenkins v. Greenwald. 1 Bond, 127, 487. Fed. Cas. No. 7.270. isEilenbccker v. Plvmouth Co. 134 fiPoultnev v. La Fayette, 12 Pet. U. S. 37. 33 T>. ed.' 804. 10 Sup. 472. 9 L (>d. IIGI. Ct. Rep. 420: Ex parte Terry, 128 709 S SOT LbJ GI:\I:i;A1, and .MISCELLAXKOIS I'UOVISIONS. [Code Fed. a conteiu])! ot' court, i" pursuant to early decisions. n The act of 1831 also made the offense of obstructing the administration of justice a crime against the United States and that provision is now R. S. § 53!)y. The statutory provisions respecting letters rogatory provide that "If any person shall re- fuse 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 bo incurred for a like offense on the trial of a suit in the district court of the Llnited States."i5 Other provisions for enforcing attendance and testimony of witnesses are contained in another chapter of this work.ifi [bj Nature and limitations of Federal contempt power. The Federal courts possess inherently a power to punish for contempt, just as do other courts. is The above section, hawever, defines and limits the extent of the power exercisable by them. 19 It has been doubted whether those limitations apply to the Supreme Court, since its powers are tlerived from the Constitution and not from Congress. 20 But they apply to the courts created by Congress and as much when sitting in equity, as at law.i Since it provides punishment by line or imprisonment, the court has no power to punish in other manner, as, by disbarment; 2 although the same acts might constitute ground for disbarment proceedings. 3 The fact that the act committed is also indictable, does not oust the right to punish it as a contempt if within the terms of R. S. § 725.4 The section should not be construed as extending the inherent contempt power of the courts to matters which do not constitute contempt, although possibly within its r. S. 289, 32 L. ed. 405, 9 Sup. Ct. Rep. 77: Ex parte Savin, 131 U. S. 267. 33 L. ed. 153. 9 Sup. Ct. Rep. (599: In re Neagle. 14 Sawv. 267. 3£> Fed. 857, 5 L.R.A. 91. isUnited States v. Anon. 21 Fed. 768; In re Mav, 2 Flip 562. 1 Fed. 742; Ex parte McLeod, 120 Fed. 130. 14 See Hollingsworth v. Duane. Wall. C. C. 77. Fed. Cas. No. 6.616; Ex parte Poulson, Fed. Cas. No. 11,- 350: Morse v. Montana Op. Co. 105 Fed. 337. 15R. S. § 40. 73. U. S. Comp. Stat. 1901. p. 2764. i6See generally, post. SS 1742. et seq. isUnited States v. Hudson. 7 Cranch. 32, 34. 3 L. ed. 260; In re Nevitt, 117 Fed. 455, 54 C. C. A. 622: Ex parte Robinson, 19 Wall. 506. 22 Tj. ed. 205 ; United States v. New Bedford Bridge. 1 Wood. & M. 401, Fed. Cas. No. 15,867; In re Neagle. 14 Sawv. 267. 39 Fed. S57. 5 L.R.A. 91. i9Ex parte Robinson, 19 Wall. 506. 22 L. ed. 205; Savin. Petitioner. 131 U. S. 276, 33 L. ed. 153, 9 Sup. Ct. Rep. 701 ; Kirk v. Milwaukee, etc. Co. 26 Fed. 505; Hovey v. Elliott, 145 N. Y. 136, 39 N. E. 842. 39 L.R.A. 460: Bridges v. Sheldon, 18 Blatchf. 518. 7 Fed. 17. 20Ex parte Robinson. 19 Wall. 506. 22 L. ed. 205. iKirk V. Milwaukee, etc. Co. 26 Fed. 505. 2Ex parte Robinson. 19 Wall. 506. 22 L. ed. 205. ^United States v. Green. 85 Fed. 860. 4Ex parte Savin, 131 U. S. 275, 33 L. ed. 153. 9 Sup. Ct. Rep. 699; In re Brule, 71 Fed. 946; United States v. Terry. 14 Sawy. 427, 41 Fed. 773: Hillmon v. Mutual L. I, Co. 79 Fed. 750. 710 Procedure] POWER TO PL'MSIi COXTKMl-TS. S 807 [c] terms.5 Subordinate tribunals or officers such as commissioners have no power to punish for contempt, 6 nor is there such a thing as contempt of an administrative body or officer in the absence of statute.' A commis- sioner has no power to deny parties a right to be represented by counsel in advance of any judicial ascertainment of an alleged contempt. *> Xo other court than the one whose dignity is offended by the disobedience or mis- behavior, has jurisdiction to punish a contempt. 9 Hence a contempt prior to removal must be adjudged in the State court. lo [c] Misbehaviour in courts presence or obstructing its functions. The Supreme Court has decided that the court while in session is present, within the meaning of this section, in every part of the place set apart for its use and the use of its officers, jurors and witnesses. 12 So that there may be contempts in the presence of the court in this sense which are not actually under the eye or within the view of the judge. Accordingly an at- tempt to bribe a witness from testifying, made in the hallway adjoining the court room and repeated in the w'itness room has been punished as con- tempt in the court's presence.is Abusive language in the court room.i-t or resisting removal from the court room by the marshal acting by the court'.s nrder,i5 or oommitting an assault at the entrance, 1 6 or misbehavior of a witness before a jury.i" all present plain cases of misbehavior in court. Misbehavior upon a piazza into which the windows of the court room open has also been held to be in the court's presence.is Service of process in an;^ther cause upon a suitor attending a term of court, is contempt if in the actual or constructive presence of the court, but not otherwise. i" 5Matter of Atlantic M. L. Ins. Co. n Ben. 337. Fed. Cas. Xo. 629. sin re Perkins. 100 Fed. 950: Ex- pa rte Perkins, 29 Fed. 905. "Interstate Com. Comrs. v. Brim- son, 154 U. S. 447. 38 L. ed. 1047, 14 Sup. Ct. Rep. 1125: see In re Chad- wick. 1 Low. 439, Fed. Cas. Xo. 2, 570; Matter of :Meador. 1 Abb. 317, Fed. Cas. Xo. 9.375. ^Johnson v. Southern Bldg. Co. 99 Fed. 64f). •'X"ew Orleans v. Xew York M. Co. 20 Wall. 387. 22 L. ed. 354: Bovd v. I'nited States. 116 U. S. 610. 29 L. ed. 746. 6 Sup. Ct. Rep. 524; In re Debs. 158 U. S. 564. 39 L. ed. 1092. 15 Sup. Ct. Rep. 900: In re Ellerbe. 4 McCrarv, 449. 13 Fed. nZO: Ex parte Broadley. 7 W:ill. 364, 19 L. ed. 214: United States v. (Ireen, 85 Fed. 859; In re Litchtield. 13 Fed. S63; In re X'evitt, 117 Fed. 448. 54 C. C. A. 622. loKirk V. Milwaukee. D. C. Co. 26 Fed. 501 ; Voorliees v. Albright. 2 X. J. L. J. 57. Fed. Cas. Xo. l(i.999. 12E.X parte Savin. 131 l". S. 277. 33 L. ed. 153, 9 Sup. Ct. Rep. 699 : Tn re Brule. 71 Fed. 947. i3Ex parte Savin. 131 V . S. 276. 33 L. ed. 153. 9 Sup. Ct. Rep. 699; see In re Cuddv. 131 U. S. 280. 33 L. ed. 154, 9 Sup. Ct. Rep. 703. i^United States v. Emers(m. 4 Cranoh. C. C. 188. Fed. Cas. Xo. 15.- 050: United States v. Carter. 3 Cranr-h. C. C. 423. Fed. Cas. Xo. 14.- 740. i3ln re Terrv. 13 Sawv. 456. 36 Fed. 419. isUnited States v. Emerson. 4 Cranch. 188. Fed. Cas. Xo. 15.050. 1 "United States v. Caton. 1 Cranch. C. C. 150. Fed. Cas. Xo. 14.758. iJ^United States v. Carter. 3 Cranch. 423. Fed. Cas. Xo. 14.740. 1 'Blight V. Fisher. Pet. C. C. 41, Fed. Cas. Xo. 1.542. In Bridges \. Sheldon. 7 Fed. 43. 46. service in a new case was made upon a suitor at- tending the taking of depositions oe- fore a court commissioner: and the court held it a conteii'pt in>r)ii the thoorv that it was virtiiallv dis- ■11 § SOT [d] GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fea. There is some question whether misbehavior so near '"as to obstruct the administration of justice" means merely physical disturbance in the vicinity, interrupting the quiet of the court while in session, and hindering the transaction of its business, or would include misbehavior tending to ob- struct justice in a more figurative sense. 2 In the latter view it has been lield a contempt to bribe a witness in a cause though the bribery was not in or near the court rooms and to assault a court commissioner upon the highway, for official acts; 4 and perhaps contempt for a juror to talk about a case though the court has failed to admonish him not to; 5 or to form an opinion after subpoena in order to disqualify himself. 6 While another case has held that writing of letters by a State insurance commissioner re- specting the fairness of litigation cairied on by certain companies could not be deemed an obstruction of the administration of justice within this section;'' and another that publication of libelous or slanderous matter re- specting the court or its proceedings is not contempt within this clause, s The supreme Court has declared that the bringing of a pretended and fictitious controversy before it for decision is a grave contempt of court. 9 The fact that the misbehavior primarily involved merely a court examiner or commissioner,! or the baliff,ii or the grand jury,i2 or a bankruptcy register or referee, 13 does not make it any the less a contempt of court. [d] Omcial misbehavior of court officers. The cases holding that attorneys may be punished by contempt proceed- ings for failure to pay over or account to clients for money received or col- lected,! 5 and for insulting an examiner with abusive language upon the street and fittempting to control the testimony given.! 6 would seem to come within this clause. In other words attorneys are court officers.! 7 So obedience of the order for taking the depositions, and not upon the theory of misbehavior in the court's pres- ence. This question is to be distin- guislied from the question of privi- lege and the remedy by quashing the service: Atchison v. iMorris. 11 Fed. 583. 11 Biss. 191: Lamed v. Griffin. 12 Fed. 502: Parker v. Hotchkiss, 1 Wall. 269, Fed. Cas. No. 10.739. 2See United States v Anon, 21 Fed. 769. 3 In re Brule. 71 Fed. 948. 4 Ex parte McLeod, 120 Fed. 130. 5ln re May, 2 Flip. 562, 1 Fed. 737. sUnited States v. Devaughan, 3 ('ranch. C. C. 84. Fed. Cas. No. 14, 952. "Hillmon v. Mutual L. I. Co. 79 Fed. 749. sMorse v. Montana 0. P. Co. 105 Fed. 337. See supra, note[a]. How- ever, the court may exclude reporters from the courtroom : United States 71 V. Holmes, 1 Wall. Jr. 1. Fed Cas. No. 15.383. fTxjrd V. Veazie. 8 How. 254, 12 L. ed. 1070; Cleveland v. Chamber- lain, 1 Black, 419, 17 L. ed. 93. lOUnited States v. Anon, 21 Fed. 770: Ex parte McLeod. 120 Fed. 141. iiOffutt V. Parrott, 1 Cranch, C. C. 154, Fed. Cas. No. 10.453. !2United States v. Caton, 1 Cranch, C, C. 150. Fed. Cas. No. 14.758. !3ln re Allen . 13 Blatchf. 271, Fed. Cas. No. 208: In re Spever, G Nat. Bank Reg. 255, Fed. Cas." No. 13,239. !5.Jefrnes v. Laurie, 27 Fed. 199; In re Paschal, 10 Wall. 491, 19 L. ed. 992. But an order which in ef- fect is a final judgment for money cannot be enforced bv contempt: In re Atlantic M. Ins. Co. 17 Nat. Bank B. Reg. .3.118. Fed. Cas. No. 629. leUnited States v. Anon. 21 Fed. 771. 17 See United States v. Anon, 21 2 rrocedurej I'OWEK TO I'UNISH CONTKMl'TS. S 807 [ei- deputy marshals may be attached for failure to pay over moneys received where there is no disobedience of any specific order, but mere misbehavior.i^ And grand jurors as court officers may be punished by contempt for mis- behavior,! 9 such as discussing matters with persons outside the grand jury room. 2 It is also held that jailers may be punished for contempt, for in- flicting cruel punishment; 2 and that a bank which is a court depository may be liable for contempt, though not its servants or agents.s Resig- nation from office does not oust jurisdiction to proceed for a prior con- tempts [ej Disobedience of or resistance to writ, process, order, etc. These are the most frequent occasions for contempt proceedings. It is- contempt for witnesses to disobey the subpoena summoning them to appear before a court,6 or before a master or commissioner," and it may be a con- tempt to refuse to answer proper questions. 8 But failure to attend may be excused bj' showing sickness; 9 and an interpreter or expert will not be com- mitted except in case of necessity.io Contempt proceedings will also lie under this section for disobedience by court oftieers and attorneys of ordcr-^ to pay costsii or to pay over moneys collected. 12 Orders to a bankrupt to surrender up property may be enforced by contempt proceedings,! s and a bankrupt receiving money which should be paid to the assignee is guilty of contempt.! 4 But a stipulation though made in open court is not an order of court within R. S. § 725.15 The order disobeyed must be a valid one aiid want of jurisdiction will entitle a committed contemnor to release on habeas corpus.! 6 The sureties on a stipulation in admiralty cannot be compelled to pay by contempt proceedings;!" and any order for payment of money Fed. 771. and cases cited; Ex parte Davis. 112 Fed. 139. isUnited States v. :\rann. 2 Brock, n. Fed. Cas. No. 15.716 :Bagley v. Yates. 3 McLean, 46.5. Fed. Cas.' No. 725: The Laurens. Abb. Adm. 508, Fed. Cas. No. 8.122. !9T"nited States v. Kilpatrick, 16 Fed. 765. 20ln re Summerhaves. 70 Fed. 769. 2ln re Birdsong, 'sO Fed. 599. 4 L.R.A. 628. ^Southern Dev. Co. v. Houston, etc. R. R. 27 Fed. 344. ■iThe Laurens. Abb. Adm. 50S. Fed. Cas. No. 8.122. 6V0SS V. Luke. 1 Cranch. C. C. 357, Fed. Cas. No. 17.014: In re Ellerbe, 4 McCrarv. 449. 13 Fed. 5.30: Car- man V. Emerson. 71 Fed. 264. 18 C. C.A. 38. Tin re SpofFord. 62 Fed. 443: In re ■Tiidson. 3 Blatchf. 148. Fed. Cas. No. 7.563: see R. S. § 4073, quoted supra note [a]. ^Roberts v. \Yalley. 14 Fed. 167: United States v. Caton. 1 Crancli. C. C. 1.50 Fed. Cas. No. 14.758: see Clark v. Wilson. 33 Fed. 331. 9 Ex parte Beebes. 2 Wall. Jr. 127. Fed. Cas. No. 1.220. iPin re Roelker. 1 Sprague, 276. Fed. Cas. No. 11.905. i!Boorart v. Electrical S. Co. 23 Blatchf. 552, 27 Fed. 722. mLatter of Pitman, 1 Curt. 186. Fed. Cas. No. 11,184. i3ln re Purvine. 96 Fed. 194. 37 C. C. A. 446: Wayne K. Mills v. Nugent. 104 Fed. 530: In re Dresser. 3 Nat. Bank Reg. 557, Fed. Cas. No. 4.077. i4Tn re Havden, 7 Nat. Bank Reg. 192. Fed. Cas.' No. 6.257. !-.Ex parte Buskirk. 72 Fed. 14, 18 C. C. A. 410. i6Ex parte Fisk. 113 I'. S. 713, 2S L. ed. 1117. 5 Sup. Ct. Rep. 724. !7The Bhniclie Page, 16 Blatchf. 1, Fed. Cas. No. 1..-)24. 13 S S(I7 [fj (iEXKUAL AND MISCELLAxXEOUS PROVISIONS. [Code Fed. which amounts uuToly to a money judgment cannot be enforced by con- tempt proceedings in States where imprisonment for debt is abolislied.is [f] — injunction and mandamus orders and decrees. Disobedience of an injunction order is piuiisliable as contempt. ^ So also is disobedience of a mandanuis.2 A restraining order must be obeyed in its fntirety until modified. 3 It is no less a contempt that the disobedi'-nco was the result of negligence and not deliberate. 4 It is necessary that th- parties have actual notice or the circumstances be such as to charge them tliere- \vith;E> and if there is doubt upon that point the contempt proceedings should be dismissed. 6 All persons having knowledge of the injunction or- - 2 L.R.A. 229: Cioodrich v. United U. S. 564. 39 L. ed. 1092, 15 Sup. Ct. States. 42 Fed. 392. Ren 900 iFanshawe v. Tracv, 4 Biss. 490. i3Ex parte Terrv. 128 U. S. 289. ff-'''%^^:j;^f\t^'''^,f"%"' 32 L. ed. 405. 9 Sup. Ct. Rep. 77; Ex ^l"^^/' Wa^^- ^- C. 134 Fed Cas Iso parte bavin, 131 US. 267, 33 L. ed. «/f ' J-V""!^ T' r '^ r-^^i'm t 150. 9 Sup. Ct. Rep. 699. ^^^^^IT- f '^•/,^;^ p^^^^" ^j^o^" ,^i.\" ^ ^ re Lllerbe, 4 ^IcCrarv, 449. 13 hi'd. i4Ex parte Savin. 131 U. S. 278, 53Q 3.3 L. ed. 153. 154, 9 Sup. Ct. Rep. 2Fischpr v. IIa\-¥s. 19 Blatchf. 13.6 69.9. Yo<]. 71. i5See Ex parte Savin. 131 U. S. ^Secor v. Sinde.ton. 35 Fed. 376. 278, 33 L. ed. 153, 154, 9 Sup. Ct. 4 See United States v. Debs, 64 Fed. R«p. 699. 725. 716 FiueedureJ POWEK TO PUNISH CONTEMPTS. § 807 [i] [i] — hearing, punishment and appeal. The court is bound by no leelinical rules in the hearing of contempt proceedings. It may ascertain the facts in any fair mode of procedure, T and without the intervention of a jury.s Affidavits are admissible. 9 In cases of criminal contempt it it the rule of common law courts, apparently prevailing in the Federal courts in common law causes,io that the con- tenmer's sworn answer denying the charge must be taken as true. In equity and bankruptcy this rule does not obtainjH though it is necessary to prove the accused's guilt clearly and to the satisfaction of the court. 12 The court may punish by fine or imprisonment, but not by disbarment. 1 3 In case of a corporation in contempt, the punishment may be intlicted either by way of fine on the corporation, or fine or imprisonment of the guilty agent. I'l The court has power on inflicting a fine to order the de- fendant to stand committed until it is paid.is It has been held that the ■court punisliing a contempt may modify, suspend, or relieve against the penalty imposed; is but there is a difference of opinion as to the power of the executive to grant relief under the pardoning power.ie It has been uniformly held that a judgment in contempt proceedings is not reviewable in the Supreme Court either by appeal or error.is though appeal lies from a decision in habeas corpus in a contempt case. 1 "J But there is a right of review in the circuit court of appeals, and when the con- temnor is not a party to the suit in which the contempt occurs and the contempt judgment cannot be regarded as interlocutory to any other cause, it is a final reviewable judgment. 20 Error and not appeal is the proper mode of review. 1 The Supreme Court may, however, review by writ of error a circuit court's judgment for contempt, where questions arising un- der the Constfltution are involved. 2 Tin re Savin, 131 I". S. 27S. 33 L. Fed. Cas. Xo. 9.911; In re Mason, •ed. 153. 1.54. 9 Sup. Ct. Rep. 699. 43 Fed. 515; In re Xevitt, 117 Fed. sSupra. note[h]. 448. 54 C. C. A. 622. 9ln re Judson, 3 Blatchf. 148. Fed. isEx parte Kearnev. 7 Wheat. 38. 5 Cas. Xo. 7.563. L. ed. 391 ; Xew Orleans v. Xew York. loBoyd V. Gucklich. 116 Fed. 141. etc. Co. 20 Wall. 387. 22 L. ed. 354: 53 C. C. A. 451: In re May. 2 Flip. Haves v. Fischer, 102 U. S. 121, 26 562, I Fed. 743; United States v. L. ed. 95; Ex parte Fisk. 113 U. S. Dodge. 2 Gall. 31.3, Fed. Cas. Xo. 14,- 713, 28 L. ed. 1117. 5 Sup. Ct. Rep. 975; matter of Pitman. 1 Curt. 186, 724; Bessette v. W. B. Conkey Co. 194 Fed. Cas. Xo. 11.184. U. S. 335. 48 L. ed. 1004, 24" Sup. Ct. iiBoyd V. Cucklicli. 116 Fed. 141. Rep. 665. 53 C. C. A. 451 ; See I'nited States v. ifin re Debs. 158 U. S. 564. 39 L. Anon, 21 Fed. 767. 708. discussing the ed. 1092, 15 Sup. Ct. Rep. 900: In re authorities. Savin, 131 U. S. 273. 33 L. ed. 152, i^rnited States v. Atchison, etc. 9 Sup. Ct. Rep. 699; Ex parte Kear- R. R. 16 Fed. 853; In re Judson. 3 nev. 7 Wheat. 38. 5 L. ed. 391. Blatchf. 148. Fed. Cas. Xo. 7..5()3: 2oBessette v. Conkev Co. 194 V. S. Sabin v. Fogarty, 70 Fed. 483. 324. 48 L. ed. 997. 24 Sup. Ct. Rep. i^Supra. note [b] 665. I'tT'nited States v. Menipliis. etc. ilhid: Bessette v. Conkev. 133 Feil. R. R. 6 Fed. 237. 165. 66 C. C. A. 291. 1 "Fischer v. Haves. 19 Blatchf. 13, 2See Nelson v. United States. 201 C Fed. 72. ' U. S. 98. .10 L. ed. 674. 20 Sup. Ct. leSee In re ilullee. 7 Blatchf. 23. Hep. 358. 717 §808 GENERAL AND MISCELLANEOUS ' PROVISIONS. [Code Fed. § 808. Contempt power of Court of Claims. The said court [i. c. the Cmirt of Chiiius] . . . may punish for contempt in tlie manner prescribed by the common law. Part of R. S. § 1070, U. S. Conip. Stat. 1901, p. 740. § 809. Bankruptcy courts' power to punish for contempt. Tlie courts of bankruptcy as hereinbefore defined, viz.. th(> dis- trict courts of the United States in the several States, tlie Supreme Court of the District of Columbia, the district courts of the several Territories, and the United States courts in the Indian Territory, and the District of Alaska . . . are hereby invested, within theii- respective territorial limits . . . with such jui'isdiction at law or in equity as will enal)le them . . . to . . . ^'-^ enforce obedience by bankrupts, officers and other persons to all law- ful oi'ders. by fine or imprisonment or fine and imprisonment . . .^"^ punish persons for contempts committed before referees. Part of § 2 act .July 1, 1S98, c. 541, 30 Stat. 545, 546, U. S. Comp. Stat. inoi. p. :M20. § 810. Contempts before bankruptcy referees. A person shall not, in proceedings before a referee.^ disobey or resist anv lawful order, process or writ ;- misbehavior during a hear- ing or so near the place thereof as to obstruct the same :•" neglect to produce, after having been ordered to do so, any pertinent docu- ment, 01"* refuse to appear after having been sul)])oe]Uied. or, upon appearing, refuse to take the oath as a witness, or, after liaving taken the oath, refuse to be examined according to law: Provided, tliat no person shall be required to attend as a witness before a ref- eree at a place outside of tlie State of liis residence, and more than one hundred miles from such place of residence, and only in ca^e his lawful mileage and fee for one day's attendance, shall be first paid or tendered to him. The referee shall certify the fact^ to the judge, if any person shall do any of the things forbitlden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of. and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcv, or commit such person upon the same conditions as if the doing of tlie forbidden act had occurred with reference to the process of, or in the presence of, the court. 718 Procedure] FORMAL DEFECTS OF PROCEDURE DISREGARDED. § 8i:j § 41 ot act .hily. ], 189S, f. 541, 80 Stat. 550, U. S. Cornp. Stat. 1901, p. 3437. Tliis provision is declarator}' in its nature and compiises merely the rec- ognized subjects for the exercise of the contempt power.4 The punishment must be by the court and must not be left to the discretion of the referee. 5 Contempt proceedings have been resorted to in enforcing orders to a bank- rupt to surrender ])roperty,6 or similar orders directed to third persons." § 811. Contempt proceeding against defaulting garnishee. Jf any person summoned as garnishee, as aforesaid, [i. e. in a suit by the United States against a corporation] fails to appear at the term of the court to wliich he is summoned, he shall be subject to iittacliment for contempt of the court. R. S. § !)37, U. S. Comp. Stat. 1901, p. 690. § 812. Contempt of order to appear before Commerce Commis- sion. Any failure to obey sucli order of the court [i. e. an order issued by the circuit court requiring a refusing common carrier to appear before the Interstate Commerce Commission and produce books, etc.] may be punished by such court as a contempt thereof. Part of § 12, act Feb. 4, 1887, c. 104, 24 Stat. 383, as amended Mar. 2, 1889. and Feb. 10, 1891, V. S. Comp. Stat. 1901, p. 3162. The lefusal to answer the summons of the Commission is not a con- tempt because it is a mere subordinate administrative body; an order of court and disoljedience thereto, are essential. 9 i^ 813. Formal defects of procedure disregarded — amendments permitted. jVO summons, writ, declaration, '^'^^ return, process, ^^^^ judgment,^'^ or other proceedings'^*'^'^'^^ in civil causes, in any court of the United States, f""] shall be abated, arrested, quashed or reversed^^^'^"^ for any defect or want of form ;^^^^ but such court shall proceed and give judgment according as tbe right of the cause and matter in biw shall appear to it, witliout regarding any such defect, or want of form, except those M-hich, in cases of demurrer, tlie party de- 4Bovd V. Gucklicli. lit) Fed. 135, "Mueller v. Nu^fnt. 181 V. S. 1, 53 C. C. A. 451. 46 L. od. 405. 22 Sup. (^t. Rep. 209. sSmith V. Belford. 10(! Fed. 658. slnterstate Com. Com. v. Brimsoii, 45 C. C. A. 526. 154 U. S. 447. 38 L. ed. 1047, 14 Sup, 6Tn re Purvine. 96 Fed. 194. 37 C. Ot. Rep. 1125. C. A. 446 : In re Levin, 113 Fed. 498. 719 § 813 [a] GENERAL AND MISCELLANEOUS PROVISIONS. [Code FoJ. murring .specially sets down ^^^ together with his deinurrer, as the cause thereof; and such court shall augend every such defect and want of form, other than those which the party demurring so ex- presses; and may at any time^f°^ permit either of the parties to amend any defect in the process"^*^^ or pleadings/^^""^"^ upon such conditJons^P^ as it shall, in its discretion'^'i^ and by its rules, j.re- scribeJ^^-™ R. S. § !)o4, U. S. Coiiip. Stat. 1901, p. 000. |a] History and general construction of provision. The foregoing provision was originally section thirty-two of the judici- ary act of 1789.12 In 1872 a further enactment was passed, respecting the amendment of process in the circuit and district courts, and that pro- vision is now R. S. § 948.13 R. S. § 954 is similar to the ancient English statute of Jeofails,! 4 and the Supreme Court has in some cases declared that it is no broader than that statute, is although in others, 1 6 and in the opinions of justices of that court sitting on circuit, 1 7 there has been a disposition towards great liberality in its construction and application.! 8 Differences of opinion upon this point have resulted in part from the in- fluence of the local state practice in individual cases, and in part from the verbal differences between the first and the last portions of the section. While the first declaration that defects of form shall not effect a dismissal or reversal applies to all the proceedings in a cause and to all stages there- of including appeal, the final clause permitting amendment of "process or pleadings" upon such conditions as the court shall prescribe, permits very broad powers of amendment,! 9 broader than were allowable under the English statute, but restricted to "process or pleadings," thus excluding verdict judgment and proceedings on appeal, and inferentially contemplat- ing only amendments before judgment and by the trial court while the case is in fieri. 20 There is plainly a difference in the extent of the powers !2Act Sept. 24, 1789. c. 20. § 32, 1 509; Dancel v. United S. M. Co. 120 Stat. 91. Fed. 839; Bowden v. Burnham, 59 isSee post, § 840. Fed. 752. 8 C. C. A. 248; Smith v. 1432 Hen. VIII. Railwav Co. 5G Fed. 458, 5 C. C. A. isGarland v. Davis, 4 How. 131, 557 ; McDonald v. Nebraska. 101 Fed. 11 L. ed. 907; Phillips, etc. Con. Co. v. 177, 41 C. C. A. 278 and cases cited; Sevmour, 91 U. S. 656, 23 L. ed. 344, Gregg v. Gier. 4 McLean, 208. Fed. 345. Cas^Xo. 5,799. isMurphy v. Stewart, 2 How. 263, i9See Smith v. Allvn, 1 Paine. 453, 281. 11 L. ed. 261; Parks v. Turner, Fed. Cas. No. 13,000; Comings v. 12 How. 39, 13 L. ed. 883. The Ida Stockdale, 22 Pitt. L. J. 9. i-iSee Smith v. Jackson. 1 Paine. Fed. Cas. No. 3,052. 486, Fed. Cas. No. 13.065; Erstein v. 20Comings v. The Ida Stockdale, Rothschild, 22 Fed. 61; see quota- 22 Pitt. L. J. 9, Fed. Cas. No. 3,052; tion from Miller. J. in McDonald v. Smith v. Jackson, 1 Paine, 486. Fed. Nebraskii, 101 Fed. 177, 41 C. C. A. Cas. No. 13,065; Smith v. Allvn, 1 278; Tobey v. Claflin, 3 Sum. 379, Paine, 453, Fed. Cas. No. IS.OOO'; but Fed. Cas. No. 14,066. see Anon. 1 Gall. 22, Fed. Cas. No. isSee also In re Glass, 119 Fed. 444. 720 I'rocediue] FORMAL DEFECTS OF I'UOCEDUKE DISUEGAUDED § S13 [b] granted by this section to trial courts prior to judgment over "process aiid pleading," and those granted to appellate courts over the proceedings as a whole. The section applies in equity, i bankruptcy 2 and admiralty 3 and to suits on forfeitures under the revenue laws,'* as well as in common law causes. It has also been held applicable to a contempt proceeding.5 [bj Applicability of State laws as to amendment. In common law causes R. S. § &14s adopting State forms and modes of procedure, must needs be considered upon the power of amendment, as well as R. S. § 954.9 Some cases have been held that R. S. § 914 in no way lim- its this section,! and others that the state laws as to amendment are adopted for Federal common law causes by R. S. § 914.1 1 It has also been held that a State law enlarging the right of amendment would be applied, but not one less liberal than the Federal enactments.12 it would be difficult to justify an application of a State law in any case where R. S. § 954 or any other Federal statutes was mandatory.is Nor can it be denied that the right of Federal courts to allow amendments exists by virtue of R. S. § 954, and is not dependent on State statutes. 1^ But where the section confers dis- cretion or a power to make provision by rule, it would clearly be a proper exercise of that discretion to conform to and apply the local law.is R. S. § @14 only conforms the Federal to the State practice "as near as may be" and itself confers a discretion upon Federal courts to decline to follow State provisions. Hence while it would generally be proper discre- tion to follow the State law as to amendments, it might sometimes be iDancel v. United S. M. Co. 120 Fed. 839. 2lnfra, note[e]. sReed v. Cowlev. 1 Nat. Bank R. 516, Fed. Cas. No. 11.644; In re Glass, 119 Fed. 509. ■ilnfra, note[e]. sUnited States v. Distilled Spirits, 1 Abb. 573, Fed. Cas. No. 15.943; Friedenstein v. United States, 125 U. S. 224. 31 L. ed. 736, 8 Sup. Ct. Rep. 838: In re Chadwick. 1 I>ow. 439, Fed. Cas. No. 2.570. «Po3t. § 900. flVan Dorcn v. Pennsvlvania R. R. 93 Fed. 261. 35 C. C. A.'2S2. loKent v. Bav S. Ci. Co. 93 Fed. 887. iiRosenbach v. Drevfuss, 1 Fed. 393; Mack v. Porter." 72 Fed. 243. 18 C. C. A. .527: Chamberlain v. Mensing. 51 Fed. 512. See Atlantic, etc. R. R. V. Laird, 164 U. S. 393, 41 L. ed. 488. 17 Sup. Ct. Rep. 120; West v. ^^mith. 101 U. S. 265. 206. 25 L. ed. 810; Liverpool, etc. Co. v. Cunther. 116 U. S. 113. 29 L. ed. 579. r> Sup. Ct. Rep. .306: and Henderson V. Louisville, etc. R. R. 123 U. S. 61. 31 Led. 92, 8 Sup. Ct. Rep. 60, where the Supreme Court applied the State law, though without considering the question ; to same effect see Nuss- baum V. Northern Ins. Co. 40 Fed. 337. i2Norton v. Dover. 14 Fed. lOi). isSee Dwight v. Merritt, 18 Blatch'f. 305. 4 Fed. 614. i4Mexican C. R. R. v. Duthie. 189 U. S. 76, 47 L. ed. 715. 23 Sup. Ct. Rep. 610; Bowden v. Burnham. 59 Fed. 752. 8 C. C. .-x. 248; Oliver v. Ravmond. 108 Fed. 727; :McDonald v. Nebraska. 101 Fed. 171. 41 C. C. A. 278. ir.Elting v. Campbell. 5 Blatchf. 183. Fed. Cas. No. 4.422; see also Phillips Co. V. Se^^nour. 91 U. S. 640. 23 L. ed. 341 : Post v. Wise, 101 Fed. 204: Hodges v. Kimball. 91 Fed. S45. 34 C. C. A. 103; United Stiites Bmk V. Lvon Co. 48 Fed. 632: Norton v. Dover. 14 Fed. 106: Clark v. Sohier, 1 \\'ood. & M. 368. Fed. Cas. No. 2.S35: Miller v. Cag.-s, 4 McLean, 436. Fed. Cas. No. 9.571 : Wliitaker v. Fed. Proc— 40. 721 § S13 [bb] GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. equally proper to decline to do so.i6 Thus it is held that the question of amending the return of substituted service of process is one of the power of the court and State decisions are not binding.! 7 [bb] Defect of form defined. In an early case at circuit Chief Justice Llarshal in deciding an appeal in an action of debt to recover a statutory penalty, held that a declara- tion averring the offense against the "collector or one of them" was defec- tive in form merely. He therefore held the defect cured on appeal by the statute of Jeofails. '"The defect seems to me" he said "to be a defect of form whenever the defendant must, of necessity, be guilty of a breach of the law, and have incurred the penalty for which the suit is brought, if the allegation in the declaration be true. This seems to me to constitute the difference between form and substance."2 [tj Special demurrer in Federal practice. It has been said that this section confers the right to file a special de- murrer in actions in the Federal court. i There is no direct adjudication of the Supreme Court upon that point. 2 Such demurrers though abolished in certain jurisdictions,3 are however, generally permissible in the practice of the various States. [d] Defects and amendment of process. R. S. § 948, enacted in 1872, also confers power on the circuit and district courts to amend all process "where the defect has not prejudiced and the amendment will not injure the party against whom such process issues." 5 The process referred to in R. S. § 754 would seem under the rule of noscitur a sociis, to refer to process in civil causes only, but R. S. § 948 is not thus limited in its terms or context, so that power to amend process in criminal causes 6 is derivable therefrom. These provisions have been said to confer an unconditional and positive power of amendment.^ Though generally recognized as extending only to defects or want of form.s The United Pope, 2 Woods, 463., Fed. Cas. No. Pet. C. C. 475, Fed. Cas. No. S.448; 17,528; Henderson v. Lrouisville, etc. Jackson v. Rundlet, 1 Wood. & M. R. R. 123 U. S. 61, 31 L. ed. 92, 8 381, Fed. Cas. No. 7,145; Tyler v. Sup. Ct. Rep. 60; Fitzpatrick V. Flan- Hand, 7 How. 582, 12 L. ed. 827; nagan, 106 U. S. 648, 27 L. ed. 211, 1 Christmas v. Russell, 5 Wall. 290, 18 Sup. Ct. Rep. 369 and Wolf v. Cook, L. ed. 479. 40 Fed. 432, following the State law 2See Chidress v. Emory, 8 Wheat, as to various amendments. 672, 5 L. ed. 712. leSee Tobey V. Claflin, 3 Sumn. 379, sSee GrafBn v. Jackson, 40 N. J. Fed. Cas. No. 14,066; North, etc. Co. L. 443. V. Burnham, 102 Fed. 669, 42 C. C. A. 5 Post, § 840. 584. 6See Anon. 1 G-all. 22, Fed. Cas. No. iTKing V. Davis. 137 Fed. 198. 444, decided before R. S. § 948 was 20 Jacob V. United States, 1 Brock, enacted. 520, Fed. Cas. No. 7.157. ^Erstein v. Rothschild, 22 Fed. 61. iCage V. Jeffries, Hempst. 409, Fed. sDwight v. Merritt, 18 Blatchf. Cas. No. 2,287; see instances of spe- 305, 4 Fed. 614. cial demurrer: Lockington v. Smith. 722 Procedure] FORMAL DEFECTS DISREGARDED, § 813 [dl States courts have plenary power to allow amendments of process 9 where there is anything to amend by.io But if process is ineffectual, no amend- ment can be made which will render it effectual. n The power granted is a power to amend a defect in process, and a power to amend a want of form in process. 12 The decided cases show a variety of amendments that have been allowed. A writ may be amended by a proper indorsement of the cause of actionis or a correction of the title.i* A writ calling de- fendant by a wrong name may be amended by consent; is as by striking out administrator and inserting executor; is or by correcting the name of plaintiff;i7 but leave to strike out the name of the wife may be refused.is A summons may not be amended by the subsequent addition of the sig- nature of the clerk, and seal of the court.19 The return day of process may be amended when erroneous. The court has discretion to permit an officer to amend his return with or without notice at any time,2 as to both mesne and final process. 1 But a sheriff cannot amend his return on a summons after the cause has been removed to a Federal Court.2 An execution may be made to conform to the judgment. 3 A fieri facias may be amended by striking out the name of the deceased plaintiff.* And longer time be given to a State than to other parties.5 A capias may be amended by inserting the christian name of the plain- tiff; 6 but not so as to alter the name of the plaintiff. 7 The return to a writ of peremptory mandamus may be amended ;8 even after the sEberly v. Moore, 24 How. 147, 16 L. ed. 6i2. loFurniss v. Ellis, 2 Brock. 14, Fed. Cas. No. 5,162; Randolph v. Barrett, 16 Pet.138, 10 L. ed. 914; Tayloe v. Wharfield. 2 Cranch C. C. 248, Fed. Cas. No. 13,772. iiChamberlin v. Bittersohn, 48 Fed. 42; Peaslee v. Haberstro, 15 Blatchf. 472, Fed. Cas. Xo. 10.884; D wight v. Merritt, 18 Blatchf. 305, 4 Fed. 614; Brown v. Pond, 5 Fed. 31. i2Dwight V. Merritt, IS Blatchf. 305, 4 Fed. 616. isMiller v. Gages, 4 McLean, 436, Fed. Cas. No. 9,571. i^Furniss v. Ellis. 2 Brock. 15, Fed. Cas. No. 5,162; but see Albers V. Whitney, 1 Story, 310, Fed. Cas. No. 137. isElliott v. Holmes, 1 McLean, 466, Fed. Cas. No. 4.302. 16 Randolph v. Barrett, 16 Pet. 138, 10 L. ed. 914. iTCeorgetown v. Beattv, 1 Cranch C. C. 234'. Fed. Cas. Xo. 5.344 ; Gulf, etc. R. R. V. James, 48 Fed. 148, 1 C. C, A. 53. isMoores v. Carter. Hemp. 64, Fed. Cas. No. 9.7S2a. isDwight V. Merritt. 4 Feci. 014. S. C. IS Blatchf. 306. 20Norton v. Dover, 14 Fed. 106; Hampton v. Rouse, 15 Wall. 684, 21 L. ed. 250: Semmes v. Rouse, 91 U. S. 21. 23 L. ed. 193: Rickards v. L;idd, 6 Saw. 40, Fed, Cas. No. 11.804. iPhoenix Ins. Co. v. Wulf, 1 Fed. 775: Semmes v. Ignited States, 91 U. S. 21. 23 L. ed. 193: French v. Edwards, 5 Saw. 260, Fed. Cas. No. 5,098. 2Hawkins v. Pierce, 79 Fed 452. sMurphv V. Lewis, Hemp. 17, Fed. Cas. No. 9,950a. 4Lane v. Beltzhoover, Taney, 110, Fed. Cas. No. 8,047. sRhode Island v. Massachusetts, 13 Pet. 23, 10 L. ed. 41. 6Birch v. Butler, 1 Cranch C. C. 319, Fed Cas. Xo. 1.425. 7ComegA-ss v. Robb, 2 Cranch C. C. 141, Fed. Cas. Xo. 3.049. ^Supervisors v. Durant, 9 Wall. 736, 19 L. ed, 813. 723 § 813 [e] GENERAL AND MISCELLANKOUS PROVISIONS. [Code Fed. loturn day; a or after the marshal has ceased to hohl office. lo The date on a summons has been changed where necessary to validate the writ;ii and the ad damnum clause. 12 An affidavit tor garnishment has been amended; i3 and seal has been added to a State court's attach- ment after removal to the Federal court. 14 [e] Amendments of plaintiff's pleadings in general. The cases present numerous instances of amendments of the plaintiff's pleadings. If a declaration fails to allege the matter in controversy it may be amended; 17 and the claim for damages may be increased. is A party may amend his complaint so as to demand two-thirds instead of the en- tire property.i9 Want of proper jurisdictional averments may be amended; 20 even after judgment or decree.i A declaration in ejectment may be amended by inserting a later date of the lease. 2 The date of the demise may be amended; 3 and it may be extended after judgment, Tmt not except on notice. * Stating it under a new title will not be allowed. s If judgment in ejectment is rendered after the lapse of the term stated in the demise, it may be amended by enlarging the term. 6 In slander an amendment may be allowed changing the words charged. 7 A libel or in- formation at common law to enforce a forfeiture may be amended, s So a petition in the court of claims may be amended.9 A pleading may be amended so as to bring the case within the exception to the statute of limitations; 10 as that the fraud was not discovered until the time that sLinthicum v. Remington, 5 Cranch sBlackwell v. Patton, 7 Cranch. C. C. 546, Fed. Cas. Xo. 8,.377. 471, 3 L. ed. 408; Smith v. Vaughan. lOCushing v. Laird, 4 Ben. 70, Fed. 10 Pet. 367, 9 L. ed. 458; McDaniel v. Cas. No. 3,508. Wailes, 4 Cranch C. C. 201. Fed. Cas. iiGilbert v. South, C. & Co. 113 No. 8,746; see Dav v. Chism. 10 Fed. 523. Wheat. 449, 6 L. ed. 363. i2Davis V. Kansas C. R. R. 32 Fed. ^Ledgerwood v. Pickett, 1 McLean, 863. 143. Fed. Cas. No. 8.175. i3Booth V. Denike, 65 Fed. 43. sGale v. Babcock, 4 Wash. C. C. 14 Wolf V. Cook, 40 Fed. 432. 199, Fed. Cas. No. 5,188. iTLanning v. Dolph, 4 Wash. C. C. sWalden v. Craig, 9 Wheat. 576. 6 624, Fed. Cas. No. 8,073. L. ed. 164. isGregg V. Gier, 4 McLean, 208, "Doughertv v. Bentlev, 1 Cranch Fed. Cas. No. 5,799; Good v. Martin, C. C. 219, Fed. Cas. No. 4,024. 1 Colo. 406. sUnited States v. Stevenson, 6 Int. 19 Van Zandt v. Argentine Min. etc. Rev. Rec. 221, Fed. Cas. No. 16,398: Co. 2 McCrarv. 159, 8 Fed. 725. United States v. Batchelder, 9 Int. 20I11 re Plymouth, etc. Co. 135 Fed. Rev. Rec. 98, Fed. Cas. No. 14.541: 1000. 68 C' C. A. 434; Bowden v. United States v. Barrels, 3 Int. Rev. Burnham. .59 Fed. 752, 8 C. C. A. 248; Rec. 114, Fed. Cas. No. 16,502; Unit- Nevada Co. V. Famsworth, 89 Fed. ed States v. Whiskey, 7 Phila. 603. 164; Smith v. Jackson, 1 Paine, 486. Fed. Cas. No. 16.671; Ignited States Fed. Cas. No. 13,065; Maddox v. v. One Hundred and Twenty-three Thorn. 60 Fed. 217. 8 C. C. A. 574. Casks, 1 Abb. U. S. 573, Fed. Cas. iMexican C. R. R. v. Duthie. 189 No. 15.943; Anon. 1 Gall. 22. Fed. U. S. 76. 47 L. ed. 715, 23 Sup. Ct. Cas. No. 444. Rep. 610. sMoliiui V. United States, 6 Ct. of 2Walden v. fraig. 9 Wlieat. 576. CI. 2()9. 6 L. ed. 164: Blackwell v. Patton, 7 K'Piatt v. Vattier. 9 Pet. 405. 9 L. Cranch. 471, 3 L. ed. 408. ed 173; The Harmony. 1 Gall. 123, 724 m Procedure] FORMAL DEFECTS DISKEGAKDED. § 813 [el would remove the bar of the statute.n A plea of the statute of limitations can be amended only when shown necessary for the justice of the case.12 Blanks may be filled in a declaration to avoid the statute of limitations on payment of costs.is Leave to file a plea of the statute of limitations applied for out of time will be refused. 1* Leave may be granted to verify pleadings as required by statute; la but not on the trial to the surprise of the other party. is Amendment is allowable which consists in adding a new count of a kindred cause of action ;i" and when it is founded on the same transaction, and admits the same pleading, defense, and proof. is A dec- laration may be amended so as to refer to the right statute. 1 9 PlaintiflF may be allowed to withdraw a replication, and file a denial or plea. 20 After demurrer sustained the plaintiff is not entitled as matter of right to amend his bill; it is within the discretion of the court to allow it; and the order denying the motion to amend is not reviewable if the record does not show what amendment was desired. 1 But plaintiff may show a subse- quent capacity to sue after demurrer sustained. 2 A defective bill of partic- ulars may be amended. 3 It was a rule of the common law still asserted in many cases that plaintiff could not amend if there was nothing to amend by and that a complainant cannot abandon his case and make a new and different one by amendments ;4 as by changing an action on the case into action in debt. 5 But some late cases show great liberalty in allowing amendments even although they change or add to the cause of action pre- viously stated, 6 and the court in its discretion has allowed an amendment of a merely inferential allegation of ground of recovery. 7 An amendment Fed. Cas. No. 6.081; Tierman v. Woodruff, 5 Mcl^ean, 135. Fed. Cas. Xo. 14,027. 11 Wharton v. Lowrev, 2 Call. 364, 1 L. ed. 417. i2Thompson v. Afflick. 2 Cranch C. C. 46, Fed. Cas. No. 13,939. isFerris v. Williams. 1 Cranch C. C. 281, Fed. Cas. No. 4.749. i4Reed v. Clark, 3 :\IcLean, 480, Fed. Cas. No. 11,643. 15 Loving V. Faircliild. 1 ^McLean. 333. Fed. Cas. No. 8.556. leBenediet v. Mavnard. 6 McLean, 21, Fed. Cas. No. 1.296. iTTiernan v. Woodruff. 5 ^IcLean. 135, Fed. Cas. No. 14.027: Bowcn v. Needles Nat. Bank, 79 Fed. 49. isTiernan v. Woodruff. 5 McLean. 135. Fed. Cas. No. 14.027: United States V. B:itchelder, 9 Int. Rev. Rec. 98. Fed. Cas. No. 14.541. isRosenbach v. Drevfuss. 1 Fed. 391. 2 0McGill V. Sliehee. 1 Cranch C. C. 49. Fed. Cas. No. 8,796. iNational Bank v. Carpenter. 101 U. S. 567, 25 L. ed. 815. 2Swatzel V. Arnold, 1 Woohv. 383., Fed. Cas. No. 13.682. sPott V. Arthur. 15 Blatchf. 314. Fed. Cas. No. 11,319: Rickard v. Bar- ney, 32 Fed. 581 : but see Dieckerhoff v. Robertson. 29 Fed. 781. ■» Fiedler v. Carpenter, 2 Wood. & M. 211. Fed. Cas. No. 4.759; Schofield v. Fitzhugh, 1 Cranch C. C. 108, Fed. Cas. No. 12.474; Sneed v. McCoull. 12 How. 407. 13 L. ed. 1043; Post- master General v. Ridgwav. Gilp. 135. Fed. Cas. No. 11,313: Shields v. Bar- row. 17 How. 144, 15 L. ed. 159: Goodyear v. Bourn, 3 Blatchf. 266. Fed. Cas. No. 5.561. But .see The Harmonv, 1 Gall. 123, Fed. Cas. No. 6.081. "Ten Broeck v. Pendleton, 5 Cranch C. C. 464. Fed. Cas. No. 13,827; Scholfield v. Fitzhugh, 1 Cranch C. C. lOS, Fed. Cas. No. 12.- 474. sin re Glass, 119 Fed. 509: Oliver V. Ravmond. 108 Fed. 927. TGreat N. Rv. v. Herron, 136 Feil. 49. 68 C. 0. A. 599. 725 § 813 [f] GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. has been refused, designed to bring in a defendant against whom the statute does not give jurisdiction. s [f] Amendment of defendants pleadings. A defendant may amend his plea;io or withdraw a plea;ii or file an additional plea; 12 or add an affidavit thereto ;i3 or he may withdraw his plea and demurrer.i* But upon the overruling of the demurrer the court may refuse to permit him to file an answer setting up a new cause of ac- tion. is Defendant may file a plea in abatement ;16 or an additional plea, and amend those already filed. i^ New pleas should be allowed only where a good reason is shown for it, and on terms; is but leave to file a special plea is allowed where it does not appear clearly bad;i9 and an insulHcient plea will be rejected. 20 It will not be allowed if it essentially changes the ground of the defense, unless for cogent reasons ;i and where the case is called for trial, only when necessary for the justice of the case.2 It can- !not be allowed if judgment on demurrer has been affirmed on appeal.2 De- fendant cannot amend his answer so as to deny a fact affirmatively passed upon and determined by the Supreme Court. ■* The court will permit the withdrawal of a demurrer; 5 but leave to amend a demurrer which does not go to the merits will be refused. 6 An answer in a libel suit may sometimes be amended by inserting denials in respect of the amount of the damages.'' An amendment to the answer will not be allowed unless good cause and the use of diligence be shown. s An admission cannot be with- sAdams v. Heckscher, SO Fed. 742. loMcGill V. Sheehee. 1 Cranch C. C. 49, Fed. Cas. No. 8.79<3. ii^Melburne v. Kearnes. 1 Cranch C. C. 77, Fed. Cas. No. 9.543; Gill v. Patten. 1 Cranch C. C. 114, Fed. Cas No. 5,427 ; Short v. Wilkinson, i Cranch C. C. 22, Fed. Cas. No. 12.810. isSemmes v. O'Neale, 1 Cranch C C. 246, Fed. Cas. No. 12,054; Teas, dale V. Jordan, 2 Havw. 281, Fed. Cas. No. 13,814. isLoving V. Fairchild, 1 McLean 333, Fed. Cas. No. 8,550. i^Deakins v. Lee, 1 Crancli C. C 442, Fed. Cas. No. 3,097; Krouse v Sprogell. 1 Cranch C. C. 78, Fed. Cas No. 7,940; Alricks v. Slater, 1 Cranch C. C. 72. Fed. Cas. No. 259. isBaltimore & O. R. R. Co. v Camp, 81 Fed. 807, 26 C. C. A. 026. leEberly v. Moore. 24 How. 147 10 L. ed. 012. iTPolard V. Dwight, 4 Cranch. 421, 2 L. ed. 606; Marine Ins. Co. v. Hodgson, 6 Cranc.i, 200, 3 L. ed. 200: United States v. Kirkpatrick, 9 Wheat. 720, L. ed. 199; Dav v. Chism, 10 Wheat. 449, L. ed.'303. isChilds V. Lenig, 1 Wall. Jr. 305, Fed. Cas. No. 2,680. i9Gill V. Patten, 1 Cranch C. C. 114, Fed. Cas. No. 5,427. 2 0Kerr v. Force, 3 Cranch C. C. 8, Fed. Cas. No. 7,730. 1 Smith V. Babcock, 2 Wood. & M. 246, Fed. Cas. No. 13,009; Morehead V. Jones, 3 Wall. Jr. 306, Fed. Cas. No. 9,791. 2 Bullock V. Van Pelt. Bald. 403. Fed. Cas. No. 2,131; Bastable v. Wil- son, 1 Cranch C. C. 124, Fed. Cas. No. 1,097; Allen v. Magruder, 3 Cranch C. C. 0. Fed. Cas. No. 230; Childs v. Lenig. 1 Wall. Jr. 305. Fed. Cas. No. 2,080. 3 Hodgson v. Marine Ins. Co. 1 Cranch C. C. 569, Fed. Cas. No. 0.500. 4 Walker v. Brown, 80 Fed. 304. sSucklev V. Slade, 5 Cranch C. C. 123, Fed. Cas. No. 13,587. eOffutt V. Beattv, 1 Cranch, C. C. 213, Fed. Cas. No.' 10,448. TGoodvear, etc. Co. v. White, 17 Blatch.f."'5, Fed. Cas. No. 5,001. sLaniib v. Parkman, 21 Law Rep. 589, Fed. Cas. No. 8,019, 726 Procedure] FORMAL DEFECTS DISUEGARDED. § 813 [gl drawn if there is no allegation of mistake in fact or of law. 9 The amend- ment of an answer by the assertion of an additional fact was refused, where the fact was known, at the time the answer was filed. lo It is not allowed where due diligence has not been exercised.n but it is not neces- sary that the new fact should be first established. 12 [gj Amendment as to parties. A defect of parties may be cured by amendment ;15 as by striking out parties; 16 or by inserting the names of the members of a firm. 1 7 But not if the form of the action is such that the member is already embraced.is So an error in a name may be corrected; 19 as in the name of a corpo- ration. 20 An amendment will be allowed, striking out a name from a petition. 1 On a plea of misnomer plaintiff may amend as to the name of defendant; 2 or by striking out the name of a defendant. 3 Leave to dismiss as to certain defendants will not be granted after the court has rendered an opinion granting a motion to direct a verdict for defendants.'* A defect of nonjoindei' of the husband in suit by the wife is curable by amendment. 5 Whether an amendment substituting a different party plaintiff is allow- able, is often an important question where the statute of limitations has become a bar to a claim if the amendment is not allowable. There are cases permitting amendment by substitution of the name of the real party in interest, for a nominal plaintiff; 6 and holding that a refusal to permit such substitution where a claim would otherwise be defeated by the bar of the. statute, is an abuse of discretion. 7 Where the substitution of a new s^rorehead v. Jones. .3 Wall. Jr. 306. Fed. Cas. No. 9.701 : Waterman V. Merrill. 2 Abb. U. S. 478, Fed. Cas. Xo. 17,258. loCross V. !\rorgan. 6 Fed. 241. uSnead v. McCoull. 12 Fed. 407, 13 L. ed. 104.3: Clifford v.. Coleman. 13 Blatchf. 210, Fed. Cas. No. 2,894; Ross V. Carpenter, 6 McLean, 382, Fed. Cas. No. 12.072; India Rubber Co. V. Phelps, 8 Blatchf. 85; Fed. Cas. No. 7.025; Webster Loom Co. V. Higgins, 13 Blatchf. 349, Fed. Cas, No. 17,341: Suvdam v. Truesdale, 6 INlcLean, 459, Fed. Cas. No. 13.656. i2Smith V. Babcock. 2 Wood & M. ^6, Fed. Cas. No. 13,009. i5Douglas V. Butler, 6 Fed. 228. leConnollv v. Tavlor. 2 Pet. 556, 7 L. ed. 518: Cole S. M. Co. v. Vir- ginia G. H. W. Co. 1 Saw^'. 470, Fed. Cas. No. 2.989. iTTibbs v. Parrott. 1 Cranch C. C. 177, Fed. Cas. No. 14.022. isUnited States v. McCov, 54 Fed. 107. i9Furniss v. Ellis, 2 Brock. 14, Fed. Cas. No. 5,162. soGeorgetown v. Beattv, 1 Cranch C. C. 234" Fed. Cas. No. 5.344. iWhitaker v. Pope. 2 Woods, 463. Fed. Cas. No. 17.528: Tol^ev v. Claf- lin, 3 Sumn. 379. Fed. Cas. No. 14,- 066: but not substituting another in its place. Comegvss v. Robb. 2 Cranch, C. C. 141, Fed.' Cas. No. 3,049. 2Nelson v. Barker, 3 :McLean, 379, Fed. C^s. No. 10.101 : Scull v. Brid- dle. 2 Wash. C. C. 200. Fed. Cas. No. 12.570; see Craig v. Brown, Pet, C. C. 139, Fed. Cas. No. 3,326: Albers v. Whitney, 1 Story, 310, Fed. Cas. No. 137. sGreelev v. Smith, 3 Story, 76, Fed. Cas.' No. 5,747. 4 Wright V. Southern Rv. Co. 80 Fed. 260. sDouglas V. Butler. 6 Fed. 228. fiEssex Co. Nat. Bank v. Bank of Montreal, 7 Biss. 193. Fed. Cas. No. 4.532: Whitaker v. Pope, 2 Woods. 403, Fed. Cas. No. 17,528: McDonald V. Nebraska, 101 Fed. 171. 41 C. C. A. 278. But see Morris r. Barney. 1 Cranch C. C. 245, Fed. Cas. No. 9.826. -Hodges V. Kimball, 91 Fed. 845, § 813 [h] GENEUAL AND MISCELLANEOUS PROVISIONS. [Code Fed. plaintiff would also substitute a ditlVrcnt i-ause of action it would not seem allowable.s [h] Amendment of verdict. It is well settled that R. S. § 054 applies to and permits amendment of verdicts.io Hence if a verdict is general, it may be amended so as to apply to the count under which the evidence is given. n Leave may be granted to amend a verdict in replevin after the jury had returned and another cause had been tried.12 A verdict in assumpsit '"that defendant is guilty in manner and form as alleged" is amenable. is On a stipulation that the jury, if the court be not in session when they agree upon their verdict, may sign, seal, and deliver it to the officer in charge and disperse, the entry of the verdict in proper form is allowed by this section. i* The court may enter the verdict in such form as to give legal effect to what the jury un- mistakably found, under Rev. Stat., S 954, and the Practice Act of niinois.15 The verdict may be amended to correct a mistake, in the nature of a clerical error, in announcing or making the record of the A^erdict actual- ly agreed upon;i6 and in a proceeding in equity to remedy a mistake in announcing the verdict of a jury the jurors are competent witnesses to prove that the verdict read out in the court by their foreman was not their verdict, but the result of an oversight by him in making the announce- ment.! ^ Omission of the word "dollars" in a verdict is immaterial.! 8 [i] Amendment on removal. This section, both in letter and spirit, confers the power and makes it the duty of courts to cure defects in the record by enlarging the time for filing a transcript on the removal of a cause from a State court.! An amended transcript may be filed disclosing the requisite citizenship. 2 The declara- tion may be amended by inserting new counts for the same cause of action. s But a sheriff may not amend his return of service of process in a suit begun 34 C. C. A. 10.3: Van Doren v. Penn. isAriruelles v. Wood. 2 Cranch C. R. R. 93 Fed. 260. 35 C. C. A. 282. C. 579. Fed. Cas. No. 520. 8See Morris v. Barnev. 1 Cranch ^ ''^^'Tl'r'o''- ^™" ^°- ^^^ ^'^ ^^ ^^-' C. C. 245. Fed. Cas. No. 9,2i86; Come- -'^,V- ^^- '^^^i ^ ,«. tt ^ ,«. -,« gvss V. Robb. 2 Cranch C. C. 141, Fed. ^ ''^"S" ';; ^Jl\'^^; ^^ }■ ^- ^^j^l "^ Cas. No. 3.049; The Detroit, 1 Brown ^^ ^,%^'^' ^-^^ ^ ¥"7/ Jrans. 125 \dm 141 Fed Cas No 3.83--' i»Koon v. Phoenix Mut. L. Ins. Co. !OMurphy v. Stewart. 2 How. 263, lePelzer :\Ifg. Co. v. Hamburg- 11 L. ed. 261: Parks v. Turner, 12 Bremen Fire Ins. Co. 71 Fed. 826." How. 39, 13 L. ed. 883; Snyder v. 1 TH-amburg-Bremen Fire Ins. Co. v. United St.-tes. 112 U. S. 217. 28 L. Pelzer Mfg. Co. 76 Fed. 479, 22 C. ed. 698, 5 Soip. Ct. Rep. 119: Hopkins c. A. 283. v. Orr. 124 U. S. 513. 31 L. ed. 525, TsHopk'ins v. Orr. 124 U. S. 513, 8 Sup. Ct. Rep. 591. Osborn v. Alts- 31 y,. p^. 525. 8 Sup. Ct. Rep. 591. chul, 93 Fed. 383. 35 C. C. A. 354; iWoolridge v. McKenna, 8 Fed. Cay V. .Toplin. 13 Fed. 6.53. 4 Mc qq'^_ Crary, 459. and see note thereto. '-'Kaeiser v. Illinois Cent. R. R. Co. iiMurphv V. Stewart. 2 How. 263, 6 Fed. 1. 2 McCrary, 187. 11 L. ed. 2<52: Stockton v. Bishop. 4 3 West v. Smith, "lOl U. S. 263, 25 How. 155, 11 L. ed. 918. L. ed. 810. 728 n-ocedurej FOUMAI, DEFKCTS DISREGARDED. § 813 [j] in the Slate court, after removal. < A defective removal bond may l)e amended by a new one filed nunc jiro tunc.5 A seal omitted from the at- tachment issued by the State court may be amended in the Federal court if the State law permit.s.6 A complaint framed as at law and placed on the law calendar may be amended after demurrer, reformed into a bill in equity, and placed on the equity calendar.' [jj Amendments in equity. R. S. § !)54 applies to equity as well as to law cases. In addition there are several equity rules upon the subject. lo Amendments in mere matters of form, dates, or verbal inaccuracies, are liberally allowed.n The court has power in the interest of justice to permit an amendment to defective plead- ings, both of bills and answers.i2 A bill may be amended by making new parties ; 1 3 or by adding an averment of citizenship ; i i even after inter- locutory decree on demurrer; J 5 and after remand from the Supreme Court. is An invitation to other creditors to come in at any time before answer may be stricken out.i'i' A bill may be amended by adding a prayer for relief. is It may be a7nended so as to conform its special prayer to its real purpose.' » So if the facts authorize a redemption from a creditors' sale, though the period for redemption is past, the court will permit an amendment to the prayer for relief. 20 If the amendment ijitroduces a new case, defendant may plead in abatement or otherwise. 1 When due diligence is shown, the bill may be amended, even though the claim is stale.2 An amendment is not allowable which introduces a new cause of action. 3 An amendment which changed the character of the bill was however, allowed in a special case even after final decree.'* Where the original petition was lost, the court may allow the filing of a new petition. 5 The amended bill should state so 4TTawkin« v. Peirce. Tfl Fed 452. 0.505: Spofford v. Ritten,4 McLean, ^Harris v. Delaware, etc. R. R. Co. 253, Fed. Cas. Xo. 13.244. 18 Fe.-i. 833: Deford v. MehaflFv, 13 i6Ja<>kson v. Ashton, 10 Pet. 480. Fed. 481. ' 9 L. ed. 502. «Wolf V. Cook. 40 Fed. 432. i^Yates v. Arden, 5 Crancli C. C. ■^Dancel v. United S. ^l. Co. 120 526. Fed. Cas. Xo. 18.126. Fed. 839. isHorsburg v. Baker, 1 Pet. 232, ioRuIps Xo. 28, 20, 30, 35. 45, 46, 7 L. ed. 125. See post. §§ 056 et seq. isPartee v. Thomas. 11 Fed. 772; iiSmith v. Babcock. 3 Sum. 583, see Estill v. Deckard, 4 Baxt. 497. Fed. Cas. Xo. 13.008. 20Burgess v. GrafTam. 10 Fed 216. i2Xeale v. Xeales. f> Wall. 1, 19 L. iKeene v. Wheatle\-. 4 Phila. 157. ed. 590: Foote v. Silsby, 1 Blatchf. Fed. Cas. Xo. 7.644. 545. Fed. Cas. Xo. 4.918: Battle v. 2Wharton v. Lo\vrev. 2 Dall. 364. Mutual L. Ins. Co. 10 Blatchf. 417, 1 L. ed. 417: Fisher 'v. Rutherford, Fed. Cas. Xo. 1,109: Caster V. Woods, Bald. 188. Fed. Cas. Xo. 4.823: Bald. 289. Fed. Cas. Xo. 2,505. Copen v. Fleslier. 1 Bond. 440. Fed. i3Fisher v. Rutherford, Bald. 188, Cas. Xo. 3.211. Fed. Cas. Xo. 4.823. 3The Circassian, 2 Ben. 171. Fed. i^Pisher v. Rutherford. Bald. 188. Cas. Xo. 2.723: see Walden v. Bodlev, Fed. Cas. Xo. 4.823; Koenc v. Wheat- 14 Pet. 156. 10 L. ed. 398. ley, 4 Phila. 157. Fed. Cas. Xo. 7.644. 4The Treiiiolo Patent. 23 Wall. 518, 'isFisher V. Rutherford, Bald. 188, 23 L. ed. 97. Fed. Cas. Xo. 4.823: llilliard v. Bre- 5Phillips v. Moore. 100 U. S. 208, yoort, 4 McLean, 24, Fed. Cas. Xo. 25 L. ed. 603. 729 § 813 [k] GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. much of the original bill as is necessary.6 An amendment relates back to the filing of the original bill, and is incorporated into and is a part of it. 7 An amendment was allowed where it was clear the cause was tried as it must have been tried, had the bill been originally drawn as amended. 8 On a motion made before final argument, leave may be granted to amend an answer, so as to set up a new defense. 9 An application to reform an answer is more favorably received than one to strike it oflf and substitute another.io In a particular case an amendment was allowed so as to deny the validity of a patent ;ii and an amendment in an answer, on the ground of mistake or error in the admission of an infringement, was denied.i2 An amendment will not make evidence admissible which was taken under ob- jections before aximission.is A motion to amend by adding new parties defendant after replication where plaintiff was in a position to make the amendment before, will not be allowed.i^ A bill not framed with a view to compel the receiver and back tax collector to proceed with the collection of taxes cannot be amended so as to obtain relief against such a collector.is An amendment to an answer cannot be made after an interlocutory de- creets In equity the party amending may be required to pay costs. i7 .A motion to amend by averment on information and belief that the invention was in public use more than two years, denied.is [k] Amendments in admiralty. Certain of the admiralty rules apply to and govern the matter of amend- ments in admiralty.2 A libel or information to enforce a forfeiture may be amended; 3 or a libel in rem for violation of a municipal law. 4 In case of smuggling, an amendment is allowed, to show that a foreign -owned vessel is liable to penalty for the infraction of duty laws. 5 An informal libel or information in rem may be amended by leave of court. 6 A libel in admiralty may be amended as to parties,? by striking out names of ePierce v. West, .3 Wash. C. C. 354, 1 6 Wilson v. Turberville, 2 Cranch Fed. Cas. No. 10,910. C. C. 27, Fed. Cas. No. 17,844. TGavIord v. Ft. W. M. & C. R. Co. iTFoote v. Silsbv, 1 Blatchf. 545, G Biss. 2S6, Fed. Cas. No. 5,284. Fed. Cas. No. 4.918; Yates v. Arden, sTreinaine v. Hitchcock, 23 Wall. 5 Cranch C. C. 526, Fed. Cas. No. 518, 23 L. ed. 97. 18.126; Davis v. Leslie, 1 Abb. Adm. sSnow V. Tapley, 13 Off Gaz. 548, 123. Fed. Cas. No. 3,639. Fed. Cas. No. 13.147. isWebster Loom Co. v. Higgins, 13 lOCaster v. W^ood, Bald. 289, Fed. Blatchf. 349, 954, Fed. Cas. No. 17,341. Cas. No. 2,505. 2 Adm. Rule 24; see post, § 1201. iiMorehead v. Jones, 3 Wall. Jr. sThe Caroline v. United States. 7 306, Fed. Cas. No. 9,791. Cranch, 498. 3 L. ed. 418; The Ed- i2Rnggles V. Eddv, 11 Blatchf. 524, ward, 1 Wheat. 261, 4 L. ed. 86. Fed. Cas. No. 12,118. 4The Marianna Flora, 11 Wheat. 1. isRoberts v. Buck, 6 Fish. Pat. 6 L. ed. 407; Anon. 1 Gall, 22, Fed. Cas. 325. Fed. Cas. No. 11,897. Cas. No. 444. i4C]ifford V. Coleman, 13 Blatchf. sL^nited States v. The Queen, 4 210, Fed. Cas. No. 2,894; see Gay- Ben. 237. Fed. Cas. No. 16.107. lord V. Fort Wavne & Co. 6 Biss. 286, 6The Caroline v. Lnited States. 7 F?d Cas. No. 5'.284. Cranch, 498. 3 L. ed. 418. islMeriwetlier v. Garrett. 102 U. S. '^The Commander-in-Chief, 1 \v'al]. 472, 20 L. ed. 197. 43, 17 L. ed. 609. 730 Procedure] FORMAL DEFECTS DISREGARDED. § 813 [k] libelants,^ as to name of the pilot,9 or by discharging the master.io But it cannot be amended by striking out the name of the sole libelant and substituting another.n It may be amended by striking out unnecessary and impertinent allegations,! 2 or immaterial averments as to ownership ;13 or by adding new allegations; i* or a new cause of f orf eiture ; 1 » though not if barred by the statute of limitations.! 6 Averments may be added, as of negligence; 17 or an averment that it is prosecuted for all interested who may come in and establish their rights.! s An amendment will be allowed to enable a party to obtain a contribution out of damages due for the loss of the vessel.! 9 A new cause of action may be introduced by amendment when it corresponds with the original bill; 20 but it cannot be amended so as to change from a libel in rem to a libel in personam;! or so as to in- crease the amount of the claim; 2 nor to show that a party was formerly owner, and sold with a covenant to discharge all liens.3 It may be amended by inserting a prayer for a decree against a party liable, even after a de- cree in rem has been rendered.^ An amendment to an answer will be al- lowed, though the effect be to defeat the action and compel libelant to seek another forum. 5 A supplemental libel alleging new matter, and an answer thereto, may be filed after appeal in the discretion of the court. 6 District courts, in the exercise of a sound discretion, may allow libels to be amended, even at the hearing;" or at any stage of the proceedings ; s till the termination of the cause.9 But this is only done in the interest of sub- sTavlor v. Harwood. Taney, 437, Fed. Cas. No. 13,794. sNewell v. Norton, 3 Wall. 257, 18 L. ed. 271. lOUnited States v. The Queen, 11 Blatchf. 41 G. Fed. Cas. No. 16.108. iiThe Detroit. 1 Brown Adm. 141, T'ed. Cas. No. 3,832. 12 American Ins. Co. v. Johnson, Blatchf. & H. 9, Fed. Cas. No. 303. isUnited States v. The v^ueen, 4 Ben. 237, Fed. Cas. No. 10.107. i4The Edward, 1 Wheat. 261, 4 L. ed. 86. !5United States v. Whiskey, 7 Phila. 603, Fed. Cas. No. 16.671. ifiUnited States v. One Hundred and Twentv-three Casks, 1 Abb. U. •S. 573, Fed. Cas. No. 15.943; The Harmony, 1 Gall. 123, Fed. Cas. No. 6,081. iTThe Deer, 4 Ben. 352, Fed. Cas. No. 3,737. 18 American Ins. Co. v. Jolmson, Blatclif. & H. 9. Fed. Cas. No. 303. i9The C. H. Foster, 1 FeA. 733. 2 0United States v. One Hundred and Twenty-Three Casks, 1 Abb. U. S. 573, Fed. Cas. No. 15,943. iThe Young America, 1 Brown Adm. 463, Fed. Cas. No. 18.178. 2Agnew V. Dorman, Tanev, 386. Fed. Cas. No. 100. sTlie Prindiville. 1 Brown Adm. 485, Fed. Cas. No. 11.435. 4The Zenobia, Abb. Adm. 48, Fed. Cas. No. 18,208. sReppert v. Robinson. Taney, 492, Fed. Cas. No. 11,703. eUnited States v. One Hundred and Twentv-three Casks, 1 Abb. U. S. 573, Fed." Cas. No. 15,943. TDavis V. Leslie. 1 Abb. Adm. 123, Fed. Cas. No. 3.639; Crawford v. The William Penn, 3 Wash. C. C. 484. Fed. Cas. No. 3.373. 8The Hunter, 1 Ware. 249, Fed. Cas. No. 6.904; Pettingill v. Dins- more. 2 Ware, '^iz, Fed. Cas. No. 11.045; Nevitt v. Clarke. Ilcott, 316. Fed. Cas. No. 10,138; The Deer, 4 Ben. 352, Fed. Cas. No. 3,737; The St. John. 7 Blatchf. 220, Fed. Cas. No. 12.224. 9The Edwin Post, 6 Fed. 206. (31 § S13 [I] GENERAL AND MISCELLANEOUS PROVISIONS. [('o:1p Fed. stantial justice.io A libel may be amended in the circuit court ;ii and a defect in the signature will not be regarded if it appears it was verified. 12 It may be allowed without waiting for the disposition of the exceptions thereto.13 A supplemental libel and an answer thereto may he liled after appeal. 14 This rule applies in collision cases; is and after reversal where there is a want of a substantial averment it may be added; is even after the case has been remanded from the Supreme Court.i^ But an anu'iidiiient in an admiralty case before the court of appeals cannot introduce a new sub- ject of controversy.! 8 [IJ Amendment of judgments and decrees, and defects therein. Judgments may be corrected after the end of the term: (1) where the necessity for correction and the matter from which it is to be made appear upon the face of the record; (2) where justice requires a correction to be made from matters resting in the recollection of the judge or in the (!vidence aliunde. In the former case notice is unnecessary; in the latter case it is necessary if it rests on evidence aliunde. 2 All judgments, decrees, or orders are under control of the court which pronounces them during the term at which they are rendered, and may be set aside, vacated or modifieil.3 But amendments to judgments or decrees cannot l)e made except as io formal defects: 4 as where the entry was erroneously made: 5 or where there is a verbal mistake of the clerk in using a siiperlluity of words in entering judgment:*' or where by a misprision of the clerk the judgment had not been entered according to the declaration;" or where the clerk had omitted to enter judgment allowing interest :** or if a judgment by confession is entered without declaration or rule to plead; 9 or if made by only one of several joint defendants ; 1 or if entered in a wrong case;ii or if made by loPetlingill v. Dinsmore, 2 Ware. 26 L. ed. 707: Aetna L. Ins. Co. v. 212, Fed. Cas. Xo. 11.04.^: Anon. 1 Board of Conimr.s. 70 Fed. .i7.5. 25 Gall. 22, Fed. Cas. No. 444. C. C. A. 94. iiThe Sarah Ann, 2 Sum. 206, Fed. -lAlhers v. Whitnev. 1 Storv, .310, Cas. No. 12.342: Tlie Morton, 1 Brown Fed. Cas. No. 1,37. Adm. 1.37. Fed. Cas. No. 9.S64. -U'nited States v. Bennett. Holf. i^Hardy v. :\Ioore. 4 Fed. 843. 281, Fed. Cas. No. 14,;i73, i:!Tlie Western Metropolis. 28 How. eShaw v. Pvilrnad Co. 101 U. S. Pr. 283. 557, 25 L. ed. Sn2 : P.nrnes v, Lee, 1 i4The Boston, 1 Sum. 328. Fed. Cranch C. C. 471, Fed. Cas, No. Cas. No. 1,673; Lamb v. Parkman, 21 1,018. LaAV Rep. 589. 'Woodward v. Brown, 13 Pet. 1, isTlie Pennsylvania, 12 Blatchf. 67, 10 L. ed. 31. Fed. Cas. No. 10,951. ^Bank v. Wistar, 3 Pet. 431, 7 L. icThe Anne v. United States, 7 ed. 731. Cranch, 570, 3 L. ed. 442. sAult v. Elliot, 2 Cranch C. C. 372, I'The Caroline v. United States. 7 Fed. Cas. No. 655. Cranch, 496. 3 L. ed. 417: The Anne, loHver v. HA'att. 2 Cranch C. C. 7 Cranch, 570. 3 L. ed. 442; The Mary 633, Fed. Cas. No. 6.976: Newton v. Ann, 8 Wheat. 380. 5 L. ed. 641. * Weaver, 2 Cranch C .C. 685, Fed. C'S. isHouseman v. The North Caro- No. 10,193: see Ringgold v. Elliot, Una. 15 Pet. 40, 10 L. ed. 654. 2 Cranch C. C. 462, Fed. Cas. No. 20'Dell V. Reynolds, 70 Fed. 656, 11.844. 17 C. C. A. 317. iiPierce v. Turner, 1 Cranch C. C. 3Bronson v. Schulten, 104 U. S. 410. 433, Fed. Cas. No. 11,148. 732 rrocecliire] FORMAL DEFECTS DISREGARDED. § 8i:; [1] ail attorney by mistake. 12 A judgment may be amended by striking out ; Doe v. Waterloo Min. Co. 00 Fed. G43: Austin v. Rilev. 55 Fed. 833: Klever v. Seawall. 05' Fed. 373, 12 C. C. A. 053; Craven v. Canadian Pac. Rv. Co. 62 Fed. 170. I'United States v. Williams. 67 Fed. 384. 14 C. C. A. 440; Fisher v. Simon. 67 Fed. 387. isUnion Bank v. Crittenden, 2 Cranch C. C. 238. Fed. Cas. No. 14,- 354. 19 Abraham v. Levy, 72 Fed. 124, 18 C. C. A. 469. 2 0Crooks V. Maxwell, 6 Blatchf. 40S, Fed. Cas. No. 3.415. iTurner v. I. B. & W. R. Co. 8 Biss. 3S0. Fed. Cas. No. 14.2.59. 2De Florez v. Ravnolds, 8 Fed. 4.34. 17 Blatchf. 430. S.Jackson v. Munks. 58 Fed. 596. 4Austin V. Rilev, 55 Fed. 833. sElder v. Riclunond O. & S. M. Co. 19 U. S. App. 118, .58 Fed. 5.36. 7 C. C. A. 354. fiWood V. Luse. 4 McLean. 254, Fed. Cas. No. 17.950; Harris v. Hardeman, 14 How. 3.34. 14 L. ed. 444. TMorsell v. Hall. 13 How. 212. 14 L. ed. 117. sTownsend v. -lennison. 7 How. 70(i. 12 L. ed. 880. sLinder v. Lewis. I Fed. 378. 733 § 813 [m] GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. [mj Formal defects on appeal. There is a specific provision of the Revised Statutes regarding amend- irient of the writ of error; 12 and amendment of appeal in prize cases. i"! R. S. § 954 forbids reversal for objections of formal or technical character first taken in the appellate court. i^ Formal defects are not to be regarded as matters of error; is but should be disregarded in the decision of the cause.16 A mere clerical omissioniT or mistake in nameis will be dis- regarded. Abuse of a formal conclusion to a special court is imraaterial.i^ Defects of form, not demurred to, are »ot reversible error; 20 nor is a variance between averments and findings;! nor an error on trying issues, cmt of their order.2 A formal defect in the verdict will be disregarded; if it is otherwise sufficient to sustain the judgment; 3 or a general verdict on distinct issues. 4 It is immaterial that the verdict and judgment are only on one demise out of several. 5 So if a declaration contains a special count, and the common counts, judgment may be sustained on the common counts.6 Other cases have refused to reverse where there was an omission to join issue on one out of two avowals in replevin; 7 or an omission of a similiter ;S or omission to obtain leave to file an amended bill, or to file a replication. 9 An omission on an appeal does not require the dismissal of the appeal, but the court may aid the appeal on ternis.io [n] Amendments of record on appeal. The trial court may supply omissions in its record for the purpose of showing on appeal what was actually done; 12 but its power ceases with the taking of the appeal. Amendments cannot be made after writ of error brought. 13 However, an order allowing an appeal may be amended in the 12 Post, § 1<)28. 13 Post, § 1333. i4Babbitt v. Burgess, 2 Dill. 169, Fed. Cas. No. 693. 15 Smith V. Allyn, 1 Paine, 456, Fed. Cas. No. 13,064. isStockton V. Bishop, 4 How. 155, 11 L. ed. 918; Taylor v. Benham, 5 How. 277, 12 L. ed. 151. i7Adams v. Law, 16 How. 149, 14 L. ed. 880; Citizens Bank v. Farwell, 56 Fed. 572, 6 C. C. A. 24. IS Conrad v. Griffey, 11 How. 480, 13 L. ed. 779; Pacific Bank v. Mixter, 114 U. S. 464, 29 L. ed. 221, 5 Sup. Ct. Rep. 944: Crittenden v. Davis, Hemp. 96, Fed. Cas. No. 3393b. i9Bank of Metropolis v. Gutt- schlick, 14 Pet. 27, 10 L. ed. 335. 2 0Ewing v. Howard, 7 Wall. 503, 19 L. ed. 295. 1 Railroad Co. v. Lindsay, 4 Wall. m:\ 18 L. ed. 328. 2Townsend v. Jennison, 7 How. 706, 12 L. ed. 880; Morsell v. Hall, 13 How. 212, 14 L. ed. 117. 734 sDowney v. Hicks, 14 How. 240, 14 L. ed. 404. 4Roach V. Hillings, 16 Pet. 319, 10 L. ed. 979. 5Van Ness v. Bank, 13 Pet. 17, 10 L. ed. 38. 6Bank v. Moss, 6 How. 31, 12 L. ed. 331. 7Dermott v. Wallach, 1 Black. 96^ 17 L. ed. 50. sHager v. Thompson, 1 Black, 90,. 17 L. ed. 43. sClements v. Moore, 6 Wall. 299, 18 L. ed. 786. loDayton v. Lash, 94 U. S. 112, 24 L. ed. 33; see Vansant v. Gas Light Co. 99 U. S. 213, 25 L. ed. 2G5. i2Ex parte Buskirk, 72 Fed. 14, !» C. C. A. 410; Walton v. United States, 9 Wlieat. 651, 6 L. ed. 182. isHoney v. Chicago, etc. Co. 82 Fed. 774, 27 C. C. A. 262; United States V. Hooe. 1 Cranch C. C. 116, Fed. Cas. No. 15,386; Michigan Ins- Bank V. Eldred, 143 U. S. 298, 36 L. ed. 162, 12 Sup. Ct. Rep. 450. rrocedure] FORMAL DEFECTS DISREGARDED § 813 [o]' lower court where the appeal is not perfected.it The Supreme Court has sustained action of a trial court in permitting at an ensuing term, the filing of the evidence and the charge to the jury. is In the appellate court, amendments may be made by consent; 16 though the Supreme Court views such amendments with disfavor, where for the purpose of showing t?te existence of jurisdiction ; 1 7 and prefers to remand the cause for that pur- pose.18 Error in taking an appeal in the name of a firm instead of the individual members may be cured by amendment ;19 if the names appear elsewhere in the record. Name of a new administrator may be added by amendment. 2 A clerical error in the clerk's transcript may be amended without returning the record or a certiorari.i The appellate court may correct errors in the docket title of a causes or an apparent error in the amount of the recovery. 3 Even the pleadings may be amended on appeal if justice requires it.* But the Supreme Court will not correct errors or omissions in the bill of exceptions.5 [oj Time of amendment. The first portion of the section requiring formal defects to bo disregard- ed and amended by the court, obviously applies at all stages of the pro- ceeding," including appeal. Hence verdicts, judgments or decrees and the record on appeal are amendable for formal defects. But while the last portion of the section declares a pleading or process amendable "at any time" there is authority for holding that this means at any time prior ta judgment or decree, when the amendment would involve more than a merely formal defect. 8 These cases however, would seem to refer to amendment of pleadings and not to negative the existence of authority to amend process issued after judgment for its enforcement. The right to i4Aspen M. Co. v. Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup. Ct. Rep. 4. isKerr v. South P. Comrs. 117 U. S. 383, 29 L. ed. 924, 6 Sup. Ct. Rep. 801. 16 Fletcher v. Peck, 6 Cranch, 127, 3 L. ed. 162; Hudgins v. Kemp, 18 How. 534. 15 L. ed. 512; Warren v. Moody, 9 Fed. 674; United States v. Hopewell, 51 Fed. 800. 2 C. C. A. 510; Fitchburg v. Nichol, 85, Fed. 870, 29 C. C. A. 464. I'Udall v. Steamship Ohio, 17 How. 18, 15 L. ed. 43. isKennedy v. Georgia St. Bank, 8 How. 611, 12 L. ed. 1209. isMoore v. Simonds, 100 U. S. 146, 25 L. ed. 590; United States v. Schoverling. 146 U. S. 82. 36 L. ed. 893, 13 Sup. Ct. Rep. 24; In re Woerishoflfer, 74 Fed. 916, 21 C. C. A. 175. 20Walton V. Marietta C. Co. 157 U. S. 347, 39 L. ed. 727, 15 Sup. Ct. Rep. 628. iWoodward v. Brown, 13 Pet. 1, 10 L. ed. 31. 2United States v. Jahn. 155 U. S. Ill, 39 L. ed. 87, 15 Sup. Ct. Rep. 39. sMills V. Scott, 99 U. S. 30, 25 L. ed. 294. 4 Jones V. Meehan, 175 U. S. 28. 44 L. ed. 60. 20 Sup. Ct. Rep. 1 ; Wiggins F. Co V. Ohio. etc. Rv. 142 U. S. 415, 35 L. ed. 1055, 12 Sup. Ct. Rep. 188. sStimpson v. West C. R. R. 3 How. 556. 11 L. ed. 722; Gavler v. Wilder, 10 How. 509. 13 L. ed."517. TWalden v. Bodley, 14 Pet. 150, 10 L. ed. 398: Koene v. Whontlev, 4 Phila. 157 Fed. Cas. No. 7.644. '•Nelson v. Barker. 3 McLean. 379, Fed. Cas. No. 10.101 : Siritli v. Jack- son, 1 Paine, 486, Fed. Cas. No. 13,- 065. 735 § 813 [p] GENERAL AXD MISCELLANEOUS PROVISIONS. [Code Fed. iUiu'Hd u pleading dining, or at the close of the trial or hearing or after verdict, is well settled.9 But the court has a discretion to deny amend- ments offered at that time because too late, when the ends of justice do not require their allowance ;io or to disallow them from failure to exercise proper diligence. n Thus, leave to file a verified denial raising new is.sues as to the execution of the instrument in suit has been denied at the trial, where to the suprise and injury- of the plaintiff.12 So. after reversal, the trial court may and is often directed to allow amendment of pleadings. is But an amendment of an intervenor's claim for personal injuries, setting up a distinct ground of negligence, is too late, after a master has finished a liearing and is preparing his report, i* A commissioner may not amend the complaint or warrant in extradition or supply defects by his certificate, after the case is closed and certorari is served on him.i5 [pj Conditions as to costs and continuance. It is usual to make payment of costs a condition of the allowance of an amendment. But where no fault is imputable to the amending party.! v or there was an agreed statement of facts,is costs have been refused. Payment of costs is not a condition precedent unless made so by order.is Where an amendment by plaintiff materially varies the line of the defense plaintiff may be required to pay all accrued costs.20 ^^liere the defend- ant misled the plaintiff", leave to amend the plea will be given only on pay- ment of costs;! so after plea of misnomer;? or on leave to substitute a sGarland v. Davis, 4 How. lol, 11 L. ed. 907; Clark v. Sohier. 1 Wood. & M. 368, Fed. Cas. No. 2.835: Mack V. Porter, 72 Fed. 243, 18 C. C. A. 527: Battle v. ilutual L. I. Co. 10 Blatchf. 407. Fed. Cas. Xo. 1.10!); Xeale v. Neales. 9 Wall, 1. 19 L. ed. 590; Bamberger v. Terry. 103 U. S. 40, 26 L. ed. 317; Shuniacher v. St. Louis, etc. R. R. 39 Fed 181; Baker v. Barber A Co. 92 Fed. 122: Bowden v. Burnham. 59 Fed. 755. 8 C. C. A. 248. loSee Clark v. Mavfield. 3 Cranch C. C. 353. Fed. Gas. Xo. 2,858 ; Smith V. Barker. 3 Day. 312. Fed. Cas. Xo. 13,013; Lanning'v. Dolph. 4 Wash. C. C. 624. Fed. Cas. No. 8.073; Bullock V. Van Pelt, Bald. 463, Fed. Cas. Xo. 2.131 : Postmaster General v. Ridg- way, Gilp, 135, Fed. Cas. Xo. 11,313. 11 Cross V. Morgan, 6 Fed. 241. !2Benedict v. ^Mavnard, 6 McLean, 21. Fed. Ca-s. Xo. l".296. i3ln re Sanford F. & T. Co. 160 I'. S. 247. 40 L. ed. 414. 16 Sup. Ct. Rep. 391; Russell v. Clark, 7 Cranch, 69, 3 L. ed. 272; Caldwell v. Taggart, 4 Pet. 190. 7 L. ed. 828. i4('lvde V. Richmond, etc. R. R. 59. Fed. 394. i5Ex parte Lane. 6 Fed. .34. !"Lanning v. Dolph. 4 Wash. C. C. 624. Fed. Cas. Xo. 8.073. isHechsclier v. Binnev. 3 Wood. & M. 333. Fed. Cas. Xo. 6*316. !9\Vigfield V. Dver. 1 Cranch C. C. 405. Fed. Cas. Xo.'l7.622; Wheaton v. Love. 1 Cranch C. C. 451. Fed. Cas. Xo. 17.485; Butts v. Chapman, 1 Cranch C. C. 570. Fed. Cas. Xo. 2.257. 20Wright V. HoUingsworth. 1 Pet. 165. 7 L. ed. 97; (ieorgetown v. Beatty. 1 Cranch C. C. 2.34. Fed. Cas. Xo. .5.344: Ferris v. Williams. 1 Cranch C. C. 281, Fed. Cas. Xo. 4,749; Paven v. Hodgson, 1 Cranch C. C. .508, Fed. Cas. Xo. 10,853; Elliott v. Holmes, 1 McLean. 466, Fed. Cas. No. 4.392; Pierce v. Strickland. 2 Story, 292, Fed. Cas. X'o. 11.147: Fiedler V. Carpenter, 2 Wood. & M. 211. Fed. Cas. No. 4.759: Sanders v. Hamil- ton, 2 Hayw. 282, Fed. Cas. No. 12,294. lAnoiivmous. 2 Wash. C. C. 270. Fed. Cas". No. 476. 2Paven v. Hodgson, 1 Cranch C. C. .iOS, Fed. Cas. No. 10,853. 3G I Procedure] FORMAL DEFECTS DISREGARDED. § 813 [q] general denial.^ An amendment maj'^ be allowed with the costs of tht- terra only;* or the party applying may be required to pay the expenses ot the adverse party. 5 An amendment varying the amount of damages was allowed after verdict on payment of costs and consent to a new trial. tJ If a material amendment is allowed, the opposite party may have a con- tinuance;" and if defendant amend his plea plaintiff may have a continu- ance and costs also;8 or his option between a continuance and costs; 9 or defendant may be required to pay the costs of the term;io or all costs up to the time of filing the amendment.! i Where amendment is allowed at the close of the trial, the court must determine whether the submission of the cause ought not to be set aside.i2 [q] Discretion of court. The allowance of amendments rests in the sound discretion of the court.i3 While they are usually allowed with liberality,!* this is not so true of actions for penalties or forfeitures.! 5 They should only be allowed in furtherance of justice; is as, to prevent part of plaintiff's remedy from being cut off.! 7 When allowed at the close of the trial, the court must determine whether the submission of the cause ought to be vacated.! 8 Since the allowance of amendments is discretionary, a refusal to allow is not review- 3Krouse v. Sprogell, 1 Cranch C. C. 78, Fed. Cas. No. 7.940; see Milburne V. Kearnes, 1 Cranch C. C. 77, Fed. Cas. No. 9,543. ^Greeley v. Smith, 3 Story, 76, Fed. Cas. No. 5,747. sUnited States v. Batchelder, 9 Int. Rev. Rec. 98, Fed. Cas. No. 14,- 541. sElting V. Campbell, 5 Blatchf. 183, Fed. Cas. No. 4,422. TSchnertzell v. Purcell, 1 Cranch C. C. 246. Fed. Cas. No. 12.472; Georgetown v. Beaty, 1 Cranch C. C. 234, Fed. Cas. No. 5,344: Elliott V. Holmes, 1 McLean, 46G, Fed. Cas. No. 4,302; Walker v. Johnson. 2 INIc Lean, 256, Fed. Cas. No. 17,075; Wyatt V. Harden, Hemp. 17, Fed. Cas. No. 18, 106a; LTnited States v. Whiskey, 7 Phila. 603, Fed. Cas. No. 16.671. «Semmes v. O'Neale, 1 Cranch C. C. 246, Fed. Cas. No. 12,654; Mar- steller v. McLean, 1 Cranch C. C. 550, Fed. Cas. No. 9,138; Short v. Wilkinson, 2 Cranch C. C. 22, Fed. Cas. No. 12.810. f'Milburne v. Kearnes, 1 Cranch C. C. 77. Fed. Cas. No. 9.543. !OKrouse v. Sprogell, 1 Cranch C. C. 78, Fed. Cas. No. 7,940. iiSemmes v. O'Neale, 1 Cranch C. C. 246. Fed Cas. No. 12,654; Mar- steller v. McLean, 1 Cranch C. C. 550, Fed. Cas. No. 9,138; Short v. Wilkin- son, 2 Cranch C. C. 22, Fed. Cas. No. 12,810: Anonymous, 2 Wash. C. C. 270, Fed. Cas. No. 476. !2Bamberger v. Terry, 103 U. S. 40, 26 L. ed. 317. ! 3 Wright V. Hollingsworth, 1 Pet, 165, 7 L. ed. 97; United States v. Buford, 3 Pet. 12, 7 L. ed. 585; Ex parte Bradstreet. 7 Pet. 634. 8 L. ed. 810; Walden v. Craig, 9 Wheat. 576, 6 L. ed. 164; Murphy v. Stewart, 2 How. 263. 11 L. ed. 261; Stevens Adm. V. Nichols. 157 U. S. 370, 39 L. ed. 737, 15 Sup. Ct. Rep. 640; Phillip, etc. Co. V. American I. Co, 77 Fed. 138, 23 C. C. A. 89; Jefferson v. Bur- hans. 85 Fed. 924, 29 C. C. A. 487. I'tSupra, note[a]. !5United States v. Batchelder, 9 Int. Rev. Rec. 98, Fed. Cas. No. 14,- 546. !6Eberly v. Moore, 24 How. 158, 16 L. ed. 614; Bamberger v. Terry, 103 U. S. 43, 26 L. ed. 318. ! 7 Wilbur V. Abbott, 6 Fed. 817. !8Bamberger v. Terry, 103 U. S. 40, 26 L. ed. 317. Fed. Proc. — 47. 737 § 814 GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. able on appeal or writ of error; is unless there has been an abuse of dis- cretion.2o § 814. Effect of death of party before final judgment — revivor. When either of the parties, whether plaintiJff, or petitioner, or de- fendant, 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 an- swer accordingly ; and the court shall hear and determine the cause and render judgment for or against the executor or administrator, as the case may require. And if such executor or administrator, having been duly served with a scire facias^®^ from the office of the clerk of the court where 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 administrator had voluntarily made himself a party. The executor or administrator who becomes a party as aforesai^d shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court. '^^^''^^^ R. S. § 955, U. S. Comp. Stat. 1901, p. 697. [a] Scope and construction of sections. The common law rule was that death of party before judgment abated the suit.2 R. S. § 955, originally part of § 31 of the judiciary act of i7S9,3 provides that the cause shall proceed by or against the personal repre- sentative in all cases in which the "cause of action survives by law."* Under that section death of a party, if the action survives, does not de- termine the suit,5 nor produce any change in the rights of the parties. 6 The revivor is a mere continuance of the original suit." The action must however, have been actually commenced. If complaint is not filed until isWalden v. Craig, 9 Wheat. 576, 44 L. ed. 1138, 20 Sup. Ct. Rep. 951; 6 L. ed. 164; United States v. Bu- that above section applies only to ac- ford, 3 Pet. 31, 32, 7 L. ed. 592; Ex tions at law. Brown v. Fletcher, 140 parte Bradstreet, 7 Pet. 634, 8 L. Fed. 639. ed. 810; Tilton v. Cofield, 93 U. S. sClark v. Matthewson, 12 Pet. 171, 166, 23 L. ed. 860; Ayers v. Watson, 9 L. ed. 1041. 137 U. S. 585, 34 L. ed. 803. 11 Sup. eQreen v. Watkins, 6 Wheat. 263, Ct. Rep. 201. 264, 5. L. ed. 256. 20Mandeville v. Wilson, 5 Cranch, '^Clark v. Matthewson, 12 Pet. 172, 17, 18, 3 L. ed. 24. 9 L. ed. 1041 ;Fitzpatrick v. Domingo, 2Green v. Watkins, 6 Wheat. 262, 4 Woods. 103. 14 Fed. 217; Shirley 5 L. ed. 256. v. Waco Tp. Ry. 4 Woods, 414, 13 sActSept. 24, 1789, § 31, 1 Stat. 90. Fed. 707; Jones v. Andrews, 10 Wall. 4Ex parte Connaway, 178 U. S. 430, 335, 19 L. ed. 9S7. 738 Procedure] EFFECT OF DEATH OP PARTY. § 814 [c] after plaintiff's death, the entire proceeding is a nullity. 8 In States where an action is commenced by the filing of a complaint, a case is deemed pend- ing within this section, if the complaint is filed before death, though not served. 9 The section applies, a fortiori, if there has been service of process] 10 and at all subsequent stages of the cause even after verdict, n if prior to final judgment. 12 It applies to removed cases. is Death of a party after final judgment so far as affecting appeal ;14 the right to execution; is and death while appeal is pending,i6 are governed by other provisions of law. But death after execution sale does not abate the proceeding or pre- vent the giving of a deed.i" The Equity Rules also treat of the subject of bills of revivor. 18 The effect of death of bankrupt or trustee is also treated elsewhere. 1 9 There is no provision in the equity rules or practice for compulsory revival by the defendant after death of complainant. 20 [b] Section not applicable to real actions or in admiralty. Since the section provides for appearance by executor or administrator and not the heirs, the Supreme Court early decided that it refers only to personal and not real actions. 2 Hence where complainant in a real action in equity dies, a supplemental bill and not a bill of revivor is the proper proceeding; 3 and revivorship of a real action at law is governed by the law of the State and not by R. S. § 955.4 A bill of revivor cannot be filed by a devisee or assignees since he is not the personal representative, but a transferee. It has been held also that R. S. § 955 does not relate to ad- miralty causes. 6 The mode of bringing in the decedent's representative in common law causes, is governed in general by State law.T [c] The personal representative — continuance — pleadings. The section is intended to permit a personal representative who might originally have brought the suit, to continue it. It does not permit one sHarter v. Twohig, 158 U. S. 448, isPost. § 960. 39 L. ed. 1049, 15 Sup. Ct. Rep. S8.3. isPost, § 2248. 9Ex parte Connaway, 178 U. S. 20Brown v. Fletcher. 140 Fed. (139, 430, 44 L. ed. 1138. 20 Sup. Ct. Rep. 23racker v. Thomas, 7 Wheat. 5.30, 951. 5 L. ed. 515. loMandevdlle v. Riggs, 2 Pet. 487, ^Currell v. Villars, 72 Fed. 331. 7 L. ed. 493. ^McArthur v. Williamson, 45 Fed. iiBaldwin v. Lamar, Chase 432, 155. Fed. Cas. No. 800. ssiack v. Wolcott, 3 Mason. 508, i2Hatch V. Eustis, 1 Gall. 160, Fed. Fed. Cas. No. 12.932; Metal S. Co. v. Cas. No. 6,207. Crandall, 18 0. G. 1531, Fed. Cas. l3Baltimore, etc. Rv. v. Joy, 173 Xo. 9.493c. U. S. 226, 43 L. ed. 677. 19 Sup. Ct. eThe Jas. A. Wright, 10 Blatchf. Rep. 387; Y-ta-tah-wah v. Rebcock, IGO. Fed. Cas. No. 7,191. But see 105 Fed. 265. The Ship Norway, 1 Ben. 493. Fed. 14 Post. § 1895. Cas. No. 10.357; The M. B. Roper. 106 isSee Ransoin v. Wiliam^, 2 Wall. Fed. 741, 45 C. C. A. 578; United 313, 17 L. ed. 803; post. § — . States v. Sampson, 187 U. S. 436, 47 lePost, § 1896. L. ed. 248. 23 Sup. Ct. Rep. 216. iTlnslev V. United States, 150 U. '^^Martin v. Baltimore, etc. Rv. 151 S. 516. 37 L. ed. 1163, 14 Sup. Ct. U. S. 693, 38 L. ed. 311, 14 Sup. Ct Rep. 158. Rep. 533. 739 § 814 [d] GENEREL AND MISCELLANEOUS PROVISIONS. [Code F'ed- who has not obtained letters testamentary or properly qualified himself to sue, thus to revive an action. 9 He must show that he is executor or ad- ministrator and produce his letters if required, lo The citizenship of th« personal representative is immaterial, though the original ground of juris- diction was diverse citizenship in the parties. n He is entitled to a con- tinuance but may waive the right, and it not available to the other party.i2 The proceedings after the revivor are exactly as though the repre- sentative were a voluntary party to the suit;i3 and he may plead only what his decedent might have pleaded. 1 4 The State law as to mode of bringing in the representative is followed by the Federal court in common law causes. 15 The section does not apply to a devisee or assignee, or heir of decedent, but merely to the personal representative, and to personal actions. 16 [d] By what law survivorship of action is determined. This section does not attempt to declare what actions survive. 1 7 With- out attempting to review the authorities deciding that question, it is im- portant to determine by what law it is governed. The survivability of a 'Cause of action is a matter of substantive law, and to be ascertained as such, while the revival of a suit is mere matter of procedure. is Bearing in mind the principles discussed in another portion of this work. 1 9 it is plain that where a cause of action is founded upon State law and within the scope of a State's legislative powders, the question of its survivorship is determined by State law as much in the Federal as in the local tribunals. 20 In the absence of State statute the common law is resorted to in such a case,i but it is conceived that the common law referred to bv the cases is the oIvropiT V. Poth, 19 Fed. 200; see Mason v. Hartford, etc. R. R. 10 Fed. 337; Melius v. Thompson, 1 CliflF. 125, Fed. Cas. No. 9,405. lOWilson V. Codman, 3 Cranch, 193, 2 L. ed. 409. iiClarke v. Matthewson, 12 Pet. 171, 9 L. ed. 1041; Hardenbergh v. Rav, 151 U. S. 118, 38 L. ed. 93, 14 Sup. Ct. Rep. 305. isGriswold v. Hill, 1 Paine, 483, Fed. Cas. No. 5,834; Wilson v. Cod- man, 3 Cranch, 193, 2 L. ed. 408. isHatch V. Eustis, 1 Gall. IGO, Fed. Cas. No. 6.207. i4McKnight v. Craig, 6 Cranch, 183, 3 L. ed. 193. isMartin v. Baltimore, etc. R. R. 151 U. S. 693, 38 L. ed. 318, 14 Sup. Ct. Rep. 533. isSupra, note[b]. 1 ''Martin v. Baltimore, etc. R. R. 151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Rep. 533; Patton v. Bradv, 184 U. S. 612, 46 L. ed. 71'6, 22 Sup. Ct. Rep. 493. isSchreiber v. Sharpless, 110 U. S. 76, 80, 28 L. ed. 65, 3 Sup. Ct. Rep. 423; Warren v. Furstenlieim, 35 Fed. 691, 1 L.R.A. 40; Sanders v. Louis- ville & N. R. R. Ill Fed. 70S, 49 C. C. A. 565; Martin v. Baltimore, etc. R. R. 151 U. S. 692, 38 L. ed. 318, 14 Sup. Ct. Rep. 541. But see Jones v. Van Zandt, 4 jNfcLean, 599, Fed. Cas. No. 7,503. 19 Ante. § 10. 20Sanders v. Louisville, etc. R. R. Ill Fed. 708, 49 C. C. A. 565; Bal- timore, etc. Ry. V. Joy, 173 U. S. 229, 43 L. ed. 677, 19 Sup. Ct. Rep. 387; Y-ta-tah-wah v. Rebock, 105 Fed. 265; Martin v. Baltimore, etc. R. R. 151 U. S. 692, 38 L. ed. 318, 14 Sup. Ct. Rep. 541; Witters v. Foster, 23 Blatclif. 457. 26 Fed. 737; Warren v. Furstcnheim, .35 Fed. 691, 1 L.R.A. 40; Barker v. Ladd, 3 Sawy. 44, Fed. Cas. No. 990; Hatfield v. Bushnell, 1 Blatchf. 393, Fed. Cas. No. 6,211. iHenshaw v. Miller, 17 How. 218, 15 L. ed. 222; United States v. -10 riocedure] DEATH OF ONE OF SEVERAL PARTIES. § 815 coninioii law of the particular State and not a common law of the nation. 2 Where the cause of action is based on Federal law, Congress has full power to declare its survivability. Congress however, has passed no such law and the question of survivability arose some years ago in a qui tam suit for a penalty under the Federal copyright law. By the law of Pennsylvania, where the case arose, suits for penalties survived, but at common law it was otherwise. The court applied the common law rule although counsel argued that R. S. § 721,3 adopting State laws as rules of decision, should govern. 4 [ej Scire facias. Another provision of law confers general power to issue scire facias and its general nature and uses are elsewhere considcred.» The personal representative may, if he chooses, come in instanter, and scire facias is then unnecessary. 6 As no period of time is fixed for his appearance, if the other party fails to summon him laches cannot be predicated upon mere lapse of time. 7 But a petition to revive may be denied after great lapse of time for lack of diligence ;S and where barred I)}' statute. 9 However, a reason- able time to revive will always be allowed.io § 815. Death of one of several parties. If there are two or more plaintiffs or defendants, in a suit Avhere the cause of action survives to the surviving plaintiff or against the surviving defendant, and one or more of them dies, the writ or ac- tion shall not be thereby abated ; but, such death being suggested upon the record, the action shall proceed at the suit of the surviv- ing plaintiff against the surviving defendant. R. S. § 956 U. S. Comp. Stat. 1901, p. 697. R. S. § 955 and § 95G originally constituted § 31 of the judiciary act of 1789; 12 and are modeled after an English statute.is There are however, important differences between the foregoing provision and R. S. § 955. The latter provided for revivorship of the suit by or against decedent's executor Daniel, 6 How. 11, 12 L. cd. 323; Cas. No. 10.357: Siiiunons v. ^Morris, Patton V. Brady, 184 U. S. 612, 46 109 Fed. 707. L. ed. 710, 22 Sup. Ct. Rep. 493. sMcArthur v. Williamson. 45 Fed. 2See ante. § 13, and see the case of 154: Simmons v. Morris. 109 Fed. Bucher v. Cheshire R. R. 125 U. S. 707: Goodvear D. V. Co. v. White, 584, 31 L. ed. 795, 8 Sup. Ct. Rep. 974. 46 Fed. 278. 3 Ante, § 12. o:\[ason v. Hartford, etc. R. R. 19 4Sc.hrpiber v. Sharpless, 110 U. S. Fed. 53. 76. 28 L. ed. 65. 3 Sup. Ct. Rep. 423. loTilghman v. Paxson Co. 115 This case is referred to under the Fe3, 43 L. ed. 689, 19 Sup. Ct. 56, 14 Am. St. Rep. 400, 20 X. E. 314, Rep. 402; Detroit v. Dean, 106 U. S. 3 L.R.A. 205; Bmvley v. Railroad, 110 537, 27 L. ed. 300, 1 Sup. Ct. Rep. N. C. 318, 14 S. E.' 777. It is sug- 560: Lehigh M. etc. Co. v. Kellv, 160 gested that the State courts should U. S. 342, 40 L. ed. 450, 16 Sup. Ct. take notice of such a fraud: Pr.ni- Rep. 307; Coffin v. Haggin. 11 Fed. dent. etc. Soc. v. Ford, 114 U. S. 635, 219, 7 Sawy. 509: Industrial Guaran- 29 L. ed. 261. 5 Sup. Ct. Rep. 1104. ty. etc. Co. V. Electrical S. Co. 58 nCates v. Allen, 149 U. S. 460. 37 Fed. 543. 7 C. C. A. 471; New A. W. L. ed. 804, 13 Sup. Ct. Rep. SS3. 977; Fed. Proc— 48. 753 S S18 tjj GKNEKAL AND MISCELLANEOUS FROVISIONS. [Code Fed. LjJ Costs. Where the fault is distinctly traceable to one party and the other is free therefrom, costs should of course be taxed against the former. 1 3 1'hus, the party removing is usually i4 the one in fault and should pay the costs of both trial and appellate courts. is Where parties are equally re- sponsible for the removal or bringing of the suit in the Federal court, costs have sometimes been refused to eitheris and sometimes each has been de- creed to pay one-half. 1'? So where one improperly brought a case in the Federal court and the other removed a case thereto, each was decreed to I ay his own costs. is There has been some question whether an attorney's (locket fee should be allowed as taxable costs upon remand. In a Michigan district the usual $20 docket fee was allowed,i9 but in the district of Indiana the right to any docket fee was denied. 20 Elsewhere the docket fee of $10 allowable in trials at law without a jury was deemed a fair com- promise.! Compensation for typewriting, pleadings, motions, etc., has been refused. 2 o 819. Either party may notice cause for trial. In all civil actions in the courts of the United States either party may notice the same for trial. R. S. § 950, U. S. Comp. Stat. 1901, p. 695. This provision was first enacted in 1871.5 In common law causes the State practice is followed "as near as may be." 6 This includes the time of giving notice of hearing on demurrer which is a trial of an issue of law." § 820. Priority in hearing of state cases. When a State is a part}^ or the execution of the revenue laws of Northern P. T. Co. v. Lowenberg, 18 544, 12 Sup. Ct. Rep. 922; North .\. Fed. 339, 9 Sawy. 348- Gombert v. etc. Co. v. Morrison, 178 U. S. 269. Lyon, 80 Fed. 306. But see the die- 44 L. ed. 106, 20 Sup. Ct. Rep. 869. tum of Harlan J. in Barney v. Lath- iGFir.st Nat. Bank of Parker.sbur;,' am, 103 U. S. 205, 216, 26 L. ed. 518. v. Prager. 91 Fed. 689, 34 C. (' isTennessee v. Union, etc. Bank, A. 51. 152 U. S. 464, 38 L. ed. 511, 14 Sup. i7Hancock v. Holbrook, 112 U. S. Ct. Rep. 654. 2.30, 28 L. ed. 715, 5 Sup. Ct. Rep. i4But see Egerton v. Starin. 91 115. Fed. 932; Bane v. Keefer, 66 Fed. isPeper v. Fordyce. 119 U. S. 469. 610. 30 L. ed. 435, 7 Sup. Ct. Rep. 287. isMansfieldv. Swan, 111 U. S. 386, is.Tosslvn v. Phillips. 27 Fed. 481. 28 L. ed. 462, 4 Sup. Ct. Rep. 510; 2oSmitii v. Tel. Co. 81 Fed. 242: Hanrick v. Hanrick, 153 U. S. 196, and sec Lozano v. AVehmer, 22 Fed. 38 L. ed. 685. 14 Sup. Ct. Rep. 835; 755. Graves v. Corbin, 132 U. S. 590. 33 L. iRiser v. Southern Rv. 116 Fed. ed. 462, 10 Sup. Ct. Rep. 196; La 1014. Confiance, etc. Co. v. Hall, 137 U. 2Pellett v. Great N. R. R. 105 S. 62, 34 L. ed. 573, 11 Sup. Ct. Rep. Fed. 194. 5: Walker v. Collins. 167 U. S. 59, 5 Act Feb. 28, 1871, c. 99, § 17, 10 42 L. ed. 76, 17 Sup. Ct. Rep. 38; Stat. 439. Torrence v. Shedd, 144 U. S. 533, 36 L. ePost, § 900. ed. 528. 12 Sup. Ct. Rep. 726; Kellam TRosenbach v. Dreyfuss, 2 Fed. 23. v. Keith. 144 U. S. 570. 36 L. ed. 754 Procedure] DEPOSIT OF MONEYS PAID INTO CX)URT. § 821 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 execution whereof is enjoined or stayed, shall be entitled, on showing sufficient reason, to have the cause heard at any time after it is docketed, in preference to any civil cause pend- ing in such court between private parties. R. S. § 949, U. S. Comp. Stat. 1901, p. 695. This provision was enacted in 1870.9 It applies both to the trial docket and to hearing on appeal. As the court judges the sufficiency of the rea- son shown, the section is not imperative but vests a discretion in the court.io Hence advancement of causes upon the docket has been denied where the enjoining of a State's revenue law affected only one property holder and did not appear to embarrass the State's governmental opera- tions.! i So the motion must be made on the part of the State or the party claiming under the revenue laws.12 The State must be more than a nomi- nal party as in the case of quo warranto against corporate directors. 1 3 The rules of the Supreme Court also provide as to advancement of causes upon its docket. 14 R. S. § 949, has also been referred to argumentatively as supporting the right of Federal courts to enjoin State revenue officers.iB § 821. Deposit of moneys paid into court. 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 deposited with the treasurer, an assist- ant treasurer, or a designated 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 direction of the court. R. S. § 995, U. S. Comp. Stat. 1901, p. 711. This provision was originally enacted in 1871.1" National banks may be designated as depositaries of the Ignited States.is Though money depos- ited in them is not money in the United States treasury.is Money thus de- 9 Act June .30. 1870. c. 181. 16 Stat. 1 4 Post. § 2040 et seq. 17G. 1 "Board of Liquidation v. ^IcComb. loHoge V. Richmond, etc. R. R. 93 02 V. S. 5.31. 2.3 L. cd. 023: Parsons U. S. 1, 23 L. ed. 781. v. Marve. 2.3 Fed. 113. iiHoge v. Riclimond. etc. R. R. 93 ivAct March 2. 1871. c. 2. § 1, U. S. 1. 23 L. ed. 781. 17 Stat. 1. i2Ward V. Marvland. 12 Wall. 1()3. isR. S. § 5153. U. S. Comp. Stat. 20 L. ed. 200: Central R. R. v. Bour- 1901. p. 34G5. bon Co. 116 U. S. 538. 29 L. ed. 725. ir'Branch v. United States. 100 U. 6 Sup. Ct. Rep. 601. S. 674. 25 L. ed. 759; Coudert v. isMillerv. New York. 12 Wall. 1.59. Unit<^d States. 175 U. S. 180. 44 L. 20 L. ed. 259. ed. 122, 20 Sup. Ct. Rep. 56. 755 § 822 GENERAL AND MISCELLANEOUS PROVISIONS. [Code Fed. posited is in the custody of the law^o and in the possession of the court as fully as though actually in the clerk's hands. i It is not subject to process even from the same court in another suit. 2 The bank acting as depositary is not to be sued. 3 The principles of law respecting the ex- clusiveness of such courts custody, and forbidding interference by any other court, apply to such deposits. 4 Attempts to reach funds so deposited, or to obtain a share thereof, must be by ancillary application in the suit in which the funds were deposited, not by separate suit with different par- ties. 5 Claimants to the fund may be heard at any time prior to final dis- tribution.6 Tender of payment by deposit in court has long been recognized both in equity and common law practice.7 § 822. Withdrawal of deposit — transfer to credit of United States. No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said courts 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. And it shall be the duty of the judge or judges of said courts, respectively, to cause any moneys deposited as aforesaid, which have remained in the registry of the court unclaimed for ten years or longer, to be depos- ited in a designated depository of the United States, to the credit of the United States. R. S. § 996 as amended by act Feb. 19, 1897, c. 265, § 3, 29 Stat. 578, U. S. Comp. Stat. 1901, p. 711. The amendment of 1897 consisted in the addition of the last sentence requiring deposit to the credit of the United States after ten years. The first portion of the section was originally enacted in 1871.9 2 0The Lottawana, 20 Wall. 201, 22 4 Ante, § 17. L. ed. 259; In re Forsyth, 78 Fed. sGregory v. Boston S. I. Co. 144 296. ' U. S. 605, 36 L. ed. 585, 12 Sup. Ct. iJones V. Merchants' Nat. Bank, 76 Rep. 783. Fed. 683, 22 C. C. a. 483, 35 L.R.A. ein re Howard, 9 Wall. 183, 19 L. 698. Where a bidder at judicial sale ed. 634 : Martin v. Rainwater, 56 Fed. is permitted to deposit a cheek as 10. 5 C. C. A. 398. part paymeut which by agreement is ^Potter v. Gardner, 5 Pet. 722, 8 L. to be credited on a decree in his ed. 285. The power of courts to or- favor. tliis need not be deposited un- der payment of money thus tendered, der this section : Curtice v. Crawford to the opposite party, both at law and County Bank, 124 Fed. 919. in equity is elaborately considered in 2Gregory v. Boston S. D. Co. 144 Caesar v. Capell, 83 Fed. 428. et seq. U. S. OaS." 36 L. ed. 585, 12 Sup. Ct. 9 Act March 24, 1871, c. 2, § 2, 17 Rep. 783. Stat. 1. 3Jones v. Merchants' Nat. Bank, 76 Fed. 683. 22 C. C. A. 483, 35 L.R.A. 098. 756 Procedure] CONSOLIDATION OF CAUSES. § 823 [b] § 823. Consolidation of causes. 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 . . . consolidate said causes when it appears reasonable to do so.f^^'f'^^ R. S. § 921, U. S. Comp. Stat. 1901, p. 685. [a] Scope and discretionary nature of provision. The section also provides for making orders and rules to avoid costs and delay in such causes. lo It was enacted in 1813,ii and carried forward without substantial change, into the Revised Statutes. From its wording it is obvious that a discretion is conferred upon the trial court,i2 and con- solidation orders made in the exercise of that discretion will not be set aside on appeal; is unless for gross abuse thereof. i* Nor is such discre- tion controllable by mandamus from an appellate court. is The section ap- plies in equityie as well as at law; and in admiralty it is declared to be merely declaratory of exising principles. 1 7 Another provision of law re- quires consolidation of suits for revenue penalties. is [b] Instances of consolidation. The cases present a variety of instances of consolidation. Actions on insurance policies involving the same risk and same questions of fact, are a common and perhaps the first illustration of the enforcement of the rule.i Patent infringement suits are often consolidated; 2 and ejectment eases involving the same title. 3 So suits involving the foreclosure or ad- ministration of corporate assets, can frequently be consolidated to ad- vantage. 4 Suits against joint tort feasors or for different torts growing out of the same fax;t, against one defendant may be consolidated. 5 Re- loSee post. § 1833. ivSalmon Falls Mfg. Co. v. Tan- 11 Act July 22. 1813, c. 14. 3 Stat, gier, 3 Ware, 110, Fed. Cas. No. 12,- 21. Prior thereto consolidation was 267. refused in absence of a general rule: isPost, § 1384. Bank v. Young, 2 Cranch C. C. 52, iMutual L. I. Co. v. Hillmon, 145 Fed. Cas. Xo. 858. U. S. 292, 36 L. ed. 706, 12 Sup. Ct. i2Seaw€ll V. Berry, 55 Fed. 732; Rep. 909. Toledo, etc. R. R. v. Continental T. 2Andrews v. Spear. 4 Dill. 470. Fed. Co. 95 Fed. 497. .36 C. C. A. 15.5. Cas. No. 379; Frank v. Geiger. 121 i3Mutual L. I. Co. V. Hillmon. 145 Fed. 126: see Deering v. Winona H. U. S. 292. 36 L. ed. 706, 12 Sup. Ct. Co. 24 Fed. 90. Rep. 909: Hanover Ins. Co. v. Kin- 3 See Keep v. Indianapolis, etc. R. neard, 129 U. S. 176. 32 L. ed. 6.53. R. 10 Fed. 4.55. 3 McCrarv, 302. 9 Sup. Ct. Rep. 269. 4 Wabash, etc. R. R. v. Central T. ^Lincoln, etc. M. Co. v. Hendrv, Co. 23 Fed. 513: Continental T. Co. 9 N. Mex. 152. 50 Pac. 330. " v. Toledo, etc. R. R. 82 Fed. 642; i5Le\vis V. Baltimore, etc. R. R. Toledo, etc. R. R. v. Continental T. 62 Fed. 218, 10 C. C. A. 446. Co. 95 Fed. 497. 36 C. C. A. 155. i6Tolea. officers to levy a tax to pay it,i4 though it will refuse the remedy if the judgment is invalid. is Formerly when the circuit court had appellate power over the district court, mandamus was sometimes a proper auxiliary process in aid of the circuit court's jurisdiction; but its use was of course subject to the usual tests determining the propriety of the remedy by mandamus. i^ While the use of mandamus to compel a State court to allow the removal of a cause might be deemed ancillary, it would be improper on grounds of comity and unnecessary.! s Mandamus by a court to its clerk to compel the allowance of a claim against a fund in court is unnecessary and improper as a single order will suffice.i'J It is a proper auxiliary use of mandamus, however, to compel a corporation to transfer stock on its books to a pur- chaser at Federal execution sale. 20 Mandamus in aid of a judgment is in the nature of an execution and not a proceeding in equity ;i and should con- form to the practice in common-law actions. 2 The effect of denjing the inferior Federal courts power to mandamus executive officers of the Federal government by a proceeding instituted for that purpose and of the rule that the State courts are equally without that power,5 is much mitigated by the further well-settled rule that the Supreme Court of the District of Columbia has power to mandamus such officers in cases where that remedy is proper. 6 [ff] — mandamus by circuit court of appeals. The power of the circuit court of appeals to issue mandamus is subject to the limitations prescribed in R. S. § 716.8 Being exclusively an ap- pellate court it may use the writ only in aid of its appellate jurisdiction. >* It may not mandamus an inferior court to compel it to accept a certain bail, 10 or to take jurisdiction, n or dismiss a cause for want of jurisdic- i4Riggs V Johnson Co. 6 Wall. 188, iKinnev v. Eastern, etc. Co. 12," IS L. ed. 774; Bath Co. v. Amy, 13 Fed. 2&7, 59 C. C. A. 58G; Carter Co. Wall. 249, 20 L. ed. 541; Heine v. v. Schmalstig, 127 Fed. 126, 62 0. C. Levee Comrs. 19 Wall. 660, 22 L. ed. A. 78. 226: Strvker v. Boanl of Comrs. 77 2Cleveland v. United States, 127 Fed. 574," 23 C. C. A. 286 ; Labette Co. Fed. 667, 62 C. C. A. 393. Comrs. V. United States, 112 U. S. sMcClung v. Silliman, 6 Wheat. 217, 28 L. ed. 698, 5 Sup. Ct. Rep. 598. G04, 5 L. ed. 341. 108. GKendall v. United States, 12 Pet. isMoore v. Edgefield. 32 Fed. 496. 610. 9 L. ed. 1215: Decatur v. Pauld- isSmith V. Jackson, I Paine, 455, ing, 14 Pet. 497, 10 L. ed. 559; United Fed. Cas. No. 13.064; The New Eng- States v. Lamont, 155 U. S. 308, 39 land, 3 Sumn. 495. Fed. Cas. No. 10.- L. ed. 163, 15 Sup. Ct. Rep. 98: 151; The Enterprise, 3 Wall. Jr. 58, United States v. Black, 128 U. S. 48. Fed. Cas. No. 4.500: Ex parte Hoyt. 32 L. ed. 357. 9 Sup. Ct. Rep. 14. 13 Pet. 279. 10 L. ed. 162. ' sSee post, § 842. isLadd V. Tudor. 3 Wood. & M. 33-2. sBarber. etc. Co. v. Morris, 1.32 Fed. Cas. xno. 7.975: Fisk v. Union P. Fed. 945, 66 C. C. A. 55. R. R. 6 Blatchf. 396, Fed. Cas. No. lOUnited States v. Judges, 85 Fed. 4,827; Hough v. Western T. Co. 1 179, 29 C. C. A. 78. Biss. 425. Fed. Cas. No. 6.724. nUnited States v. Swan, 65 Fed. i9ln re Forsvthe, 78 Fed. 301. 647, 13 C. C. A. 77. 2 0Hair v. Burnell, 100 Fed. 280. 774 I Pioeedurej POWER OF FEDERAL COURTS TO ISSUE WRITS. §S41 [fff] tion,i2 or to punish for contempt after the lower court has acquitted.is jMandamus is not a proper remedy to correct a misconstruction of the mandate of the appellate court after a cause has been returned to the cir- cuit court, 14 nor to compel the lower court to revoke its order staying proceedings in execution of mandate where new circumstances have since arisen.i5 Though it is a proper remedy where a stay of execution of a mandate was unwarranted and improper.is [fff] Practice in issuance of mandamus While the practice is mandamus proceedings in the Supreme Court is unaffected by the procedure in particular States, 20 it seems the better rule that mandamus proceedings in the circuit and district courts should con- form under R. S. § 914 "as near as may be"' to the State practice.i It is essentially a common-law remedy, 2 although a jury is not required for the determination of issues of fact therein. 3 However some cases have taken the view that conformity to State practice is not required.* In any event, the power to issue the writ is denied from the act of Congress; 5 and the fact that State statute forbids it, is of no moment.6 The application for the writ is usually in the form of verified petition or complaint or by in- formation. 7 The writ usually issues in the alternative form;S and a hear- ing is had upon the return, before a peremptory writ will issue. There must be some notice or rule to show cause before peremptory mandamus will be granted.9 Generally some demand for the performance of the re(iuired act must be shown; 10 though not where the public interests are concerned,! 1 i2United States v. Severens, 71 Fed. 768, 18 C. C. A. 314. isMinnesota Plow Co. v. Dowagiac M. Co. 126 Fed. 746, 61 C. C. A. 352. 14 James v. Central T. Co. 108 Fed. 929, 47 C. C. A. 374. i5United States v. Marshall, 122 Fed. 428, 58 C. C. A. 410. 16L. Bucki & Son Co. v. Atlantic L. Co. 128 Fed. 339, 63 C. C. A. 62. 20Post, § S44[i]. iWisdom V. Memphis, 2 Flip. 285, Fed. Cas. No. 17,903; Stewart v. Justices, etc. 47 Fed. 482, 484; Laird V. Mayor, 25 Fed. 70, per Brewer, J. And see: Mayor, etc., v. United States, 104 Fed. 115, 116; Loute v. Alleghany Co. 10 Pittsb. L. J. 241, Ffd. Cas. No. 8,544; Northern Pac. R. E. V. Dustin, 142 U. S. 508, 35 L. ed. 1098, 12 Sup. Ct. Rep. 283. following the State practice without discus- sion. ^Heine v. Levee Comrs. 19 Wall. 660. 22 L. ed. 220. 3ln re Delgado, 140 U. S. 580, 35 L. ed. 578. 11 Sup. Ct. Rep. 8/4. 4See Davenport v. Dodge Co. 105 C S. 242, 26 L. ed. 1018; United States V. Union Pax;. Ry. 2 Dill 527, Fed. Cas. No. 16,599; Rusch v. Des Moines Co. Wooolw. 313, Fed. Cas. No. 12,- 142; Mayor v. Lord, 9 Wall. 413, 19 L. ed. 707. The last two of these cases were, however, decided before the conformity law of 1872, and are not of much weight now. 5 Commissioners of Knox Co. v. Aspinwall, 24 How. 376, 16 L ed. 735; Board of Liquidation v. United States, 108 Fed. 691. 47 C. C. A. 5S7. 6Hart V. New Orleans, 12 Fed. 292; New Orleans v. Morris, 3 Woods, 103, 115, Fed. Cas. No. 10,182. vSee Deuel Co. v. First Nat. Bank, 80 Fed. 264, 30 C. C. A. 30; United States V. Brown, 41 Fed. 481. sSoe United States v. Cape G. Co. 10 Fed. 836. 5 i\IcCrary, 280. 9 Fairbanks v. Amoskcag Nat. Bank, 30 Fed. 002. loUnited States v. Boutwell, 17 Wall. 007, 21 L. ed. 722; United States V. Indian G. D. 85 Fed. 933. iiNortliern P. R. R. v. Wasjiing- 775 S 841 [g] WRITS AND PROCESS. [Code Fed. nor demand upon all of the ollicers involved.i2 Mandamus cases are still often brouglit in the name of the government upon the relation of the party affected, 1 3 and this is especially proper where sought to enforce a public duty;iii but where merely for the purpose of enforcing some private right it is a survival of times when mandamus was a strictly prerogative writ. The relator is the real party in interest where it is souglit to enforce a mere private right. 1 6 The writ must be directed to the holder of the office and not merely the office itself ;17 but it makes no difference that the incumbents are not the same as at the time the right accrued. is Several different officers may be joined where all have a duty to perform in the premises.is It must of course is- sue to the proper persons. 20 Mandamus against a continuing board to per- form some official duty does not abate by changes in its personnel. 1 Disobedience to a mandamus is punishable as contempt.2 [g] Writ of prohibition. Prohibition is a writ issuing out of a superior court directed to the judges or the judge and parties to a suit in an inferior court, commanding them to cease proceedings therein because of want of jurisdiction. Its ef- fect is to suspend all action and prevent further proceedings; it cannot require affirmative action or undo anything already done. 6 It enables the appellate court in case of disobedience to punish the inferior court as being in contempt.'' Prohibition is a common law writ and proceedings therein are properly reviewable by writ of error.s R. S. § 088 authorizes the Supreme Court to issue the writ in admiralty causes. 9 But the only other authority to issue the writ possessed by Federal courts, is conferred by this section, and it limits the power in terms to cases where the writ is nec- essary to the exercise of a jurisdiction already otherwise required. 10 Tlie same limitation attends its use by the circuit court of appeals whose powers ton, Dustin, 142 U. S. 508, 35 L. ed. 1098. 12 Sup. Ct. Rep. 283. i2Marion Co. v. Coler. 75 Fed. 352, 21 C. C. A. 392. isSee Cleveland v. United States, 127 Fed. 667, 62 C. C. A. 39'3. isSee Northern P. R. R. v. Wash- ington. Dustin, 142 U. S. 508, 35 L. ed. 10^8. 12 Sup. Ct. Rep. 283. leindiana v. Lake Erie, 85 Fed. 3. iTUnited States v. Boutwell, 17 Wall. 607. 21 L. ed. 722. i8ln re Parker, 131 U. S. 226, 33 L. ed. 124. 9 Sup. Ct. Rep. 708. isLaoette Co. v. United States, 112 U. S. 217, 28 L. ed. 700, 5 Sup. Ct. Rep. 108. 2 0Secretary v. McGarahan, 9 Wall. 208. 19 L. ed. 579. iSee Murphv v. Utter, 186 U. S. 100. 46 L. ed. 1074, 22 Sup. Ct. Rep. 776, reviewing the authorities. See ante. § 816, where Congress has pro- vided against abatement by retire- ment of Federal officers. 2 President, etc. v. Mavor of Eliza- beth, 40 Fed. 799; United States v. Green, 53 Fed. 769. 5 See Uaiited States v. Hoffman, 4 Wall. 158, 18 L. ed. 355. eUnited States v. Hoff"man, 4 Wall. 1.58. 18 L. ed. 355; Ex parte Jones, 191 U. S. 102, 48 L. ed. Ill, 24 Sup. Ct. Rep. 27. TPenhallow v. Doane. 3 Dall. 87. I L. ed. 507. sSmith V. Whitney. 116 U. S. 174, 29 L. ed. 601. 6 Sup. Ct. Rep. 573. sSee post. § 844. loEx i)arte City Bank, 3 How. 332, II L. od. 622: Ex parte Gordon. 1 Black. 505. 17 L. ed. 134; In re Bininger. 7 Blatchf. 159, Fed. Ca-. No. 1.417. 776 Procedure] POWER OF FEDERAL COURTS TO ISSUE WRITS. § 841 [h] in this respect are defined by this section. n No case yet presented has l)een deemed to justify this auxiliary use of the writ and its use has been confined to admiralty cases as provided in E. S. § 688. It has been refused as a mode of reviewing contempt preceedings;i2 as a mode of rectifying al- leged error in setting aside a judgment after a term, there being no appeal to which the writ could be deemed ancillary; is as a mode of reviewing bankruptcy proceedings; i* criminal proceedings; is and confiscation pro- ceedings.! 6 The district court sitting in bankruptcy has refused to employ it against a State tribunal; i" or against its own commissioner in a crim- inal proceeding.! 8 The Supreme Court has recently refused to use it to prohibit circuit court proceedings where there is no remedy by appeal to- the circuit court of appeals; i9 or to issue it where the proceeding to be- prohibited had already passed to judgment. 20 It seems that the Supreme Court of the District of Columbia has full common law power to issue prohibition; but the qitestion of its power or the power of any court to issue the writ to a court martial although raised, has not been decided.! [h] Writ of supersedeas. R. S. § 716 authorizes the writ of supersedeas. 4 Other provisions of law declare the terms and circumstances upon which parties are entitled to- supersedeaso and no writ is ordinarily necessary.6 It may however be is- sued by the Supreme Court whenever necessary to the exerci.se of its appel- late jurisdiction.'' And when through mistake or otherwise, the judgment below is in fact, being carried into execution notwithstanding that the party is by law entitled to a supersedeas, the Supreme Court will issue the writ;S unless by rule upon the lower court the required result is otherwise se- iiUnited States v. Williams, 67 Fed. 384. 14 C. C. A. 440; In re Paquet, 114 Fed. 440, 52 C. C. A. 2.39. i2ln re Paquet. 114 Fed. 440, 52 ('. C. A. 23'9. isUnited States v. Williams. 67 Fed. 384, 14 C. C. A. 440. i4Ex parte Citv Bank. 3 How. .372. 11 L. ed. 60,3. i5Ex parte Gordon. 1 Black. .505. 17 L. ed. 134. 16 Ex parte Crab am. 10 Wall. .543. 19- L. ed. 982: Ex parte Waples. 154 U. S. 579. 38 L. ed. 1088, 14 Sup. Ct. Rep. 1214. i^In re Bininger. 7 Blatclif. 161, Fed. Cas. No. 1.417. isUnited States v. Berrv, 4 Fed. 779, 2 McCrary. 58. 19 In re Hugulev. etc. Co. 184, U. S. 2i97. 46 L. ed. 549. 22 Sup. Ct. Rep. 455. The opinion docs not refer to the distinction between its use in ad- miralty cases under R. S. § 688 and in other cases under R. S. § 716. 2 0Ex parte -loins. 191 U. S. 102, 48 L. ed. 110. 24 Sup. Ct. Rsp. 27. iSee Smith v. Whitney. 110 I'. S. 175. 6 Sup. Ct. Rep. 574, 29 L. ed. 601: United States v. ?ilaiiev. 61 Fed. 140. "•Hardeuian v. Anderson, 4 How. 642. 11 L. ed. 1139; In re Claa.sen. 140 U. S. 208. 35 ]>. ed. 409. 11 Sup. Ct. Rep. 735: Goddard v. Ordway, 94 U. S. 672, 24 L. ed. 237. •^See post, § 2012 et seq. eSlauglit^T House Cases. 10 Wall. 273. 19 L. ed. 920. "Stockton v. Bishoj). 2 How. 75. 1 I L. 0(1. 185: Ex parte ^Milwaukee, etc. R. R. 5 Wall. 188. IS L. ed. 676: French v. Shoemaker. 12 Wall. 8(). 20 L. ed. 270. sStockton V. Bishop. 2 How. 7-'). 11 L. ed. 185: Hardeman v. Anderson. 4 How. 640. 11 L. ed. 1138: Ex parte 777 § 841 [i] WRITS AND PROCESS. [Code Fed. cured.9 It was issued to stay proceedings in a State court after writ of error.io The fact that an inferior court is misconstruing the scope of an injunction decree does not enable the Supreme Court to issue super- sedeas not otherwise in aid of its appellate powers. n Where the party is in fact not entitled to supersedeas applications in the Supreme Court therefor, have been denied.12 A Supreme Court justice has no discretionary power to issue the writ unless the party has brought himself strictly with- in the statutes as to stay.is The circuit court of appeals has a like power to issue a writ of supersedeas when a decree below is improperly beiug executed notwithstanding that the party is entitled to a stay. 1 4 [i] Quo warranto. The ancient writ of quo warranto has been superseded in modern practice by information in the nature of quo warrantois and it is doubtful whether the writ would now be deemed a writ agreeable to the usages of law. Moreover as a writ it is in its nature an original process and therefore there would probably be no case in which it would be necessary to the exercise of an existing jurisdiction. No case has sought to derive au- thority for the use of qvio warranto from R. S. § 71G; and it would seem clear that the Federal courts can issue the writ only where specific authority is conferred by other enactments than the one here under con- sideration. But the power of the Supreme Court of the District of Co- lumbia is undoubtedly larger.20 Quo warranto in a State court is remov- able to the Federal Court where arising under the Federal Constitution or laws;i but probably not because of diverse citizenship between defendant and the relator in cases where the State is regarded as the real party in interest, since a State is not a citizen within the removal laws.2 Where the proceeding is such that relator seeks to oust defendant from an office and secure it himself, the State might be deemed a merely nominal party3 and the proceeding be removable for diverse citizenship.* Want of power in the circuit court to entertain the writ to try title to the office of Fed- Milwaukee, etc. R. R. 5 Wall. 188, 18 L. ed. 676; Railroad Cos. v. Brad- ley, 7 Wall. 575. 1ft L. ed. 274. "sGoddard v. Ordway, 94 U. S. 672, 24 L. ed. 237. loGreen v. Van Buskirk, 3 Wall. 448. 18 L. ed. 245. 11 French v. Shoemaker, 12 Wall. 86. 20 L. ed. 270. i2Hognn v. Ross, 11 How. 294. 13 L. ed. 702 : Adams v. Low, 16 How. 144, 14 L. ed. 880; Slaughter House Cases, 10 Wall. 273, \9 L. ed. 918. isKitchen v. Randolph, 93 U. S. SG, 23 L. ed. 810. i4Gunn V. Black, 60 Fed. 160. 8 C. C. A. 542; In re ^IcKenzie, 180 V. S. 536, 45 L. ed. 657, 21 Sup. Ct. Rep. 468. isNebraska v. Loekwood, 3 Wall. 23G, IS L. ed. 47. 20Sep X'nited State's v. Addison, 6 Wall. 298. 18 L. ed. 910, lAmes V. Kansas. Ill U. S. 449, 28 L. ed. 482. 4 Sup. Ct. Rep. 447: Illinois V. Illinois C. R. R. 33 Fed. 721. 2]Mi5souri. etc. Rv. v. Missouri, etc. Comrs. 183 V. S. .58, 46 L. ed, 78. 22 Sup, Ct, Rep. 18. 3Bovd V. Xebraska, 143 U. S. 157, 36 L. ed. 103, 12 Sup. Ct. Rep. 375. 4ln Place v. Illinois. 69 Fed. 481, 16 C. C. A. .300, defendant was citi- zen of a Territory and therefore di- verse citizenship did not exist. Procedure] POWER OF FEDERAL COURTS TO ISSUE WRITS. § 841 [ml eral district attorney seems to have led in one instance to a proceeding before such court by simple motion to obtain possession of the books and papers of the office in which the right of applicant to the office was virtually determined. 5 [j] Writ of entry and writ of right. These writs have never been decided to be within the contemplation of R. S. § 716. If they are writs at all in the sense of R. S. § 716 they are original writs; but are more properly forms of action for the re- covery of realty, and available as such in the Federal courts under the terms of the conformity clause, 7 when they are in use in the courts of the State where the Federal court is sitting. [k] Writs of assistance. ^Yrits of assistance in equity, and of habere facias possessionem at law, are undoubtedly authorized by R. S. § 716. They are used for the pur- pose of putting a purchaser at judicial sale or plaintiff in ejectment into possession.! The seventh and ninth equity rules provide for issuance of the writ of assistance, n It should not issue except against parties or privies or persons coming into possession pendente lite.i2 {1] Writs of subpoena and venire facias. Power to issue the writ of subpoena is derivable from R. S. § 716.15 Subpoena for the summoning of witnessesis and the production of papers and documentsi'? in Federal courts is provided for in other enactments. The writ of venire facias to summon a grand jury has been held deriv- able from R. S. § 716.1 s [m] Necessary to jurisdiction and agreeable to law. No enlargement of the Federal courts' jurisdiction was intended by this ■clause. The issuance of other writs is only authorized in cases where the jurisdiction already exists and not where it is to be acquired by means of the writ to be issued.i As already shown this debars the inferior Fed- ■eral courts of power to issue mandamus certiorari, quo warranto and other writs except in aid of their judgments and decrees. 2 Nor have they power sTli* Supreme Court refused man- i5ln re Shephard, 3 Fed. 12, 18 damns to correct the proceeding: In Blatchf. 22.5. re Parsons. 150 U. S. 150, 37 L. ed. leSeepost, § 1742. 1035. 14 Sup. Ct. Rep. 50. i^See post.^§§ 176.3, 1768. 7 See post, § 900. is United States v. Antz, 16 Fed. loTerrell v. Allison, 21 Wall. 289, 122, 4 Woods, 174. 22 L. ed. 6.34: Gormlev v. Clnrk, iMcClung v. Silliman, 6 Wheat. 134 U. S. .350. .33 L. ed. 909, 10 Sup. 601. 5 L. ed. 341; Mclntire v. Wood, ('^ TipD. 5.54: Lncassasme v. Chapuis, 7 C'ranch. 506, 3 L. ed. 421; Kendall 144 U. S. 125, 30 L. ed. 371, 12 Sup. v. United States. 12 Pet. 624. 9 L. ed. Ct, Rep. 002. 1221 ; United States v. Plumer, 3 iiSee post. § 1097. Cliff. 28. Fed. Cas. No. 16.056. i2Terrell v. Allison, 21 Wall. 289, 2Supra. under this section. 22 L. ed. 634; Comer v. Felton, 61 Fed. 735, 10 C. C. A. 28. 779 § 842 AVltlTS AND rKOCKSS. [Code Fed^ by this section to issiie writ of error coram nobis to review error in their own judgments and proceedings in criminal cases and thus enlarge their criminal jurisdiction. 3 § 842. Power of circuit court of appeals to issue writs. The circuit court of appeals shall have the power specified in sec- tion seven hundred and sixteen of the revised statutes"' of tlie United States, Act § 12 of act Mar. 3, 1891, c. 517, 26 Stat. 829, U. S. Comp. Stat. 1901, p. 553. Discussion of the power of circuit courts of appeals is considered in the annotation of the preceding seetion.6 § 843. Federal courts' power to issue writs of ne exeat. 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 bj' any circuit justice or circuit judge in cases where they might be granted by the circuit 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. R. S. § 717, U. S. Comp. Stat. 1901. p. 580. Tliis provision is carried forward into the Revised Statutes from acts, of 1793 and 1869.9 Xe exeat is a writ directed to the sheriff or marshal commanding him to cause one who owing money is about to depart tiie- realni, to appear before him and give sufficient bail or security in the sum endorsed on the writ that he will not depart without leave of court, and on the party's refusal to give such security, to commit him to prison.' o K(iuity rule 21 provides that it must be asked in the prayer for relief if it is to be obtained "pending the suit."ii But after final decree it may he- awarded under a prayer for general relief. 12 In view of R. S. § 090 for- bidding imprisonment for debt in Federal courts except as allowed by the local lawi3 it would seem that R. S. § 717 should be construed as allowing ne exeat in Federal courts only in States where the State laws permit imprisonment for debt.i* In any event there are few instances of its sUnited States v. Plumer. 3 Cliff. S. 290. 35 L. ed. 678. 11 Sup. Ct. Rep. 28. Fed. Cas. No. 16.0.")6. 999. 5 Ante. § 841. uSee post. ? 945. eSee especially § 841 [eej. [ff], [g]. i2Lewis v. Shainwald. 48 Fed. .500, 9 Act March 2, ^793. c. 22. § 5. 1 7 Sravv. 403. Stat. 334: act Auril 10. 1869. c. 22, isSee post. § 1.558. § 2. 16 Stat. 44. ' i^See Mallory Mfg Co. v. Fo.x, 20 lOSee L^riswold v. Hazard, 141 U. Fed. 409. 780 •Procedure] SUPREME COURT'S POWER TO ISSUE MANDAMUS. § 844 iss\iance out of the Federal courts among the reported cases. Where per- missible under the State practice it will issue if the party is about to leave the 8tate,i5 but the Federal court can issue it only if the party in- tends to leave the United States. 1 6 It must be a definite pecuniary claimi' and complainant must swear positively to it. is By specifically authorizing a Sttpreme or circuit court judge to issue the writ where issuable by their respective courts, U. S. § 717 inferentially denies this power to district jtidgesjis but a district court has been held authorized to issue the writ when is possesses equity powers. 20 it has also been held that it should not be granted in an action to revive a judgment where not granted or prayed in the original jtidgment;i and the propriety of its allowance cannot be raised on demurrer to a bill to revive. 2 In a recent case the coin-t exercised its equitable discretion in refusing the writ to hold in custody a debtor who Mas in Maine on a pleasure trip and resided permanently in ^lontreal where complainant might stie him quite as conveniently. 3 Senators and Representatives upon official duty are privi- leged from arrest;* and diplomatic agents of foreign countries and their registered servants are privileged from process against goods or person.'' § 844. Supreme Court's power to issue mandamus and prohibi- tion. The Supreme Court shall have power to issite writs of pro- hibition to the district courts when proceeding as courts of admir- alty and maritime jurisdiction ;f''^"'^'^^ ^^^ and writs of mandamus in cases warranted by the principles and usages of law, to any •courts appointed under the authority of the United StatesJ®^"^^! or to persons holding office under the authority of the United States, uhere a State, or an embassador, or other public minister, or a ■consul or vice consul, is a party. ^'^^ R. S. § G88, U. S. Comp. Stat. 1001, p. 5G5. isSee Griswold v. Hazard. 141 U. isGenion v. Boecaline, 2 Wash. C. S. 2G0. :{5 L. ed. 678. 11 Sup. Ct. Rep. C. 130. Fed. Cas. No. 5,367. ■973. isCernon v. Boecaline. 2 Wash. C. icLowenstein v. Biernbauin, Fed. C. 130. Fed. Cas. No. 5,3<57. See Loe- Cas. No. S.461a. See Union Mut. Ins. wenstein v. Biernbaum, Fed. Oas. No. To. V. Kellogg. Fed. Oas. No. 14.373. 8,461a. The courts in the District of C'oluni- 2oSee Lewis v. Shainwald. 7 Sawy. l)id are controlled by the provisions of 403. 48 Fed. 500. law: Patterson v. McLaughlin. 1 1 Shainwald v. Lewis. 46 Fed. 8.3H. Cranch C. C. 352, Fed. Cas. No. 10,- See Shainwald v. Lewis, m Fed. 487. 828; Patter.son v. Bowie. 1 ('ranch C. 2Shainwald v. Lewis, 69 Fed. 487. ('. 4-25. Fed. Cas. No. 10.82."). sHarrison v. Orahaiu. 110 Fed. 81Mi. No. 10.825. 4See U. S. Const. Art. 1, § 6 cl. 1. I'^Crahaii: v. Stucken, 4 Blatclif. -''See post § 861. ■50, Fed. Cas. No. 5,677. 781 S 844 [a] WRITS AND PROCESS. [Code Fed. [a] History of section and cross references. This provision is from § 13 of the original judiciary act.8 As originally enacted the statute authorized the Supreme Court "to issue writs of man- damus in cases warranted by the jjrinciples and usages of law, to any courts appointed, or persons holding ofhce, under the authority of the United States." This was declared unconstitutional by a case which has become a landmark in the history of constitutional law, 9 in so far as authorizing mandamus against governmental officers in any otlier class of cases than those in which the Constitution expressly grants the Supreme Court original jurisdiction.! " Hence the addition of the qualifying words "where a State, or an embassador" etc. The general power of Federal courts to issue mandamus and prohibition is elsewhere considered.il [b] Prohibition by Supreme Court in admiralty. The writ of prohibition authorized by this section, is tiie common law writ.i2 It is as well settled by the decisions of the Supreme Court, as it was at common law, that it will not issue to correct errors or irreg- ularities or control a court's judgment; 1 3 nor after an act is completed or the proceedings below have run their course, in an effort to undo what has been done;i4 but only to prevent an unlawful or unauthorized assump- tion of jurisdiction.! 5 But there has oeen some question whether the jurisdictional defect must appear from the face of the record; and whether the issuance of the writ is discretionary. In this connection it must be noted that "record" may be used in two senses; i. e. as meaning the final record below, or the record on appeal. By R. S. § 75016 the final record below includes process, pleadings, decree etc., but not the proofs. By R. S. § 6981'' the record on appeal includes also the proofs. While the cases have sometimes asserted generally that prohibition will only issue for want of jurisdiction apparent on the record, is it would seem that when sought prior to judgment or sentence in the district court, "record" includes sAct Sept. 24, 17'89, c. 20, § 13, 1 Stat. 80. sMarbury v. Maaison, 1 Cranch. 137, 2 L. ed. 60. 10 Ante. § 35. 11 Ante, § 841[f]-[g]. i2ln re Cooper, 143 U. S. 472. 36 L. ed. 232. 12 Sup. Ct. Rep. 453. See Smith V. Whitney, 116 U. S. 174, 29 L. ed. 601, 6 Sup. Ct. Rep. 570. i3Ex parte Ferry Co. 104 U. S. 520, 26 L. ed. 815; Ex part* Slayton, 105 U. S. 453, 26 L. ed. 1066; In re Coop- er, 143 U. S. 72, 36 L. ed. 232, 12 Sup. Ct. Rep. 453; Ex parte Pennsylvania, 109 U. S. 176, 27 L. ed. 894, 3 Sup. Ct. Rep. 84; In re New York, etc. S. S. Co. 155 U. S. 531, 39 L. ed. 246, 15 Sup. Ct. Rep. 183. i^United States v. Hoffman, 4 Wall. 162, 18 L. ed. 354; Ex parte ii^aston, 9o U. S. 72, 24 L. ed. 373. isUnited States v. Peters. 3 Dall. 129, 1 L. ed. 535; Ex parte Gordon, 104 U. S. 516, 26 L. ed. 814; In re Morrison. 147 U. S. 36. 37 L. ed. 60, 13 Sup. Ct. Rep. 246; In re Fassett, 142 U. S. 486, 35 L. ed. 1087, 12 Sup. Ct. Rep. 295. If the court has juris- diction of the parties and the res prohibition will not issue. Indiana V. Glovf-r, 155 U. S. 513, 39 L. ed. 243, 15 Sup. Ct. Rep. 186. lePost § rO'oS and see also post, § 1100. iTPost. § 1959. isEx parte Easton, 95 U. S. 77, 24 L. ed. 373 ; Ex parte Phenix Ins. Co. 118 U. S. 625, 30 L. ed. 274, 7 Sup. Ct. Rep. 25. 782 Piocedure] SUPREME COURT'S POWER TO ISSUE MANDAMUS § 844 [d] the evidence or proof and permits an examination thereof where necessary to decide the jurisdictional fact; but that after sentence or judgment only the final record below will be examined and not the proofs. 1 9 The ques- tion of discretion in the granting of the writ has also given some difficulty, although the court has now declared comprehensively that "where it ap- pears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy 20 is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Xor is the granting of the writ obligatory where the case has gone to sentence and the want of jurisdiction does not appear upon the face of the proceeding."! Confiscation proceedings under act of 1862 are not admiralty proceedings within this section, although the practice therein is conformed to admiralty practice.2 [c] Prohibition by Supreme Court in other cases. It has been said that the Supreme Court cannot issue prohibition except in admiralty, 5 and undoubtedly it has not such power under R. S. § 688. But by R. S. § 716 it may issue the writ when necessary to the exercise of its jurisdiction and agreeable to the principles of law.6 There are no cases in which it has issued other than admiralty, although instances in which it has been applied for. 7 [d] When Congress may authorize mandamus by Supreme Court. The Constitution does not specifically grant to the Supreme Court original jurisdiction to issue any of the prerogative writs. 9 As Congress is without power to enlarge the Supreme Court's original jurisdiction,! it follows that its power to issue mandamus and the other writs as an exercise of original jurisdiction is confined to those cases in which the Constitution has isSee In re Cooper. 143 U. S. 50.5, L. ed. 552. 22 Sup. Ct. Rep. 455. See ."56 L. ed. 243. 12 Sup. Ct. Rep. 461; also Smith v. Whitney. 116 U. S. 1G7, discussing earlier cases of Ex parte 173. 2f1 L. ed. 603. 6 Sup. Ct. Rep. Citv Rank, 3 How. 292. 11 L. ed. 610; 570: Ex parte Cooper. 143 U. S. 495, United States v. Peters, 3 Dall. 121, 1 36 L. ed. 230, 12 Sup. Ct. Rep. 453. L. ei70. 4 L. ed". 263; ^'irginia v. Rives, 100 U. S. 327. 25 L. ed. 672; Riggs v. Johnson Co. 6 Wall. 188, 18 L. ed. 774. Ante. § 35. 12 See United States v. Boutwell, 17 Wall. 609, 21 L. ed. 721. leSee In re Blake. 175 U. S. 114, 44 L. ed. 94, 20 Sup. Ct. Rep. 42; In re Green. 141 U. S. 326. 35 L. ed. 765. 12 Sup. Ct. Rep. 11. I'^See commenting on this phrase: Virginia v. Rdves, 100 U. S. 324, 25 L. ed. 670: Ex parte Newman, 14 Wall. 165, 20 L. ed. 879. isEx parte Crane. 5 Pet. 200, 8 L. ed. 96: Ex parte Newman, 14 Wall. 166, 20 L. ed. 879; Virginia v. Rives, 100 U. S. 327, 25 L. ed. 672. 191 Cranch, 137, 2 L. ed. 60. 2oBoard of Comr's. v. Aspinwall, 24 HoAv. 383, 16 L. ed. 735: Bayard v. White. 127 U. S. 250, 32 L. ed. 116, 8 Sup. Ct. Rep. 1223. lEx parte Cutting, 94 U. S. 20. 24 L. ed. 49: Northern Pac. R. R. v. Washington, 142 U. S. 506. 35 L. ed. 3092. 12 Sup. Ct. Rep. 283. 2ConimissioneTs of Brownsville v. Loagne, 129 U. S. 501, 32 L. ed. 780. 9 Sup. Ct. Rep. 327; Missouri ex rel. V. Murphv, 170 U. S. 95. 42 L. ed. 955, 18 Sup. Ct. Rep. 505; Wyle v. Coxe, 14 How. 3, 14 L. ed. 301. sRailroad Co. v. Wiswall, 23 Wall. 508, 2.3 u ed. 103; In re Hohorst, 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221 ; Ex parte SchoUenberger, 9G U. S. 378, 24 L. ed. 853. 4Life & F. Ins. Co. v. Wilson, 8 Pet. 303, 8 L. ed. 949: Ex parte Parker. 120 U. S. 743, 30 L. ed. 818. 7 Sup. Ct. Rep. 767 : In re Atlantic Citv R. R. 164 U. S. (>35. 41 L. ed. 579, 17 Sup. Ct. Rep. 208 ; In re Pennsvlvania Co. 137 U. S. 452, 34 L. ed. 738, 11 Sup. Ct. Rep. 141. 5See Ex parte Bradley, 7 Wall. 376. 19 L. ed. 214. 6Ex parte Crane. 5 Pet. 192, 8 L. ed. 92. TLife & F. Ins. Co. v. Wilson, 8 Pet. 303. 8 L. ed. 949. sinsiiranoe Co. v. Comstoek, 16 Wall. 270. 21 L. ed. 498: Railroad Co. V. Wiswall. 23 Wall. 308, 23 L. ed. 103. 784 I Procedure] SUPREME COURT'S POWER TO ISSUE MANDAMUS. § 844 [t] court refuses to remand, there being a remedy by appeal. 9 It lies to compel a court to try a casejio to compel the lower court to make up the record in a case, for appeal; n to compel entry of judgment; 12 to compel a judge to sign and settle a bill of exceptions; is but not an improper onei4 or to resettle one on affidavits of error.is It may issue to compel a court to carry a judgment into effect; 16 or to pass upon a motion for new trial; 1" or to compel allowance of an appeal,i8 though not if the ap- plication is irregular.19 In one case it issued to compel reinstatement of a disbarred attorney where the disbarment was in excess of jurisdic- tion.20 [f] To compel compliance with appellate mandate. Mandamus is sometimes a proper remedy in a case that has gone back to the trial court after appeal, where the lower court fails to give oroper effect to the mandate ;< or disobeys it; 5 or improvidently permits a ue^ trial; 6 and the delay incident to a second appeal makes that remedy inadequate.'? The writ may issue irrespective of the amoimt in dispute.8 But if the mandate on the appeal confers a discretion man- damus will not issue to control it.9 It is not a proper mode of enforcing 9Ex parte Hoard, 105 U. S. 579, 26 L. ed. 1176. See however, Ex parte Virginia, 100 U. S. 339, 25 L. ed. 671. Awarding mand&mus where a crimi- nal prosecution had been improvd- dently removed. loEx parte Schollenberger, 96 U. S. 378. 24 L. ed. 853. 11 Ex parte Bradstreet, 7 Pet. 634, 8 L. ed. SilO. i2Life & F. Ins. Co. v. Wilson, 8 Pet. 291. 8 L. ed. 949. isEx parte Crane, 5 Pet. 190, 8 L. ed. 92. In re Chateaugav, etc. Co. 128 U. S. 544, 32 L. ed. 508'. 9 Sup. a. Rep. 150. i^Bradstreet v. Thomas. 4 Pet. 102, 7 L. ed. 796. I5ln re Streep, 156 V. S. 207. .39 L. ed. 399, 15 Sup. Ct. Rep. 358. isSbafford v. Union Bank. 16 How. 135, 14 L. ed. 876; Stafford v. New Orleans, etc. Co. 17 How. 283. 15 L. ed. 102. i7Ex parte Roberts. 15 Wall. 387, 21 L. ed. 131 ; Ex parte United States. 16 Wall. 70.3, 21 L. ed. 507. isUnited States v. Comez. 3 Wall. 766. 18 L. ed. 212; Ex parte Russell, n Wall. 670. 20 L. ed. 632: Ex parte Cutting. 94 U. S. 21, 24 L. ed. 49; In re Farmers Loan. otc. Co. 129 U. S. 216, 32 L. ed. 656, 9 Sup. Ct. Rep. 265. i9Mussina v. Cavazos, 20 How. 280, 15 L. ed. 878. 2 0Ex parte Bradley, 7 Wall. 376, 19' L. ed. 214. 4 Ex parte Union S. Co. 178 U. S. 319, 44 L. ed. 1085. 20 Sup. Ct. Rep. 904; In re Sanford. etc. Co. 160 U. S. 255, 40 L. ed. 414. 16 Sup. Ct. Rep. 201 ; Gaines v. Rugg, 148 U. S. 243, 37 L. ed. 4.32, 13 Sup. Ct. Rep. 611: In re Blake, 175 U. S. 117. 44 L. ed. 94. 20 Sup. Ct. Rep. 42. 5Ex parte Sibbald, 12 Pet. 493, 9 L. ed. 1167: Stafford v. Union Bank, 17 How. 280, 15 L. ed. 101 : In re Citv Xat. Bank, 153 U. S. 251. 38 L. ed. 705. 14 Sup. Ct. Rep. 804: United States v. Fossatt. 21 How. 446. 16 L. fd. 186. 6 In re Potts. 166 U. S. 26S. 41 L. ed. 994. 17 Sup. Ct. Rep. 520; Ex parte Dubuque, etc. R. R. 1 Wall. 69. 17 L. ed. 514. TGaines v. Ru. 675. 9Ex j)arto Raihvav Co. 101 U. S. 711, 25 L. ed. 872. Fed. Proc.^.50. 785 § 844 [g] WRITS AND PROCESS. [Code Fed. compliance of a State court with mandate on writ of error, but in such cases a second writ of error is proper. lo [gj — absence of other adequate remedy. It is a fundamental requirement in all cases that there be no other adequate remedy. 12 If an inferior court refuses to proceed according to equity practice,i3 or improperly allows an appeal,i4 or dismisses plaintiffs petition for want of jurisdiction,! 5 or refuses to disirissie or dismissed on appeal,! ■? or decides erroneously,! 8 there is ordinarily adequate remedy in the ordinary course of appellate proceedings and mandamus will not lie. The fact that the term of an office in dispute would expire before appeal could be heard has been held immaterial.! 9 But the right to a second ap- peal is not always deemed an adequate remedy for failure to follow the Supreme Court's mandate, and mandamus will sometimes issue to avoid the delay. 20 Mandamus cannot be used to perform the office of a writ of error.4 It cannot be used to review interlocutory orders and decrees in a cause depending below, and thus enable parties prematurely to invoke the supervisory power of the appellate court.s Some cases assert that it cannot be made to perform the office of a writ of error, "even though no right of appeal or error is given by law."6 Yet this does not mean that absence of right of appeal may not often be a material factor in justi- fying resort to the writ where a proper case is otherwise made out.7 The statement would seem to mean that the court will not be drawn into the investigation of the record in a cause for the purpose of making !Oln re Blake. 175 U. S. 114, 44 L. !9rnited States v. Addison, 22 ed. 94, 20 Sup. Ct. Rep. 42. How. 183, 16 L. ed. .S04. i2United States v. Addison, 22 2 0in re Potts, IGG U. S. 268. 41 L. How. 174. 16 L. ed. 304; Ex parte ed 994, 17 Sup. Ct. Rep. 520; Gaines Newman, 14 Wall. 152, 20 L. ed. 877; v. Rugg, 148 U. S. 243, 37 L. ed. 432, Ex parte Cutting, 94 U. S. 20, 24 L. 13 Sup. Ct. Rep. fill. But see Ex ed. 49. parte Sawyer, 21 Wall. 240, 22 L, ed. !3Ex parte Whitney, 13 Pet. 408, 617. 10 L. ed. 221. ' ^Ex parte Schwab, 98 U. S. 241,, !4Ex parte Russell, 13 Wall. 670, 25 L. ed. 105; Ex parte Hoard, 105 20 L. ed. 632. U. S. 580, 26 L. ed. 117fi; In re Penn- !5Ex parte Newman, 14 Wall. 169, sylvania Co. 137 U. S. 453, 34 L. ed. 20 L. ed. 877; Ex parte Railway Co. 738. 11 Sup. Ct. Rep. 141; In re- 103 U. S. 796. 26 L. ed. 461. But if Blake, 175 U. S. 117, 44 L. ed. 94, there is no right of appeal mandamus 20 Sup. Ct. Rep. 42; In re Cross- should be allowed: In re Holiorst, niaver. 177 U. S. 49, 44 L. ed. 666, 20' 150 U. S. 654, 37 L. ed 1211, 14 Sup. Sup. Ct. Rep. 535. Ct. Rep. 221. sBank of Columbia v. Sweeney, 1 !6ln re Hugulev Mfg. Co. 184 U. Pet. 509', 7 L. ed. 266; Amer. Con. Co. S. 301, 46 L. ed. 549, 22 Sup. Ct. Rep. v. Jacksonville, etc. Rv. 148 U. S. 455. See Ex parte Hoard, 105 U. 378, 37 L. ed. 489, 13 Sup. Ct. Rep. S. 579, 26 L. ed. 1176. 758. 17 Ex parte Brown. 116 U. S. 402. 6 In re Rice, 155 U. S. 40.3, 39 L. 29 L. ed. 676. 6 Sup. Ct. Rep. 387: In ed. 198. 15 Sup. Ct. Rep. 149; Amer. re Atlantic Citv Rv. 164 U. S. 633, Con. Co. v. Jacksonville, etc. Ry. 148 41 L. ed. 579. 17 Sup. Ct. Rep. 208. U. S. 379, 37 L. ed. 489, 13 Sup. Ct. !SEx parte De Groot, 6 Wall. 497, Rep. 7&8. IS L. ed. 887. ^See Ex parte Bradley, 7 Wall. 786 Procedure] SUPREME COURT'S POWER TO ISSUE MANDAMUS. § S44 [i] out or ascertaining the existence of a proper case for the writ. That would be to compel the court to exercise the ordinary revisory powers of a court of review, in a case not reviewable. Error in proceedings or an erroneous judgment are to be remedied by appeal and not by mandamus.s [i] — not allowable to control discretion. While nrandamus issues to compel a court to act, it will not be granted to control any legal discretion possessed by the lower court regarding the way in which it shall act.n A superior court cannot direct in what man- ner an inferior court shall exercise its discretion. 12 Mandamus lies to order a court to proceed to judgment, but not to direct it to enter a par- ticular judgment when that would trespass upon the judicial discretion or function of the court.is It lies to compel court to pass on motion for new trial; i* but not to control the discretion of a lower court in passing on motion for new trial.is if the dismissal of a libel is in the exercise of discretion, it is not controllable by mandamus. 1 6 Mandamus will not lie to compel a lower court to hear further argument, i" or to set aside default; is or vacate an order setting aside a nonsuit ;i9 or stay execution of interlocutory injunction pending appeal; 20 or to ac- cept or refuse an appeal bond offered ;i or to fix the amount of bail; 2 or vacate an injunction; 3 or issue warrant for a deserter where the judge deems the evidence insufficient. 4 All these involve an exercise of judicial discretion. 376, 19' L. ed. 214 ; In re Washington parte Flippin, 94 U. S. 350. 24 L. R. R. 140 U. S. 95, 35 L. ed. 339, 11 ed. 194; Ex parte Grossmaver, 177 Sup. Ct. Rep. 673. U. S. 49, 44 L. ed. 666, 20 Sup. Ct. 8Ex parte Perry, 102 U. S. 183, Rep. 535. 26 L. ed. 43; Bank' v. Sweeney, 1 Pet. i4Ex parte Roberts, 15 Wall. .387, 567, 7 L. ed. 265; In re Parsons, 150 21 L. ed. 131. U. S. 150, 37 L. ed. 1035, 14 Sup. Ct. isLife & F. Ins. Co. v. Wilson, 8 Rep. 50; Ex parte Hovt, 13 Pet. 279, Pet. 303, 8 L. ed. 949. 10 L. etl. 161; Ex parte Burtis, 103 leMorrison v. District Court. 147 U. S. 238, 26 L. ed. 392 ; In re Humes, U. S. 26, 37 L. ed. 60, 13 Sup. Ct. Rep. 149 U. S. 192, 37 L. ed. 699, 13 Sup. 246. Ct. Rep. 836; Morrison v. District i7ln re Rice, la5 U. S. 403, 39 L. Court, 147 U. S. 14, 37 L. ed. 60, 13 ed. 198, 15 Sup. Ct. Rep. 149. Sup. Ct. Rep. 246. isEx parte Roberts, 6 Pet. 217, 8 iiEx parte Sawyer, 21 Wall. 239, L. ed. 375. 22 L. ed. 617; Ex'parte Burits, 103 isEx parte Loring, 94 U. S. 419, U. S. 238, 26 L. ed. 392; Ex parte 24 L. ed. 165. Brown, 116 U. S. 402, 29 L. ed. 676, 20ln re Haberman Mfg. Co. 147 U. 6 Sup. Ct. Rep. 387. S. 530. 37 L. ed. 266, 13 Sup. Ct. i2Life & F. Ins. Co. v. Wilson, 8 Rep. 527. Pet. 304, 8 L. ed. 949 ; Ex parte Brad- lEx parte Milwaukee, etc. R. R, ley, 7 Wall. 377, 19 L. ed. 214; Ex 5 Wall. 190, 18 L. ed. 676. parte Burtis, 103 U. S. 238, 26 L. 2Ex parte Tavlor, 14 How. 12, 14 ed. 392. L. ed. 302. i3Life & F. Ins. Co. v. Adams, 9 3Ex parte Schwab, 98 U. S. 240, Pet. 604, 9 L. ed. 234; Ex parte Hoyt, 25 L. ed. 105. 12 Pet. 290, 10 L. ed. 161; Ex parte 4Unit«d States v. Lawrence, 3 Dall. Many, 14 How. 25, 14 L. ed. 311; Ex 45, 1 L. ed. 503. 787 § 844 LJJ WKITS AND I'UOCESS. [Code Fed. [j] Practice on prohibition and mandamus. Botli niandanui.s and piolul)itioii are common law writs, s although the intervention of a jury is uimecessary.9 The proper proceeding for their issuance by the Supreme Court, is to apply ex parte for leave to lile a verified petitionio praying for issuance of a a rule to show cause why the writ should not issue. n addressed to the lower court, or to the judges thereof, or both. 12 The petition must make out a prima facie case is it is said that in application for prohibition the plaintiff in the suit complained of may be joined as a defendant unless it be the government. i-* The fact that the court is represented by a new judge does not affect the right to the writ. 1 5 The rule to show cause may be dispensed with by consent. 16 It was not issuable by the Chief Justice when holding the August term under an early law. if Issuance of the rule on petition for prohibition may be accompanied with an order to proceed no further in the case until a decision in the premises. is Although formerly a pre- rogative writ mandamus is now regarded as an action by the party upon whose relation it is granted. 1 9 [k] Mandamus in exercise of original jurisdiction. While Congress has power to authorize mandamus by the Supreme Court against government executive officers in those cases within its orig- inal jurisdiction,2 there seems to be no cases in the reports where the jurisdiction has been exercised. § 845. Mandamus to judicial officers for returns of fees. The circuit courts of the United States for the purposes of this act [an act requiring returns of fees and proof of accounts of clerks, etc., before the courts], shall have power to award the writ of mandamus, according to the course of the common law, upon motion of the Attorney General or the district attorney of the United sSmith V. Whitney, 116 U. S. 174, i^Smith v. Whitnev, IIG U. S. 176. 29 L. ed. 601, 6 Sup. Ct. Rep. 570; 2G L. ed. 601, 6 Sup. Ct. Rep. 570. In re Cooper, 143 U. S. 495, 36 L. ed. isin re Parker, 131 U. S. 226, 33 232. 12 Sup. Ct. Rep. 453; United L. ed. 123, 9 Sup. Ct. Rep. 708. States v. Union Pac. R. R. 2 Dill. leLife & F. Ins. Co. v. Adams, 9 527, Fed. Cas. No. 16,599. Pet. 572, 9 L. ed. 233. sin re Delgado, 140 U. S. 588, 35 itEx parte Hennen, 13 Pet. 229, L. ed. 578, 580, 11 Sup. Ct. Rop. 874. 10 L. ed. 136. loPoultney v. La Fayette, 12 Pet. isUnited States v. Hoffman, 4 474, 9 L. ed. 1161. Wall. 158, 18 L. ed. 354. 1 1 Postmaster Gen. V. Trigg, 11 Pet. isKendall v. Stokes, 3 How. 100, 174, 9 L. ed. 676. 11 L. ed. 513; Kentuckv v. Dennison, i2lu re Parker, 131 U. S. 226, 33 24 How. 97, 16 L. ed. 725; Hartman L. ed. 123, 9 Sup. Ct. Rep. 708. v. Greenhow, 102 U. S. 675, 26 L, isEx parte Christy, 3 How. 308. 11 ed. 273. L. ed. 603; Postmaster Gen. v. Trigg, soVirginia v. Rives, 100 U. S. 325, 11 Pet. 174, 9 L, ed. 676. '5 L. ed. 672. Supra, note[e]. 788 Procedure I TO COMPKL CAUKIERS TO I'UBLISH RATE. § 848 States, to any officer thereof, to eoiii])el him to make the returns and perform the duties in tliis act required. § 4, of act Feb. 22, 1875, c. 95, 18 Stat. 333, U. S. Comp. Stat. 1901, p. 649. § 846. Peremptory mandamus against carriers to compel equal facilities. If any question of fact as to the proper compensation to the com- mon carrier for the service to be enforced by the writ [i. e. the writ of mandamus sought by a shipper to compel equal facilities] is raised by the pleadings, the writ of peremptory mandamus may issue, not- withstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of fact. Part of § 23 added to act of Feb. 4, 1887, by act Mar. 2, 1889, c. 382, 25 Stat. 862, U. S. Comp. Stat. 1901, p. 3172. The first part of the above section confers jurisdiction to issue manda- mus.'' The last clause provides that the remedy given by mandamus is merely cumulative. 5 Unjust discrimination is the gist of the oflense and it must be pleaded and proved.fi Peremptory mandamus will not issue unless a case of unjust discrimination is made out." Plea in abatement to a second writ of mandamus will be sustained where between the same parties and where the gist of the unjust discrimination alleged, is the same. 8 § 847. — remedy by mandamus merely cumulative. The remedy hereby given^*^ by writ of mandamus shall be cumu- lative, and shall not be held to exclude or interfere with other reme- dies provided by this act or the act to which it is a supplement. Part of § 10 act Mar. 2, 1889, c. 382, 25 Stat. 862, U. S. Comp. Stat. 1901, p. 3172. § 848. Mandamus to compel carriers to publish rate schedules. If any such common carrier [i. e., as is within the pro\isions of the interstate commerce acts] shall neglect or refuse to file or pub- lish its schedules or tariffs of rates, fares and charges as provided •»Ante, § 152. ^United States v. Delaware. L. & 5Post, § 847. W. R. R. 40 Fed. 101. 105. fiUnited States v. Norfolk & W. sUnited Sttites v. Norfolk & W. Ry. 109 Fed. 836. Rv. 114 Fed. 682. "inSee ante, §§ 84G, 152. 789 § 849 WRITS AND PROCESS. [Code Fed. in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be subject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial district Avherein the principal office of said common carrier is situated, or wherein such offense may be committed, and if such common carrier be a foreign corporation in the judicial dis- trict wherein such common carrier accepts traffic and has an agent to perform such service, to compel compliance with, the aforesaid provisions of this section. Part of § 6 act Feb. 4, 1887, c. 104, 24 Stat. 380, as amended Mar. 2, 1889, c. 382, § 1, 25 Stat. 855, U. S. Comp. Stat. 1901, p. 3158. § 849. — form of its issuance and effect of non-compliance. Such writ [i. e. as is mentioned in the preceding section] ^^ shall issue in the name of the people of the United States, at the relation of the Commissioners appointed under the provisions 'of this act; and the failure to comply with its requirements shall be punishable as and for a contempt. Part of § 6, act Feb. 4, 1887, c. 104, 24 Stat. 380, as amended Mar. 2, 1889. c. 382, § 1, 25 Stat. 855, U. S. Comp. Stat. 1901, p. 3158. The Commission is also authorized to sue out injunction until schedules are published. 1 4 § 850. Bankruptcy courts' power to issue process. The courts of bankruptcy as hereinbefore defined, viz., the district courts of the United States in the several States, the supreme court of the District of Columbia, the district courts of the several Terri- tories, and the United States courts in the Indian Territory and the District of Alaska . . . are hereby invested, within their respective territorial limits . . . with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings . . . to . . . issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act[i. e the bankruptcy law of 1898.] Part of § 2, act July 1, 1898, c. 541, 30 StiU. 545, 540, U. S. Comp. Stat. 1901, p. 3420. The above section is stated in full elsewhere. is 13 Ante, § 848. i6Post § 2220. See also as to serv- KPost, § 1347. ices of petition in involuntary bank- ruptcy, post § 2278. 790 rrocediire] PROVISIONS AUTHORIZING SERVICE OF PROCESS § 852 § 851. Statutory provisions as to place where process is re- turnable. The statutes defining the Federal judicial districts in the various States, have sometimes created judicial divisions in districts by a declaration that all process against defendants residing in designated ■counties should be returnable to a given place, therein and provid- ing for terms of court at that place. The statutes affecting divi- sions in the Texas districts have uniformly been so framed.^*^ Other statutes have in terms defined the boundaries of judicial divisions, but have further proceeded to declare that process against persons residing in such division be returned to the term of court held therein.2" ^he legislation for other districts containing divisions has contained no provision as to return of process. In yet other cases, where there are no divisions of the judicial dis- tricts, though several designated places of holding court therein, the courts themselves have adopted rules providing as to the place to which process issued shall be returnable. In all of these cases it is necessary for the practitioner to advise himself as to the status of the law in any particular district or division. Author's section. § 852. Provisions authorizing service of process throughout dis- tricts containing judicial divisions. Some of the statutes creating judicial divisions in Federal ju- dicial districts have contained specific provision as to service and exscution of process in a district so divided. Thus acts dividing the districts of Alabama into divisions have provided that "all mesne and final process, subject to the provisions of this act, issued in eitlier of said divisions, may be served and executed in either or both of the divisions."^ There is a similar provision for the divisions of the southern district of California^ for the divisions in the districts of Georgia;-^ for the divisions of the Idaho district;'' of the eastern i9Ant«, § 288. 5 Act April 12. 1900, c. 185, § 2, 31 2 0See ante. §§ 405, 406. 414. Stat. 74. U. S. Comp. Stat. 1901. p. 3Act May 2, 1884, c. .38, § 4, 2.3 340: Act .June 30. 1902, c. 3.3,S. § 7. Stat. 18. U. S. Comp. Stat. 1901. p. 32 Stat. .551. U. S. Comp. Stat. 1903. 319; Act March 3, 1905, c. 1419, § 7. p. 5S: Act March 3, 1905. c. 1431, 33 33 Stat. 988, U. S. Comp. Stat. 1905. Stat. 1000. U. S. Comp. Stat. 1905, p. 79. p. 88. 4Act May 29, 1900, c. 594. § 0. 31 6Act July 5, 1892, c. 145, § 4, 27 Stat. 220, U. S. Comp. Stat. 1901, p. Stat. 73, U. S. Comp. Stat. 1901, p. 328. 343. 791 S 852 WRITS AND rUOCESS. [Code Fed. district of Tennessee;' of the districts of Missouri i** the soutliern district of Iowa;" for the divisions of the Kansas district^ ^ of the Xortii Dakota district ;i^ of the Utali district:^* of the Washington distriet.i'' and the two districts of OhioJ^ The act of 1887 estab- lishing divisions in the Missouri districts provided that "process issuing out of the courts of either division of said districts shall be directed to the marshal of the district in which the division is locat- ed, and may be executed by him or his deputies upon the party or parties against whom issued wherever found within his district.''^''' in addition to the provision above noted, for the western district of ^lissouri, there was an earlier general provision applicable to both districts, that "process issuing out of the courts of either division of said districts shall be directed to the marshal of the district in which the division is located, and may be executed by him or his deputies upon the party or parties against whom issued wherever fovmd within his district."^ ^ The purpose of these provisions is to guard against the inference that process issued in one division could not be served anywhere in that district. But failure to so enact would not justify the assumption that process could only be exe- cuted in the division wherein it was issued, in view of the general intent manifested by the legislation of Congress in that respect.^* It seems safe to assert therefor, as a universal rule, that process may be executed and served anywhere within a district, from a division of M'hich it may properly issue. Author's section. 7 Act February 7, 1900, c. 10, § 6, is Act April 5, 1890, c. 65, § 4, 26 31 Stat. 6, U. S. Coni,p. Stat. 1901. Stat. 45. U. S. Comp. Stat. 1901. p. p. 419. 4.39. 8Act January 24, 1901, c. 164, § 6, isAct June 8, 1878, c. 1069, § 6, 20 31 Stat. 739. U. S. Comp. Stat. 1901, Stat. 102; Act Feb. 4, 1880, c. 18, § p. 391; Act January 31, 1905, c. 287, 7, 20 Stat. 64, U. S. Comp. Stat. 1901, § 6. 33 Stat. 627, U. S. Comp. Stat. p. 402. 404. i905. p. 104. iTAct Feb. 28, 1887, c. 271, § 5, 9Act June 1, 1900, c. 601, § 2, 31 24 Stat. 426, U. S. Comp. Stat. 1901, Stat. 249, U. S. Comp. Stat. 1901, p. p. 387. 354. i9Act February 28, 1887, c. 271. § iiAct Mav 3, 1892, e. 59, § 2, 27 5. 24 Stat. 425, U. S. Comp. Stat. Stat. 24, U.* S. Comp. Stat. 1901. p. 1!K)1, p. 387. 357. 2 0E. g., see post, §§ 853-855; ante i3Aet June 29, 1906, c. 3595, 24 § 402. And see Rosecrans v. United Stat. 609. States, 165 U. S. 260, 41 L. ed. 70S, 14 Act March 2, 1897, c. 366, § 3, 29 17 Sup. Ct. Rep. 302. Stat. 620, U. S. Comp. Stat. 1901, p. 435. 792 rrocociiK-l ri.ACK. MODE AND SUFFICIENCY OF SERVICE. | 853 [b] § 853. Place, mode and sufficiency of service. Further than to prescribe that Federal process be served by the marshal. Congress has made no provision as to the manner in which process sliall he served, nor as to sufficiency of service in actions against corporations, municipal bodies, etc. There are rules of court respecting service of process in equity,^ and admiralty,^ and in tlu- Supreme Court.-"" In common law causes the local state practice as to mere mode and sufficiency of service governs. ^^^'f""^ But State laws permitting service by publication, or substituted service, or foreign attachment against persons outside the State, do not pre- vail in the Federal courts. On the contrary the general rule there is that process can only be served within the district wherein it is is- sued. i^*^^ The particular provisions in subsequent sections of this chapter as to substituted service and service in other districts, are in the nature of exceptions to the general rule Author's section. [a] State law governs. The State law as to service of process in common law causes is part of the mode of proceeding and adopted by R. S. § 914 ;T and State decisions construiiif^ such law will be followed.** A State law declaring that service of summons is deemed the commencement of a suit is followed in common law causes.'' Where the statute prescribes the mode of service upon a municipality, it cannot be made in any other mode though another mode could have been permissible at comon law.io But a State law imposing a penalty for failure to serve a summons does not apply to the marshal, n The questions whetlier a Federal court acquired jurisdiction by service is one of Federal laws and not controlled by State decisions.i2 [b] Sufficiency of service on foreign corporations. The law as to when a foreign corporation is deemed "found" within a Federal judicial district for purposes of jurisdiction has already been considered.!'' The geneial principle that the State law as to mode of serv- ice is adopted by the Federal courts in common-law causes, applies in suits 3 Post. §*>?]. U. S. 695. 32 L. ed. lOSO. 9 Sup. Ct. 4Post, § 1202. Rep. 690. See also Ex parte Conn- sPost, § 8o8. awav. 178 U. E. 430. 44 L. ed. 1138, 7Amv v. Watertown. 130 U. S. .301, 20 Sup. Ct. Rep. 9.51. 32 L. I^d. 940, 9 Sup. Ct. Rep. 530; i oAmv v. Watertown. 130 U. S. .301, Perkins v. Watertown. 5 Biss. 320, 32 L. ed. 946. 9 Sup. Ct. Rep. .'i30. P'ed. Cas. No. 10.991. But see Elsoii v. \\aterford. 135 Fed. RAmv V. Watertown. 130 U. S. .301, 247. .32 L. ed. 946, 9 Sup. Ct. Rep. 530; iiLowery v. Story. 31 Fed. 770. Toledo C. S. Co. v. Computing Scale i zXpw Haven, etc. Co. v. Downing- Cn. 142 Fed. 919 — C. C. A. . ton. etc. Co. 130 Fed. 60.). ;':\lic].igan Ins. Bank v. Eldred. 130 i4Ante, § 401 [c] et seq. 793 § 853 [b] WRITS AND PROCESS. [Code Fed. against foreign corporations ; 1 5 although a Federal court is not bound by State practice requiring the sufficiency of service to be tried by a jury. is The question of mode of service is not to be confused with the juris- dictional question as to when a corporation is "found" within a district. The former is a mere matter of procedure in which Congress has seen fit to require the Federal practice to conform to that of the States. The latter is a question of the power of Federal courts under Federal statutes, .and the State laws and decisions cannot vary or affect the result, i'? Be- fore the question of mode or sufficiency of service can arise there must be presented a case where a corporation is deemed "found" for juris- dictional purposes. If so "found" then a State statute authorizing valid service against a statutory agent is available to a Federal suitor and he may have service upon such agent. is So also a State statute applies in service of Federal process, which declares generally the class of officers and agents of a corporation that may be served with process. 20 Where service on a resident director, or financial agent 1 is valid by the State code, it suffices in the Federal court. 2 Other cases have relied upon the provisions of State law as to service on foreign corporations, in upliold- ing service on the general agents of a railroad; 3 on a station agent;* ■on the manager of a subordinate company; 5 on a locomotive engineer; 6 on general agents of a railroad'? in setting aside service on traveling solicitor^ in holding that the statute as to service on resident agent was not exclusive of other service; 9 in setting aside service on an occasional 15 Van Dresser v. Oregon Rv. etc. Co. 48 Fed. 202. 16 Wall V. Chesapeake, etc. Ry. 95 Fed. .39«. 37 C. C. A. 129. See also Benton v. Mcintosh, 96 Fed. 132. i-^Ante, § 5. See Barrow S. S. Co. V. Kane, 170 U. S. 100, 42 L. ed. 964, 18 Sup. Ct. Rep. .526. isEx parte Scliollenberg, 96 U. S. 36», 24 L. ed. S53 ; Brownell v. Troy R. R. 3 Fed. 761, 18 Blatohf. 243; Runkle v. Lamar, 2 Fed. 9; New England M. L. Ins. Co. v. Wood- worth, 111 U. S. 138, 146, 28 L. ed. 382, 4 Sup. Ct. Rop. .364; Ehrman v. Teutonia Ins. Co. 1 Fed. 471, 1 Mc- Crarv, 173; Mutual, etc. Assn. v. Phelps, 190 U. S. 147, 47 L. ed. 987, 23 Sup. Ct. Rep. 707 ; Carstairs v. Ins. Co. 13 Fed. 823. 2 0Provident Sav. Soc. v. Ford, 114 U. S. 639, 29 L. ed. 261, 5 Sup. Ct. Rep. 1104; Conecticut M. L. Ins. Co. v. Spratley. 172 U. S. 602, 43 L. ed. 569, 19 Sup. Ct. Rep. ,308; Societe Fonciere, etc. v. Milliken, 1.35 U. S. .•^OT, 34 L. ed. 209, 10 Sup. Ct. Rep. S23; Mexican C. R. R. v. Pinknev, 149 U. S. 201, 37 L. ed. 702, 13 Sup. Ct. Rep. 859; Barnes v. Western U. T. Co. 120 Fed. 550; Van Dresser t. Oregon Ry. etc. Co. 48 Fed. 202. 1 Meyer v. Penn. etc. Ins. Co. 108 Fed. 169; Reillv v. Philadelphia, etc. Co. 109 Fed. 349. 2Amer. Lock. Co. v. Dickson Mfg. Co. 117 Fed. 972. 3 Denver, etc. Co. v. Roller, 100 Fed. 738, 49 L.R.A. 77. 4Hat-Sweat Mfg. Co. v. Davis, etc. Co. 31 Fed. 294; Dinzy v. 111. Cent. R. R. 61 Fed. 40; Union Pac. R R. V. Novak, 61 Fed. 573, 9 C. C. A. 62 9. sNorton v. Atchison, etc. R. R. 61 Fed. 618. sDevere v. Delaware, etc. R. R. 60 Fed. 886. TBlock V. Atchison, etc. R. R. 21 Fed. 529. 8N. K. P'airbank & Co. v. C.icin- nati, etc. R R. 54 Fed. 420, 4 C. C. A. 403, 38 L.R.A. 271 ; Wall v. Chesa- peake, etc Co. 95 Fed. 398. 37 C. C. A. 129; ^faxwell v. Atchison, etc. R. R. 34 Fed. 286. sMutual R. F. Ins. Co. v. Cleveland. W. M. 82 Fed. 508, 27 C. C. A. 212. 794 ■ Procedure] PLACE, MODE AND SUFFICIENCY OF SERVICE. § 853 [c] correspondent of a news agency ;io and on a "distributing agent ;"ii and service by mail 12 in upholding service on the agent in the very transaction sued upon;i3 upon a managing agent;i4 in setting aside service upon a li- censee of a telephone company because not a managing agent ;i 5 in uphold- ing service upon the general financial agents of a foreign steamship com- pany. 1 6 A State law permitting service on an employee in default of any designated statutory agent will be construed strictly. it [c] — effect where no State law, or law inapplicable or prohibitive. If there is no State law declaring the proper mode of serving foreign corporations, it would seem that a general statute as to service upon cor- porations would apply. 2 If the State law required that service against a foreign corporation be by attachment of its property, which is forbidden in Federal courts, then it a case where literal conformity to the State practice would not be required under R. S. § 914, and service upon the Presi- ■dent would be upheld. 3 Certainly a suit cognizable in the Federal court of a district because within its jurisdictional power under the acts of Congress and decisions of the Federal courts, would not be allowed to be •defeated because the State law did not indicate the mode of service of process. The practice conforms to State practice only "as near as may be." And it is equally true that if the Feaeral court of a district had no jurisdiction because a foreign corporation was not deemed "found" there- in, the fact of service, though in the mode prescribed by the State law, would not be eflfective to confer jurisctiction.4 The statutes and decisions ■of some States do not permit service against the local representatives of a foreign corporation in a transitory cause of action arising outside the State, and some of the circuit courts have held that the Federal courts in such State were similarly disabled.^ But this is confusing the question See Johnon v. Hanover, etc. Ins. Co. i^Xevv R. M. Co. v. Seelev, 120 Fed. 15 Fed. 97, II Biss. 452; Funk v. 193, 56 C. C. A. 505. See also Sobrio Anglo, etc. Ins. Co. 27 Fed. 330. v. ^Manhattan L. Ins. 72 Fed. 566. loEvansville C. Co. v. United Press, Setting aside service for non-com- ■74 Fed. niS. pliance. Kiufeke v. Merchants, etc. iiGottschalk Co. v. Distilling, etc. Co. 11 Fed. 282, 3 MeCrary, 547, Co. 50 Fed. 681. where return did not show service on i2Farmer v. National, etc. Asso. agent in charge of office. .50 Fed. 82<). 2See Wilson P. Co. v. Hunter, 8 i3Estes V. Belford, 22 Fed. 275, 23 Biss. 429, Fed. Cas. No. 17.852. Blatchf. 1. sHayden v. Androscoggin Mills, 1 i4PaliiU'r V. Chicago Herald, 70 Fed. 93. Fed. 8S6; Brewer v. George Knapp & 4St. Clair v. Cox. 106 U. S. 350, Co. S2 Fed. 694. But see contra: 27 L. ed. 222. 1 Sup. Ct. Rep. 354; 'Cnion Ass. P. Co. v. Trimes, 84 Fed. Fitzgerald, etc. Co. v. Fitzgerald, 137 419. U. S. 98, 106, 34 L. ed. 012, 11 Sup. isUnited States v. American Bell Ct. Rep. 36: Goldey v. Morning T. Co. 29 Fed. 17. News, 156 I'. S. 518. ,39 L. ed. 517, i6ln re Hohorst, 150 U. S. 603. 37 15 Sup. Ct. Rep. 559. L. ed. 1211. 14 Sup. Ct. Rep. 221; sSee United States v. Amer. Bell Barron. S. S. Co. v. Kane. 170 U. S. T. Co. 29 Fed. 17: Union Associated 100, 42 L. ed. 964, IS Sup. Ct. Rep. 526. Press v. Times Printing Co. 83 Fed. 795 { 853 [d] WRITS AND PROCESS. [Code Ked. of procedure with that of jurisdictional power. If the Federal courts deem a corporation ■•found"' within a district and the cause of action is by them cognizable, the fact that, from whatever cause, the State- court would not take jurisdiction, is immaterial. 6 [d] General rule that process must be served within district. The proA'ision that civil suit must be brought in the district of (lofoiid- ants residence or where he is found,!* has uniformily been construed to- mean that valid judgment in the Federal courts cannot be rendered unless defendant has been served within the district or voluntarily appears. lo Circuit and district courts cannot issue process beyond the limits of their districts. n Process of attachment against a persons gootU within a district to compel his appearance therein though not there found, ia not permissible in Federal courts though authorized by the laws of many States. 12 So a State case permitting service upon an infants general guardian and requiring him to appear and defend will not apply in the Federal court to give it jurisdiction, when the infant is not in the district and the proceeding is not within the Federal lawi3 permitting service elsewhere. 14 The Federal law as to service by publication is exelu^iive of State statutes upon the subject. is § 854. Process may run in another district of state if some defendants there. Wlien a State contains more tlian one district, every suit not of a local nature, in the circuit or district courts, thereof ... if there are two or more defendants, residing in different districts of the State, . . . may be brought in either district, and a dupli- cate writ may be issued against the defendants, directed to the mar- shal 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 sucli original and duplicate writs, when executed and returned into tlu> office from which they issue, shall constitute and be proceeded on 822: Grover v. Amer. Exp. Co. 11 uToland v. Sprague, 12 Pet. 3.30, Fed. 386. 9 L. e i3See .Jellenik v. Huron C. M. L. ed. 69. 15 Sup. Ct. Rep. 24; Sevbert Co. 177 U. S. 10, 44 L. ed. 650, 20 Sup. v. Shamokin, etc. Co. 110 Fed. SIO; Ot. Rep. 559. Knhn v. Morrison, 75 Fed. 81 : Single i6Horsford v. Gudger, 35 Fed. 392. v. Scott P. Co. 55 Fed. 553: Spencer I'Hay v. Alexandria, etc. Rv. 4 v. Kansas C. S. Yds. 56 Fed. 741; Hughes', 331, Fed. Cas. No. 6,254a. Ames v. Holdenbaum. 42 Fed. .341 ; isHay V. Alexandria, etc. Ry. 4 American F. L. M. Co. v. Benson, 33^ Hughes. 331, Fed. Cas. No. 6,254a. Fed. 456. i»Brigham v. Luddington, 12 sDick v. Foraker. 155 U. S. 404, 39 Blatchf. 237, Fed. Cas. No. 1.874; L. ed. 202, 15 Sup. Ct. Rep. 124; Dock Tug River C. & S. Co. v. Brigel, 67 v. Whitman, nr. Fed. S8, sAmerean F. L. ]\I. Co. v. Thomas, Fed. Pas. Xo. 1,028. 71 Fed. 782, 18 C. C. A. .327. ! White V. Ewing, 69 Fed. 451, 16 t York, etc. Bank v. Abbot, 139 Fed. C. C. A. 2!)6. 9'90. 2lngersoll v. Coram, 136 Fed. 690. 805 § 858 WRITS AND PROCESS. [Code Fed. and precepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the per- son so appointed may execute and return them. R. S. § 922, U. S. Comp. Stat. 1901, p. G8G. This provision was originally § 28 of the judiciary act of 1789.10 The general rule in the Federal courts is that process must be served by the marshal and cannot be served by private persons. n The marshal must serve process when suit is in forma pauperis and without fee. 12 The ad- miralty rules provide for service of process by some discreet and dis- interested person when the marshal is interested.is The equity rulea provide for service by the marshal or a special appointee of the court. 1 4 The object of this provision, it is said, is to prevent the marshal or his deputy by making false return in a case against them, from depriving the adverse party of his day in court. 15 Failure to have process against a marshal or his deputy served by some special appointee, may be waived by an appearance which can be construed as a submission to the court's jarisdiction,i6 though not by an appearance strictly for the purpose of in- insisting upon the illegality. 1 7 So service by a private person where the marshal is not interested, may be cured by appearance. is It has been said that this section is not clearly applicable to contempt proceedings against a marshal so as to authorize process against the marshal to be directed to some one else. 1 9 § 858. Service of process in suit against a State. 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. Supreme Court rule 5, part 2. This rule was originally promulgated August 12, 1796.2 The jurisdiction of the Supreme Court in suits against States is elsewhere considered.3 The process should be directed to the State.* Prior to the auoption of this loAct September 24, 1789, c. 70, 2 L. ed. 510; Barnes v. Western U. T. § 28, 1 Stat. 87. Co. 120 Fed. 550. iiPlatt V. Manning, 34 Fed. 817; i^Harkness v. Hyde, 98 U. S. 476, Deacon v. Sew. Mach. Co. 14 Rep. 25 L. ed. 237. 43, Fed. Cas. No. 3,694a; Schwa- sPlatt v. Manning, 34 Fed. 817. backer v. Reilly, 2 Dill. 127, Fed. 1 9 Ex parte Benedict, 4 West L. M. Cas. No. 12,501. ^nte, § . 449, Fed. Cas. No. 1,292. 12 Ante, § 478. 2See 3 Dall. 320, 3 Pet. 17. isPost, § 1202. 3 Ante, § 2 [ ]. 14 Post, § 973. 4 Florida v. Georgia, 11 How. 293, isBarnes v. Western U. T. Co. 120 13 L. ed. 702; Rhode Island v. Mass- Fed. 550. aeluisetts, 7 Pet. 651, 8 L. ed. 816. l6Knox V. Summers, 3 Cranch, 496, 800 Procedure] APPEARANCE AND EFFECT THEREOF § 8G0 rule, service upon the Attorney General and Governor was declared suf- ficient.5 Service merely on one of those officials is insufficient.^ § 859. Service on government in partition suits. When such suit [i. e. suit for partition of lands in which United States are part owners] is brought by any person owning an undi- vided interest in such land, other than the United States, against the United States alone or against the United States and any other of such owners, service shall be made on the United States by caus- ing a copy of the bill filed to be served upon the district attorney of the district wherein the suit is brought, and by mailing a copy of the same by registered letter to the Attorney General of the United States ; and the complainant in such bill shall file with the clerk of the court in which such bill is filed an affidavit of such service and of the mailing of such letter. Part of § 2, act May 17, 1898, c. 339, 30 Stat. 416, U. S. Comp. Stat. 1901, p. 516. The portion of the statute giving jurisdiction of such suits to the circuit courts is given elsewhere. s § 860. Appearance as cure for defective service or want thereof. In deciding whether an appearance is general or special, its sub- stantial purpose is considered, as well as the name applied to it by the party appearing ; and the State law and practice will not al- ways be allowed to determine the question even in common-law causes. If an appearance is in fact general, it waives a want of, or defective compliance with the various prerequisites to the exercise of jurisdiction over a party defendant, so far as the same are for defendants benefit and protection, and do not constitute lim- itations upon the power of the court itself. Hence defective service, or an entire failure to serve, is cured by general appearance, though that cannot give jurisdiction if there is a defect of jurisdictional power in the court. The time and mode of appearance in equity cases^*^ and on appeal, ^^ are elsewhere considered. Author's section. BChisholm v. Georgia. 2 Dall. 480, 6New Jersey v. New York, 3 Pet. 1 L. ed. 440. And see Rhode Island 461, 7 L. ed. 741. V. Massachusetts, 12 Pet. 761, 9 L. 8 Ante, § 141. ed. 1275; New Jersey v. New York, 3 loPost. § 978. Pet. 466, 7 L. ed. 743. uPost, § 197S. 807 § SCO [a] WRITS AND PROCESS. [Cotle Fed. [a] General and special appearance. The making of formal appearance by praecipe to the clerk has largely fallen into desuetude. 12 In general the filing of an answer, or demurrer, or plea, constitutes an appearance; is so also does the obtaining from the plaintiff want of an extension of time to plead.i* But an admission of service of process is not. is Joining in a motion to set aside servicei6 has been held not an appearance ; as also the assumption of the burden of the de- fense of the nominal defendant. 1 7 While by general appearance, a de- defendant appears for all puqjoses of the suit, a special appearance is for the purpose of raising an objection to the courts power to proceed, based upon some defect in the service of process or mode of acquiring jurisdiction; and a party will not be permitted to make a special appearance for the purjDose of inteqjo.'sing certain defenses on the merits. is It may not beiuii- versally true that appearance will be treated as general unless specifically declared by the party to be special. 19 Yet such is the general rule, and it i^^ the proper as well as the safer practice for one desiring to appear specially to so declare in all cases. 20 Certainly he must in some manner manifest an intention to appear specially or he will be rigidly held to have ap- peared generally. 1 Furthermore an appearance declared to be special may amount in law to a general appearance, where the party takes any step that can only be taken by such appearance. 2 Thus an appearance by motion to dismiss becomes general, where the party sets up want of equity in the bill as an additional ground for dismissal. 3 If, however, after overruling of the special objections to the jurisdiction, the party i2Romaine v. Union Ins. Co. 28 Fed. G2.5. But see equity rule 17, post § 9'75, Supreme Court rule 9, cl. 3. post, § 1978. isFreneh v. Hay, 22 Wall. 245, 22 L. ed. 854; Eldred v. Bank, 17 Wall. 651. 21 L. ed. 685. KHupfeld V. Automaton Co. 66 Fed. 788; Briggs v. Stroud. 58 Fed. 717. isButtenvorth v. Hill. 114 U. S. 132. 133, 20 L. ed. 119, 5 Sup. Ct. Eep. 796. leBeck v. Wacker, 76 Fed. 10, 22 C. C. A. 11. iTBidwell V. Toledo, etc. Ry. 72 Fed. 10. isNat. F. Co. V. Moline M. Works, IS Fed. 864. isBut an appea.rance to petition for removal is not general though not expressly declared to be special : Wabash, etc. Rv. v. Brow, 164 IT. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126. See also Herndon v. Ridg- way, 17 How. 424. 15 L. ed. 100. Where motion to dismiss and de- murrer to jurisdiction were treated as special appearance ; Dorr v. Gib- boney, 3 Hughes, 382, Fed. Cas. No. 4,006, where motion to quash was made aftper Co! 140 Fed. 965. R. R. 10 Fed. 256. iiPike V. Gregory, 94 Fed. 373, isYork v. Texas, 137 U. S. 20. 34 36 C. C. A. 299. L. ed. 604, 11 Sup. Ct. Rep. 10; isWabash, W. Rv. v. Brow, 164 KaufTman v. Wootters, 138 U. S. 287, U. S. 271, 41 L. ed. 431, 17 Sup. 34 L. ed. 902, 11 Sup. Ct. Rep. 298. 809 § 800 [bj WKITS AND PROCESS. rCode Fed. really constitute a regulation of their jurisdiction.! 9 So, the question whether an appearance in a State court for the purpose of asking a re- moval, was general, has been decided by the Supreme Court without regard to the local statutes.20 in so far as a jurisdictional question or the con- struction of Federal statutes is involved in such an inquiry it is plain that the local practice is of small moment. [b] General appearance as waiver of defective service. If an appearance is merely special, it does not constitute a submission to the court's jurisdiction or waiver of defective service.s But if it is gen- eral, it waives any defect of jurisdiction which relates only to the person. s It waives objection to the manner of bringing defendant into court, but not objections affecting the power of the court over person or subject matter. ■!■ Jurisdiction may be acquired by voluntary appearance as effectu- iil]y as by proper service.? The entering of an appearance is an admission of due and effectual service. 9 Obtaining leave to withdraw a motion to set aside service and for time to answer is held a waiver of objection to jurisdiction of person. 10 While the Federal statutes permit suit against a person only in the district where an inhabitant is found,ii and while process can in general only be served within the district where issued,i2 yet these regulations are not in the nature of limitations upon the powers of the court, but are privileges and immunities of the parties themselves. 1 3 It is well settled that they may be and are waived by a general appear- imce in an action brought elsewhere than in such district. i* But theic is no waiver in such a case, where, a demurrer for want of jurisdiction isMexican C. Rv. v. Pinlcnev, 140 r. S. 209, 37 L. ed. 69'9, 13 Sup. Ct. Rep. 859; Galveston, etc. Ry. v. Gon- :',al6s, 151 U. S. 499, m L. ed. 248, 14 Sup. Ct. Rep. 4C1. 2oGoldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. So©. 5Ex parte Shaw, 145 U. S. 444, 36 L. ed. 768. 12 Sup. Ct. Rep. 935; Romaine v. Union Ins. Co. 28 Fed. 626; United States v. American, B. T. Co. 29 Fed. 45: Ellsworth T. Co. V. Parramore, 108 Fed. 906, 48 C. C. A. 132. eVoorhees v. Jacksou, 10 Pet. 473, 9 L. ed. 490; Texas, etc. Rv. v. Cox, 145 U. S. 603., 36 L. ed. 832, 12 Sup. Ct. Rep. 905. 7Rhode Island v. Massachusetts, 12 Pet. 719', 9 L. ed. 1233; Creighton V. Keirr, 20 Wall. 12. 22 L. ed. .309. sBowdoin Coll. v. Merritt, 59 Fed. 6; Cooper v. Reynolds, 10 Wall. 316, 19 L. ed. 931. sLogan v. Patrick, 5 Cranch, 288, 3 L. ed. 103; Toland v. Sprague, 12 Pet. 331, 9 L. ed. 1003; Hill v. Men denhall, 21 Wall. 4.54, 22 L. ed. 616; Henderson v. Carbondale, etc. Co. 140 U. S. 40, 35 L. ed. 332, 11 Sup. Ct. Pep. 691. lOLebensberger v. Seofield, 139 Fed. 380, (C. C. A.) 11 Ante, § 402. 12 Ante, § 853. isKendall v. United States, 12 Pet. 623, 9 L. ed. 1181. i4Gracie v. Palmer, 8 Wheat. 700. 5 L. ed. 719; Tavler v. Longwortb. 14 Pet. 174, 10 L. ed. 405; Shield^ v. Thomas, 18 How. 259, 15 L. erl. 368; In re Keasbev, etc. Co. 160 V. S. 229, 40 L. ed. 402, 16 Sup. Ct. Rep. 273; Central T. Co. v. :McGeoTge. 151 U. S. 133. 38 L. ed. 08. 14 Sup. Ct. Rep. 2S6; Southern Exp. Co. v. Todd, 56 Fed. 104, 5 C. C. A. 432: Wahr V. I'nion Pac. R. R. 140 Fed. 921. But general appearance made in Justifiable ignorance that suit was in wrong district was held no waiver in Orow^i C. M. v. Turner, 82 Fed. 337. 810 Procedure] PROCESS AGAINST FOREIGN MINISTER. § 862 being on file, the defendant participates in the taking of depositions.!'^ While foreign attachment is not a proper mode of securing jurisdiction in the Federal courts, yet if a part}^ makes general appearance in a case 60 commenced, he waives the informality.i^ A national bank waives its exemption from suit in other districts, by a general appearance. 1 7 Objec- tion to the regularity of proceedings to enforce appearance are waived by appearance and pleading to the merits. is If a subpoena erroneously describes a defendant his appearance without objection on that ground cures the defect. 1 9 General appearance and pleading to the merits also cure a defect arising from the fact that service was fraudulently procured; 20 or by an unauthorized person.i After voluntary appearance and answer a party cannot object to the regularity of the order making him party. 2 WTiere a party sued by process of foreign attachment in a State court, ap- pears and removes the cause to the Federal court, he thereby admits its jurisdiction. 3 General appearance does not waive a lack of jurisdiction in the court as respects the subject matter.'* § 861. Process against foreign ministers and their domestics void. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or State, authorized and received as such by the Pres- ident, or any domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void. R. S. § 4063, U. S. Comp. Stat. 1901, p. 2760. This section and the two following sections were carried into the Revised Statutes from an act of 1790.7 The exclusive jurisdiction over proceedings against ambassadors and other public ministers is vested in the Supreme Court. 8 § 862. — penalty for suing out and executing such process. Whenever any writ or process is sued out in violation of the pre- isStonega, etc. Co. v. Louisville, S. 98, 34 L. ed. 608, 11 Sup. Ct. Rep. etc. R. R. 139 Fed. 271. 36. i6Fife V. Bohlen. 22 Fed. 878; but iPlatt v. Manning, 34 Fed. 817. see Noves v. Canada, 30 Fed. 66.5. zHenderson v. Carbondate, etc. Co. "Charlotte F. Xat. Bank v. Mor- 140 U. S. 40. 35 L. ed. 332, 11 Sup. gan, 132 U. S. 141, 33 L. ed. 282, 10 Ct. Rep. 691. Sup. Ct. Rep. 37. sirwin v. Lowry, 14 Pet. 299, 10 isKnox V. Summers, 3 Cranch, 498, L. ed. 462; see Purdy v. Wallace, 81 2 L. ed. &10; The Merino, 9 Wheat. Fed. 513. 401, 6 L. ed. 118. ^Lackett v. Rumbaugh, 45 Fed. 23. i9Johnson v. Waters, 111 U. S. ^Act Apri> 30, 1790, c. 9, §§ 25-27, 673, 28 L. ed. 547, 4 Sup. Ct. Rep. 1 Stat. 117. 619. 8 Ante, § 35, 20 Fitzgerald v. Fitzgerald, 137 U. 811 § t>yj6 WRITS AND PROCESS. [Code Fed. ceding section, every person by whom the same is obtained or pros- ecuted, whether as party or as attorney or solicitor, and every officer concerned in executing it, shall be deemed a violator of the laws of nations and a disturber of the public repose, and shall be imprisoned for not more than three years, and fined at the discretion of the court. R. S. § 40G-4, U. S. Comp. Stat. 1901, p. 2761. § 863. — when process may be issued against persons in service of ministers. The two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, in the service of a public minister, and the pro- cess is founded upon a debt contracted before he entered upon such service ; nor shall the preceding section apply to any case where the person against whom the process is issued is a domestic servant of a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the marshal of the District of Columbia, who shall upon receipt thereof post the same in some public place, in his office. R. S. § 4065, U. S. Comp. Stat. 1901, p. 2761. § 864. Issuance of prohibition by circuit courts of appeals in admiralty. A writ of inhibition may be awarded by this court on motion of the appellant, to stay proceedings in the court below, when cir- cumstances require. 12tli admiralty rule of the second and ninth circuits. 812 CHAPTER 23. TIME FOR COMMENCEMENT OF ACTION OR PROSECUTION. § 869. Cross references. § 870. Statutes of limitation applicable in Federal courts. § 871. Limitations of actions in copyright cases. § 872. — in actions for negligently failing to prevent conspiracy against civil rights. § 873. — in actions upon claims against United States. § 874. — earlier statute — persons under disability. § 875. Settlements for customs duties conclusive after one year. § 876. Limitation of suits for recovery of taxes wrongfully collected § 877. — of time for appeal to commissioner. § 878. Limitation of actions to annul land patents. § 879. — to annual patents under railway or wagon road grant. § 880. Limitation of actions for lands patented to Indians. § 881. — of actions for penalties and forfeitures under Federal laws. § 882. — of actions for penalties and forfeitures under customs revenue laws. § 883. — of forfeiture proceedings for false claims against United States. § 884. Time for indictment for capital offenses. § 885. — for offenses not capital. § 886. — exception of persons tleeing from justice. § 887. Exception of parties beyond reach of process during rebellion. § 888. Time for prosecution of crimes under revenue and slave laws. § 889. — of crimes under internal revenue laws. § 890. — of offense of seduction of female passenger. § 891. — of prosecutions for violations of naturalization laws. § 892. — of suits against carriers under Employers Liability Act of 1906. § 86&. Cross references. Provisions of law respecting the time within which an appeal must be taken are given elsewhere;^ also provisions as to the time for taking various proceedings in bankruptcy.^ The provision as to limitation of actions in a marshal's bond is contained in a pre- ceding chapter.^ Author's Section. iPost, §§ 1902, et seq. 2Ante, §§ 2.3ended after the lapse of six years if filed in time; 20 and there is a rule of the Court of Claims protecting a party in such amendment where inability to examine executive records has prevented his filing a full and specific petition in time.i And a widow has been permitted to amend after six years, so aa to sue as administratrix. 2 It is of course competent for Congress again to authorize suit on a claim which has become barred. 3 [c] — effect of presentation to department. When a claim is of such a character that it may be allowed and setvled by an executive department, or may in the exercise of discretion, be referred by it to the Court of Claims for final determination, a claim if so presented to an executive department, within six years is not barred if not entered in the Court of Claims until after six years. The filin? of the petition then relates back to the presentation of the claim to the department.6 The presentation must be to the proper department and the claim must be of the class which a department may allow and settle, or, in its discretion, transmit to the court. 7 The running of the statute is not stopped as respects other claims by the fact of their presentation to, and rejection by the department ; 8 and the statute is of course a bar in six years after an adjudication by the proper department against a claim.9 leCentralP.R. R. V. United States, 2Skelly v. United- States, 32 Ct 24 Ct. CI. 145. €1. 227. i7Lisle V. United States, 23 Ct. sWrav v. United States, 19 Ct. CI. CI. 270. 154; Cross v. United States, 4 Ct. isFinn v. United States. 123 U. CI. 271. S. 227, 3'! L. ed. 128, 8 Sup. Ct. Rep. 6United States v. Lippitt, 100 U. 82; United States v. Connor, 138 U. S. 6f)3. G&8, 25 L. ed. 749: Finn v. S. 66. 34 L. ed. 862, 11 Sup. Ct. Rep. United States, 123 U. S. 232, 31 L. 231; United States v. Wardwell. 172 ed. 130, 8 Sup. Ct. Rep. 82: United U. S. 48. .52. 43 L. ed. 360, 19 Sup. States v. Xcav York. 160 U. S. 618, Ct. Rep. 88; Baltimore, etc. R. R. 40 L. ed. 557. 16 Sup. Ct. Rep. 40? V. United States. 14 Ct. CI. 484. TMcClure v. United States. 19 Ct. i9KendaIl v. United States, 14 Ct. CI. 18; Alexandria, etc. R. R. v. CI. 122: Finn v. United States. 123 United States, 26 Ct. CI. 327; Savage U. S. 227, 31 L. ed. 128. 8 Sup. Ct. v. United States. 23 Ct. CI. 255. Rep. 82; De Arnand V. United States, sSee Battelle v. United States. 7 151 U. S. 495, 38 L. ed. 247. 248, 14 Ct. CI. 297 ; Ravesies v. United States. Sup. Ct. Rep. 374. 21 Ct. CI. 247; Curtis v. United 20Griffin v. United States, 13 Ct. States, 24 Ct. CI. 1. CI. 257; Devlin v. United States, 12 sUnited States v. Connor. 138 U. Ct. CI. 266. S. 61. 67, 34 L ed. 861. 862, 11 Sup. iSee Hillbom v. United States, 27 Ct. Rep. 229. Ct. CI. 547. Fed. Proc— 52. 817 § 874 [d] TIME FOR COMMENCEMENT OF ACTIONS. [Code Fed. [d] When claim is deemed to accrue. The clause of the act of 1887 makes the limitation run from the time the 'Tight accrued for which the claim is made,"ii though this change in phraseology was probably not intended to carry with it any change in legal effect. A disbursing officers claim for relief where moneys have been stolen from him, only accrues when an account is stated holding him for the loss, and not at the time of the loss. 12 A collector of customs claim for salary accrues at the end of each fiscal year.is The payment of money into the Treasury or equivalent act, such as the dissallowance of a claim in an account, marks accrual of officer's claim that he was entitled to retain it.i* The claim of the holder of a draft to the issuance of a warrant under R. S. § 308 does not begin to run until claimants application is refused.i5 The refusal of the Secretary of the Treasury to pay money claimed, marks the accrual of the right to sue therefor. 16 It has been decided that the statute does not begin to run against claims of a naval contractor for various extras until the comple- tion of the contract work. 1 7 On a contract for the sale of goods the statute runs from the time the amount is payable.! « A patentees claim for compensation accrues when his invention is embodied in a manu- tured article;i9 or his device is used by the government.20 An action by a State for receipts from the sale of swamp lands is not barred until six years after the amount is ascertained by the commissioner of the General Land Offioe.i If a statutory right is the basis of a claim, it first accrues where an appropriation thereunder becomes available; 2 and a claim under a special act accrues from its passage.3 In brief a claim first accrues within this provision, upon the day when suit might first be 11 Ante, § 874. i^Myerle v. United States, 31 Ct. i2United States v. Clark. 96 U. S. CI. 105. 37. 24 L. ed. 696; United States v. isBatelle v. United States, 7 Ct. Smith. 105 U. S. 620. 26 L. ed. 1191; CI. 397. Hobbs Case. 17 Ct. CI. 189; Wood v. isHartman v. United States, 35 Ct. I'nited States, 25 Ct. CI. 98; Scott v. CI. 106. United States, 18 Ct. CI. 1. 2oUTaited States v. Berdan, etc. Co. isBaehelor v. United States, 8 Ct. 156 U. S. 570, 39 L. ed. 530. 15 Sup. CI. 235: Ellsworth v. United States, Ct. Rep. 420. 14 Ct. CI. 582. lUnited States v. Louisiana. 123 i4Smith V. United States, 14 Ct. CI. U. S. 32, 31 L. ed. 69, 8 Sup. Ct. Rep. 114; Lawson v. United States. 14 Ct. 17. CI. 332; Clark v. United States, 99 2Bemard v. United States, 26 Ct. U. S. 493. 25 L. ed. 481; United CI. 312. States v. Clark, 96 U. S. 37, 24 L. sRice v. United States, 21 Ct. CI. ed. 696. 413, where the statute directs a mere isUnited States v. Wardwell, 172 ministerial act by an accounting of- U. S. 48, 43 L. ed. 360, 19 Sup. Ct. ficer the period of limitations runs Rep. 86. from the act's passage, not from the ifiUnited States v. Lawton, 110 U. acounting: Indiana v. United States, S. 146, 28 L. ed. 100, 3 Sup. Ct. Rep. 26 Ct CI. 583. 545; United States v. Taylor, 104 U. S. 216, 26 L. ed. 721 : Taylor v. United States, 14 Ct. CI. 339. 818 I Procedure] IN CUSTOMS DUTIES CASES. § 875 brought on it;4 and not until suit might so be brought. 5 So where a contractor died before his claim accrued, the statute was held not to run imtil an administrator was appointed who could sue thereon. 6 Where the United States was trustee of a fund the statute was held not to run until some disavowal of the trust." And where a treasury warrant issued in payment of an audited account, it is suable within six years though the original account would be barred. s [e] Disabilities, acknowledgment and part payment. Payment of the only part of a claim conceded to be due, is of course not an acknowledgment of the controverted balance. 12 But Congress may be an unqualified acknowledgment that a debt is due take a case from the bar of the statuite.i3 The disabilities mentioned in the provision must have existed when the right accrued and subsequent disability such as departure beyond seas,i4 or insanity is will not arrest the statute. A second departure beyond seas will not arrest the statute which has com- menced to run upon return from the original absence.is The Tucker act of 1887 did not repeal the portion of R. S. § 10G9 relating to persons under disability.! 8 § 875. Settlements for customs duties conclusive after one year. Whenever any goods, wares and merchandise shall have been entered and passed free of duty, and whenever duties upon any im- ported goods, wares and merchandise shall have been liquidated and paid, and such goods, wares and merchandise shall have been de- livered 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 prot-est by the owner, importer, agent or consignee, be final and conclusive upon all parties. § 21 of act June 22, 1874, c. .391, 18 Stat. 186, U. S. Comp. Stat. 1901, p. 1986. 4Harri?on v. United States. 20 Ct. i2United States v. Wilder, 13 Wall. CI. 175; Rice v. United States. 21 Ct. 254. 20 L. ed. 681. CI. 413; Patterson v. United States, i3Cross v. United States, 4 Ct. CI. 21 Ct. CI. 322; Curtis v. United 271. States, 34 Ct. CI. 1; Hartman v. i4De Arnand v. United States. 151 United States. 35 Ct. CI. 108. U. S. 495, 496. 38 L. ed. 247. 248. 14 5United States v. Cooper, 120 U. Sup. Ct. Rep. 374. S. 124. 30 L. ed. 606, 7 Sup. Ct. Rep. isLeonard v. United States, 18 Ct. 459: United States v. Taylor, 104 U. CI. 382. S. 216, 26 L. ed. 721. leSavage v. United States, 23 Ct. SFulenweider's Case, 9 Ct. CI. 403. CI. 255. ■^Harrison v. United States, 20 Ct. isUiiited States v. G-reathouse. 166 01. 175; Louisiana v. United States, U. S. 605, 41 L. e Stat. 1901, p. 725. This provision was first enacted in 1790.9 The term "wilful murder" is used in a technical and not a popular sense. Wilful murder is not com- mitted by a seaman who shoots another on board ship where the victim dies ashore and within a foreign jurisdiction, even though by R. S. § 5339 the offense is punishable by death. lo § 885. — for offenses not capital. Xo persons shall be prosecuted, tried or punished for any offense not capital, except as provided in section one thousand and forty- six^^^ [i. e., of the revised statutes^^] ^ unless the indictment is found, or the information is instituted i^*^] 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.^^^"^®^ R. S. § 1044, U. S. Comp. Stat. 1901, p. 725. [a] The section in general. As orginally enactedi3 the time of prosecution was limited to two years. 9 Act April 30, 1790, c. 9, 1 Stat. i2Post. § 887. 119. 13 Act April 30, 1790, c. 9, § 32, 1 lOUnited States v. Hewecker. 79 Stat. 119. Fed. .59. 825 § 885 [bj TIME FOR COMMENCEMENT OP ACTIONS. [Code Fed. An act of 1870 increased it to three. i-» The original act was declared as ap- plicable to offenses after its passage as before ;15 and to include mis- demeanors in the District of Columbia. is Where evidence of other offenses is admissible to show criminal intent, the fact that these others are prior and barred by the statute does not render them inadmissible.! 7 [b] Exceptions to the statute. The fact that the offender's guilt was not knowni or that he was absent, e. g., on a whaling voyage,'- will not prevent the statutes from running. But if a party flees from the district within the time limited for his prose- cution, then the statute does not apply at all.s [c] Indictment or information necessary to stop statute. Filing of complaint in a commissioners court will not stop the running of the statute; 6 neither will the finding of an informal presentment.^ A second indictment after the time limit is bad, where the first though found in due time was non-prossed. 8 The time of filing the indictment will appear from the caption. 9 [d] When statute begins to run. A conspiracy under R. S. § 5440 is completed when the overt act is com- mitted in pursuance thereof, and the statute then begins to run, subsequent acts thereunder do not render it a continuing crime. n But a conspiracy to defraud the United States by unlawful entries of public lands has been declared not severable as to each overt act into separate offenses.is The offense of withholding pension money is not continuing, but is perfect upon refusal to pay the pensioner, and barred in the statutory time thereafter. is So polygamy within the act of 1882 consists in the unlawful marriage and is barred in three years,i4 though the unlawful cohabitation may also be an offense. i*Act April 13, 1876, c. 56, l& Stat, acy to commit an offense against the 32. United States has been held not 15 Adams v. Woods, 2 Oranch 342, within this section: United States 2 L. ed. 297; United States v. Bal- v. Francis, 144 Fed. 250. lard, 3 McLean, 470, Fed. Cas. No. eEx parte Lacey, 6 Okla. 4, 37 Pac. 14,507; Johnson v United States, 3 1095. McLean, 89, Fed. Cas. No. 7,418: ^United States v. Slacum, 1 Cranch leUnited States v. Porter, 2 C. C. 485, Fed. Cas. No. 16,.311. Cranoh C. C. 60, Fed. Cas. No. 16,072. sUnited States v. Ballard, 3 Mc- i7Dow V. United States, 82 Fed. ^ean, 469, Fed. Cas. No. 14,507. 904, 27 C. C. A. 140; Wolfson v. r. ^^""l^^^ r.^^^^^ r.""; ^^^^H^'^'^J United States, 101 Fed. 430, 102 Fed. ^^^"'^^ C. C. 441, Fed. Cas. No. 16,- 134, 41 C. C. A. 422. 649. ITT -^ J q1 *-' TTTu-j- c n „«-^u iiUnited States v. Owen, 32 Fed. lUnited States v. White, 5 Cranoh f.^.. lo c -o C. C. 318, 73, Fed. Cas. Nos. 16,675, 'Jf -^^"^ll '1 .. n a 'ro ^ a ,p^7e i2United States v. McCord, 72 i^ed. 16,676. jgg 2United States v. Brown, 2 Low. isUnited States v. Irvine, 9« U. S. 267, Fed. Cas. No. 14,665. 450^ 25 L. ed. 193. sUnited States v. White, 5 Cranch, i^Murphv v. Ramsev, 114 U. S. 15, 116, Fed. Cas. No. 16,677. A conspir- 29 L. ed. *47, 5 Sup.' Ct. Rep. 747. 826 I Procedure] EXCEPTION OF PERSONS FLEEING FROM JUSTICE. § 886 [e] How pleaded or raised. Defendant cannot by demurrer set up the statute of limitation when the complainant fails to negative that defense; non constat but that at the trial it may appear he was fleeing from justice. is But he may give evi- dence touching it at the trial, or may raise it by special plea.i" If he plead specially the government may reply that he was fleeing from jus- tice.18 Demurrer has, however, been sustained where the prosecutor ad- mitted that the case was within no exception to the running of the stat- ute. 1 9 § 886. — exception of persons fleeing from justice. Nothing in the two preceding sections- shall extend to any per- son fleeing from justice. R. S. § 1045, U. S. Ctomp. Stat. 1901, p. 726. This provision is also from the crimes act of 1790.3 Fleeing from justice involves either leaving one's home, residence or place of abode within a district or a concealment therein to avoid detection or punishment.'' De- parture fom the district of the offense to ofl"ender's usual place of abode where to avoid punishment, is a fleeing from justice. 5 A person who takes himself out of the jurisdiction to avoid being brought to justice is a person fleeing from justice. 6 It is none the less so though prosecution has not yet begun, and though the party is really fleeing from the justice of the State having jurisdiction over the same place and act.^ It is not necessary that the accused be found within the limit of another jurisdiction. s But con- tinuing on a whaling cruise after an offense is not a fleeing from justice; 9 neither is involuntary imprisonment in a foreign jail, where the offense was on board ship and the offender never within the district having juris- diction to try him. 10 A party cannot demur to an indictment showing an isUnited States v. Cook, 17 Wall, the ofl'ense was committed within the 168, 21 L. ed. 538; United States statutorv period: United States v. v. White, 5 Cranoh, C. C. 116, Fed. Francis,'l44 Fed. 520. Cas. No. 16,675, 16,677; United 2Ante, §§ 884, 885. States V. Brown, 2 Low. 208, Fed. 3 Act April 30, 1790, c. 9, § 32, 1 Cas. No. 14,665. See 12 Am. Law Stat. 119. Reg. (N. S.) 682 note. But see 4United States v. O'Brian, 3 Dill. United States v. Watkins, 3 Cranch. 381, Fed. Cas. No. 15,908. C. C. 441, Fed. Cas. No. 16,049; Unit- sUnited States v. White, 5 Cranch ed States v. Sthorev, 9 Int. Rev. 201, C. C. 116, Fed. Cas. No. 16.677. Fed. Cas. No. 16,280. eStreep v. United States, 160 U. S. iTlbid. 133, 40 L. ed. 365, 16 Sup. Ct. Rep. isSee Judge Dillon's note to Unit- 244. ed States v. O'Brian, 3 Dili, 381, Fed. Ubid. Cas. No. 15,908. See also United sPorter v. United States, 91 Fed. States V. Shorev, 9 Int. Rev. 201, 494, 33 C. C. A. 652. Fed. Cas. No. 16,280. sUnited States v. Brown, 2 Low. laUnited States v. Owen. 13 Sawy. 267, Fed. Cas. No. 14,665. 57, 32 Fed. 536. A general verdict of loUnitod States v. Hewecker, 79 guilty after plea of not guilty will Fed. 60. be deemed to include a finding that 827 § 887 TIME FOR COMMENCEMKNT OF ACTIONS. [Code Fed. oflfense three years old, since it may be within the exception sta-ted in the above provision.^! § 887. Exception of parties beyond reach of process during Re- bellion. In all cases where, during the late rebellion, an}' person could not, by reason of resistance to the execution of the laws of the United States, or of the interruption of the ordinary course of judicial proceedings, be served with process for the commencement of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commencement of such action. R. S. § 1048, U. S. Comp. Stat. 1901, p. 728. This provision was enacted in 1864,12 and is in accordance with the gen- eral principle of law which declares statutes of limitation suspended during war. 13 Being applicable in terms only to the civil war, it is now obsolete § 888. Time for prosecution of crimes under revenue and slave laws. 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 indictment is found or the information is in- stituted within five years next after the committing of such crime. R. S. § 1046, U. S. Comp. Stat. 1901, p. 726. This provision is from enactments of 1804 and 1818.15 It no longer applies to crimes under the internal revenue laws.is Revenue laws are those made for direct and avowed purposes of creating revenue or public funds for services of government.i" The act establishing the postal money order system is not suoh an act and embezzlement forbidden by the 11th section thereof is Avithin R. S. § 1044, and not this section. is Counter- feiting is not a crime against the revenue laws.ia But an embezzlement iiUnited States v. Brace, 143 Fed. i6Post§ 888. Formerly it did. See 703. 14 Op. Attv. Gen. 81 ; ^and United i2Act June 11, 1864, c. 118, 13 States v. Wright. 3 Pittsburg 192, Stat. 123. Fed. Cas. No. 16.770, where offense i3Hanger v. Abbott, 6 Wall. 542. was illicit distilling. 18 L. ed. 939. See also Levy v. Stew- I'United States v. Norton, 91 U. art, 11 Wall. 254, 20 L. ed."86; Stew- S. .569, 23 L. ed. 454. art V. Kaihn. 11 Wall. 506. 20 L. ed. isUnited States v. Norton, 91 U. 176; United States v. Wiley, 11 Wall. S. 569, 23 L. ed. 454. 515. 20 L. ed. 211. isUnited States v. Shorey, 9 Int. i5Act March 2Q, 1804, c. 40, § 3, Rev. 202, Fed. Cas. No. 16,281. 2 Stat. 290; act April 20, 1818, c. 91, § 9, 3 Stat. 452. 828 ■ Procedure] FOR SEDUCTION OF FEMALE PASSENGER § 800 indictment under an act of 1846 for the collection, safe keeeping, etc., of the public revenue is within this provision.20 So also smuggling is clearly an offense against the revenue laws.i And while a prosecution for false entry at the custom house under R. S. § 5445, is an offense against the revenue laws,2 a conspiracy under R. S. § 5440 to defraud the customs by such false entry within R. S. § 5445, is not so regarded.3 § 889. — of crimes under internal revenue laws. Xo 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 instituted within three years next after the commission of tlie offense, in all cases where the penalty prescribed may be imprison- ment 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; Provided further, that tlie provisions of this act shall not apply to offenses committed prior to its passage; and provided further, that where a complaint shall be instituted before a Commissioner of the United States within the period above limited, the time shall be extended until the dis- charge of the grand jury at its next session within the district : and provided further, that this act shall not apply to offenses com- mitted by officers of the United States. § 1 of act July 5, 1884, c. 225, 23 Sta/t. 122, U. S. Comp. Stat. 1901. p 726. Prior to this enactment R. S. § 10466 applied." -Since the date of filing complaint before a commissioner becomes material under this section, it is proper for a clerk making up the final record in such a case to embody .such a paper and charge therefor. 8 § 890. — of offense of seduction of female passenger. No conviction shall be had [for seduction of a female passenger by the master officer, seaman or other employee on a vessel] . , . 20Collier's Case, 6 Op. Atty. Gen. States v. Dustin, 15 Int. Rev. 30 Fed. 103. Cas. No. 15,012; United States v. lUnited States v. Shorev, 9 Int. Fehrenback, 2 Woods, 175, Fed. Cas. Rev. 202, Fed. Cas. No. 16."28'2. No. 15.083. 2United States v. Hirsch. 100 U. sAnte, § 887. S. .33, 25 L. ed. 539. ^Taylor v. United States 45 Fed. 3United States v. Hirsch. 100 U. 541. S. 33, 25 L. ed. 539 ; United States v. sTaylor v. United States, 45 Fed. Owen, 32 Fed. 534; contra, see United 541. 829 § &91 TIME FOR COMMENCEMENT OF ACTIONS. [Code Fed. unless the indictment is found witliin one year after the arrival of the vessel on which the offense was committed at the port for which it was destined. R. S. § 5351, U. S. Comp. Stat. 1901, p. 3G33. The section also provides that no conviction shall be had solely on the testimony of the seduced female. § 891. — of prosecutions for violations of naturalization law. 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. § 24 act June 29. 1906, c. 3592, 34 Stat. 606. § 892. — of suits against carriers under Employers Liability Act of 1906. No action shall be maintained under this act [i. e., act making carrier liable for negligence notwithstanding contributory negligence of employee], unless commenced within one year from the time the cause of action accrued. § 4 of act June 11, 1906, c. 3073, 34 Stat. 232. § 893. — of infringement suits. Prior to July 8. 1870,^ Congress made no provision regarding the time within which suits for infringement of patents must be brought, other than the general provision making State laws the rule of decision in cases where they applied.^ The provision enacte'l in 1870 M^as omitted from the Eevised Statutes, and it was not antil an act of March 3, 1897. amending R. S. § 4921, that a uni- form Federal rule upon the subject again came into operation. ^ In the interim State statutes of limitation applied, and still apply to suits for infringement of copyright. Author's section. There was a conflict among the Federal cases at circuit regarding the applicability of State statutes of limitation to actions at law for infringe- ment of patent, some holding tliat they did not apply, and that there was lAct July 8, 1870, c. 230, § 55, 16 March 3, 1897. c. .Wl. § 6. 29 St'H. Stat. 206. 692. This went into effect Jar. 1, 2Ante, § 12. 1898; U. S. Comp. Stat. 1901, p. 23So, 3R. S. § 4921, as amended act 3395. See post, § 1170. 830 Procedure] FOR PATENT INFRINGEMENT. 893 no ppriod of limitation at all,* and others maintaining that the State law governed. 5 The latter view was finally established by a Supreme Court de- cision. 6 In equity the State law did not apply and the only bar recognized was the ordinary equity rule of laches.7 R. S. § 4921 now governs as to patents, both at law and in equity.* Actions for infringements of copy- rights, when not regarded as suits to recover a penalty or forfeiture are governed ■^j State statutes of limitation. 9 4 See Anthony v. Carroll, 2 Ban. & A. 195, Fed. Cas. No. 487; Wood v. Cleveland R. M. Co. 4 Fish Pat. Cas. 550. Fed. Cas. No. 17.941; Collins v. Peebles, 2 Fish. Pat. Cas. 541, Fed. Cas. No. 3,017; Brickill v. Hartford, 49 Fed. 372; California A. S. P. Co. v. Starr. 48 Fed. 560. sRich V. Ricketts, 7 Blatchf. 230, Fed. Cas. No. 11.762; Parker v. Hal- lock, 2 Fish Pat. Cas. 543, Fed. Cas. No. 10,735; Havden v. Oriental Mills, 15 Fed. 605. eCampbell v. Haverhill, 155 U. S. 610, 39 L. ed. 280, 15 Sup, Ct. Rep. 217. TLeggett V. Standard 0. Co. 149 U. S. 294, 37 L. ed. 737, 13 Sup. Ct. Rep. 902; Lane, etc. Co. v. Locke, 150 U. S. 200, 37 L. ed. 1049. 14 Sup. Ct. Rep. 78; Keves v. Eureka M. Co. 158 U. S. 153,' 39 L. ed. 929, 15 Sup. Ct. Rep. 772; Richardson v. Os- borne. 93 Fed. 828, 36 C. C. A. 610; Boston, etc. Rv. v. Bemis C. B. Co. 98 Fed. 121, 38 C. C. A. 661. 8 Post, § 1170. American P. T. Co, V. Pratt, 106 Fed. 229. sBradv v. Daly, 175 U. S. 158, 44 L. ed. 109, 20 Sup. Ct. Rep. 66. 831 CHAPTER 24. PROCEDURE IN COMMON LAW CAUSES. § 900. Federal procedure in common law causes ^o conform to State procedure. Writs and process in common law causes. Parties in common law cause. Pleading in common law causes. Provisional and other remedies in jreneral. — remedies by attachment and garnishment the same as la State courts. — State law as to dissolution of attachment applies. — attachment against national banks. — replevin and statutory substitutes therefor. Ejectment and statutory substitutes therefor. Right of trial by jury guaranteed. Issues of fact in district court triable by jury. Issues of fact in circuit court triable by jury. Certain issues of fact in Supreme Court triable by jury. Waiver of jury in circuit court. Reference of questions of fact. Impaneling of jury. Mode of proof in common law actions. Direction of verdict and demurrer to evidence. Continuance, dismissal and non-suit. Instructions and verdict. Judgment and costs. The taking of objections and exceptions. Power to grant new trial in jury cases. Stay of execution on new trial — new trial where jury waived. Remedies on Federal judgments by execution, etc., furnished by State laws. § 900. Federal procedure in common law causes to conform to state procedure. The practice, pleadings and forms and modes of proceedingf^^'''^^ in civil causes, other than equity and admiralty causes, '^'^^ in tho circuit and district courts, shall conform, as near as may be/^^"-^^ to the practice, pleadings and forms and modes of proceeding exist- 832 § 901. § 902. § 903. § 904. § 905. § 906. § 907. § 908. § 909. § 910. § 911. § 912. § 913. § 914. § 915. § 916. § 917. § 918. § 919. § 920. § 921. § 922. § 923. § 924. § 925. Procedure-] PROCEDURE IN COMMON-LAW CAUSES. § 900 [a] iiig at the time in like caiises'^'^^ in the courts of record of tlie State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding^'^ R. S. § 914, U. S. Comp. Stat. 190], p. 684. R. S. § 914, U. S. Comp. Stat. 1901, p. — . [a] History and general effect of the successive conformity provisions. The temporary process act of 17891 declared that •'until farther provi- sion shall be made, and except where by this act, or other statutes of the United States, it is otherwise providcnl, the forms of writs and executions, except their style, and modes of process, in the circuit and district courts in suits at common law, shall be the saine in each State, respectively, as are now used in the supreme courts of the same." This provisions was con- tinued by an act of 17902 and made permanent by an act of 1792.S The act of 1792, however, sulistituted for the words "and modes of process," the words "and the forms and modes of proceeding;" and added a proviso mak- ing the adoption of the State law "subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient, or to such reoulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to jjrescribe to any circuit or district court concerniim- the same." The Supreme Court in two leading cases* sustained the power of Congress to delegate this quasi legislative power to tlie courts and declared it proper for the Federal courts there- under, to adopt by rule, changes in the State law subsequent to the pas- sage of the process act; and even changes in the state law as to exemptions from execution. 5 The act of 1792 was not broad enough however to apply to States subsequently admitted to the Union. There was a special act of 1824 which applied to the State of Louisiana; 6 and a general act of 1828^ which applied to all States admitted to the Union after 1789 and which adopted their practice as existing in 1828, with power in the Supreme and circuit and district coiu'ts to vary the same by rule. This law of 1828 was reenacted in 1842,^ It made no ]u-ospective provision for States subsequent- ly to be admitted; but a i;iovision in a later admission act that "all the laws of the United States which are not locally inapplicable, shall have the same force and effect" within the new State as in the old ones, was declared effective to adopt this process act. 9 lAct Sept. 29. 1789, c. 21. 73(); Moncure v. Zunts, 11 Wall. 421, 2Act May 26, 1790. 422, 20 L. ed. 181. sActMay 8, 1792, c. 1.37. niay 19, 1828. § 1, e. 68, 4 Stat. ■iWayman v. Southard, 10 Wheat. 278; see Beers v. Ilaughtmi, 9 Pet. 1, 6 L. ed. 20.3.; Bank of U. S. v. 361, 9 L. ed. 157. Halstead, 10 Wheat. 51, 6 L. ed. 264. sAct Aug. 1, 1842, c. — . 5 Stat. sBank of U. S. v. Halstead, 10 499. Wheat. 51, 6 L. ed. 264. sSmith v. Cockrill, G Wall. 756, 6Act :Mav 26, 1824, c. ISl ; see Par- IS L. ed. 973, 974. sons V. Bedford, 3 Pet. 444, 7 L. ed. Fed. Proc— 53. 833 § •■Hiit |;iii| i'KOCKDUUB IN COMMON-LAW CAUSES. [Code Fed. [aaj Changes wrought by present law and their object. 7'he next and last general enactment upon the subject was contained in the law of 1872,12 and is still in force as R. S. § 914, supra. The earlier laws all adopted the State practice as existing at a designated time, and although the courts had a discretion to make changes therein to conform to later laws such later enactments were not in force unless so adopted.is The law of 1872 was the first to require Federal procedure to conform to the State procedure "'existing at the time in like causes in the courts of record of the (State." A change in State procedure is now operative in (he Federal courts immediately if at all;i4 and the power to make rules is thus restricted.! 5 In the main R. S. 914 is obligatorj'is and peremptory.i' Its manifest purpose was to secure a stricter conformity; and it was es- pecially effective to that end in the older States where the Federal courts had often resisted the innovations of the reformed procedure and thus compelled practitioners to studj' two distinct systems of remedial law. is The effect of R. S. § 914, upon various phases of a proceeding at common law is considered in subsequent sections of the code. There is a provi- sion of law requiring procedure in condemnation suits brought by the United States to conform to the local practice. 1 9 Under R. S. § 914, the Federal courts take judicial notice of the local State law of procedure and of decisions. 2 [b] Validity and general scope. The power of Congress to prescribe the procedure in Federal courts, is well settled and very broad. 3 And while the method of delegating to the courts themselves a partial exercise of the power, is unusual, it has l)een amply sustained and cannot be regarded as open to question.* State l-aws as to procedure cannot, in and of themselves, have any force or vigor in Federal courts. 5 They are only operative when adopted by Congress or by rules of the courts themselves. 6 And the Federal courts do not coTisider themselves absolutely bound by State decisions construing procedure laws;^ i2Act June 1, 1872. c. 255. 17 Stat, liams, 3 Biss. 370, Fed. Cas. No. 11,- 197. 707. isBronson v. Kinzie, 1 How. 315, laPost, § 13S0. 11 L. ed. 143; Riggs v. Johnson Co. 20Wilder v. United States, 143 Fed. 6 Wall. 191, 195, 18 L. ed. 768. 433, (C. C. A.) i4Rosenbach v. Dreyfuss, 2 Fed. 3 Ante, § 799. 23; Hudson v. Parker, 'l5G U. S. 281, ^Wayman v. Southard. 10 Wheat. 39 L. ed. 425, 15 Sup. Ct. Rep. 452; 1, 6 L. ed. 253; Bank of U. S. v. Hal- Osborne v. Detroit, 28 Fed. .385. stead, 10 Wheat. 51. 6 L. ed. 264; 15 Ante, § 805 [a]; infra, note[i]. Beers v. Haughton, 9 Pet. 359. 9 L islndianapolis, etc. R. R. v. Horst, ed. 145. 93 U. S. 300, 23 L. ed. 898. sParsons v. Bedford, 3 Pet. 444, i7Amv v. Watertown, 130 U. S. 7 L. cd. 736: Bronson v. Kinzie, 1 304, 32 ^L. ed. 946, 9 Sup. Ct. Rep. How. 314, 11 L. ed. 143; see also 530; but see infra, note [g]. ante, § 5 [a]. IS See Nudd v. Barrows, 91 U. S. 6 Beers v. Haughton, 9 Pet. ;5i59, 441, 442, 23 L. ed. 289, 290; Baltimore 9 L. ed. 145. & 0. R. R. V. Hamilton, 16 Fed. 183; ^See Lafayette B. Co. v. Streator, Carlisle v. Cooper, 64 Fed. 475, 12 C. 105 Fed. 729: Van Doren v. Pcnn- C. A. 235; Republic Ins. Co. v. Wil- sylvania R. R. 93 Fed. 260, 35 0. C. 834 1 Procedure] PROCEDURE IN COMMOX-LAW CAUSES. § 900 [c] nor by State decisions interpreting common-law remedies. 8 Furthermore this section requires conformity only in procedure.^ It does not require i-onformity to State practice when the essential question is one of ju- risdiction and not of procedure; lo nor does it apply to the mode of obtain- incr jurisdiction of the person. n It does not require Federal courts to re- nounce jurisdiction lawfully conferred by Congress. 12 It applies only if the court has jurisdiction.! s It does not attempt to prescribe the sub- stantive rules of law which are to control the court's decisions.i* That is governed by another provision and by other principles and is elsewhere considered.- 5 [c] Applicable only to civil causes other than of equity or admiralty. The earlier process acts required conformity in '■common-law causes" eo nomine. 19 It does not seem that the present law was intended to include any causes other than those of a common-law character."2o The substitu- tion of the phrase "in civil causes other than equity and admiralty" is effective to include causes of a common law character which might strictly not be deemed common law causes because in fact not existent at common law. Thus suits for penalties and other rights of action based upon Fed- eral statutes are within R. S. § 914, although they did not exist at com- mon law.i The distinction between law and equity is fundamental in Federal prac- tices and numerous cases have affirmed the inapplicability in Federal courts, of State laws as to equity procedure.* State laws as to criminal procedures and as to practice in admiralty, would be equally inapplicable. « Both in equity and admiralty the practice and procedure of Federal courts are uniform throughout the United States." The fact that a State has A. 282: Wall v. Chesapeake R. R. 9.5. Fed. 39S. 37 C. C. A. 129: ante, § 10 [1] et seq. sSanford v. Portsmouth. 2 Flipp. 105. lOS. Fed. Cas. No. 12,315; but s€e Tnvlor v. Brigham, 3 Woods. 377, Fed. Cas. No. 13.781. nVells v. Clark. 136 Fed. 464. loCompare ante, § 8.53 fb]. iiWeils v. Clark. 136 Fed. 462. i2Phelps v. Oaks, 117 U. S. 239, 29 L. ed. 888, 6 Sup. Ct. Rep. 714: Coffev V. United States 116 U. S. 427, 29 L. cd. 681, 6 Sup. Ct. Rep. 432. isColdev v. Morning News, 156 U. S. .524. .39L. ed. 517. 15 Sup. Ct. Rep. 559. nWavman v. Southard, 10 Wheat. 1. 6 L. 'ed. 253: Fitch v. Creighton. 24 How. 162. 16 L. ed. 596. 15 Ante, §§ 10-12. isSupra, note[a]. 2 0The Blanche Page, 16 Blatchf. 5, Fed. Cas. No. 1,524: Steaim S. C. v. Sears, 9 Fed. 9, 20 Blatchf. 23; San- word V. Portsmoiith. 2 Flip. 105. 6 Cent. L. .7. 147, Fed. Cas. No. 12,315. 1 Campbell v. Haverhill, 155 U. S. 610. 39 L. ed. 280, 15 Sup. Ct. Rep. 217; Edmunds v. Illinois Cent. R. R. 80 Fed. 78, 8.5. sAnte, § 800. •iBoyle v. Zacharie, 6 Pet. 658, S L. ed. .527: Storv v. Livingston. 13 Pet. 368, 369, lO "L. ed. 200; Russell V. Southard. 12 How. 147, 13 L. ed. 927; Betts v. Ivewis. 19 How. 73. 15 L. ed. 576: Davis v. Davis, 72 Fed. 84. 18 C. C. A. 438.. 5 United States v. Wallace, 46 Fed. •570: United Stat<^ v. Gardiner, IS Int. Rev. 46, Fed. Cas. No. 15,187. 6Laidlaw v. O. R. & N. Co. 81 Fed. S7'6, 879, 26 C. C. A. 665, and cases cit-ed : The Chusan, 2 Story, 455 Fed. Cas. No. 2.717. 7 Ante, § 5 [b]. 833 § 900 [d] PROCEDURE IN COMMON-LAW CAUSES. [Code Fed. adopted the reformed procedure, abolishing the distinction between law and equity, does not permit any such blending of legal and equitable proceed- ings in the Federal courts. s The distinction persists in the Federal courts, which will conform to the State reform procedure only in actions upon the law side. Various other consequences of the fact that conformity is re- (juired only as the law side are elsewhere discussed.9 [d] — inapplicable to procedure for obtaining review. The mode of appealing a case in the Federal court is not required to conform to the State practice upon that subject. 12 The manner and time of taking the proceedings which constitute the foundation of the right of re- view are regulated by Congress and are not governed by the local practice. 1 3 The bill of exceptions in the Federal court should conform to the Federal. i^ and not to the local State practice. 1 5 The State law as to the time for fil ing the bill has no application ;i6 nor as to the mode of settling it.i' It seems, however, that the Federal court may adopt the local practice as to time of signing a bill of exceptions. i"? Where jury has been waived, the mode of securing review is not governed by the State law.is The right of review is not governed by State law and a rule adopting a State law denying the right in a given case is void. 20 The Federal courts determine for themselves whether a judgment is final for purposes of appeal regard- less of the local practice.i Nor are they bound by the local law respectinix the proper time and mode for taking exceptions, but follow their own rules upon that subject. 2 So the procedure on motion for new trial is not re- sSee ante, § 5[b]. 717, 44 C. C. A. 597; Van Stone, v. sAnte, § 800[a], [b]. Stilwell, 142 U. S. 133, .35 L. ed. 9B1. i2Bavard v. Lombard, 9 How. 551. 12 Sup. Ct. Rep. 181; United States 13 L. ed. 245; Graliam v. Bayne, 18 How. 61, 15 L. ed. 265; Hudgins v. Kemp, IS How. 5.3Y, 15 L. ed. 514; Fleitas v. Richardson, 147 U. S. 545, 37 L. ed. 272, 13 Sup. Ct. Rep. 429; Hudson V. Parker, 156 U. S. 281, 39 L. ed. 424, 15 Sup. Ct. Rep. 450: West V. East C. Cedar Co. 113 Fed. 741. 51 C. C. A. 411. isin re Chateaugav, etc. Co. 128 U. S. 533, 32 L. ed. 508, 9 Sup. Ct. Rep. 150; Andes v. Slauson. 130 U. Indian Grave Dist. 85 Fed. 9.30. 29 C. C. A. 578. isSee Richmond, etc. R. R. v. Mc- Gee, .50 Fed. 907. 2 C. C. A. 81: New Vork, etc. R. R. v. Hvde, 56 Fed. 189, 190, 5 C. C. A. 461. i^In re Cliateugiv Iron Co. 128 U. S. 5.53, .32 L. ed. '.508, 9 Sup. Ct Rep. 150. i^See United Stat-es v. Breitling, 20 How. 253, 254, 15 L. ed. 900. isKentuckv Ins. Co. v. Hamilton. S. 4.38, 32 L. ed. 991, 9 Sup. Ct. Rep. 63 Fed. 98, 11 C. C. A. 42. 574; Lees v. United States. 1.50 U. S. 20 Am is v. Smith, 16 Pet. 314, 10 482. 37 L. ed. 1152, 14 Sup. Ct. Rep. L. ed. 973. The :\Iissouri rule that 165; Shipman v. Ohio C. Ex. 70 Fed. filing of amended petition in coinpli- 654. 17 C. C. A. 313. ance with an erroneous ordei-. wai\<'s i^See post, § 1932. the error, is not binding; WilHnni- loSee Lees v. United States, 150 \J. son v. Liverpool, etc. Ins. C.i. 141 S. 482, 37 L. ed. 1152, 14 Sup. Ct. Fed. 54 (C. C. A.) Rep. 165; Manning v. German Ins. lElder v. MoClaskev. 70 Fed. 556. Co. 107 Fed. 55, 46 C. C. A. 144; 17 C. C. A. 251. Prt^ble V. Bates, 40 Fed. 746; Tullirs V. Lake Erie Co. 105 Fed. 557. 44 C. C. A. 597; Prichard v. Budd, 76 Fed. 836 2St. Clair V. United States, 154 ['. S. 153. 3vS L. ed. 943, 14 Sup. Ct. Rep. 1010; Lowrv v. Mt. Adams, etc. Procedure] PROCEDURE IN COMMON-LAW CAUSES § 900 [f] quired to conform to the State practice,4 althouoli a state law giving an absolute right to new trial in ejectment, is binding on the Federal courts because a rule of property and not a mere mode of procedure. 5 The estab- lished Federal rule that the granting or refusing of new trial rests in the sound discretion of the court, is not affected by the conformity provision.'- [e] — inapplicable to personal conduct and administration of judge. The personal conduct and administration of the judge in the discharge of his separate functions is neither practice, pleading, nor a form nor mode of proceeding within this section. 9 It was not intended to fetter a judge in t)ie jjersonal discharge of his accustomed duties, or to trench upon com- mon law powers with which in that respect he is clothed. lo The meaning of these declarations of the Supreme Court can perhaps be best ascertained from the cases to which they have been applied. Thus the first case assert- ing the principle, declined to hold a Federal judge bound by a State law forbidding oral insti'uctions to a jury or any comment on the facts by the court in the giving of instructions.! i Since then many cases have followed this rule, and it is the general practice in Federal courts for the judge to comment upon the evidence in the charge to the jury.i2 So the Federal court is not bound by a State law respecting the giving of special instruc- tions;! 3 or requiring the jury to take the instructions with them to the jury room.i^ [fj Conformity not required where inconsistent with other Federal pro- visions or principles. Conformity is not required where the consequence would be a violation of specific Federal constitutional or statutory provision. 1 9 Congress requires Ry. 68 Fed. 829; Consumers, etc. Co. nNudd v. Barrows, 91 U. S. 441, V. Ashburn, 81 Fed. 334, 26 C. C. A. 23 L. cd. 289. 43'6. 1 2 Vicksburg, etc. Ry. v. Vickers. 4lndianapolis. etc. R. R. v. Horst, 118 U. S. .553. .30 L. ed. 258. 7 Sup. 93 U. S. 291, 301, 23 L. ed. 898; New- Ct. Rep. 2 S^ Louis, etc. Rv. v. comb V. Wood. 97 U. S. 581, 24 L. Vickers. 122 U. S. 363, 30 L. ed. 1161. ed. 1085; Missouri Pac. Ry. v. Chi- 7 Sup. Ct. Rep. 1216. cago, etc. Rv. 132 U. S. 191, 33 L. ed. i ."Indianapolis, etc. R. R. v. Horst, 309, 10 Sup". Ct. Rep. 65. 93 U. S. 299, 23 L. ed. 901 ; United 5Equator Co. v. Hall, 106 U. S. States, etc. Assoc, v. Barry, 131 V. 818, 27 L. ed. 114, 1 Sup. Ct. Rep. 128; S. 120, 33 L. ed. 66, 9 Sup. Ct. Rep. Fishbum v. Chicago, etc. Rv. 137 U. 761 ; McElwee v. Metropolitan, etc S. 60, 34 L. ed. 585. 11 Sup."Ct. Rep. Co. 69 Fed. 319. 16 C. C. A. 232; 8; Smale v. Mitchell. 143 U. S. 107. Aetna, etc. Co. v. Vandecar, 86 Fed. 36 L. ed. 90. 12 Sup. Ct. Rep. 353. 290, 30 C. C. A. 48. eNcwcoml) v. Wood, 97 U. S. 581. i^Nudd v. Barrows, 91 U. S. 426, 24 L. ed. 10«5. 23 L. ed. 286: Wostern U. T. Co. v. sNudd V. Barrows. 91 U. S. 442, Burgess. 108 Fed. 32, 47 C. C. A. 168. 23 I-. ed. 289, 290: Uiiited States i^Swift, etc. Co. v. Jones. 145 Fed. Mut. Acci. Assoc, v. Barrv, 131 U. 489 ; Indianapolis, etc. R. R. v. Horst, S. 120. 33 L. ed. 60. 9 Sup'. Ct. Rep. 93 U. S. 291, 23 L. ed. 898; In re 755. Ohateaugav Iron Co. 128 U. S. 544, loUnited States Mut. etc. Assoc, v. 32 L. ed. 508. 9 Sup. Ct. Rep. 150; Barrv. 131 U. &\ 120, 33 L. ed. 60, 9 Southern Pac. Co. v. Denton, 146 U. Sui.."^f''t. RcD. 755. S. 202, 36 L. ed. 943, 13 Sup. Ct. 837 § 900 [f] PROCEDURE IN COMMON-LAW CAUSES. [Code Fed. tor instance, that Federal process be signed and sealed by the clerk; hence State practice under which the attorney signs, issues and serves the sum- mons, cannot be followed in that respect. 20 Again, the adoption of a local mode of proceeding might sometimes deprive a party of the right to jury trial guaranteed by the Federal Constitution and laws, and if so. it cannot 1)6 followed. 1 Adoption of a local statute giving a special appearance the effect of a general one might practically operate in such a way as to affect or regulate the court's jurisdiction and if so, E.. S. § 914 does not require it to be followed.2 So. the requirement of Federal practice that a party plead specially to the jurisdiction on penalty of waiver of the alleged de- fect, has been held to be unaffected by the requirement of conformity. 3 In fact the conformity provision is invariably to be interpreted in strict subordination to the principle that State laws cannot be permitted to restrain or affect the jurisdiction of Federal courts. 4 The State practice is adopted with reference to the jurisdiction of the circuit and district courts as declared by Congress, and not with a view to limiting that jurisdiction,!^ or to enlarging it.6 The State law as to costs will not be deemed adopted in so far as such adoption would violate the accepted principle of Federal jurisprudence that costs shall not be imposed against the United States without the consent of Congress, s The State law re- qu'ring secvu'ity for costs from a nonresident plaintiff" has been applied.9 T)Ut the plaintiff' has been allowed in lieu thereof to file a certificate bring- ing the case under Pv.. S. 1001. 10 The conformity clause must be harmonized with other provisions of the Federal law. Thus, R. S. § 918 gives the Federal courts a considerable power of making rules ji* and this indicates an intent to permit them to regulate the details of business before them, unaff'ected by the conformity provision.15 So far as R. S. § 812, and subsequent laws provide for the summoning of Federal jurors. Congress plainly did not intend to make the State laws applicable by virtue of R. S. § 914.16 The existence of Federal statutes respecting waiver of jury and mode of trial without jury, Rep. 44: Luxton v. North R. B. Co. sCuthbert v. Gallowav, 35 Fed. 147 U. S. 33.7, 37 L. ed. 195, 13 Sup. 4&9. Ct. Rep. 356; Paine v. Warren. 33 4See ante, § 5; see also supra. Fed. 358: Sulzer v. Watson, 39 Fed. note[b]. 415: Allnut V. Lancaster, 76 Fed. 134. sMassingill v. Downs, 7 How. 706, 20 Ante, § 836: Martin v. Criscuola, 12 L. ed. 906; see O'Connell v. Reed, 10 Blatchf. 211. Fed. Cas. No. 9.159. 5« Fed. 531, 5 C. C. A. 586. iBank of Hamilton v. Dudlev. 2 eBath Co. v. Amy. 13 Wall. 250, Pet. 526. 7 L. ed. 496; Howe Mach. 20 L. ed. 539. Co. v. Edwards, 15 Blatchf. 402, Fed. sCarlisle v. Cooper. 64 Fed. 474. 12 Cas. No. 6,784. as to reference to C. C. A. 235. referee: Sulzer v. Watson, 39 Fed. aSchofield v. Palmer, 134 Fed. 754. 414. 1 reference to auditors. loJbid. 2:. 111. etc. Ry. V. Piukney, 149 1 4 Ante, § 805. U. 8. -Oa, 37 L. ed. 704, 13 Sup. Ct. isEwing v. Burnliam, 74 Fed. 3vS4; Rep. 864: Southern Pac. Co. v. Den- see Osborne v. Detroit, 28 Fed. 385. ton, 146 U. S. 209, 36 L. ed. 94-5, 13 leWalker v. Collins, 50 Fed. 739, Sup. Ct. Rep. 47. 1 C. C. A. 642. 838 Procedure] PROCEDURE IN COMMON-LAW CAUSES § 900 [g] precludes State statutes upon the same subject from being applicable. i" The same is true as to the Federal laws respecting the production and in- spection of books, etc., before trial; is and respecting the right to proceed notwithstanding certain proper parties are beyond the jurisdiction! » and the right to amend process or pleading; 20 and the competency of witnesses. 1 Federal statutes providing the party in whose name an in- fringement suit sliall be maintained; 2 or the mode of procuring and pro- ducing testimony in an infringement suits or the form of action,-* or mode or pleudinga exclude f.ny applicability of local statutes upon those subjects. So a State law permitting the examination by deposition, of a party to a suit prior to trial, is inconsistent with the Federal law declaiing the mode of proof to be by oral examination in open court, 6 and hence cannot be fol- lowed." This same section also renders generally inapplicable, state laws as to the taking and admissibility of depositions. s It also forbids an order for the examination of a plaintiff suing for personal injuries, in advance of triai.9 The conformity provision is also to be construed in connection with R. S. § 95410 permitting amendments and directing Federal courts to disregard mere defects of form.n A proceeding to restore a lost record is sui generis, and is governed by act of Congress. 12 [g] Effect of clause "as near as may be." The earlier conformity laws conferred an express discretion upon the Federal courts to vary the State laws adopted for their guidance. i'^ "As near as may be" first appears in the conformity law enacted in 1872 and still in force. Somewhat conflicting views of the exact meaning of this iTUnited States v. Arnold. G9 Fed. 99e. 16 C. C. A. 575: United States V. Indian G. D. So Fed. 930, 29 C. C. A. 578. isEaston v. Hodges. 7 Biss. 324, Fed. Cas. No. 4,258: Paine v. War- ren, 33 Fed. 358; Kirkpatrick v. Pope Mfg. Co. 61 Fed. 46. laAllnut V. Lancaster. 76 Fed. 131. 20 Van Doren v. Pennsylvania R. R. 93 Fed. 26-S. 35 C. C. A. 282: North C. St. Ry. Co. V. Burnhain, 102 Fed. 671, 42 C. C. A. 584: Booth v. Denike, 65 Fed. 47: Lange v. Union P. R. R. 126 Fed. 340. 62 C. C. A. 48: Kent v. Bav State G. Co. 93 Fed. 887; see also ante. § 813 [b]. iWhitford V. Clark Co. 119 U. S. 525. 30 L. ed. 501. 7 Sup. Ct. Rep. 308: Morris v. Norton, 75 Fed. 922, 21 C. C. A. 553. 2Webb v'. Goldsmith. 127 Fed. 572. 3Marvin v. Auitman. 46 Fed. 339. •tMvers v. Cunningham. 44 Fed. 346: Cottier v. Stimson. 18 Fed. 689, 9 Sawy. 435. 5Kulp V. Snyder, 94 Fed. 613. ePost, § 917. TBeardslev v. Littell, 14 Blatchf. 102, Fed. Cas. No. 1,185: Ex parte Fisk. 113 U. S. 713, 28 L. ed. 1117. 5 Sup. Ct. Rep. 724. sTabor v. Indianapolis etc. Co. 66 Fed. 423; Despeaux v. Pennsylvania R. R. 81 Fed. 898: Shellaba'rger v. Oliver, 64 Fed. 307, 308; United States V. Pings, 4 Fed. 714; See- ley V. Kansas C. S. Co. 71 Fed. 555; United States v. Fifty Boxes, 92 Fed. 601, National Cash, etc. Co. y. Leland, 94 Fed. 503, 37 C. C. A. 372: Turner v. Shackman. 27 Fed. 184. 91'nion Pac. Ry. v. Botsford. 141 U. S. 257. 35 L. ed. 739, 11 Sup. Ct. Rep. 1003. See also Denver, etc. Co. V. Norton. 141 Fed. 599 (C. C. A.) 10 Ante, § 813. iiKent V. Bay S. G. Co. 93 Fed. 889. i2Turner v. Newman, 3 Biss. 307, Fed. Cas. No. 14,262. 16 Supra, note [a]. 839 § 900 [h] PROCEDURE IN COMiMOX-LAW CAUSES. [Code Fed. tliiusc have been expressed. It has been said that the statute is peremptory in character 1" and means as near as may be practicable; is that is, as near as possible in view of those things which stand in the way of ab- solute conoformity, such as conflicting Federal statutes or peculiarities re- sulting from the nature of the Federal courts and their jurisdiction.! 9 And there is much to be said in favor of the theory that Congress intended to require harmony where possible, and to leave nothing to an individual judge's motion of the propriety' of any particular feature of State practice sc long as it could in fact be adapted to the remedial processes of the Federal courts. But this view does not seem to have prevailed. "The conformity," observed the Supreme Court, per Swayne, J., in one of its earliest decisions upon tlie clause, "is required to be 'as near as may be' — not as near as may be possible, or as near as may be practicable. This iiidefiniteness may have been suggested by a imriiosp; it devolves upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected thej'' would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the laAV, or tend to defeat the ends of justice, in their tril)Tuials.'"i While uniformity of procediu-e is intended by R. S. § 914, Congress expects it to be attained "largely through the discretion of the Federal courts, exercised in the form of jj-enerai rules-''^* Since the existence of this aiiii'lcr discretion is recognized, the customary presumption will be indulged tl'.at it was properly exercised by the lower court in a given case of variation from the State practice.3 Variations from State practice will be noted in the discussion of the differ- ent phases of procedure in sul)sequent sections of the text. [h] Necessary that there be "like causes." As it is the procedure in "like causes" that is adopted, it is said that conformity is not required where there are no similar cases in the State practice. Upon this ground it has been said tht-t proceedings in rem for iTAmy V. Watcrtown. 130 U. S. 426, 23 L. ed. 286; In re Chateaugav 304. 32 "L. ed. 947. 9 Sup. Ct. Rep. Iron Co. 128 U. S. 544, 32 L. ed. 508, 530; Nederland Ins. Co. v. Hall. 84 9 Sup. Ct. Rep. 150; Southern P. Co. Fed. 279. 27 C. C. A. 390. v. Denton. 146 U. S. 202, 36 L. ed. isSee Republic Ins. Co. v. Wil- 942, 13 Sup. Ct. Rep. 44; Luxton v. liams, 3 Biss. 370, Fed. Cas. No. 11,- North R. B. 147 U. S. 337, 37 L. ed. 707; Lewis v. Gould. 13 Blatchf. 216, 194. 13 Sup. Ct. Rep. 356; Lincoln Fed. Cas. No. 8.324: Edmunds v. v. Power. 151 U. S. 436. 38 L. ed. 224. Illinois Cent. R. R. 80 Fed. 78, 85: 14 Sup. Ct. Rep. 387; Laird v. De Chicago, etc. Rv. v. iletalstaff. 101 Soto, 25 Fed. 76; O'Connoll v. Reed, Fed. 770, 41 C." C. A. 689; United 56 Fed. 531, 5 C.'U. A. 586; Lowrv v. States V. Davis. 103 FeJ. 465; Storv. 31 Fed. 769; Sherry v. Oceanic :\Iutual. etc. Bank v. Bo«sicux. 1 S. \V. Co. 72 Fed. 565; Kent v. Bav Hughes. 386, Fed. Cas. Xo. 9.977. S. G. Co. 93 Fed. 887; Times P. Co. i9See supra, note [f]. v. Carlisle,94 Fed. 771, 36 C. C. A. 'Indianapolis, etc. R. R. v. Horst, 475; Lange v. Union P. R. R. 120 93 U. S. 300. 23 L. ed. 898. Fed. 340. 02 C. C. A. 48. 2Shepard v. Adams. 168 U. S. 623, sShepard v. Adams. 168 U. S. (t23. 42 L. ed. 604, 18 Sup. Ct. Rep. 214. 42 L. ed. 604, 18 Sup. Ct. Rep. 214. And see Nudd v. Burrows. 91 U. S. 840 I Procedure] WRITS AND PROCESS. § 901 forfeiture under the revenue laws being sui generis, need not conform to State practice. 5 A proceeding to restore lost records is sui generis and governed by the act of Congress. 6 And it has been argued that the same is true of patent infringement suits." Xevertheless, other patent infringe- ment suits at law have recognized State practice upon matters where there was no Federal statute to the contrary ;S so also have copyright suits. 9 And in an action for a Federal statutory penalty where Congress had not prescribed the procedure it has been held that R. S. § 914 required sub- stantial conformity to the State practice. lo [ij Effect of conforraity clause upon power to make rules. The power of the circuit and district courts to make rules and the effect of the concluding clause of R. S. § 014 thereon, have already been con- sidered.! 3 R. S. § 914 undoubtedly diminishes the very broad power pos- sessed by those courts under earlier process acts;i4 although it does not affect the power to adopt by rule the State laws on attachment and execution conferred by R. S. §S 91.5 and 916.1" The wording of R. S. § 914 is such that any change i.i State law upon a matter of proceduri- raises the question whether an existing rule of the Federal court upon the same subject is not repealed thereby. If the Federal Court adheres to its own rule of practice notwithstanding such change, the Supreme Court will presume that tliis was in tlio proper exercise of its discretion.! 6 § 901. Writs and process in common-law causes. Federal courts derive their power to issue the common-law writs from E. S. § 911/^ empowering them generally to issue writs, and from R. S. §§ 915 and 916^^ empowering them to issue attachment garnishment and execution. The form and general style of Federal writs are also prescribed by Congress.^ So that the conformity re- sCoffev V. United States. 117 U. 34 Fed. 745. S. 235. 29 L. ed. 892, 6 Sup. Ct. Rep. sJohnston v. Klopsch. 88 Fed. 602. 717: United States y. Fiftv Boxes, loUnited States v. Elliott, 25 Int. 92 Fed. 602: United States v. Mollov, Rev. 310. Fed! Cas. No. 15.043: see 31 Fed. 23. " also United States v. Rose. 14 Fed. 6Turner v. Newman. 3 Biss. 307, 6S1 : United States v. O'Brien. 120 Fed. Cas. Xo. 14,262. Fed. 446: United States v. Banisler. "Marvin v. Aultman, 46 Fed. 339. 70 Fed. 44. There are of course many special 13§ 805[a]. Federal provisions on the subject of n Supra, note [a], infringement which preclude the isPost. §§ 905. 025; see Lamaster operation of State laws: New York v. Keeler, 123 U. S. 376, 31 L. ed. etc. Co. V. Sullivan, 111 Fed. 181: 238, 8 Sup. Ct. Rep. 197. Mvers V. Cunninirham. 44 Fed. 346: isShepard v. Adams, 168 U. S. Kiilp V. Snvder. 04 Fed. 613: Webb 6-23. 42 L. ed. 604. IS Sup. Ct. Rep. V. Goldsmith. 127 Fed. 572. 214. sSee Mav v. ^Mercer, .30 Fed. 246: i^Ante. § 841. Cottier v. "Stimson, 18 Fed. 689, 9 soPost, §§ 905. 925. Sawy. 4.35, verification of plea : Cellu- lAnte, § 836. loid Mfg. Co. V. .\merican. etc. Co. 841 § ;)()2 PROCEDURE IN COMMON-LAW CAUSES. [Code Fed. quirement of R. S. § 914 has little or no application to Federal writs. The comformity law applies, however, to process in coinmon- law canses, except as regards form and style, which Congress has pre- scribed,- and as respects service, it being provided that Federal process shall be served by the marshal, and in general only within tli<' district where it is issued." These requirements as to form and service forbid adoption in the Federal courts of the New York and Wisconsin practice is so far as it permits plaintilfs" attorney to issue and serve the summons.'* But the state law regarding suffi- ciency of service upon corporations, etc., is followed.^ The proper mode of procedure as respects the issue of summons in New York is considered in several cases. ^ The State law as to endorse ineui upon the summons has been follo^ved in the Federal courts,'^ even in actions for penalties, brought by the United States.^ The State practice on fieri facias has been followed.^ Author's section. § 902. Parties in common-law causes. E. S. § 914^- imposes upon the Federal courts in common-law causes the general duty of following the local law respecting the proper parties plaintiff' or defendant, and the joinder, substitu- tion and misjoinder of parties. "^^^ However, this general require- ment of conformity is subordinate to several rules respecting parties which are peculiar to Federal practice and which being jurisdic- tional in character, are not subject to infringement or modifica- tion! ^ \)y provisions of State law. Thus the Federal law forbids abatement for want of necessary parties.^* It provides as to the effect of death of parties -.i^ and the effect of death or expiration of terra, in cases of suit against officers.!^ There are peculiar Federal rules respecting suits by assignees.!'^ The Federal courts have their OM^n classification of parties as formal, necessary and indispensa- 2Ante, § 836. sBrowii v. Cliesapeake & O. C. Co. 3 Ante, § 853. 4 Fed. 770; 4 Hughes, 584; see ante, lAnte, § 836[a]. § 841. [aa] 5 Ante, § 836. 12 Ante, § 000. 6 Johnson v. Healy, 9 Ben. 318, Fed. is Ante, § 5. Cas. Xo. 7,389: Martin v. Criscuola, KAnte, § 817. 10 Bla^chf. 211, Fed. C^s. No. 9.159. isAnte, §§ 814, 815. miller V. Gages, 4 McLean, 436, leAn/te, § 816. Fed. Cas. No. 9.571. iTAnte, § 23. sUnited States v. Rose, 14 Fed. 681. 842 Procedure] PARTIES. § 90:2 [a] ble.^^ and will under certaiii circumstances proceed without neces- sary parties regardless of tlie State practice.^''^ Author's section. [a] Conformity to State law respecting parties. The conformity requirements of R. S. § 914 apply to parties.i A state law authorizing a person with whom or in whose name a contract is made, to sue thereon in his own name is in force in the Federal court.2 The Federal court in Missouri properly permitted a landlord to be joined as party to defend his tenants possession in accordance with the Missouri law.3 A State statute permitting an assignee of a contract to sue thereon in his own name applies in the Federal court there ;* and in States where the ancient rule forbidding smt by an assignee in his own name prevails, the Federal court there sitting, follows it.5 So where the State court per- mits a landlord to sue a subtenant upon the latter's agreement with ten- ant to assume the rent charge the Federal court will do the same. 6 So the State law as to the right of a wife to sue without joining her hus- band^ is in force in the Federal court. And State laws is to the joinder of parties in a suit upon a bond ; s or in a suit against corporate stockholders ; 9 or in a suit on a contract on which several are liable, lo will be followed. A State law forbidding abatement for improper joinder has been followed; n and a State law permitting substitution of one defendant for another.! 2 The question of the competency of an assignee to sue is determined by the law of the State where suit is brought, and not the law of the State where the contract is made;i3 though the statutory right of a married woman to 18 Ante, § 817 [bj. sSt. i^uis B. Assoc, v. Hayes, !)7 iPritchard v. Noirton, lOG U. S. Fed. 859. 38 C. C. A. 449. 124, 130, 27 L. ed. 104, 1 Sup. Ct. 'JBurland v. Haven, 37 Fed. 394, 13 Rep. 102: Albany, etc. Co. v. Lund- Sawy. 551. berg. 121 U. S. 451, 454, 30 L. ed. loAtlaratic & P. R. R. v. Laird, 982. 7 Sup. Ct. Rep. 958: Hale v. 1G4 U. S. 400, 41 L. ed. 488, 17 Sup. Tyler, 104 Fed. 761. Ct. Rep. 120; Sawin v. Kenny, 93 U. 2Albany. etc. Co. v. Luiidbeig, 121 S. 290, 23 L. ed. 926; United States r. S. 451, 30 L. ed. 982, 7 Sup. Ct. v. Tracy. 8 Ben. 1, Fed. Cas. No. 16,- Rep. 958. 530: T'ndted States v. Lawrence. 14 sPhelps v. Oaks, 117 U. S. 241. 29 Blati^lif. 23i, Fed. Cas. No. 15,574; L. ed. 888, 6 Sup. Ct. Rep. 714. ^^.e also Lewis v. Marshal, 5 Pet. 474, ^Arkansas S. Co. v. Belden Co. 127 8 L. ed. 195, following the Kentucky U. S. 387, 32 L. ed. 248, 8 Sup. Ct. law as to joinder of parties. Rep. 1309: Delaware Co! v. Diebold, uPerry v. Mechanics' M. T. Co. 11 etc. Co. 133 r. S. 488. .33 L. ed. 674, Fed. 478. 10 Sup. Ct. Rep. 399: Dexter H. Co. i2Harris v. Hess, 10 Fed. 263, 20 V. Savward, 51 Fed. 729. Blatchf. 253. sNederland L. I. Co. v. Hall. 84 isXederlands L. I. Co. v. Hall, S4 Fed. 278, 27 C. C. A. 390. Fed. 278. 27 C. C. A. 390; Glenn v. eAdaiii:^ v. Shirk. 105 Fed. 650. 44 Marburv, 145 U. S. 508. 36 L. ed. C. C. A. 653. 794. 12 Sup. Ct. Rep. 917; Edmunds morning J. Assn. v. Smith, 56 v. Illinois Cent. R. R. SO Fed. 84: Fed. 141, 4 C. C. A. 8; Texas, etc. see Osborn v. Firtate statute permitting joinder of parties cannot be followed for the pur[>()se of aggregating claims large enough to reach the jurisdictional aiuoimt requisite in the Federal courts; it or where the Federal statute as to suits by assignees forbids. is The State law as to necessary parties can- not api^ly where by E,. S. § 737, the court is permitted to dispense with parties who cannot be served.is The joinder of the survivor of one of several co-obligors, as defendant, is governed by Federal and not State law. 2 So, also the Federal statute and not State law is controlling upon the question who is proper party plaintifl' in a patent infringement suit.i § 903. Pleading in common law causes. The forms and modes of pleading in civil cases other than of equit}' and admiralty must r-onform to those prevailing in the courts of the State where the Federal court is sitting. Indeed the con- formity requirements of E. S. § 914^ apply with especial force to the forms and modes of pleading, and uniformity in that respect was one of the chief objects of the enactment of the present law.^ While Congress has laid down the rules to govern amendment of pleadings,'^ there are no other general enactments tending to ])re- vent the attainment of entire uniformity between Federal and State courts in that respect, although there are a few Federal require- ments as to pleading in patent cases and in some other special ac- tions and proceedings.'^ The conformity in the matter of plead- ing does not, however, permit the pleading of equitable defenses in actions at law oi- the blending of legal and equitable causes of action, or suit on tlie law side by virtue of a State statute declaring the remedy to be at law, wliere by Federal standards it is in equity. 1^^^''^*']'^ The right to plead a set-off or counter claim tini- fei'red by modern statutes represents a blending of law and equity, and such statutes are not adopted in the Federal courts in so far as pci-niitting equitable defenses in actions at law.'^''^ Author's section. i4Texas, etc. Ey. V. Humble. 181 U. 2 0United States v. Bullard, 103 S. 61, 45 L. ed. 750, 21 Sup. Ct. Rep. Fed. 2of>. 520. iXew York. etc. Co. v. Sullivan, iTHolt V. Bergovin, 00 Fed. 1. ^ l"^ed. 181. 18 See Dromgoole v. Farmers, etc. ^-t"}^' f 'IPi'v -, ■D 1 .-> IT oio n T 1 -icT ''Ante. S 900 [aaj. Bank, 2 How. 243. 11 L. ed. 252; « \„te S 813 Keary v. Farmers, etc. Bank, 16 Pet. :See ante. s'900[h]; post, § 1167 95, 10 L. ed. 897. et seq. isAlhuit v. Lancaster. 70 Fed. 131. Ante, f^ 800. 34 i ProceLlare] PLEADING. § 903 [a] [aj Adoption of State forms of pleading. 'J"ii(,' conformity law applies to the pleadings in common-law eases. lo If the State adheres to the old common forms and rules of pleading the Federal court there sitting will do the 3ame;ii and if it has discarded them in favor of a simple petition or complaint, and one or two subseqiient plead- ings designed to raise all issues of law or fact, this practice is equally ob- ligfitory.12 If the State law repeals anon: alous special proceeding, the repeal is equally effective in the Federal court. is Conformity to State pleadings includes the form and order of pleading ;14 the right to file supplemental pleadings; 15 the time of pleading; is the sufficiency of a pleading to sustain a verdict; and the svifficiency of the denials in an answer.i7 It involves adoption of the State rules respecting the construction of pleadings; is testing their sufficiency and scope; 19 respecting the necessity for specially averring the defense of contributory negligence ; 2 o the necessity for reply to new matter in the answer; 1 the scope of a general demun-er;2 the rule that only ultimate facts be stated; 3 the rule as to leave to plead over after de- murrer; < as to demurrer to answcr.s Federal pleading must conform in the matter of verification ;S and this has been required even in a patent loTavlor v. Brigham. .3 Woods, 377, Fed. Cas. No. 13,781; Lewis v. Gould, 13 Blatchl. 216. Fed. Cas. No. 8.324: Merchants, etc. Bank v. Wheeler, 13 Blatchf. 218, Fed. Cas. No. 9,4.39; Oscanvan v. Winchester, etc. Co. 15 Blatchf. 79. Fed. Cas. No. lO.fiOO; Saimders v. Short. 86 Fed. 229. .30 C. C. A. 402. iiPhillips, etc. Co. v. Sevmour, 91 U. S. 655. 23 L. cd. 345. i2lndian^polis, etc. R. R. v. Horst, 93 U. S. 300. 23 L. ed. 901 ; ilus-r v. Robertson, 17 Fed. 500. 21 Blatchf. 368. isHarvev v. Virginia, 20 Fed. 411. i4Southern P. Co. v. Denton, 146 U. S. 209. 36 L. ed. 942. 13 Sup. Ct. Rep. 44. isMerrill v. Rokes, 54 Fed. 452, 4 C. C. A. 433. iGRicard v. New P. T. P. 5 Fed. 433; Werthein v. Cnntinontal. etc. R. R. 11 Fed. 6S9, 20 Blatchf. .50S;P1h>- nix Ins. Co. v. Charleston B. 05 Fed. 628. 13 C. C. A. 58. iTBond V. Dustin. 112 U. S. 609. 28 L. ed. 837, 5 Sup. Ct. Rep. 290. isRobertson v. Perkins, 129 U. S. 235, 32 L. ed. GS8, 9 Sup. Ct. Rep. 279. 19 United States v. Parker, 120 U. S. 94. 30 L. ed. 604, 7 Sup. Ct. Rep. 4.54; Northern P. R. R. v. Paine, 119 U. S. 561, 30 L. ed. .531, 7 Sup. Ct. Rep. 323; Sommer v. Carbon H. Coal Co. 89 Fed. GO. ,32 C. C. A. 156; Glenn v. Sumner. 132 U. S. 150, 33 L. ed. 301, 10 Sup. Ct. Rep. 41; Rush V. Newman, 58 Fed. 158, 7 C. C. A. 136; Austin v. Seligan, 18 Fed. 519. 21 Blatchf. .506, applying the State rule that relief may be gi'anted re- gardless of the form, whether ex contractu or ex delicto. United States V. Tilton, 7 Ben. 306, Fed. Ca^. No. 10.525, as to sufficiency of plea. 20 Gaddoneux v. New Orleans Rv. 128 Fed. 806. iBurlington Ins. Co. v. Miller, 00 Fed. 254, 8 C. C. A. 612. 2Van Doren v. Pennsylvania R. R. 93 Fed. 202, 35 C. C. A. 282; see also General Electric Co. v. Westing- house, etc., Co. 144 Fed. 458. 3]\hi?f^r V. Robertson, 17 Fed. 500, 21 Blatchf. 308. -tGreen v. Underwood, 86 Fed. 427, 30 C. C. A. 162. sKester v. Western U. T. Co. 108 Fed. 926. est. Louis, etc. R. R. v. Knight. 122 U. S. 90, 30 L. ed. 1083. 7 Sup. Ct. Rep. 1132; Ralls Co. v. Douglass. 105 U. S. 728. 26 L. ehen v. Clybourn, 3 Mc- 1, 6 L. ed. 253; Bank of U. S. v. Hal- Lean, 174. Fed. Cas. No. 13,520. stead, 10 Wheat. 51, 6 L. ed. 264. 3Ex parte Biddle, 2 Mason, 472, i2Elv v. Hanks, 1 W. L. M. 107, Fed. Cas. No. 1,391. Fed. Cas. No. 4,430; see also Claflin 4Fraser v. Weller, 6 McLean, 11, v. Steinberg, 2 Dill. 324, Fed. Cas. Fed. Cas. No. 5,064; see post, § 900. No. 2,777. If there was no State at- sKing v. Davis, 137 Fed. 223. taclinient law, tlie reniedv was not sPost, §§ 1399, et seq. availalile in the Federal cPost, §§ 1412-1414. v. Williams. 4 :\IcLean, 580, Fed. Cas. loAct June 1, 1872, c. 255, S 6, 17 No. 1,423. Stat. 197. 848 Procedure] REMEDIES BY ATTACHMENT. § 005 [b] tion of an attachment. is So also the removal laws have from the first n:ade provision respecting the efficacy after removal of an attachment pro- cured in the State court. i^ The conformity requirements of this section relate primarily to questions of procedure and not of jurisdiction, and er- ror in its construction or application would not, ordinarily, at least, 15 involve a jurisdictional question. 1 6 It is at most mere error and not a ju- risdictional defect, where the affidavit is claimed to be insufficient ; i t or where a party is permitted to attach for a claim not yet due. is [b]Scope and extent of power to adopt State attachment law. In general the State attachment laws are in force in and followed by the Federal courts. 2 So the State decisions construing a State attachment law will ordinarily be followed by the Federal courts. 3 The State law as to the furnishing of security applies.* The State law directing the method of dctcnnining questions of prioritys or the rights of successive attaching creditors.s and are properly followed. Where property has by attach- ment of the marshal passed into the custody of the Federal court, other creditors and parties interested may come before it for adjudication of their rights though in their case there would be no diverse citizenship, nor value in dispute sufficient to give the court jurisdiction." Such a proceeding is ancillary. s Suit upon the attachment bond is similarly ancillary, and main- tainable regardless of citizenship.s Since R. S. § 985io empowers the Feder- al court to issue execution operative in other judicial districts of a State, it is proper so to issue the writ of attachment where the State law per- mits attachment to run in anr county of the State. n Impost. S n06: see Flv v. Hanks. 1 \\'. L. :\r. 107, Fed. Cas. Xo. 4.4.30. I'iSee judiciary act Sept. 24. 1780. § 12. 1 Stat. 7fl; 80: New E. S. Co. V. Bliven. 3 Blatchf. 240. Fed. Cas. Xo. ]0.1.-)(i: see post. § 115.3. i5But it would seem that a hold- ing that process of foreign attach- ment was pormissihle in Federal courts would raise a jurisdictional question. ifiSchunk v. Moline. etc. Co. 147 U. S. .'507. 37 L. ed. 2.55. 13 Sup. Ct. Rep. 416. ivErstein v. Rotlisclnld. 22 Fed. 01 -. see Ely v. Hanks. 1 W. L. :\1. 107. Fed. Cas. Xo. 4.430. isSchunk v. Moline, etc. Co. 147 U. S. 507. 37 L. ed. 255. 13 Sup. Ct. Rep. 41 G. 2Rothschild v. Knight. 184 U. S. 341. 40 L. ed. .580. 22 Sup. Ct. Rep. 391 : Lehman v. Berdin. 5 Dill. 340. Fed. Cas. Xo. S.215: Mather v. Xes- bit. 13 Fed. 872. 4 ]\IcCrarv. 505; Bales V. Days, 17 Fed. 170. 5 Mc- Crary. 342; LafoUye v. Carriere, 24 Fed. 340: Brooks v! Fry, 45 Fed. 770. 3Third Xat. Bank y. Teal. 5 Fed. 507. 4 Hughes, 572: Peoples' S. Bank y. Batchelder. 51 Fed. 134. 2 C. C. A. 120: Rich v. Adler Co. 71 Fed. 151. 18 C. C. A. 15: Lehman y. Berdin, 5 Dill. 340. Fed. Cas. Xo. 8.215; Fleitas v. Cockrein. 101 U. S. 301. 25 L. ed. 034. •fSinger Mfg. Co. y. Mason. 5 Dill. 488. Fed. Cas. Xo. 12.f>03. See Flei- tas V. Cockrom. 101 V. S. ,301. 25 L. ed. 054. nBates V. Dnvs. 17 Fed. 167. 5 Mc- Crary. 342. ^Bankers, etc. Co. v. Chicago C. Co. 28 Fed. 308. TKrippendorf v. Ilvde. 110 V. S. 284. 28 L. croper issuance of attachment would be cui'od by such appearance. [e] Garnishment. There are special F«>deral provisions regarding garnishment in suits by i4United States v. Griswold, 5 706. 2() L. ed. 462; Nazro v. Cragin. Sawy. 25. See post, § ]oo8. 3 Dill. -174. Fed. Cas. No. 10.062: An- isPost. § 907. derson v. Shaffer, 10 Fed. 2(i6: Lack- lesteam S. C. Co. v. Sears, 20 ett v. Kuml)augh. 45 Fed. 23. .30: Blatchf. 23. 9 Fed. 8. See ante, § Cent. T. (^o. v. Chattanooga Rv. Co. 841 fc]. 68 Fed. 685; Dormitzer v.Tll. Bridge iTYokev V. Boston, etc R. R. 130 ("^o. 6 Fed. 218: ITarland v. I'niteil Fed. 992." Lines Tel. Co. 40 Fed. -308. 6 L.R.A. i9Ante. § 813. 252: Chittenden v. Darden, 2 Woods. 20Tilton V. Cofield. 93 U. S. 167, 437. Fed. Cas. No. 2.688: Butt erworth 23 L. ed. 860: Rothchild v. Knight, v. TTill. 114 U. S. 128. 29 L. ed. 119.5 184 U. S. 341. 46 L. ed. 580. 22 Sup. Sup. Ct. Rep. 796. Contra, see Onil- Ct. Rep. 391 : Matthews v. Densniore, lou v. Fontain. 32 Leg. Tnt. 362. Fed. 109 U. S. 219, 27 L. ed. 913. 3 Sup. Cas. No. 5,861. Ct. Rep. 126; Wolf v. Cook. 40 Fed. r.Lackett v. Rumbaugh, 45 Fed. 2:1. 432: Peoples Sav. Bank v. Batch- eAnte. § 8.53. Erstein v. Rothschild, elder, 51 Fed. 130, 2 C. C. A. 126. 22 Fed. 61. 2 C. C. A. 126. lErstein v. Rotschild. 22 Fed. 61. TSee § 856. 2Claflin V. Steinberg. 2 Dill. 326. sToland v. Sprague. 12 Pet. 3.W. Fed. Cas. No. 2,777. 331, 9 L. ed. 1106. Ante, § 860. 4E.\' parte Raihvav Co. 103 V. S. 850 Proceduie] KKMEUIES AS TO ATTACHMENT. i 906 the United States.!^ But in (itlier respects local laws as to garnishment comes within the plirase "attachment or other process," of R. S. § 915, and are in force in the Federal courts.io Where a State law authorizes garn- ishment in aid of an execution, such remedy is also available in the Feder- al courts under R. S. § 916 adopting State execution laws.n [f] Adoption of State attachment laws by rule. While the act of 1872 limited the power to make rules previously exist- ing under the general conformity enactment, ^ 3 it still left the Federal courts this larger discretion in the matter of attachments. They are not obliged, as under R. S. § 914, to adopt existing remedies in the matter of attachment. The cases show, however, that the general tendency of the courts is to keep abreast of the State laws in that respect and to adopt changes therein, as soon as made. So well recognized is this tendency to the stricter conformity imposed in other matters of practice by R. S. § 914, that upon appeal "in the absence of convincing evidence to the contrary the presumption of 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 couits. eitlier by written rule or by general practice."!* In this respect written rule is no more necessary than it was under the early conformity laws; biit uni- form practice and judicial decisions in conformity therewith, are sufficient evidence of the de facto adoption of a rule.is § 906. — State law as to dissolution of attachment appl^'es. An attachment of property, upon process instituted in any court in the United States, to satisfy such judgment us may be recovered by the plaintiff therein, except in the cases mentioned in the pre- ceding nine sections [i. e., relating to attachment in suits by the United States against postmasters, etc.^^] 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 pa^onent of debts. R. S. § 933. U. S. Comp. Stat. 1901. p. 689. This provision was originally enacted in 184S.ii» State insolvency laws sPost. S§ 1412-1414. isAnte. § 900 [a]. io\\-ilp V. Cohn. 63 Fed. 759; Ran- i4Loga.n v. Goodwin. 104 Fed. 490. dolph v. Tandv. 98 Fed. 939, 39 C. 43 C. C. A. 658. See also Citizens r. A. 351 : Logan v. Goodwin, 104 Bank v. Fanvell. 56 Fed. 570, 6 C. Fed. 490. 43 C. C. A. 658. 101 Fed. C. A. 24. Ante, S 805 [c]. 654. 41 C. C. A. 573. is Ante. S 805 [c]. iiCanal. etc. Co. v. Hart. 114 U. isSee post, §§ 1399 et seq. S. 654, 29 L. ed. 226. 5 Sup. Ct. Rep. i^Act March 14, 1848. c. 18. 9 Stat. 1127. See ix)st. § 925. U?,. See also Act February 23, 1865, 851 S n07 PROCEDUUt: in COMMOX-LAW causes. [Code Fed. very commonly provide for dissolution of an attachment upon cession of the bankrupts property.20 The State practice upon motion for release or dissolution of attachment has also been followed. 2 But the Federal court has refused to conform to a State law permitting dissolution by a judge during vacation, because inconsistent with Federal laws as to the powers of a Federal judge. 3 So also the State law as to appeal from an interlocutory order on motion to dissolve attachment, has no application to the Federal practice,^ as the conformity provisions do not apply to pro- ceedings for review. 5 § 907. — attachment against national banks. No attachment . . . shall be issued against such associa- tion [a National bank] or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court. Part of R. S. § 5242, U. S. Comp. Stat. 1901, p. 3517. This enactment also declared invalid, transfers in contemplation of in- solvency and forbids injunction, t and execution, s as well as attachment prior to final judgment. The proviso forbidding attachment execution and injunction was first enacted in 18739 and was incorporated in R. S. § 5242 by the revision of 1875.1 Since R. S. § 915ii empowers Federal courts to issue attachment only where the remedy is available in the State court, this section indirectly disables the Federal courts as well at the State tribunals, from issuing attachment against a national bank in advance of final judgment. 1- The provision is not to be construed as applying only whore a bank is insolvent, nor is it affected by the later act of 18S213 re- stricting the jurisdiction of Federal courts over suits by and against na- tional banks. 14 c. 47, 13 Stat. 434. As to the pur- 'See post, § 1118. pose of the act of 1848. see Elv v. sSee post, § 1874. TTanks, 1 W. L. M. 107, Fed. Cas. 9Act March 3. 1873. c. 269, § 2, 17 Xo. 4.430. Stat. 603. 2 0Tua V. Carriere, 117 U. S. 201. 29 loAct Februarv 18, 1875, c. 80, 18 L. ed. 855, 6 Sup. Ct. Rep. 565: Stat. 316, 320. Shwartz v. Cladin, 60 Fed. 676, 9 nAnte, § 905. C. C. A. 204. See also Muser v. laPacific Nat. Bank v. Mixter. 124 Kern, 55 Fed. 916; Heath, etc. Co. v. U. S. 721. 31 L. ed. 567, 8 Sup. Ct. Union Oil Co. 83 Fed. 776; Sloane Rep. 718: Garner v. Second Xat. V. Cbiniquy, 22 Fed. 213. Bank. 66 Fed. 369. But the same is 2Glidden v. Whittier. 46 Fed. 437; not true of injunction in the Federal Feurerv. Stewart. 82 Fed. 294: Jenks court: Hower v. Weiss M. & E. Co. V. Richarason, 71 Fed. Siio. 55 Fed. 359. 5 C. C. A. 129. sClaflin v. Steinberg, 2 Dill. 324, isAnte, § 24. Fed. Cas. No. 2.777. nVan Reed v. Peoples Nat. Bank, 4Logan v. Goodwin, 101 Fed. 054, 198 U. S. 554, 49 L. ed. 1161, 25 41 C. C. A. 573. Sup. Ct. Rep. 775. 5See ante, § 900 [d]. 852 ■ Proceduiel KJKCTMENT AND STATUTORY SUBSTITUTES. § 909 § 908. — replevin and statutory substitutes therefor. .State laws giving a remedy by replevin for securing possession of personal property, or providing statutory substitutes therefor, such as the remedy by "claim and delivery," are in force in the Federal courts and available to Federal suitors by virtue of the conformity requirements of E. S. § 914.^'^ There is a provision of the revised statutes declaring property taken under the revenue laws irreplev- iable.^^ Author's section. If a State has abolished replevin the remedy is no longer available in the Federal court there sitting.is The statutory action of claim and de- livery is in many States a substitute for replevin and available in the Federal court.20 State decisions construing the State replevin laws will be followed :i and the State law as to the obligation upon a replevin bond: - and the effect of the giving of bond. 3 But in replevin proceedings brought by the United States the provision of the State law regarding a replevin bond is not applicable to compel the United States to furnish such a bond.-i Where property is in the custody of the law by virtue of levy thereon by the marshal under valid writ, a replevin in another court, is not a proper mode of relief. » § 909, Ejectment and statutory substitutes therefor. The State laws and practice providing legal as distinguished from equitablef^^ remedies for the possession of, or to try title h> real property, are in force in the Federal courts and available to Federal suitors by virtue of the conformity requirement'^ of E. S. § 914,'^ and by virtue also of E. S. § 721,^ making State laws tlie rules of decision in Federal courts. "^^^ Author's section. iTAnte. § 000. 2Douglass v. Douglass. 21 Wall. i>-Post. ij I.ISO. 104. 22 L. ed. 479. i9Baltimore & O. R. R. v. Hamil- 3Cornett v. Williams, 20 Wall. 245. ton. 16 Fed. 181. See on appeal Ex 22 L. ed. 257. parte Baltimore, etc. R. R. lOS U. 4T-nited States v. Brvant, 111 U. S. 566, 27 L. ed. 812. 2 Sup. Ct. Rep. S. 4!)n. 28 L. ed. 496, 4 Sup. Ct. Rep. 876. 601 . 20Vance v. W. A. Vandercoek Co. SLammon v. Fensier, 111 U. S. 19. 170 U. S. 473. 42 L. ed. 1113. 18 Sup. 28 L. ed. 337, 4 Sup. Ct. Rep. 286: Ct. Rep. 645. Gumbel v. Pitkin, 124 U. S. 145. 31 iWood V. Weimar. 104 U. S. 791. L. ed. 374. 8 Sup. Ct. Rep. 379. See 26 L. ed. 781: Scihulenberg v. Harri- ante, § 17. man, 21 Wall. 64, 22 L. ed. 551. "Ante. S 900. -Ante, § 12. 853 § 009 [a] PUOCEDURE IN COMMON-LAW CAUSES. [Code Fed. [a] Remedies by ejectment, writ of right, trespass to try title and un- lawful detainer. The Federal coourts have frequently adopted and enforced ejectment as a reniedj^ for recovery of possession of real property following the State rules as to pleading and proof thereon. lo So a local remedy by petitory action is available in the Federal court. n Writ of right was at one time a common remedy and has been entertained by the Federal courts. 12 Tres- pass to try title is the common remedy in some jurisdictions and is en- forced by the Federal courts there sitting.is The same is true of the ac- tion of forcible entry and unlawful detainer.i4 In all these actions the Federal courts under R. S. § 914 properly follow the forms and modes of ])roceeding prescribed by the State laws. Under R. S. § 721 and under ( ontrolling principles of law the substantive law administered by the Fed- eral courts in such cases are also in the main derived from the law of the State where the property is situated.^s [b] Restriction as to equitable remedies, titles, or defenses — quieting title. Tlie preservation of the distinction betweeen law and equity in the Federal courts sometimes prevents a strict conformity between the Federal and State practice in the matter of suits for the recovery of lands. Thus the Federal courts will not follow State courts in permitting ejectment or similar remedy at law to be maintained upon an equitable title; nor in permitting equitable defenses. is The modern statutory action to quiet title has been the source of perplexity in Federal practice. It is settled that it is equitable in character and therefore not goverened by the con- formity requirements of R. S. § 914.19 § 910. Right of trial by jury guaranteed. In suits at common law/°^ where the value in controversy vshall CA'ceed twenty dollars, the right of trial by jury"^*^^ shall be pre- served. "^^^ Part of 7th Amendment. U. S. Constitution loSee McArthur v. Porter, 6 Pet. 1 3p,rownsville v. CaA^azos, 100 U. 211. 8 L. ed. 371. following the State S. 145. 25 L. ed. 574: Cox v. Hart, practice at a time when the fictions 145 U. S. 389, 30 L. ed. 741. 12 Sup. were presented : Barrows v. Kindred, Ct. Rep. 962; Cooke v. Aver v. 147 U. 4 ^^'all. 402. IS L. ed. 383. following ^. 393. 37 L. ed. 209, 13 Sup.' Ct. Rep. tlie Illinois practice in which all fie- 340: Grayson v. Breekeiiridg:', 108 tions abolished. Metzgar v. McCoy. Fed. 583, 47 C. C. A. 504; Cochran v. 105 Fed. 676; King v. Davis, 137 Fed. Schreiber. 107 Fed. 371. 46 C. C. A. 198. ' 349. iiGilmer v. Poindexter, 10 Plow. i^See Lehmen v. Dickson. 148 U. 267, 13 L. ed. 411; United States v. S. 70. .37 L. ed. 373, 13 Sup. Ct. Rep. King, 3 How. 787, 11 L. ed. 824. 481 : Malonev v. Adsit, 175 U. S. 289. i2Green v. Liter, 8 Cranoh, 249, 44 L. ed. 163, 20 Sup. Ct. Rep. 115; 3 L. ed. 545: Homer v. Brown, 10 Ellis v. Fitzpatrick. 118 Fed. 430, 55 How. 364. 14 L. ed. 970: Green v. C. C. A. 260. Watkins, 7 Wheat. 29. 5 L. ed. 388: Inglis V. Sailors S. H. 3 Pet. 133. 7 L. ed. 617. 15 Ante, §§ 10-12. IS Ante, § 800 [a] [b]. 10 Ante, § 800. 854 Procedure] RIGHT OF TRIAL BY JURY. § 910 [a] In general. The remainder of the Seventh Amendment was proposed Sept. 25, 1789, and ratified Dec. 15, 1791. The portion of the amendment which is omitted above, declares that "no fact tried by a jury shall be otherwise re-ex- amined in any court of the United States, than according to the rules of the common law."2 The amendment merely guarantees and does not create the right of jury trial. 3 It is settled that this guaranty of trial by jury refers to Federal and not State courts and is a limitation upon the powers of the Federal government. * It applies in the District of Columbiao and to the organized territories which have been brought under the Constitution; 6 to tlieir legislative and judicial officersv as also to a Terz'itorial governor ;8 and to tribunals established under a pro- visional government in territory covered by the Constitution, 9 but not to consular courts. lo One effect of this guaranty is to prevent a blending of equitable and legal matters in such a way as to deny the right of trial by jury.ii It abolishes wager of law if in fact that ever had any existence.12 It does not prevent waiver of jury in common law causes and Congress lias expresslj' pi-ovided for trial in cases of waiver.is So, it does not prevent Congress conferring an absolute right to jury trial in other than common -law causes. Bankruptcy proceedings are equitable in character, yet Congress has given an absolute right to jury trial in certain bankruptcy proceedings.!^ But it does prevent parties from resorting to equity where by Federal equity standards there is adequate remedy at law. is In equity a jury may be called inis ]nit its verdict is merely advisory. i' 2See post. § 2081. yScott v. Billgerrv. 40 Miss. 119. 3McBrirle v. Stradlev. 103 Ind. 465; lolii re Ross. 140 'U. S. 464, 35 L. Sf'elev V. Bridgeport. 53 Conn. 1. od. 581, 11 Sup. Ct. Rep. 897. ^Livingston v. Moore, 7 Pet. 409, 8 nScott v. Xpelv. 14O U. S. 106. L. ed. 751; Edwards v. Elliott. 21 35 L. ed. 358. 11 Sup. Ct. Rep. 712; Wall. 557. 22 L. ed. 487: Walker v. Lilienthat v. MeCormick. 117 Fed. Sauvinet. 92 U. S. 92, 23 L. ed. 678; 89. 54 C. C. A. 475. Pearson v. Yewdall, 95 U. S. 296. 24 i2Childress v. Emory. 8 Wheat. L. ed. 436; Bavlis v. Travelers' Ins. 642, 5 L. ed. 705. Co. 113 U. S. '321, 28 L. ed. 989, 5 isParsons v. Armour. 3 Pet. 425, Sup. Ct. Rep. 494; Eilenbecker v. 7 L. ed. 724. See post. § 914. Phimouth Co. 134 U. S. 35. 33 L. i^See Elliott v. Toeppmer, 187 U. ed. 801. 10 Sup. Ct. Rep. 424. S. 331. 332. 47 L. ed. 202, 23 Sup. 5Capital T. Co. v. Hof, 174 U. S. Ct. Rep. 133. 5, 43 L. ed. 873, 19 Sup. Ct. Rep. 580. isScott v. Neelv. 140 V. S. 106, cCallan v. Wilson, 127 U. S. 550. 35 L. ed. 358. 11 Sup. Ct. Rep. 712; 32 T.. ed. 223. 8 Sup. Ct. Rep. 1301 ; United States v. AVhite, 9 Sawy. 125, Walker v. Xew Mexico R. R. 165 U. 17 Fed. 561; Coles v. Northrup. 06 S. 595. 41 L. ed. 837, 17 Sup. C. Rep. Fed. 831. 14 C. C. A. 138; In re Foley. 421 : Thompson v. Utah. 170 V. S. 76 Fed. 390; Ignited States v. Debs, 349. 42 L. ed. 1061, 18 Sup. Ct. Rep. 64 Fed. 724: Crand R. R. R. v. Spar- 620. See Hawaii v. Maiddchi. 190 row, 30 Fed. 210. 1 L.R.A. 4S0; Ro.ss, I'. S. Ifl7. 47 L. ed. 1016. 23 Sup. etc. Co. v. Southern, etc. Co. 72 Fed. Ct. Rep. 787. 957. vWebster v. Reid. 11 How. 4.37. 13 leFitton v. Phoenix Ins. Co. 23 L. 0(1. 761 : Whallon v. Bancroft. 4 Blatchf. 110, 23 Fed. 3. TVIinii. 109. ivlda-ho. etc. Co. v. Bradburv, 132 KMaim of Reside, 9 Op. At. Gen. V. S. 515. 33 L. ed. 437, 10 Sup. Ct. 200 P'^P- 177: Perego v. Dodge. 163 U. 855 § 910 [bj rUOCEDUKE IN COMMON-LAW CAUSES. [Code Fed. [bj What constitutes trial by jury. Trial by jury within the meaning of this amendment means the common law jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them upon the law and advise them upon the facts. 20 A territorial law permitting a verdict by nine jurors or any less than the twelve is invalid. i But a Territory may require the jury to sub- mit answers to special interrogatories as well as its general verdict and permit the court to choose between them. 2 [c] To what cases applicable. The guaranty of jury trial does not apply where less than twenty dol- lars is in controversy. 5 It does not apply to equity cases; 6 nor to suits in admiralty.'' Bankruptcy proceedings are equitable in character although the statute gives a right of jury trial in certain cases. s Suits iigainst a receiver though of a common-law character are nevertheless in a coint of equity where no right to a jury exists.9 It has been said that the phnisr- "in suits at common law" embraces all suits not of equity or admiralty jurisdiction.! But the amendment does not apply to suits against the United States in the circuit court or Court of Claims; n or to recover du- ties paidi2; nor to special statutory proceedings and inquiries thereunder, such as an examination of a claim for services under the fugitive slave law,i3 or proceedings for abatement of an unlawful inclosure of public S. 160, 41 L. ed. 114, 16 Sup. Ct. Rep. Fed. Cas. No. 0,884. Bankniptcv 071. proceedings are equitable in cliarac- 20Capitol T. Co. v. Hof, 174 U. ter: Elliott v. Toeppner. 187 U. S. S. 13-1<>, 4.3 L. ed. 873. 19 Sup. Ct. ,3;31, 47 L. ed. 202, 23 Sup. Ct. Rep. Rep. 580: Maxwell v. Dow, 176 U. 133. S, 586. 44 L. ed. 599, 20 Sup. Ct. Rep. 7 Waring v. Clarke, n IIow. 441. 448. 494; Thompson v. Utah, 170 U. 12 L. ed. 226; The Huntress, 2 Ware S. 343, 42 L. ed. 1061, 18 Sup. Ct. (Dav. 82) 89. Fed. Cas. No. 6.914; Rep. 620. Bains v. The James and Catherine. lAmerican P. Co. v. Fisher, 106 U. Bald. 544, Fed. Cas. No. 756: Ignited S. 467, 41 L. ed. 1079, 17 Sup. Ct. States v. La Vengeance, 3 Dall. 297, Rep. 018: Springville v. Thomas, 166 1 L. ed. 610. S. 708, 41 L. ed. 1172, 17 Sup. Ct. sElIiott v. Toeppner, 187 U. S. 331, Rep. 717: Kleinschmidt v. Dunphy. 1 47 L. ed. 202, 23 Sup. Ct. Rep. 133.; Mont. 118. See Hawaii v. Mankiclii, In re Rude, 101 Fed. 805; In re 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Christensen, 101 Fed. 243. See post, Ct. Rep. 787. § 2200 et seq. 2Wa.lker v. New Mexico, etc. R. R. sKennedv v. Indianapolis C. R. R. 165 U. S. 593, 41 L. ed. 837, 17 Sup. 2 Flip. 704. 3 Fed. 97. Ct. Rep. 421. loParsons v. Bedford, 3 Pet. 447. oWhallon v. Bancroft. 4 Minn. 109, 7 L. ed. 732. eShiolds v. Thomas, 18 How. 253, nMcElrath v. United States. 102 15 L. ed. 368; Barton v. Barbour. 104 U. S. 440. 20 L. ed. 189; Torrey v. U. S. 133, 26 L. ed. 673; Woodworth United States, 42 Fed. 207. v. Rocers. 3 Wood. & M. 135, Fed. i2AuflFmordt v. Heddin, 137 U. S. Cas. No. 18,018; Elv v. M. & B. I\Ifg. 310, 34 L. ed. 674, 11 Sup. Ct. Rep. Co. 4 Fish. Pat. 64, Fed. Cas. No. 103. 4,431; Buford v. Hollev, 28 Fed. 680: i3:\riller v. McQuerrv, 5 McLean, Scott V. Billgerry, 40 Miss. 119: 469. Fed. Cas. No. 9.58.3; In re :\fnr- Motte v. Bennett, 2 Fish. Pat. 042. tin. 2 Paine, 348, Fed. Cas. No. 9.154. 856 Procedure] TRIAL OF ISSUES OF FACT. § 911 lands :i^ nor an assessment of damages on condemned property,! 5 nor to determine claims against a town,i6 nor to determine titles. 1 7 It does not prevent the directing of a verdict,is nor the granting of a non-suit; is nor prevent entry of judgment by default. 20 It does not prevent the court from requiring remittitur of part of verdict as a condition of denying a new trial; 2 or an affidavit of defense as a condition of a right to proceed to trial.3 In statutory proceedings summary in character and akin to equity suits the guaranty of jury trial has no application. 4 There is no right by jury trial iv contempt proceedings.^ It does apply, however, to informa- tions in re.'u for forfeitures upon land.6 and frobids trial by referees without the consent of the parties. '7 § 9il. Issues of fact in district court triable by jury. The trial of issues of fact in the district courts, in all causes except cases in equity and cases of admiralty and maritime juris- diction, and except as otherwise provided in proceeding in bank- ruptcy, shall be by jury. Part of R. S. § 566, U. S. Comp. Stat. IDOL p. 461. This provision was originally part of the judiciary act of 1789.10 The remainder of the section relates to trial of issues of fact in admiralty. n The bankruptcy act gives an absolute right to jury trial upon certain is- 14 Cameron v. United States, 148 U. S. .301. 37 L. od. 459, 13 Sup. Ct. Rep. 595. isUnited States v. Jones. 109 V. S. 519. 27 L. ed. 1015. 3 Sup. Ct. Rep. 346: Bauman v. Ross. 167 V. S. 593. 42 L. ed. 270. 17 Sup. Ct. Rep. 966: United States v. Engerman. 46 Fed. 176: Bonaparte v. Camden, etc. R. R. Baldw. 205. Fed. Cas. No. 1.617. But see Bank of Hamilton v. Dudlev, 2 Pet. 525, 7 L. ed. 496. leGuthrie Xat. Bank v. Guthrie. 173 U. S. 537. 43 L. ed. 796. 19 Sup. Ct. Rep. 513. 1 "Barker v. Jackson. 1 Paine. 559. Fed. Cas. Xo. 989. isTreat Mfg. Co. v. Standard, S. Co. 157 U. S. 675. 39 L. ed. 853. 15 Sup. Ct. Rep. 718. isCoughran v. Bigelow. 164 T'. S. 308, 41 L. ed. 442. 17 Sup. Ct. Rep. 117. 20Hircart v. Ballon. 9 Pet. 167. 9 L. ed. 85; ^Vlillcr v. United States. 11 Wall. 268. 20 L. ed. 135: United States v. Distillery. 6 Biss. 483. Fed. Cas. Xo. 14.966. 2Arkansas Val. Co. v. Mann, 130 I'. S. 69, 32 L. ed. 854. 9 Sup. Ct. Rep. 458. -x idelity & D. Co. v. United States. 187 U. S.'315. 47 L. ed. 194. 23 Sup. Ct. Rep. 120. ^Cameron v. United States. 148 U. S. 301. 37 L. ed. 459. 13 Sup. Ct. Rep. 595. 5ln re Bebs. 168 U. S. 564. 39 L. ed. 1092. 15 Sun. Ct. Rep. 900: King V. Ohio. etc. R. R. 7 Biss. 529. Fed. Cas. Xo. 7.800. sArmstrongs Foundrv, 6 Wall. 766. 18 L. ed. 882; United "States v. One Hundred and Thirty'' Barrels. 1 Bond. 587. Fed. Cas. Xo. 15.938; United States v. Distillery, 6 Biss. 483. Fed. Cas. Xo. 14.966: United States V. Fourteen Packages of Pins, Oilp. 235. Fed. Cas. Xo. 15.151. Bui not forfeiture within admiralty jurisdiction: Clark v. United States, '2 Wash. C. C. 519, Fed. Cas. Xo. 2,837. "United States v. Ratlibone. 2 Paine. 578. Fed. Cas. Xo. 16.121. 10 Act September 24. 1789. c. 20, S 9. 1 Stat. 76: act February 26, 1845, c. 20. 5 Stat. 726. 11 Post. § 1283. 857 § 912 PROCEDURE IN COMMON-LAW CAUSES. [Corto Fe.l. sues, iiltliougli bankruptcy proceedings are really equitable in character.12 p]ven if this provision gives a right to jury trial in other than the "suits at common law" contemplated by the Seventh Amendment,! 3 that would be no ground for questioning its validity, since the amendment merely pre- vents restriction and not extension of the right of jury trial. This section for instance, requires jury trial of issues of fact in condemnation pro- ceedings instituted by the government in the district courts although the Seventh Amendment does not so require.is This provision for jury trial in the district court maj', however, be waived by the partiesie al- though there is no express statute as to waiver of jury in that court. 1 7 In the event of waiver, however, questions both of law and fact raised at the trial are not reviewable on appeal;is but only the sufficiency of the declaration. 19 § 912. Issues of fact in circuit court triable by jury. The trial of issues of fact in the circuit courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdic- tion, and except as otherwise provided in proceedings in bank- ruptcy,^ and by the next section.^ R. S. § 648, U. S. Comp. Stat. 1901, p. 525. This provision was originally part of the judiciary act of 17895 which became law one day previous to the submission of the Seventh Amendments for ratification by the States, and is of weight as a contemporaneous con- struction of that amendment." The general scope of the guaranty of trial by jury has already been considered. s It is not an infringement of the provisions of this section or of the Seventh Amendment, for the court to direct a verdict where the evidence with all inferences in its favor would be insufiicient to support a contrary verdict ; 9 nor to grant a nonsuit where plaintift" fails to make out a case that would support a verdict in hi« i2Elliott V. Toeppner, 187 U. S. Rep. 91; Merrill v. Floyd. 50 Fed. 331, 332, 47 L. ed. 202. 23 Sup. Ct. 850, 2 C. C. A. 58. Rep. 133. See post § 2288. isRush v. Newman, 58 Fed. 160, 13 Ante, § 910. 7 C. C. A. 136. i4Chapeli V. United States, 160 U. sSee post, § 2285 et passim. S. 513, 514. 40 L. ed. 514, 515. 16 Sup. 4Post. S 913. Ct. Rep. 397. See United States v. sAct September 24. 1789, c. 20, § Engerman, 46 Fed. 176. 12, 1 Stat. 79. See act March 3, isBauman v. Ross, 167 U. S. 593, 1865. c. 86, § 4, 13 Stat. 501. 42 L. ed. 270, 17 Sup. Ct. Rep. 966. 6 See ante, § 910. i6Rogers v. United States. 141 U. ^Capital T. Co. v. Hof, 174 U. S. S. 548.^ 35 L. ed. 8.53. 12 Sup. Ct. 9, 10. 43 L. ed S76, 19 Sup. Ct. Rep. Rep. 91 ; Hendersons Dist. Spirits, 14 580. Wall. 44, 53, 20 L. ed. 819. sAnte. § 910 [a] [c]. i^See post. § 914, which provides 9Baylis v. Travellers Ins. Co. 113 only for waiver in the circuit court. U. S. '320, 28 L. ed. 989, 5 Sup. Ct. isRogers v. United States, 141 U. Rep. 494; Ferguson v. Artluir. 117 S. 548, 35 L. ed. 853, 12 Sup. Ct. U. S. 490. 29 L. ed. 982, 6 Sup. Ct. Rep. 865. 858 Procedure] WAIVER OF JURY IN CIRCUIT COURT. § 914 [a] favor.io Where material facts are adnritted by the pleadings there is no issue of fact requiring the intervention of a jury.n There is no right to a jury where the issue is one of law and not of fact. 12 It is error for the court to try issues of fact without a jury or waiver thereof ;13 and in the absence of counsel.^ It is error for the court to try some issues of fact itself and submit the othei's to a jury.is An act of 1875 provides for trial by jury in certain cases in admiralty and equity.is § 913. Certain issues of fact in Supreme Court triable by jury. The trial of issues of fact in the Supreme C!ourt in all actions at law against citizens of the United States shall be by jury. R. S. § 689, U. S. Comp. Stat. 1001. p. 5G5. This provision was originally part of the judiciary act of 1789.19 Tho scope of the Supreme Court's original juiisdiction is elsewhere considered.2« Cases involving actions at law therein against citizens have been infre- quent,! and none seem to have proceeded to a trial of issue of fact. § 914. Waiver of jury in circuit court. 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.'^^^"'^'^^ R. S. § 649, U. S. Comp. Stat. 1901, p. § 525. [a] History and scope in general. This provision was originalh' enacted in 1865.5 The propriety of giving instructions where jury is waived is elsewhere discussed.^ The mode and scope of review in cases at law tried without a jury are provided by R. S. § 700." An act of 1875 provides for jury trials under certain circumstances lOCentral T. Co. v. Pullmans P. C. isHodges v. Easton, 106 U. S. 412. Co. 139 U. S. 24. .35 L. ed. 61, 11 Sup. 27 L. ed. 169. 1 Sup. Ct. Rep. 307. Ct. Rep. 478: Coughran v. BigeloAv. lePost. § 1283. 164 U. S. 30'8. 41 L. ed. 442, 17 Sup. is Act September 24, 1789. c. 20. § Ct. Hop. 117. 13, 1 Stat. 80. laiarion Co. v. Coler, 75 Fed. 352. 20Ante. § 35. 21 C. C. A. 392. So on plea of guilty: iSee Wisconsin v. Pelican Ins. Co. \\est v. Gammon, 98 Fed. 426, 39 C. 127 U. S. 265, 3*2 L. ed. 239, 8 Sup. C. A. 271. Ct. Rep. 1370. Ante, § 2. i2lnterstate C. Com. v. Brinson, 5Act iMarch 3. 1865, c. 86, § 4, 13 154 U. S. 488. 38 L. ed. 1047, 14 Sup. Stat. 501. Ct. Kep. 1125. eSee post, § 920. [b]. mvearnev v. Case. 12 Wall. 285, ^Post, § 2082. 20 L. ed. 395. i4Morgan v. Gav, 19 Wall. S3. 22 L. ed. 160. 859 (, !)14 [b] PROCEDURE IN COMMON-LAW OAUSES. [Code Fed. ill equity and admiralty^ cases. That act did iml in its third section, re- peal this provision of the Revised Statutes.'' This section applies only i<) the circuit court. i o But parties may waive a jury in the district court though no statute so provides. n So they may A'alidly waive a jury in the circuit court in other than the prescribed statutory mode.12 But in such a ease they lose all right to have the proceedings at the trial re- viewed on appeal. 13 Jury may be impliedly waived. i^ One who is pres- ent by counsel and goes to trial without objection or exception voluntarily waives a jury trial.i5 Intent to waive may be presumed from the con- duet of the parties. 16 But while the parties may waive a jury, the court has no power to deprive them of the right. 17 [bj Necessity for filing written stipulation of waiver. To secure a right of review on appeal, where jury has been waived there must be "a reasonably strict conformity" to the requirements of this section.i Oral waiver in open court is insufficient. 2 An oral agreement for a reference is insufficient. 3 The waiver must be unconditional.* The record must affirmatively show waiver in the statutory mode.6 But it need not contain a copy of the .stipulation as the fact may be shown by the sPost. §§ 1067, 1283. Sup. Ct. Hep. 474: :Morgan v. Gay, sPhillips V. Moore. 100 V. S. 208. 10 Wall. 81. 22 L. ed. 100. 25 L. ed. 603. The third section of leBank of Columbia v. O'Kelv. 4 the act of 1875 was repealed in 1891. Wheat. 243. 4 L. ed. 550. See U. S. Comp. Stat. 1901. p. 520. iTHodges v. Easton. 106 V. S. 411, loHoward v. Crompton. 14 Blntchf. 27 L. ed. 169. 1 Sup. Ct. Rep. 307. 333. Fed. Cas. No. 6.758. See Rogers 1 Flanders v. Tweed, 9 Wall. 431, v. United States. 141 U. S. 548, 35 19 L. ed. 680. L. ed. 853, 12 Sup. Ct. Rep. 91. 2Kearney v. Case. 12 Wall. 282. 20 iiHenderson Distilled Spirits, 14 L. ed. 397: Oilman v. Illinois, etc. Co. Wall. 53, 20 L. ed. 815; Rogers v. 91 U. S. 614. 23 L. ed. 405: :\radison Cnited States. 141 U. S. 548. 35 L. Co. v. ^^'arren, 106 IT. S. 622. 27 L. ed. ed. 853. 12 Sup. Ct. Rep. 91. 311, 2 Sup. Ct. Rep. 80: Bond v. i2Guild V. Frontin, 18 How. 135. Dustin. 112 U. S. 607. 28 L. ed. 836, 15 L. ed. 290: Kelsey v. Forsvth. 21 5 Sup. Ct. Rep. 296: Roberts v. Ben- How. 85. 16 L. ed. 32; Campbell v. jamin. 124 U. S. 64. 31 L. ed. 334. Bayreau, 21 How. 223. 226, 16 L. 8 Sup. Ct. Rep. 393; Dundee Co. v. cd.'96. Hughes. 124 U. S. 157, 31 L. od. isCampbell v. Bayreau. 21 How. 357. 8 Sup. Ct. Rep. 377: Andes v. 223. 16 L. ed. 96; Rogers v. United Slauson. 130 U. S. 438. 32 L. ed. States, 141 U. S. 548, 35 L. ed. 853, 991, 9 Sup. Ct. Rep. 573; Spalding 12 Sup. Ct. Rep. 91: Rush v. New- v. Manasse, 131 U. S. 65. 33 L. ed. man, 58 Fed. 160. 7 C. C. A. 136; 86, 9 Sup. Ct. Rep. 649: Duncan v. Lyons v. Lyons Nat. Bank. 8 Fed. Atchison, etc. R. R. 72 Fed. 810, 371: Branch v. Texas, etc. Co. 53 19C. C. A. 202. Fed. 849, 4 C. C. A. 52; Cudahv P. sRush v. Newman, 58 Fed. 160, Co. V. Sioux Nat. Bank, 69 Fed. 782. 7 C. C. A. 136; Dietz v. Lvmer. 63 16 C. C. A. 409; Duncan v. Atchison. Fed. 758, 11 C. C. A. 410: Cudahv etc. Rv. 72 Fed. 808. 19 C. C. A. 202. P. Co. v. Sioux Nat. Bank. 69 Fed. i4Moncure v. Zunts, 11 Wall. 416, 784, 16 C. C. A. 409. 20 L. ed. 181; Rich.mond v. Smith. 4Merrill v. Flovd. 53 Fed. 172. 3 15 Wall. 429, 21 L. ed. 200. C. C. A. 494. isKearnev v. Case. 12 Wall. 275, 6:\radison Co. v. Warren. 106 V. S. 20 L. ed. 305; Baylis V. Travelers Ins. (i22, 27 L. ed. 220. 2 Sup. Ct. Rep. Co. 113 U. S. 316, 28 L. ed. 989. 5 86: Hodges v. Easton. 106 V. S. 412, 860 Procedure] WAIVER OF JUUY IX CIRCUIT COURT. § 014 [c] findings, or by bill of exceplions, or by a recital in the judgment.' A lind- ing or recital that '' by stipulation of parties hereto duly entered" a jury was waived, is insufficient to show that it was written and filed with the clerk, s The same is true of findings or recitals that "both parties in open court having waived a jury and agreed to trial before the court;" and re- cital "the jury being waived:" or "the parties having stipulated to submit the case for trial by the court without the intervention of a jury."^ ]>ut a stipulation submitting agreed facts for decision thereon by the coiu't is a sufficient compliance to secure the right of review. lo An agreement in writing filed with the clerk and signed by counsel that the cause may be tried by the court without a jury, is sufficient.! i Withdrawal of a juror and written consent to a reference are the equivalents of an express waiver of jury trial. 1- A stipulation, written and filed, that the cause be tried by the court io equivalent to waiver.is [c I General and special findings. 'I'lie court's findings, whether general or special has the same effect as the verdict of a jury.iT It is essential that there be some findings to sup- port the judgment. IS It is as proper for the court to announce its findings ;uid have them entered, in open court, as to write and file them.i9 A gen- eral finding may be as general as the verdict of a jury.20 If the court finds specially it should find the ultimate facts. A statement in the court's opinion is not equivalent to a special finding.2 If there is no finding other 27 L. ed. in. 1 Stip. Ct. Eep. 307: Ham V. Edgell. 106 Fed. 820. 4r, C. C. A. 661: Rush v. Newman. 58 Fp<1. 158. 7 C. C. A. 136: Abraham v. Tx'vy, 72 Fed. 124, 18 C. C. A. 4G0: Branch v. Texas Lumber Mfg. Co. 53 Fed. 840. 4 C. C. A. 52. vKearney v. Case. 12 Wall. 283. 2S4. 20 L. ed. 397 : Dickinson v. Planters' Rank. 16 Wall. 257. 21 L. ed. 280: Bond V. Dustin. 112 U. S. 607. 28 L. ed. 836. 5 Sup. Ct. Rep. 20(5. sCudahv P. Co. V. Sioux Xnt. Bank. 69 Fed. 782, 16 C. C. A. 400. 9 See Rush v. Newnnan. 58 Fed. 158. 7 C. C. A. 136: Bond v. Dustin. 112 r. S. 608. 5 Sup. Ct. Pvep. 206. 28 L. ed. 835: Merrill v. Flovd, 50 Fed. 840. 2 C. C. A. 58 : United States V. Carr. 61 Fed. 802, 10 C. C. A. 80. loWavne Co. Supervisors v. Kenni- cott. 103 U. S. 554. 26 L. ed. 487. iiCitizens Bank v. Farwell. 56 Fed. 571. 6 C. C. A. 24. i-Boogher v. New York. L. T. Co. 103 U. S. 00. 26 L. ed. 312. isBamberger v. Terr^-. 103 V. S. 40, 26 L. ed. 317. nMiller v. Life Ins. Co. 12 Wall. 205. 20 L. ed. 308: Xorris v. Jackson, Wall. 125. 10 L. ed. 608: Rich- mond V. Smith. 15 Wall. 437. 21 L. od. 200: Ignited States v. Dawson, 101 U. S. .560. 25 L. ed. 701. So if spe- cial they are equivalent to special ver- dict : Gravson v. Lvnch. 163 U. S. 476. 41 L."ed. 230. 16 Sup. Ct. Rep. 1064. IS Insurance Assoc, v. Boon.. 95 U. S. 117. 24 L. ed. 395. !!> Aetna L. Ins. Co. v. Board Co. 70 Fed. 575, 25 C. C. A. 04. 20 Aetna L. I. Co. v. Board Co. 79 Fed. 575. 25 C. C. A. 04: Norris v. Jackson. 9 Wall. 125. 19 L. ed. 60S: :Mining Co. v. Tavlor. 100 V. S. 37. 25 L. ed. 541 : Miller v. Life Ins. Co. 12 Wall. .301. 20 L. ed. 308: American Xat. Bank v. Watkins. 119 Fed. 545. 56 C. C. A. Ill : Kev West V. Baer. m Fed. 440. 13 C. C. A. 572: Aetna L. Tns. Co. v. Board Co. Com'rs. 70 Fed. 575. 25 C. C. A. 04. -Tlincklov v. Arkansas Citv 60 Fdl. 768. 16 C. C. A. 305: Lehncu v. Dickson. 148 IT. S. 71. 37 L. ed. 373, 13 Sup. Ct. Rep. 481, 861 § 914 [c] PROCEDURE IN COMMON-LAW CAUSES. [Cod- Fed. than the court's opinion it is equivalent to a general finding.s The court's special findings must be sufficient in themselves; 4 and should be separate- ly stated.5 Reference to another case for findings is insufficient. 6 A find- ing that there was no such cotenancy between parties in a mine ,as entitled plaintifif to an accounting, is the assertion of a mere legal inference and not a finding of fact." If the meaning of a term of art is a material fact it should be included in special findings. 8 A decision, mingling fact, discus- sion of law and evidence is not to be regarded as special findings.9 There is no error in failing to find an evidential factio or facts merely inci- dental to those found.ii If the court finds only evidentiary and not ulti- mate facts, this is error and judgment should be reversed.i2 An agreed statement of evidentiary facts will not supply the place of a finding of ultimate farts by the court.^4 If one finding is in effect a legal conclusion it will not control prior specific findings from which an opposite conclusion properly follows.is It rests in the discretion of the court to make its find- ings either general or special.is Thej' cannot be both. 19 If it only makes a general finding the sufficiency of the facts to support it cannot be re- viewed. 20 Xor can a party raise that question bj' a request that the court find a fact a given way, and except to the refusal to do so;i though a motion for nonsuit or to direct a verdict is available to this end, where the evidence is not conflicting. Ordinarily therefore, the court should make special findings, on request. 2 For if there are special findings, their legal ^British Q. M. Co. v. Baker M. Co. 139 U. S. 222, 35 L. ed. 147. 11 Sup. Ct. Rep. 523 : Con. Coal Co. v. Polar W. Co. lOG Fed. 798, 45 C. C. A. 638. 4Miller v. Life Ins. Co. 12 Wall. 301. 20 L. ed. 398; Corliss v. Pulaski Co. 1 16 Fed. 289. 53 C. C. A. 567. sMiller v. Life Ins. Co. 12 Wall. 301, 20 L. ed. 398. fiOlcott v. Ennis C. Co. 114 Fed. 907. 52 C. C. A. 527. TKahn v. Smelting Co. 102 U. S. 647. 26 L. ed. 266. See United States V. Kelly. 89 Fed. 946, 32 C. C. A. 441. However findings sometimes necessarily embody a legal inference: Insurance Co. v. Intern. T. Co. 71 Fed. 88, 17 C. C. A. 616. 8The John H. Pearson, 121 U. S. 473. 30 L. ed. 979, 7 Sup. Ct. Rep. 1008. 9Minchen v. Hart. 72 Fed. 294, 18 C. C. A. 570. loKelsev v. Crowther, 162 U. S. 408, 40 L." ed. 1017. 16 Sup. Ct. Rep. 808. iiHathaway v. First Nat. Bank of 134 U. S. 499. 33 L. ed. 1004. 10 Sup. Ct. Rep. 60S. i2Powers V. United States. 119 Fed. 562. 56 C. C. A. 128. i4Packer v. Whittier. 91 Fed. 511, 33 C. C. A. 658; Burnham v. North C. & St. Rv. 78 Fed. 101, 23 C. C. 677. isUnited States v. Harris, 77 Fed. S21. 23 C. C. A. 483. islnsurance Co. v. Folsom, 18 Wall. 249, 21 L. ed. 833; Dirst v. Norris, 14 Wall. 490. 20 L. ed. 723; Marye, v. Strouse, 5 Fed. 497 ; Aetna L. Ins. Co. V. Board of Comrs. 79 Fed. 575, 25 C. C. A. 94: State Nat. Bank v. Smith, 94 Fed. 608. 36 C. C. A. 412; S-earcv Co. v. Thompson, 66 Fed. 92. 13 C.'C. A. 349: Kev W>st v. Baer, 66 Fed. 440, 13 C. C.'A. 572. isBritish O. M. Co. v. Baker, etc. Co. 139 U. S. 222. 35 L. ed. 147, 11 Sup. Ct. Rep. 523 ; Wright v. Bragg, 96 Fed. 729. 37 C. C. A. 574: Austin v. Hamilton Co. 76 Fed. 208, 22 C. C. A. 128: Marve v. Strouse, 5 Yed. 494. 2 0See post, § 2082. iSeaj-cv Co. v. Thompson. 66 Fed. 92. 13 C. C. A. 349. See Lang v. Baxter. 69 Fed. 905. 2Searcv Co. v. Thompson, 66 Fed. 96. 13 C' C. A. 349. 862 Procedure] REFERENCE OF QUESTIONS OF FACT. S 915 sufficiency to support the judgment may be inquired into.3 But the ijues- tion whether the evidence supports the findings cannot be raised in either case, whetJier of general or of special findings.4 The making of findings in a case where the jury is waived is governed by the above provision and R. S. § 700,5 and the court cannot be required to rule on specific propositions of law presented by the parties, according to state practice. 6 [d] — addition, amendment and correction. Prior to writ of error and while a case remains under the control of the trial court, it may add a material finding which has been omitted, though after judgment and motion for new trial, 9 and even at an ensuing term.io An inadvertment entry of erroneous findings may also be set aside and the error corrected. n The rule has also been applied to findings of the court of clairas.i2 But substitution of special for general findings has been refused after lapse of a term.is So, additional findings have been re- fused; i^ and this is proper where the additional fitnding would be of facts merely incidental to those found,i5 or where another finding really covers the ground. 16 § 915. Reference of questions of fact. There can be no doubt of the power of the Federal courts at law to refer to an auditor or referee the ascertainment of questions of fact, with the consent of the parties. But State laws permitting or authorizing a reference cannot be followed where the effect would be to den}- to a party against his wishes the right of Jury trial in common-law cases guaranteed by the seventh amendment. ^^ Authoi-'s section. The power to refer with consent of parties is well settled,i9 and an inci- dent to all judicial administration. 20 The state practice as to form and sSee post. § 2082. i4Lang v. Baxter, 69 Fed. 905. 4R. S. § 1011. See post. § 2083. i5Hathaway v. Cambridge Nat. s.Tones v. United States, 135 Fed. Bank, 134 U. S. 499, 33 L. ed. 1004, 518. 68 C. C. A. 68. 16 Sup. Ct. Rep. 608. eStreeter v. Sanitarv District. 133 isSee Fox v. Harstick. 156 T'. S. Fed. 124. 66 C. C. A. 190. 674. 39 L. ed. 576, 15 Sup. Ct. Rep. 457. ri North v. Peters, 13S U. S. 282. isAnte. § 910. 283. 34 L. ed. 936, 11 Sup. Ct. Rep. 1 ^See Alexander Canal Co. v. Swann, 346. 5 How. 89, 12 L. ed. 63; Y. & C. R. loinsurance Co. v. Boon. 95 U. S. R. v. ^Mvers, 18 How. 246. 15 L. ed. 124, 24 L. ed. 395. See also :MeGa- 380: Heckers v. Fowler. 2 Wall. 127. vock v. Wood! iff. 20 How. 225. 15 L. 17 L. ed. 759; Thornton v. Carson. ed. 884. 7 Cranch, 596. 3 L. ed. 451 : Sliipman iiSvracuse Twp. v. Rollins. 104 v. Stratsville C. M. Co. 158 U. S. 361, Fed. 962. 44 C. C. A. 277. 39 L. ed. 1016, 15 Sup. Ct. Rep. 886; i2United States v. St. Louis, etc. Dennv v. Brown, 2 Betts. C. C. 51, Co. 184 T'. S. 247. 46 L. ed. 520, 22 Fed. Cas. Xo. 3.805. Sup. Ct. Rep. 350. ^oXewcnmb v. Wood, 97 U. S. 583, isMarve v. Strouse, 5 Fed. 494. 24 L. ed. 1085. 863 S rno PROCEDURE IN rOMMON-LAW TAt'SES. [Code Fed. mode of refoi'oncp lias heon t'ollowcil whore a referonce was agri'od to. 2 But in the abseneo of waiver of jury an action on a book account cannot !)e referred to an auditor confornuilly to State practice, because the Federal law makes issues of fact triable by jury." And in general State practice as to reference can never bo followed in the Federal courts when infringing the guaranty of jury trial,' though the parties may validly waive the guaranty. 5 But the ordering of a preliminary investigation of complicated accounts is no infringement of the guaranty, where the issues arc finally submitted to a jury. 6 The facts found by the referee when approved by the court, are conclusive, just as is the verdict of a jury," Errors in the admission or exclusion of evidence or in refusal to find facts or in the cor- rectness of the facts found, are not reviewable; but only the question whether the facts found sustain the judgment, s § 916. Impaneling: of jury. There are Federal statutory provisions respecting the impaneling of juries, and the competency of jurors, considered elsewhere. ^^ Author's section, § 917. Mode of proof in common-law actions. The mode of proof in the trial of actions at common law shall be by oi'al testimony and examination of witnesses in open court, ex- cept as hereinafter provided. R. S, § 861, U. S, Comp. Stat, 1!)01, p. GGl. This provision was originally part of the judiciary act of 1789,14 Open 2Parker v. Ogdensburgh, etc, R. R. Xo. 4,235, an early ea.se (1822) going 79 Fed, 817, 25 C. C, A, 205; Fourth further than that. Nat. Bank V, Neyhardt, 13 Blatchf. THeckers v. Fowler. 2 Wall, 131, 17 393, Fed. Cas. No. 4,991; Robinson L, ed, 759; Roberts v. Benjamin, 124 V. Mutual Ben., etc. Co. Ifi Blatchf. U, S, 71, 31 L. ed. 334, 8 Sup. Ct. 194. Fed, Cas, No. 11,961, But under Rep, 393, early conformitv acts State practice sShipman v. Straitsville, C, M, Co. was' declared not applicable: Denny 158 U, S. 361, 39 L. ed, 1016, 15 Sup. v. Brown, 2 Betts C. C. 51, Fed. Cas. Ct. Rep. 886; Roberts v. Benjamin, No. 3,805. Contra see f:aken v. 124 U, S. 64, 31 L, ed. 334, 8 Sup, United States, 1 U, S. L, J. 545, Ct, 393; Boogher v. New York L. 1, Fed. Cas. No. 4,235, Co, 103 U, S. 90, 26 L, ed. 310: Bond sSulzer v, Watson, .39 Fed, 414, v. Dustin, 112 U. S. 604, 28 L. ed, ■iFTowe M, Co, v, Edwards, 15 835, 5 Sup. Ct. Rep. 296; Paine v. Blatchf. 402, Fed Cas. No, 6,784; Central & F, Co. 118 U. S. 152, .30 L, United States v. Rathbone, 2 Paine, ed, 19.3, 6 Sup. Ct. Rep. 1019; Andes 578, Fed, Cas, No, 10,121; Dennv v. v, Slauson, 130 U, S, 4.35, 32 L, ed. 15rown, 2 Betts C. C. 51. Fed. Cas. 989, 9 Sup. Ct. Rep. 573. No. 3,805. iiPost, §§ 1701, et seq. sUnited States v, Rathbone, 2 i4Act September 24, 1789, c. 20, 1 Paine, 578, Fed. Cas. No. 16,121. Stat. 88. See also Act Feb, 20, 1812, GFenno v. Primrose, 119 Fed. 803, c. 25, 2 Stat, 082; act January 24, oi6 C. C, A. 313. See Eaken v. United 1827, c, 4, 4 Stat. 197, 199. States, 1 U. S, L, J. 545, Fed. Cas. 864 rrocedure] DIRECTION OF VERDICT AND DEMURRER. § 918 court means in the presence of the court and jury at the trial. lo The ex- ception of other modes of proof refers to the various provisions of Federal law respecting the taking of depositions, letters rogatory, the admissibility of transcripts, copies of official records, etc.is This section makes it im- proi)er for the Federal courts to follow State laws respecting the occasions when a deposition may be taken in advance of triali" or State laws giving a right to examine a party to the cause in advance of trial.is in these matters Federal practice is controlled by the Federal statutes, 1 9 though the mere mode of taking a deposition may now conform to the mode pre- vailing in the State practice. 2 d The section also renders inapplicable to Federal practice, a State law making admissible a deposition taken in a prior discontinued case; 2 or the State practice of attaching to the petition interrogatories to be answered by the defendant. 3 It is held in the sixth circuit that this section does not forbid the Federal court to follow State law permitting evidence given in a former trial to be introduced where witness is out of the State.* But the rule in the eighth circuit is probably to the contrary. 5 A State law requiring a plaintiff in suit for personal injuries to submit to physical examination before trial, is not in conflict with this pro- vision and is in force in the Federal courts by virtue of R. S. § 721.6 making State laws the rule of deci.sion,'!' though not permissible in Federal eourts in the absence of such a State law.s § 918. Direction of verdict and demurrer to evidence. In addition to motion for nonsuit, motion to direct a verdict'^^^'f''^ and demurrer to evidencef^^^ have been used in Federal practice as a means of testing the legal effect and sufficiency of evidence. De- murrer to evidence has l^een largely superseded in modern practice by the motion to direct a verdict. Author's section. isBeardsley v. Littell, 14 Blatchf. R. v. Leland, 94 Fed. 502. 37 C. C. 102, Fed. Cas. No. 1,185. A. 372. This Avas formerlv not true: leSee post, § 1761, et seq. Randall v. Venable, 17 Fed. 162. I'McLennan v. Kansas, etc. R. R. 2Seeley v. Kansas C. S. Co. 71 Fed. 22 Fed. 198. 554. isEx parte Fisk, 113 U. S. 713. 28 spierce v. Union P. Co. 47 Fed. L. ed. 1117, 5 Sup. Ct. Rep. 724; 709; contra Bryant v. Leland, 6 Fed. Easton v. Hodges. 7 Biss. 324, Fed. 125. Cas. Xo. 4.25S; Colgate v. Comp. ^Toledo T. Co. v. Cameron. 137 Franc. 23 Blatchf. SO, 23 Fed. 82. In Fed. 48, 69 C. C. A. 28. Pennsylvania however. following sSalt Lake Citv v. Smith, 104 Fed. Stale 'practice and court rule, dep- 469. 43 C. C. A. "637. osilinns for use on hearing of rule CAnte. § 12. to show cause may be taken, see Im- '^ Camden, etc. R. R. v. Stetson. 177 porters, etc. Bank v. Lvons, 1.34 Fed. U. S. 172. 44 L. ed. 721, 20 Sup. Ct. 510. ' Rep. 617. isMcLennan v. Kansas, etc. R. R. sUnion Pac. R. R. v. Botsford. 141 22 Fed. 198. V. S. 250, 35 L. ed. 735. 11 Sup. 20See post, § 1776. National C. Ct. Rep. 1000. Fed. Proc— 55. 865 I ins [a] ruoCKKlKK IN rOMM0N-I-A\V CAUSES. [Code Fed. [a] Direction of verdict. The point that evidence only justifies one verdict may be raised by de- murrer to evidence, by motion to exclude it from the jury and by motion to give peremptory instruction;i2 also by motion for nonsuit. is The right to ask a peremptory instruction or for direction of a verdict, or for an instruction that plaintiff's evidence is insufficient to warrant a verdict in his favor, was recognized in the Federal courts at a time when the right o.f involuntary non-suit was denied,!^ and is well settled.is The practice is so well established in the Federal courts that it is doubtful whether the absence of the remedy in the State courts would be deemed good ground under the conformity law, for denying its existence in the Federal court there sitting.16 Before the court can instruct the jury that one party is entitled to recover, it should be satisfied that there is nothing in the evi dence or any fact which the jury could lawfully infer therefrom, from which the jury could reach a contrary conclusion. i t The evidence with all inferences therefrom must be susceptible of but one conclusion,! 9 and if it is the court may direct verdict accordingly. 20 If there is any evidence from which a jury may conclude to the contrary verdict should not be directed. 2 If there is no conflict in the evidence it is proper for the court to instruct as to its legal effect. 3 If there is conflicting evidence and opposite verdicts might lawfully be reached thereunder it is improper to direct verdict, and the jury must determine its weight. •* It is often said that verdict should be directed if a contrary verdict would be set aside on motion 12 Louisville, etc. R. R. v. Woodson, 13 Sup. Ct. Rep. 950: Texas, etc. Ry. 134 U. S. ©21, 33 L. ed. 1032, 10 Sup. v. Cox. 145 U. S. 606, 36 L. ed. S29, Ct. Rep. 628. 12 Sup. Ct. Rep. 905 ; Lincoln v. Pow- isAnte. § 916 [c]. er, 151 U. S. 4,39, 38 L. ed. 224. 14 i4See Mercantile Ins. Co. v. Fol- Sup. Ct. Rep. 387: Woodward v. Chi- Fom. 18 Wall. 251. 2.52, 21 L. ed. 833. cago, etc. Ry. 145 Fed. 577 (C. C. A.) isBank of United States v. Car- 20Arthur v. Cumming, 91 U. S. neal. 2 Pet. 551, 17 L. ed. 513: Schu- 365, 23 L. ed. 438; Louisville, etc. chardt v. Allen. 1 Wall. 370, 371, 17 R. R. v. Woodson, 134 U. S. 621, 33 L. ed. 642: Macon Co. v. Shores. 97 L. ed. 1032. 10 Sup. Ct. Rep. 628: U. S. 278. 24 L. ed. 889; Arthur v. Bunt v. Sierra, etc. Min. Co. 138 V. Cumming,' 91 U. S. 365, 23 L. ed. 438; S. 485, 34 L. ed. 1031, 11 Sup. Ct. Mequire v. Corwine, 101 U. S. Ill, Rep. 464; Parks v. Ross, 11 How. 25 L. ed. 899; Bib v. Allen. 149 U. S. 373. 13 L. ed. 730. 493, 37 L. ed. 819, 13 Sup. Ct. Rep. 2Riehardson v. Boston, 19 How. 950: Marande v. Texas, etc. Ry. 184 268,269, 15L. ed. 639; Bank of Wash- U. S. 192, 46 L. ed. 487, 22 Sup. Ct. ington, v. Triplett. 1 Pet. 31. 7 L. Rep. 340. ed. 37: Humiston v. Wood. 124 U. leSee Sloss Iron Co. v. South C, S. 20, 31 L. ed. 354, 8 Sup. Ct. Rep. etc. R. R. 85 Fed. 138, 29 C. C. A. 347; Hadden v. Iselin. 142 U. S. 50. holding the Federal practice upon 679, 35 L. ed. 1155, 12 Sup. Ct. Rep. nonsuit and direction of verdict uni- 330. form regardless of State laws. sBevans v. United States. 13 Wall. iTEwing V. Burnet. 11 Pet. 50, 9 63. 20 L. ed. 531. L. ed. 624. -iWeightman v. Washington. 1 isMeguire v. Corwine, 101 U. S. Ill, Black. 49. 17 L. ed. 52; Manchester v. 25 L. ed. 899; Griggs v. Houston. 104 Erickson. 105 U. S. 349. 26 L. ed. U. S. 554. 26 L. ed. 840; Bibb v. 1099: Pennsylvania R. R. v. Green. Allen, 149' U. S. 493, 37 L. ed. 819, 140 U. S. 51, 35 L. ed. 339, 11 Sup. 866 Procedure] DIRECTION OF VERDICT. § 918 [b] for new trial; 5 even though there would have been a scintilla of evidence to support such contrary verdict. 6 It is not a deprivation of the consti- tutional right to jury trial." The direction of a verdict is also proper where the opening statement of counsel by admission shows facts which would legally preclude his recovery.9 Where each party requests a per- emptory instruction it is equivalent to a request that the court try the facts. 10 Where the court has oifered to submit the only question in the case which should properly have gone to the jury, and plaintiff insisted on a general submission, it has been held proper for the court to direct a verdict against plaintiff, n If plaintiff's evidence is legally insufficient to support a verdict in his favor the court may instruct for defendant. 12 So if it is legally sufficient and defendant offers no evidence, the court may instruct for plaintiff. is Refusal to direct a verdict is ground for excep- tion,! 4 and is assignable error is and improper direction of verdict or re- fusal thereof is reversable error. 16 [b] Waiver of error in granting or refusing motion. Where the party moving for a direction of verdict introduces evidence Ct. Rep. 650: White v. Van Horn. 346. 12 Sup. Ct. Rep. 581: Oscanvan 159 U. S. 12, 40 L. ed. 55, 15 Sup. Ct. v. Arms Co. 103 U. S. 263, 26 L.'ed. Rep. 1027: Bamberger v. Schoolfield, 539. 160 U. S. 157. 40 L. ed. 374. 16 Sup. loReutell v. Magone, 157 U. S. Ct. Rep. 225: United States v. Til- 157, 39 L. ed. 654, 15 Sup. Ct. Rep. lotson. 12 Wheat. 183, 6 L. ed. 594. 566. 5Herbert v. Butler, 97 U. S. 320. uToplitz v. Hedden, 146 U. S. 257, 24 L. ed. 958: Randall v. Baltimore. 258. 36 L. ed. 961, 13 Sup. Ct. Rep. etc. R. R. 109 r. S. 482. 27 L. ed. 70. 1003. 3 Sup. Ct. Rep. 322; Arthur v. i2Schuchardt v. Allen. 1 Wall. Jacoby, 103 V. S. 678. 26 L. ed. 454: 370. 371, 17 L. ed. 642; Stewart v. Phoenix, etc. Ins. Co. v. Doster. 106 Lansing, 104 U. S. 512. 26 L. ed. U. S. .32, 27 L. ed. 65, 1 Sup. Ct. Rep. Sfl6: Plea.sants v. Fant, 22 Wall. 122. 18; Haines v. :McLaughliu. 135 U. 22 L. ed. 780; Roundtree v. Smith. S. 598. 34 L. ed. 290. 10 Sup. Ct. 108 U. S. 277, 27 L. od. 722, 2 Sup. Rep. 876: Delaware, etc. R. R. v. Ct. Rep. 6.30; Mei-chants Bank v. Converse. 139 U. S. 472. 35 L. ed. State Bank, 10 Wall. 637. 19 L. ed. 213. 11 Sup. Cu Rep. .560; Treat 1008: Bavlis v. Travelers Ins. Co. 113 Mfg. Co. V. Standard S. Co. 1.57 U. i:. S. 320. 28 L. ed. 989. 5 Sup. Ct. S. 675. .39 ,L. ed. 8.53. 15 Sup. Ct. Rep. Rep. 494. 718; Patton v. Texas, etc. Rv. 17& isllendrick v. Lindsav. 93 U. S. I'. S. 659. 660. 45 L. ed. .363. 21 Sup. 147. 23 L. ed. 8.55. Ct. Rep. 275. i^Insurance Co. v. Folsom. IS Wnll. BHinchman v. Lincoln, 124 U. S. 2.50. 251. 21 L. ed. 827. 49. 31 L. ed. 337. 8 Sup. Ct. Rep. i^Hickman v. Jones, 9 Wall. 201. 369; Berbecker v. Robertson. 1.52 U. 19 L. ed. 515. S. 377. 38 L. ed. 484, 14 Sup. Ct. leRussell v. Post. 138 V. S. 426. Rep. 590. .34 L. ed. 1009, 11 Sup. Ct. Rep. 3.53: -Treat Mfg. Co. v. Standard S. Co. Torrent Co. v. Rodgers, 112 U. S. 669, 1.57 U. S. 675. 39 L. ed. 853. 15 Sup. 28 L. ed. 842. 5 Sup. Ct. Rep. .501 ; Ct. Rep. 718. United States v. Chi(l(>ster. 140 U. sLiverpool. etc. Co. v. Com'rs of S 49. 35 L. ed. 339, 11 Sup. Ct. Rep. Emig. 113 U. S. 37. 28 L. ed. 899. 6.50. 5 Sup. Ct. Rep. 352: Butler v. Na- tional Home, 144 U. S. 72, 36 L. ed. PR? § OlS [c] FROCEDURE IX COMMON-LAW CAUSES. [Code Fed. aftor tlie denial of his motion, this is a waiver of the error if any.i The party should renew his motion at the close of the testiniony.2 [cj Demurrer to evidence. Demurrer to evidence is a proceeding by which the court in which an action is pending is called upon to decide what the law is upon the facts shown in the evidence.'' It is a cumbrous ])roceeding requiring an elab- orate admission of the facts upon the record, 5 and a joining in demurrer,6 besides being discretionary with the court.'* As long ago as 1813 it was spoken of as rare,8 and in modern practice the motion to direct a verdict has taken its place.9 While it is available in Federal practice in those States where permitted by the local law,io it may be questioned whether its use would now be sanctioned in the absence of such local practice. § 919. Continuance, dismissal and nonsuit. The granting of continuances in common-law causes is part of the State practice to Avhich the Federal courts should conform "as near as may be" under E. S. § 914.^3 The only general Federal pro- vision on the subject, to which the requirement of conformity is .necessarily subordinate, is one granting continuance after death of a party. "^^^^^ The conformity requirement also applies to the matter of dismissal or nonsuit, subject, however, to a special Fed- eral provision respecting dismissal of a Federal case "at any time" for want of jurisdiction'^'^^"'^^^^'' Author's section. [a] Continuances. Since the conformity provided by R. S. § 914 is only "as near as may be,"i7 and not I'equired when calculated to impair or impede the adminis- tration of justice,! 8 the cases show no great attention to the provisions of iGrand Trunk Ry. v. Cumniing. eColumbia Ins. Co. v. Catlett, 12 lOG U. S. 701, 22 L.' ed. 266. 1 Sup. Wheat. 389, 6 L. ed. 664. Ct. Rep. 493; Hansen v. Bovd. 161 7 Young v. Black. 7 Cranch. 56S. r. S. 403, 40 L. ed. 746, 16 Sup. Ct. 3 L. ed. 440. Rep. 571; Robertson v. Perkins, 129 s Young v. Black, 7 Cranch, 568. 3 U. S. 236. 32 L. ed. 686. 9 Sup. Ct. L. ed. 440. See a modern instanne. Rep. 279; Wilson v. Halev L. S. Co. Vnn Stone v. Stilhvell, 142 U. S. 134. 153 U. S. 43, 38 L. ed. 627, 14 Sup. 35 L. ed. 961. 12 Sup. Ct. Rep. 181. Ct. Rep. 768. o Supra, note [a]. 2Union Pac. Ry. v. Callaghan. 161 loCentral Trust Co. v. Pullman Co. U. S. 95. 40 L. ed. 628. 16 Sup. Ct. 139 U. S. 24. 35 L. ed. 55, 11 Sup. Rep. 493. Ct. Rep. 478. 4Van Stone v. Stillwell, etc. Mfff. isAnte, § 900. Co. 142 U. S. 134. 35 L. ed. 961, 1 4 Ante, § 817. 12 Sup. Ct. Rep. 181. isAnte. ? SIS. sFowle V. Alexandria, 11 ^Mieat. ivAnte. 8 900 [d]. 320. 6 L. ed. 484. islndianapolis. etc. R. R. v. Horst. 93 r. S. 291, 23 L. ed. 898. 8G8 Procedure] CONTINUANCE, DISMISSAL AND NONSUIT. § 919 Lf] the State laws in the granting or refusal of continuances.is Moreover the matter of continuances is largely discretionary 20 and not assignable errors unless upon the showing of abuse of discretion.3 Loss of record of a form- er suit on which defendant relies ;•* and death of senior counsel in an im- portant ease 5 have been held good grounds for continuance. [b] Voluntary dismissal and discontinuance, or nonsuit. The State law governs as to the right of voluntary dismissal or discon- tinuance without prejudice, in the Federal courts, and as to the time when such dismissal may be taken. 8 The question whether such voluntary dis- missal or nonsuit, was a bar to further proceedings is governed by the State law. 9 [c] Involuntary nonsuit or dismissal. Early cases took the view that the Federal courts were without power to award nonsuit against the objection of plaintiff.12 This was upon the theory that the party could not thus be deprived of his right to a jury trial.13 But the contrary is now settled, and if the State law permits nonsuit where the facts with all inferences, would not sustain a verdict for plaintiff, the Federal court may do likewise, i* The similar remedies of motion to direct a verdict and of demurrer to evidence, are also available 19 See Texas, etc. R. R. v. Nelson, 50 Fed. 814, 1 C. C. A. 688, refusing continuance though a case was with- in the provisions of the State law. 2 0Hunter v. Fairfax. 3 Dall. 305. 1 L. ed. 613; Barrow v. Hill, 13 How. 56. 14 L. ed. 48: Dexter v. Kel- las. 113 Fed. 48. 2Woods V. Young. 4 Cranch, 238, 2 L. ed. 607 ; Sims \. Hundlev, 6 How. 6, 12 L. ed. 319; United States v. Rio Grande Dam Co. 184 U. S. 422, 46 L. ed. 621, 22 Sup. Ct. Rep. 428; Missouri, etc. Rv. v. Elliott, 102 Fed. 96. 42 C. C. A. 188. sGoldsbv v. United States. 160 U. S. 72. 40 L. ed. 343. 16 Sup. Ct. Rep. 216: Hardy v. United States, 186 U. S. 224, 46 L. ed. 1138, 22 Sup. Ct. Rep. 889; Isaacs v. United States, 159 U. S. 489, 40 L. ed. 229, 16 Sup. Ct. Rep. 51: Fidelity, etc. Co. v. Bucki Co. 189 U. S. "135, 47 L. ed. 745, 23 Sup. Ct. Rep. 582; Lyman v. Warner, 113 Fed. 87, 51 C. C. A. 73. ■iCrim V. Handlev. 94 U. S. 660. 24 L. ed. 21G. sHunter v. Fairfax, 3 Dall. 305, 1 L. ed. 613: Rhode Island v. .Massa- chusetts, 11 Pet. 228, 9 L. ed. 697. sGassman v. Jarvis, 94 Fed. 603. See Wolcott v. Studebaker, 34 Fed. 13: Xussbaum v. Northern I. Co. 40 Fed. 337. As to nol. pros, against one of several defendants see: Barton v. Petit. 7 Cranch. 202, 3 L. ed. 313: United States v. Leffler. 11 Pet. 98, ft L. ed. 642: Amis v. Smith, 16 Pet. 311, 10 L. ed. 973: United States v. Linn. 1 How. 107. 11 L. ed. 64. sUnited States v. Parker, 120 U. S. 95, 30 L. ed. 604, 5 Sup. Ct. Rep. 454. In general it is not a bar. See Amis V. Smith. 16 Pet. 310, 10 L. ed. 973; Minor v. Mechanics Bank, 1 Pet. 74, 7 L. ed. 47 : Haldeman v. United States. 91 U. S. 586, 23 L. ed. 433: United States v. Parker, 120 U. S. 95, 30 L. ed. 607, 7 Sup. Ct. Rep. 454. i2El.more v. Grymes, 1 Pet. 469, 7 L. ed. 226; De Wolf v. Raband. I Pet. 476. 7 L. ed 227 : Crane v. Morris, 6 Pet. 609. 8 L. ed. 514; Silsbv v. Foote, 14 How. 222, 14 L. ed. 394; Castle V. Bullard. 23 How. 183, 16 L. ed. 424: Seliuchardt v. Aliens, 1 Wall. 369. 17 L. ed. 642: Ins. Co. v. Folsom, 18 Wall. 250, 21 L. ed. 827. isElmore v. Grymes, 1 Pet. 469, 7 L. ed. 226. i4Central T. Co. v. Pullmans P. C. Co. 139 U. S. 39, 40, 35 L. ed. 55, 1 1 Sup. Ct. Rep. 478 : Meehan v. Val- 869 § 920 PROOEDUUK IN COMMON-LAW CAUSES. [Code Fed. in the Federal courts. 1 5 The right of plaintiff to take a voluntary nonsuit has always been conceded.ie The procedure on motion for nonsuit or dis- irissal is usually prescribed by rule of court in the different circuits and districts. § 920. Instructions and verdict. Tlie Federal courts are not bound by State laws respecting the mode of giving instructions;, but follow their own practice in that respect ;t^^"™ nor do they hold themselves to any strict conformity in the matter of verdicts. "^"^^ The matter of amendment of verdicts is governed by the Federal statute as to amendments.^^ Author's section. [aj Instructions. As already stated the conformity requirements of E.. S. § 914 are not applied to the personal conduct and administration of the judge; and hence not to the mode of giving instructions.3 State laws requiring instructions to be in writing,* and to be taken to the jury room,5 and forbidding com- ment by the judge upon the facts, 6 are not binding in the Federal courts. Where instructions are excepted to as a whole, the exceptions will not be sustained if a portion of the instructions are correct.7 [bj Instructions where jury waived. In some cases where jury was waived, the practice of requesting the court to give instructions to itself and of excepting to instructions given or refused, has been followed. 8 But the preponderance of authority is against entine. 14.5 U. S. 618, .36 L. ed. 839, Ct. Rep. 1; St. Louis, etc. R. R. v. 12 Sup. Ct. Rep. 973: Coughran v. Vickers. 122 U. S. 363, 30 L. ed. 1161, Bigplow. 164 U. S. 308. 41 L. ed. 7 Sup. Ct. Rep. 1210: Lincoln v. 446. 17 Sup. Ct. Rep. 119; Peoples' Power. 1.51 U. S. 442. 38 L. ed. 227, Bank v. Aetna Ins. Co. 74 Fed. 511, 14 Sup. Ct. Rep. 387: Hankin v. 512. 20 C. C. A. 630; Sloss Iron Co. Squires, 5 Biss. 186, Fed. Cas. No. V. South, etc. R. R. 85 Fed. 133, 29 6,025; Hathaway v. East Tennessee C. C. A. 50. R. R. 29 Fed. 489; Somers v. Carbon inSee ante, § 917. H. Co. 91 Fed. 337; United States isChicago. etc. R. R. v. Metalstaff, v. Train, 12 Fed. 853. 101 Fed. 769. 41 C. C. A. 669. TLindblom v. Fallett, 145 Fed. 805, 2 Ante. § 817. (C. C. A. ). 3Ante. § 900 [e] : Liverpool, etc. sSee Norris v. Jackson, 9 Wall. Co. V. Fredeman, 133 Fed. 716, 66 128. 19 L. ed. 608; Insurance Co. v. C. C. A. 543. Sea, 21 Wall. 160. 22 L. ed. 512; Nat. 4Lincoln v. Power, 151 U. S. 442, Bank v. First JSiat. Bank. 61 Fed. 38 L. ed. 227. 14 Sup. Ct. Rep. .387. 810, 10 C. C. A. 87; Mercantile Co. 5Xudd v. Burrows. 91 U. S. 441. v. Wood, 60 Fed. 348, 8 C. C. A. 658; 23 L. ed. 290: Western U. T. Co. v. llumplirevs v. Third Nat. Bank, 75 Biirgoss. 108 Fed. 32, 47 C. C. A. Fed. 852,' 21 C. C. A. 538: St. Louis 168: Moxioiin C. Rv. v. Glover, 107 v. Western l^nion Tel. Co. 148 U. S. Fed. :^.i7. 46 C. C. A. 334. 96, 37 L. ed. 382, 13 Sup. Ct. Rep. fiVicksburg. etc. R. R. v. Putnam, 485. lis r. S. .5.53, 30 L. ed. 258, 7 Sup. 870 Procodure] JUDGMENT AND COSTS. § ^21 such practice; 9 and a State law requiring the judge to charge himself is not binding. 10 [c] Verdicts. A State law reqviiring the jury under certain circumstances to make a special verdict or special findings is not binding in the Federal court. 12 But as respects the form and effect of verdictsis and the sufficiency of one good count to sustain a verdict, I'l the Federal courts will in general is be bound by the State practice. So a State statute as to remittitur of part of verdict has been followed. is § 921. Judgment and costs. There are specific Federal statutory provisions respecting the indexing of judgments, their lien and interest thereon.^'^ State provisions respecting the signing and entry of judgments and their form will generally be followed by virtue of the requirement of con- formity to State practice in R. S. § 914;f^3i and State proceedings for the vacating of a judgment rendered are also available and justify the granting of similar relief in the Federal courts.'^*'] The matter of costs is governed almost exclusively by Federal statutes. '^•'^ Author's section. ^'Spc Insurance Co. v. Folsom, 18 69 Fed. 302. 16 C. C. A. 232: Dwver Wall. 253, 21 L. ed. 834: Cooper v. v. St. Louis, etc. R. R. 52 Fed. 87; Oniohundro, 19 Wall. 68, 69, 22 L. Times P. Co. v. Carlisle. 94 Fed. 771. ed. 48: St. Louis v. Western Union 36 C. C. A. 475. Tel. Co. 166 U. S. 390, 391. 41 L. ed. isClenn v. Sumner, 132 V. S. 156, 1044. 17 Sup. Ct. Rep. 608; Stanley 33 L. ed. 301, 10 Sup. Ct. Rep. 41: v. Supervisors, 121 U. S. 547, 30 L. Fitzpa trick v. Flanagan. 106 U. S. ed. 1003, 7 Sup. Ct. Rep. 1234; St. 660, 27 L. ed. 215, 1 Sup. Ct. Rep. Louis v. Rutz. 138 U. S. 226, 34 L. ed. 369; Mexican X. R. R. v. Slater. 115 941. 11 Sup. Ct. Rep. 337; Runkle v. Fed. 593, 53 C. C. A. 239. Burnham. 153 U. S. 224, 225, 38 L. ed. i4Bond v. Dustin, 112 U. S. 608, 698. 14 Sup. Ct. Rep. 837; Jennisons 609. 28 L, ed. 835. 5 Sup. Ct. Rep. V. Leonard. 21 Wall. 302, 22 L. ed. 296; Santa Anna v. Frank, 113 U. 539: Dickinson v. Planter's Bank. 16 S. 340, 28 L. ed. 979, 5 Sup. Ct. Rep. Wall. 250, 21 L. ed. 278; Consolidat- 537: Hopkins v. Crr. 124 U. S. 514, ed Coal Co. v. Polar W. Co. 106 Fed. 31 L. ed. 525, 8 Sup, Ct. Rep. 591. 799, 45 C. C. A. 638: Cnited States i^See Abbott v. Curtis, 25 Fed. 402, v. Indian G. Dist. 85 Fed. 9.30. 29 C. refusing to be bound as to form of C. A. 578; Searcy Co. v. Thompson, verdict in suit involving counter- 66 Fed. 92. 13 C. C. A. 349; Distilling claims. Under early conformity laws Co. V. fJottschalk, 66 Fed. (i09, 610, Ihe State practice respecting form of 13 C. C. 618; Kev West v. Baer, 66 verdicts was not controlling: Long Fed. 443. 444, 13 C. C. A. 572. v. Palmer. 16 Pet. 70, 10 I., ed. 888: 1 "United States v. Indian G. Dist. Parks v. 'i'urner. 12 How. 43, 44, 13 85 Fed. 9:W. 29 C. C. A. 578. 1- ed. 883. 12 Indianapolis, etc. Rv. v. Horst, is Alabama, etc. Co. v. Nicliols, 109 93 U. S. 300. 23 L. ed. 901 ; United U. S. 234, 27 L. ed. 915, 3 Sup. Ct. States Mut. A.sso. v. Barry, 131 U. S. Rep. 120. 119, 33 L. ed. 66, 9 SuJd. Ct. Rep. 2oPost, §§ 1860-1864, 1859. 755; McElwee v. Metropolitan L. Co. lAnte, § 900. 871 § 0-21 laj I'KOCEDURE I^" COMMON-LAW CAUSES. [Code Fed- [a.l Judgments. The Louisiana rule tliat an unsigned judgment is not linal and cannot be enforced applies to Federal judgments in that State. 3 So the Arkansas rule permitting judgment ex contractu against one of several defendants has been declared the rule of practice in the Federal courts there sitting.* Where the question whether judgment is a bar involves a matter of the effect of pleadings or some matter of practice such as the dismissal of a cause, the State law will be followed. 5 The State practice respecting the entry and recording of judgments has been followed where requiring entry of judgments by the clerk in a record book, 6 as to entry of judgment without formal application to the court; 6% and where permitting only judgment for cdsts on dismissal of a replevin suit.'? [b] Vacating and setting aside. ]Most of the States provide summary proceedings for the vacat- ing or setting aside of judgments when there has been a want of proper service of process or other similar defect. So far as these laws apply to common-law causess and to such a proceeding taken at the term when judgment was entered or the cause pending, they are followed by the Federal courts. lo But a difl'erent question is presented where an application to vacate or set aside a judgment at law, is made after the term, — in reliance upon a State statute so providing. It is a general rule of the Federal courts that the trial court loses all control over « judgment at the end of a term;ii and the Supreme Court has declared t'liat this is a jurisdictional defect of power in the Federal courts which can- not be supplied by the operation of the conformity clause adopting State [iractice for common law causes. 12 Hence State laws cannot justify the Federal courts at law in vacating a judgment after the term, for errors in the computations of a referee; is or errors of law upon which the judg- ment was based.i'i Nor can they justify the Federal courts in permitting :'»Yznaga del Valle v. Harrison. 93 tion in Federal equity cases: Austin r. S. 233, 23 L. ed. 892. v. Rilev, 55 Fed. 835. ^Sawin v. Kenny, 93 U. S. 290, 23 nBronson v. Schulten, 104 U. S. L. ed. 926. " 417, 26 L. ed. 797. So new trial may 5See Witters v. Sowles, 34 Fed. not be applied for at an ensuing 119, United States v. Parker. 120 U. term. See post, § 923 [e]. See also S. 96, 30 L. ed. (iOf). 7 Sup. Ct. Rep. Hickman v. Fort Scott, 141 U. S.415, 4.54. 35 L. ed. 775, 12 Sup. Ct. Rep. 9; sMorrison v. Bernards. Twp. 35 McMicken v. Perin, 18 How. 507, 511, Fed. 400. 15 L. ed. 506: United States v. Wal- 6i/;Fourth National Bank v. Xev- lace, 46 Fed. 570; Campbell v. James, hardt, 13 Blatchf. 393, Fed. Cas. No. 31 Fed. 526: ^^lorgans, etc. S. S. Co. 4,991. V. Texas, eic. Rv. 32 Fed. 530; King TLapp v. Ritter. 88 Fed. 108. v. Davis, 137 Fed. 227. 9See as to opening default judg- isBronson v. Schulten, 104 U. S. ments: Detmold v. Gate V. C. Co. 3 417. 26 L. ed. 797. W. N. C. .567. Fed. Cas. No. 3,830; isBronson v. Schulten, 104 U. S. Brown v. Philadelphia, etc. R. R. 9 417. 26 B. ed. 707. Fed. 183: Republican Ins. Co. v. Wil- i4Pl)illips v. Negley, 117 U. S. 665, Hams, 3 Biss. 370, Fed. Cas. No. 11.- 29 L. ed. 1014, 6 Sup. Ot. Rep. 901; 707. Klever v. Seawall, 65 Fed. 378. 12 loThe State practice has no opera- C. C. A. 653. 872 Procedure] TAKING OF OBJECTIONS AND EXCEPTIONS. § 921: material ainendments after the term.is It would seem that State laws as to the vacating a default after the terra, would be equally inapplicable; but a recent case in the circuit court of appeals refused equitable relief against a default judgment upon the very ground that a State statute permitting application for new trial after the term was available and afforded an adequate remedy at law.is The cases seem to concede that Federal courts of law have power over a judgment at a subsequent term, in the limited class of cases where writ of error coram nobis was available at common law to correct certain errors of fact, e. g. that one of the parties to the judgment had died before it was rendered, or was an infant unrei)resented by guardian, or was feme covert; or error in the process through the fault of the clerk. it The ques- tion of the availability of State remedies for vacating a judgment at law after the term — must not be confused with the question of the power of Fedoial courts of equity over their decrees at a subsequent term ; i s nor yet with the question of the right to apply to a Federal court of equity for relief against a Federal or State judgment at law.is [c] Costs. Early statutes left the costs to be regulated by State laws. 2 But R. S. §§ 823 and 9S33 are general Federal statutes tipon the subject which must be followed to the exclusion of the State practice.* There is now a Fed- eral law respecting costs in suits in forma pauperis.5 Certainly the con- formity requirements of R. S. § 914 were not intended as a consent to the imposition of costs against the government. 6 However, the State law as to costs in special statutory proceedings has been followed.7 So a State law requiring security for costs fx-om a nonresident plaintiff, has been en- forced, s § 922. The taking of objections and exceptions. The State practice respecting appeal and the preservation and i5Phillips V. Negley, 117 U. S. Roach, 2 Woodb. & M. 63, Fed. Cas. 6G5, 29 L. ed. 1014, f>'Sup. Ct. Rep. No. 6,21.3. 901 : Hickman v. Fort Scott. 141 U. 3 Ante. § 70.5, post § 1839. S. 415, 12 Sup. Ct. Rep. 9, .35 L. ed. ^United States v. Treadwell, 1.5 776. Fed. 532; O'Neil v. Kansas City, 31 i6Travelers Pro. Asso. v. Oill)ert. Fed. 664; Chadboume v. Gorman-A. Ill Fed. 276. 49 C. C. A. 309. 55 fns- Co. 31 Fed. 625; Richter v. L.R.A. 538. Magone. 47 Fed. 192. ,..0 T, o 1 li in< T- sSee post, § 1823. As to effect of i^See Bronson v. Rchulten. 104 u. oj . i • ti, i. c 41- on T ^A -a- r)v ;ii;^ ,. State laws previous thereto see: b. 4u, 2d Jj. ed. r.)i : Jr'hilhp v. -r, .^ , -n tc t n ^^^■ ^ ,/^ ' Bradford v. Bradford, 2 Fhpp, 280, Heckman Negley, HJ XL S. 6U5 29 L. ed. 1015, ^^r C^. Na U66 6 Sup. Ct. Rep 901: Hickman V. , 3^ ^^^ ^-^ Fort Scott, 141 US. 41. >. 3d L. ed. gearlisle v. Cooper, 64 Fed. 475, 775, 12 Sup. Ct. Rep. 9. and cases lo c C \ ^^35 cited United States v. Wallace, 46 Tm„u;e;s"v." Epson, 15 Fed. 732; *^^-^'"- Morrison v. Bernards Tp. 35 Fed. isSee post, §§ 1094, 1099. 40O : New H. L. Co. v. Tilton, 29 Fed. 19 See ante, § 19. 764. 2Ethridge v. Jackson. 2 Sawy. 598, ^Henning v. Western U. T. Co. 40 Fed. Cas. No. 4,541; Hathawav v. Fed. 658. 873 S 9i'2 la] TROCEDURE IX COMMOX-LAW CAUSES. [Code I'tU. resiTvation in the trial court of the right of review is not adopted for the Federal courts by the conformity Tequirements of E. S. § !»14.'- The parties must make their objections and take their ex- ee])tions according to rules of Federal practice, which are uniform throughout the United States. The objections and exceptions must be timely f^^ and they must be specific. '^^^'■^'^^ The form and contents of the bill of exceptions are elsewhere considered. ^^ Author's section. [aj Necessity of timely objections and exceptions. In the matter of objections to evidence, the general rule is that a party should object to the question, and that he will not be permitted to take clianees of a favorable answer and if unfavorable then move to strike it out. 14 Objections to the sufticiency of copies of documents annexed to depositions should be raised by motion to suppress them before trial.is If no objection is taken to evidence when offered objection afterwards made will not be entertained. 1 6 And if evidence is admitted upon promise of sliowing its I'elevancy, an objection must be renewed after the party offer- ing it has failed therein. i" As respects objections to other rulings the rule is strict that they must be taken during the trial and before verdict or they will not be considered on appeal. is An objection first taken in the bill of exceptions is futile.i^ Objections to the giving or refusal of in- structions must be taken before the jury retires. 20 It is too late to ob- ject after the jury retires,i or the day after verdict,2 or on motion for new isAnte, § 900[d]. 120. 20 L. ed. 58: Thiede v. Utah. 159 isPost, § 1932. U. S. 511, 40 L. ed. 238, 16 Sup. Ot. i4Benson v. United States. 146 U. Rep. 62; Tnisman v. F. R. Patch Co. 8. 332. .333, 36 L. ed. 994, 13 Sup. Ct. 101 Fed. 373, 41 C. C. A. 388. Rep. 60: Farmers & T. Bank v. 1 9 St. Louis Ry. v. Spencer. 71 Fed. Greene. 74 Fed. 439, 20 C. C. A. 500: 93. 18 C. C. A. 114; United States v. see Kelsey v. Hobby, 16 Pet. 277, 10 Carey, 110 U. S. 51, 28 L. ed. 67, 3 L. ed. 961. However, motion to ex- Sup. Ct. Rep. 424. elude or strike out is sometimes suffi- solmpixavement Co. v. Munson, 14 cient: Lucas v. United States. 163 U. Wall. 449, 20 L. ed. 872; United States S. 617, 41 L. ed. 282, 16 Sup. Ct. Rep. v. Breitling, 20 How. 254. 15 L. ed. 1168. 902: Hickory v. United States. 151 i5lnsurance Co. of North America U. S. 316. 38 L. ed. 177, 14 Sup. Ct. v. fiuardiola. 129 U. S. 643. 32 L. ed. Rep. 334: Com. Trav. Assn. v. Ful- 802. 9 Sup. Ct. Rep. 425. ton. 79 Fed. 423, 24 C. C. A. 654; isPatrick v. Graliam, 132 U. S. 627, Sternenberg v. Mailhos, 99 Fed. 40, 33 L. ed. 460, 10 Sup. Ct. Rep. 194; 3i> C. C. A. 408. San Pedro Co. v. United States, 146 iPark v. Bushnell. 60 Fed. 585, 9 U. S. 136, 36 L. ed. 911, 13 Sup. Ct, Rep. 94. IT Central R. R. v. Soper, 59 Fed 879. 8 C. C. A. 341. 18 Railway Co. v. Heck, 102 U. S. 874 C. C. A. 138: Bracken v. LTnion Pac. R. R. 56 Fed. 450, 5 C. C. A. 548. 2Phelps V. Mayer, 15 How. 160, 14 L. ed. 643. Procedure] TAKING OF OBJECTIONS AND EXCEPTIONS. § 922 [b] trial.3 The absence of counsel is no excuse.^ No rule of practice of a lower court can validate exc,eptions after close of trial.5 The record on appeal must affirmatively show that objection was timely, « but where a bill of exceptions recites that it was signed during the term and purports to state what happened at the trial, it will be assumed that exception was taken at the trial, unless the contrary is disclosed by the language. 7 [b] Necessity of specific objections to evidence. Objections to evidence must be specific, not merely vague and general, lo The precise point on which a ruling is asked should be apparent there- from; n and the party should specify the precise part of the evidence ob- jected to, since if the objection covers any admissible evidence it is proper- ly overruled.i2 An objection that evidence is incompetent irrelevant and immaterial is too general if in any possible circumstances it could be con- sidered relevant material or competent. 12 So an objection has been deemed bad that evidence is "immaterial and improper."i* Objection to the ad- mission in evidence of a copy of a letter not specifying the grounds there- for, is unavailing. 15 The specified objection is a waiver of all others. is On appeal the party is confined to the objection taken.iT If he has taken no exception there is no question for review.is An objection is of no avail unless it is followed by an exception to the ruling thereon.20 sLewis V. United States, 146 U. S. 379, .36 L. ed. 1011. 13 Sup. Ct. Rep. 1.36. ■» Stewart v. Wvoming, etc. Co. 128 V. S. 390, 32 L."ed. 442, 9 Sup. Ct. Rep. 101 : but see Merchants' Ex. Bank v. McGraw, 76 Fed. 936, 22 C. C. A. 622. ^Johnson v. Carber, 73 Fed. .523, 19 C. C. A. 5.56; and see Price v. Pankhurst, 53 Fed, 313. 3 C. C. A. 551. ernited States v. Carev. 110 U. S. 51, 28 L. ed, 67. 3 Sup, Ct. Rep. 424; Yates V. United States. 90 Fed. 02, 32 C. C. A. .507: Stone v. United States, 64 Fed, 677, 12 C. C. A. 451 ; Hutchins V, King, 1 Wall. 60, 17 L, ed. 544. "New Orleans, etc. R. R. v. Jopes, 142 U. S. 22, 2.3, 35 L. ed. 922, 12 Sup Ct. Rep. 109; see French v. Edwards 13 Wall. 516, 20 L. ed. 705. lOCamden v. Doremus, 3 How. 530. 11 L. od. 705: Stebbins v. Duncan, lOS U. S. 40, 27 L. cd. 641. 2 Sup. Ct Rep. 313. iiSparf V. United States. 156 U. S 57, 39 L. ed, 343, 15 Sup. Ct. Rep 273. i2]Moore v. Bank of Metropolis, 13 Pet. 310. 10 L. ed. 172; United States v. McMasters, 4 Wall. 682, 18 L. ed .311. isSparf V. United States. 156 U. S 57. 39 L. ed. 343. 15 Sup. Ct. Rep 273 : Ogden City v. Weaver, 108 Fed 565. 47 C. C. A. 485. i4Mine & S. Co. v. Parke Co. 107 Fed. 884, 47 C. C. A. 34. But com- pare Wood V. Weimar. 104 U. S. 795, 26 L. ed. 782. isToplitz V. Hedden. 146 U. S. 255, .36 L. ed. 961, 13 Sup. Ct. Rep. 70. ifiHinde v. Longworth, 11 Wlieat, 199, 6 L. ed. 454; Evanston v. Gimn, 99 U. S. 665, 25 L, ed, .306; Belk v. Meagher, 104 U. S. 289. 26 L. ed. 735. IT Burton v. Driggs, 20 ^^■all. 1,33, 22 L, ed. 299. isStoddard v. Chambers, 2 How. 31.5, 310, 11 L. ed. 269: Schuchardt v. Aliens, 1 Wall. .367, 17 L. ed. 642. 2 0Xpwport X. Co. v. Pace. 158 U. S. 37, 39 L. ed. 887, 15 Sup. Ct. Rep. 743; .nited States v. Breitling, 20 How. 254, 15 L, ed, 902, 875 § 922 [c] I'liOCEDUKE I^' COMMON-LAW CAUSES. [Code Fed. [cj Necessity for specific objection to instructions given or refused. Rules of the Supreme Court and of the circuit courts of appeals provide that "the party excepting shall be required to state distinctly the several matters of law" in a court's charge to which he excepts; and direct the lower court to insert in the bill of exceptions "those matters of law and those only."2 The lower courts have no power to waive or modify these requirements. 3 The rule is that a general exception to a charge is un- availing4 if any portion of the charge is correct.^ The whole must be sub- stantially wrong before a general exception will avail for any purpose. 6 If some instructions are unobjectionable, the others must be pointed out specifically." An exception to all and to each part "of a charge is too general ;"8 so also is objection to the "theory announced throughout the instruction ;"9 or any objection that the court did not give eighteen special charges in the specific language requested; lo or an objection that the court erred in charging of its own motion in lieu of giving the instructions prayed; 11 or an objection to such portions of the charge as vary from certain requests made.i2 The part excepted to must be distinctly pointed out.13 If the part of a charge in which occurs the eiToneous proposition of law stands by itself, unembarrassed by an admixture of fact or the 1)1 ending of other points of law an exception can be taken thereto by quot- ing it.i4 But in other cases this is not strictly sufficient because, by the rules above quoted, the exception must go to the alleged false statement of law, and not the charge. Hence it is then necessary to specify the alleged false proposition of law and refer also to the part of the charge containing it.is The proper form of objection has been suggested to be 2See post, § 1933. 157 U. S. 86, 39 L. ed. 624. 15 Sup sPrice v. Pankhurst, 53 Fed. 313, Ct. Rep. 491. 3 C. C. A. 551; and see Johnston v. sBlock v. Darling, 140 U. S. 238. (iarber, 73 Fed. 523. 19 C. C. A. 556. 35' L. ed. 476. 11 Sup. Ct. Rep. 832; 4Becki\vith v. Bean. 98 U. S. 284, Masonic Assn. v. Lvman. 60 Fed. 498, 25 L. ed. 131: Railroad Co. v. Var 23 L.R.A. 517, 9 C. C. A. 104; Price nell, 98 U. S. 479, 25 L. ed. 233; v. Parkhurst, 53 Fed. 312, 3 C. C. A. Mobile Co. v. Jurev, 111 U. S. 596. 551; Western, etc. Co. v. Polk, 104 28 L. ed. 532. 4 Sup. Ct. Rep. 566 ; Fed. 650. 44 C. C. A. 104. Jones v. East Tenn. R. R. 157 U. S ^Bogk v. Qassert, 149 U. S. 26, 37 682. 39 L. ed. 858, 15 Sup. Ct. Rep. L. ed. 631. 13 Sup. Ct. Rep. 738. 719; Baggs v. Martin, 108 Fed. 33. loChateaugav Ore Co. v. Blake. 47 C. C. A. 175. 144 U. S. 488, 36 L. ed. 510, 12 Sup. S.Johnston v. Jones, 1 Black. 220, Ct. Rep. 731. 17 L. ed. 119: Rogers v. Marshal, 1 uLucas v. Brooks, IS Wall. 456. 21 Wall. 654. 17 L. ed. 717: Beaver v. L. ed. 779. Taylor. 93 U. S. 54, 23 L. ed. 798; laBeaver v. Taylor, 93 U. S. 55, 23 Cooper V. Schlesinger, 111 U. S. 151. L. ed. 797. 152. 28 L. ed. 382. 4 Sup. Ct. Rep. isRailroad Co. v. Varnell. 98 V. 360; ITnion Pac. Rv. Co. v. Callaghen, S. 485, 25 L. ed. 233. 101 U. S. 95, 40 L. ed. 630. 16 S>ip. i^Felton v. Newport, 92 Fed. 474, Ct. Rep. 493:' Cass Co. v. Gibson, 107 34 C. C. A. 470; Columbus Co. v. Fed. 366, 46 C. C. A. 341. Crane Co. 98 Fed. 951, 40 C. C. A. 35. eAnthonv v. Louisville R. R. 13-.' i ".Columbus Co. v. Crane Co. 101 U. S. 173, 33 L. ed. 301, 302, 10 Sup. Fed. 56. 41 C. C. A. 189; Stewart v. Ct. Rep. 53. .Morris, 96 Fed. 703, 37 C. C. A. 562. "Baltimore, etc. R. R. v. Mackey. 876 I rio'jedure] POWER TO GRAXT NEW TRIAL. § 023 [a] that "the plaintifl' [or defendant] except to the ruling that [stating a single proposition or matter of law] as shown by the following portion of the charge [setting it out]. "is The form of bill of exceptions is considered elsewhere.i'^ § 923. Power to grant new trial in jury cases. All of the said courts shall luive 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. R. S. § 72G, U. S. Comp. Stat. 1901, p. 584. [a] History and scope of the section. The foregoing provision was originally § 17 of the judiciary act of 1789.1 It is to be read in connection, and is contemporaneous 2 with that part of the seventh amendment declaring that '"no fact tried by a jury shall be otherwise re-examinable in any court of the United States than according to the rules of the common law.""- The authority to grant new trials on established common-law grounds, conferred by R. S. § 726, was undoubted- ly intended to confer a right to re-examine "according to the rules of the common law" within the seventh amendment. This adherence to com- mon-law rules, however refers to essentials and not to subordinate mat- ters of procedure. Thus, application for new trial is now permissible after entry of judgment, although at common law it was required to be before judgment.4 It is furthermore well settled tliat a State statute giving an absolute right of new trial in ejectment cases should be followed by the Federal courts as a rule of property, although in other respects the Federal courts are not required to conform to the State practice, forms and modes of proceeding on motions for new trial.5 There is no law or rule prevent- ing the granting of a second new trial after a second trial; 6 though it haa been doubted whether a rehearing may properly be granted of an order granting or refusing a new trial." The rules guiding the court on motion for new trials are substantially different from the rules governing review on appeal. Thus new trial will be refused if on the whole, sub- stantial justice has been done, notwithstanding mistakes at the trial; while on error, with bill of exceptions, the instructions of the court must stand or fall upon their own intrinsic soundness in law.s So an error of law unexcepted to can be made the ground of motion for new trial though it would not be reviewable on error; n and failure to give an instruction isColumbus Co. v. Crane Co. 101 eParker v. Le^^^s. Hempst. 72, Fed. Fed. 56. 41 C. C. A. 189. Cas. Xo. 10.741a. I'Post. § 1932. TLaird v. Dp Soto. 23 Fed. 780. lAct Sept. 24, 1789, c. 20, 1 Stat. sMcLanahan v. Universal Ins. Co. 83. 1 Pet. 183, 7 L. ed. 105: Rowe v. 2See ante, § 912, note. Matthews, 18 Fed. i:'3. 3See post, § 2081. sRailway Co. v. Heck, 102 U. S. 4 Arnold v. Jones, Bee, 104. Fed. 120. 20 L.' ed. 58; United States v. Cas. Xo. 559: compare § 924. Soufert, 78 Fed. 520: Post v. Wise, 5See ante, § 900[d]. 101 Fed. 205. 877 § 923 [b] PliOCEDLUE IN COMMON-LAW CAUSES. [Code Fed. although not asked may be ground of new trial where the omission re- sulted in a clear failure of justice.io [b] Reasons for new trial — in general. This conduct of the jury is a proper ground of new trial.i* So mis- conduct of counsel or of a party calculated to influence the jury improperly is ground for the motion. 1 5 Error of law occurring at the trial is also ground,i6 provided it materially affected the result.i^ Federal courts have also granted new trial where the illness or incapacity of the judge resulted in a failure to have a bill of exceptions settled, and the opposite party would not agree to the supplying of the omission.is Newly discovered evidence is ground for new triali^ and sometimes surprise.20 [c] — excessive damages. The award of excessive damages in a verdict is good ground for granting of a new trial. 3 In fact that is the proper remedy ;4 there is no right to allege error therein without application having first been made. 5 An ex- cessive verdict in a case where there is an exact measure of damages should be sought on the ground of insufliciency of evidence rather than upon this ground. This ground is properly available where there is no definite measure of damages. The damages must be "palpably excessive ;"6 such as to satisfy the court that the verdict was "perverse, or the result of gross error, or that the jury have acted under the influence of undue motion or misconception ;"t or "so excessive or outrageous. ... as to demonstrate that the jury have acted against the rules of law, or have suffered their passions, their prejudices or their perverse disregard of loCalbreath v. Gracy. 1 Wash. C. 20 Atchison, etc. R. R. v. Howard, C. 219, Fed. Cas. No. 2",29G. 49 Fed. 2,07, 1 C. C. A. 229. i4United States v. Reid, 12 How. 3Chesapeake, etc. Co. v. Knapp, 9 366, 13 L. ed. 1023; Mattox v. United Pet. 570, 9 L. ed. 222; Arkansas C. States, 146 U. S. 150, 36 L. ed. 917, Co. v. Mann, 130 U. S. 75. 32 L. ed. 13 Sup. Ct. Rep. 50; United States 854, 9 Sup. Ct. Rep. 458; Baltimore, V. Five Cases, etc. 2 N. Y. Leg. Obs. etc. R. R. v. Fifth B. C. 137 U. S. 84. Fed. Cas. No. 15.110. 576, 34 L. ed. 784, 11 Sup. Ct. Rep. i^Baggs V. Martin, 108 Fed. 33, 47 185; Lincoln v. Power 151 U. S. 436, C. C. A. 175; Preston v. Mutual L. 38 L. ed. 224, 14 Sup. Ct. Rep. .387. I. Co. 71 Fed. 467. ^Chesapeake, etc. Co. v. Knapp, 9 leThompson v. Bowie, 4 Wall. 472, Pet. 570, 9 L. ed. 222; Arkansas C. 18 L. ed. 423: Rochell v. Phillips, Co. v. Mann. 130 U. S. 75, 32 L. ed. Hempst. 22, Fed. Cas. No. 11,974a. 854, 9 Sup. Ct. Rep. 458. iTLucas V. Brooks, IS Wall. 454, sLincoln v. Power. 151 U. S. 436, 21 L. ed. 779; Rowe v. Mathews. 18 38 L. ed. 224, 14 Sup. Ct. Rep. 387; Fed. 133. Wabash Ry. v. McDaniels, 107 U. isSee Hume v. Bowie. 148 U. S. S. 456, 27 L. ed. 607, 2 Sup. Ct. Rep. 253, 37 L. ed. 438, 13 Sup. Ct. Rep. 932. ;>82. where there was a rule of court 6 White v. Arleth, 1 Bond. 310, to that effect; Manning v German Fed. Cas. No. 17,536. Ins. Co. 107 Fed. .54. 46 C. C. A. 144 -Wightman v. Providence, 1 Cliff. 19 See Board of Comrs. v. Keene 524, Fed. Cas. No. 17,630. Bank, 108 Fed. 516, 47 C. C. A. 464; Ex parte Fuller. 182 U. S. 562, 45 L. ed. 12.30. 21 Sup. Ct. Rep. 871. 878 i I'rocedui-e] POWER TO GRANT NEW TRIAL. § 92:: le] justice to mislead tliem."s If a verdict is so excessive as to show passion and prejudice the granting of a new trial rather than remission of excess is the remedy. 9 But in ordinary cases of excessive verdict the court will make a remission of the excess a condition of the denial of a new trial ;io and a consent to such remission hinds the prevailing party. n [d] — insufBciency of evidence or verdict against weight of evidence. If the evidence is insufficient to support a verdict, the court should award a new trial; is and if a jury's verdict is against the weight of evidence, motion for new trial is the proper remedy.i4 But the evidence must be clearly insufficient,! 5 so that the court can see there has been some mistake. or some improper motive, or bias, or feeling.is It is not enough that the courts would have found otherwise,! f or that there was a strong pre- ponderance of evidence to the contrary,! 8 although some cases show per- haps a stronger tendency to the entertaining of such a motion than the foregoing would imply.! « [e] Procedure. In the absence of statute there is no power in a court to entertain a motion for new trial made at a term subsequent to the rendition and entry2 of judgment,? though it may then award a new trial previously applied for. The court may by standing rule limit the time within a term when the application may be made,* and rules of court prescribing the time and mode of applying, must be observed. 5 R. S. § 987 provides for a stay of execution for forty-two days after judgment to enable a party to 8 Whipple V. Cumberland, 2 Story, Co. 19 Fed. 405; Davey v. Aetna Ins. 661, Fed. Cas. No. 17,516; see also Co. 20 Fed. 494; Davis v. Memphis. Malloy v. Bennett, 15 Fed. 376 : Mar- 22 Fed. 887. riott V. Fearing. 11 Fed. 846; Swann !7Alsop v. Com. Ins. Co. 1 Sumn, V. Bowie, 2 Cranch C. C. 221. Fed. 451, Fed. Cas. No. 262; per Story, J. Cas. No. 13,672: Lancaster v. Provi- is Wilkinson v. Greely, 1 Curt, dence Co. 26 Fed. 233. 439, Fed. Cas. No. 17.672; per Cur- sArkansas C. Co. v. Mann. 130 U. tis, J. S. 75, 32 L. ed. 854, 9 Sup. Ct. Rep. isSee Mt. Adams Rv. v. Lowery, 458. 74 Fed. 470. 20 C. C. A. 596: Felton loNorthern Pac. R. R. v. Herbert, v. Spiro. 78 Fed. 582. 583. 24 C. C. A. 116 U. S. 646, 29 L. ed. 755, 6 Sup. 321; Ulman v. Clark, 100 Fed. 183. Ct. Rep. 590: Kennon v. Gilmer, 131 2As to entrv see Emma S. M. Co. U. S. 29. 33 L. ed. 110. 9 Sup. Ct. v. Park. 14 Blatchf. 411, Fed. Cas. Rep. 696; Hansen v. Bovd, 161 U. No. 4,467. S. 411. 40 L. ed. 746. 16 Sup. Ct. Rep. sCoughlan v. District of Col. 106 571. U. S. 7. 27 L. ed. 74, 1 Sup. Ct. Rep. iiLewis V. Wilson, 151 U. S. 555, 37; Brooks v. Burlington & S. W. 28 L. ed. 267. 14 Sup. Ct. Rep. 419. R. R. 102 U. S. 107, 26 L. ed. 91; isPleasants v. Fant, 22 Wall. 122, Belknap v. United States, 150 U. S. 22 L. ed. 780: Metropolitan R. R. v. 590 37 L. ed. 1192, 14 Sup, Ct. Rep. Moore. 121 U. S. 569, 30 L. ed. 1022, 183: INlanning v. German Ins. Co. 7 Sup. Ct. Rep. 1334. 107 Fed. 52, 46 C. C. A. 144. liHeddcn v. Iselin. 142 U. S. 680, 4Henning v. Western U. T. Co. 41 35 L. ed. 1155, 12 Sup. Ct. Rep. 330. Fed. 805; Post v. Wise, 101 Fed. isWalers v. Mutual Ins. Co. 7 Rep. 205. i56. Fed. Cas. No. 17,267. f'Henning v. Western U. T. Co. 41 ic^Juskcgon Bank v. N. W. Ins. Fed. 865. 879 § 023 [f] PROCEDURE IN COMMON-LAW CAUSES. [Code Fed. file petition for a new trial, s but it would seem that where the forty-two days would extend beyond the close of the term, applfeation for the stay should be made during the term. Bill of exceptions is not necessary on motion for new trial as the recollection of the judge can be appealed to;s but a bill of exceptions may be used, 9 though there is authority for the holding that after the obtaining of a bill of exceptions motion for new trial will not be entertained. lo [f] Review of order denying new trial. An order granting a new trial is not a final judgment.i2 It is the uni- form rule in Federal practice that the granting or denying of a new trial is discretionary with the court and not assignable as error.is The rule is uniformly applied in all cases where the right to grant new trial exists and the court exercises the discretion conferred, whether the ground of the motion be excessive damages,i4 insulliciency of the eividence,i5 errors in law,i6 surprise,!" newly discovered evidence,i8 or misconduct of coun- sel.19 But if the court order new trial without power to do so, 20 or refuse to entertain the motion in the belief that it has no power,i or re- fuses to consider affidavits proj^erly before it on the motion,2 or refuse it when a State law which is a rule of decision for Federal courts gives it as matter of right, 3 this is an error which may be reviewed. § 924. Stay of execution on new trial — new trial where jury waived. When a circuit court enters judgment in a civil action, either ePost, § 924. 26; Marine Ins. Co. v. Young, 5 sChandler v. Thompson, 30 Fed. Cranch, 187, 3 L. ed. 74; Neidlinger 38; Hynes v. Chicago Ry. 23 Fed. 18. v. Yoost, 99 Fed. 240, 39 C. C. A. 494; sBrewster v. Gelston, 1 Paine, 426, Lincoln v. Sun Vaper Co. 59 Fed. Fed. Cas. No. 1,853. 761, 8 C. C. A. 253. lOBell V. Cunningham, 1 Sumn. 89, leFishburn v. Chicago Ry. 137 U. Fed. Cas. No. 1,246. S. 60, 34 L. ed. 585, 11 "Sup. Ct. i2See ante, § 77. Rep. 8. isBarr v. Gratz, 4 Wheat. 216, 4 1 7 Atchison, etc. R. R. v. Howard, L. ed. 554 ; Brown v. Clark, 4 How. 49 Fed. 207, 1 C. C. A. 229. 15, 11 L. ed. 855; Newcomb v. Wood, isBoard of Comrs. v. Keene Bank, 97 U. S. 581, 24 L. ed. 1085; Holder 108 Fed. 516, 47 C. C. A. 464. V. United States, 150 U. S. 91, 37 L. lOBaggs v. Martin, 108 Fed. 33, 47 ed. 1010. 14 Sup. Ct. Rep. 10; Adding- C. C. a" 175; see Chandler v. Thomp- ton V. United State.s, 165 U. S. 185, son, 30 Fed. 45. 41 L. ed. 679, 17 Sup. Ct. Rep. 288; 20Manning v. German Ins. Co. 107 Louisville R. R. v. White, 100 Fed. Fed. 54, 46 C. C. A. 144; Phillips v. 242, 40 C. C. A. 352. Negley, 117 U. S. 671, 29 L. ed. 1015, i4Railroad Co. v. Fraloflf, 100 U. 6 Sup. Ct. Rep. 901. S. 31. 25 L. ed. 535; Ash v. Prunier. iFelton v. Spiro, 78 F<»d. 576, 24 105 Fed. 723, 44 C. C. A. 675; New C. C. A. 321. York R. R. v. Anderson, 50 Fed. 462, 2Mattox v. United States. 146 U. 1 C. C. A. 529; Morning Journal v. S. 147, 36 L. ed. 919. 13 Sup. Ct. Rutherford. 51 Fed. 513, 2 C. C. A. Rep. 50. 354. 16 L.R.A. 803. sShreve v. Cheeseman, 69 Fed. 787, 15 Moore v. United States, 150 U. 16 C. C. A. 413. S. 57. 37 L. ed. 996, 14 Sup. Ct. Rep. 880 Procedure] STAY OF EXECUTION. § 924 [b] upon a verdict or on a finding of the court upon thi; facts, m cases where such finding is allowed, execution may, on motion of either part}^ at the discretion of the court, and on such conditions for the security of the adverse party as it nuiy Judge proper, l)e 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 certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his discre- tion, 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. R. S. § 987, U. S. Comp. Stat. 1901, p. 708. [a] History and scope of section. The general provision as to stay of execution is given elsewhere. 5 This provision is based upon § 18 of the judiciary act of 1789,« and an amendatory act of 1865.7 \Yhile R. S. § 726s only authorizes application for new trial in jury cases, this section impliedly sanctions the power of the court to grant new trial in cases where jury is waived and the case is tried by the court with findings. It does not authorize stay to permit of application for new trial where the issues were referred to a referee and judgment was entered upon his report.9 But prior to entry of judgment on such a reference, motion to set aside hia report and grant a new trial has been entertained pursuant to State practice and a rule of the Federal court. 10 [b] Time for making application for new trial. It has been held that this section does not prescribe the time for apply- ing for new trial, but merely the time and mode whereby such application may constitute a stay.is But as a trial court loses power to entertain an application for new trial at the end of the term when judgment was entered,i4 the proceeding constituting the application for new trial must be instituted at that term and perhaps a rule may require it to be within a given time during that tprm.i!^ sPost, § 1866. lORobinson v. Mutual Ren. Ins. Co. 6Act Sept. 24. 1789, c. 20. 1 Stat. 10 Blatchf. 194. Fed. Cas. Xo. 11,- 83. 961. 7Act March 3, 1865. c. 80, § 4, 13 i^Felton v. Spiro. 78 Fed. .^Sl. 24 Stat. .501. C. C. A. 321 : see Rutberfonl v. IVtm 8 Ante, § 923. M. L. I. Co. 1 Fed. 4-50, 1 McCrury. flNeafie v. Cheesborough. 14 Blatchf. 120: Emma, etc. Min. Co. v. Park. 313. Fed. Cas. No. 10,004; and see 14 Biatch.''. 411. Fed. Cas. No. 4.407. Fourth Nat. Bank v. Neyhardt. 13 i^Ante. § 923[e]. Blatchf. 393. Fed. Cas. No. 4.991. i'>Ante. § 923[e]. Fed. Proc— 50. 881 § 024 [c] TROCEDUUE IN COMMON-LAVi' CAUSES. iCode Fed. [c] Effect of stay and grant of new trial. The stay of execution allowed by this section to permit application for new trial, and the seasonable filing of such application suspend the opera- tion of the judgment and destroy its finality for purposes of writ of error. Hence the time for suing out a Mrit of error does not begin to run whilf; the application is pending; is and if writ of error is taken it should prob- ably be dismissed, 19 would certainly be dismissed if the new trial is grant- i\d.20 An order granting a new trial vacates the judgment. i § 925. Remedies on Federal judgments by executions etc. fur- nished by state laws. Tlie party recovering a judgment in any common-law cause in any circuit or district court shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, '^'^^'^^^ as arc now provided in like causes by the laws of the State "in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules^^^ of such circuit or district court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise.^^^"^*^^ R. S. § 016, U. S. Comp. Stat. 1901, p. 684. [a] Statutes affecting execution elsewhere stated. There are several provisions respecting Federal execution which are not stated in this chapter because not exclusively applicable to execution in common-law causes. These provisions permit execution to run in other districts,* provide for stay of execution in general,-'' and in suits against revenue ol!icers,6 relate to the right of imprisonment for debt, 7 and provide the mode of selling real and personal property under Federal judgment or decree.8 Elsewhere will also be found provisions respecting the lien of isCambuston v. United States, 95 2oUnited States v. Ayres. 9 Wall. U. R. 285, 24 L. ed. 448: Northern P. 610, 19 L. ed. 627: United States v. R. R. V. Holmes, 155 U. S. 138. 39 L. Crusell, 12 Wall. 176, 20 L. ed. 385; ed. 100. 15 Sup. Ct. Rep. 28 Kingman United States v. Young, 94 U. S. 2.iO, V. Western Co. 170 U. S. 675. 42 L. ed. 24 L. ed. 153. 1192. 18 Sup. Ct. Rep. 786; Rutber- iManing v. German Ins. Co. 107 ford Co. V. Penn Ins. Co. 1 Fed. 456, Fed. 54. 46 C. C. A. 144. 1 McCrarv. 120: Louisville T. Co. v. 4 Post, § 1865. Stockton.' 72 Fed. 1. 18 C. C. A. 408; 5Ante, § 924: post, §§ 1866, 1867. Merchants' Co. v. Buckner, 98 Fed. ePost, § 1868. 225. 39 C. C. A. 19; Brown v. Evans, ^Post, S§ 1558-1560. 18 Fed. 56, 8 Sawy. 502. sPost, §§ 1869-1872. isVoorhees v. 2voye Mfg. Co. 151 U. S. 1.35, 38 L. ed. 101, 14 Sup. Ct Rep. 295. 882 Procefllue] REMEDIES ON FEDERAL JUDGMENTS § 925 [dl Federal judgment ;? respecting the form of Federal writsio and their is- suance in general. 11 [b] History of section. The early process acts contained no specific provisions conferring on Fed- eral courts power to enforce the State remedies on execution, but merelj a general section requiring conformity of practice, which applied to execu- tions as well as other proceedings.14 The law of 1872, which first enacted the present general conformity provision, contained also the foregoing specific section respecting remedies by way of execution. It permits the Federal courts to adhere to the remedies formerly available on execution, rather than adopt changes in the State law, whereas the general practice is required to conform "as near as may be" to existing State practice.is [c] Scope and validity of section in general. The power of Congress to legislate with respect to the form and eflect of executions upon Federal judgments was settled by an early case. 1 6 Con- gress has seen fit to mold the Federal practice in this respect to that of the several States, and the Federal courts will generally follow State deci- sions construing State execution laws in force in the Federal courts. i'? The section grants similar remedies only in common-law causes. 1 9 It does not apply to equity decrees, 20 or admiralty. 1 or judgments in criminal cases.2 But a forfeiture proceeding under the revenue laws is within the provision, although of purely statutory origin. 3 [d] Is R. S. § 914 at all applicable to executions? There is ground for argument that R. S. § 914 requiring conformity to State practice forms and modes of proceeding, is not necessarily rendered entirely inapplicable to executions, by R. S. § 916, adopting existing State remedies by way of execution, etc.6 The language of R. S. § 914 is broad enough to cover the entire conduct of a cause in the trial court, including the proceedings to enforce the judgment rendered." Such was the construc- 9Post. §§ 1861-1864. 567, 21 Blatchf. 138; Steam S. C. Co. 10 Ante, § 836. v. Sears. 9 Fed. 8. 20 Blatchf. 23. iiAnte. §841. iThe Blanche Vage, 16 Blatchf. 1, i4Wayman v. Southard. 10 Wheat, Fed. Cas. No. 1,524. 1, 6 L. ed. 253; Bank of U. S. v. Hal- 2Clark v. Allen, 114 Fed. 374. stead, 10 Wheat. 51. 6 L. ed. 265; see 3ln re Quantity of Tobacco, 10 Ben. hi.story of conformity enactments; 447. Fed. Cas. No. 11,499; see as to ante. § 900 [a]. similar claim in R. S. § 914, ante §. 15 Ante, § 900 [a]. 900 [c]. isBnnk of U. S. v. Halstead, 10 elt has been said that R. S. § 914 Wheat, 5.3, 6 L. ed. 264. See ante, does not extend to proceedings to §799. enforce a judgment: United Statr^s 1 "United States v. Morrison, 4 v. Train. 12 Fed. 853; see also La- Pet. 137. 7 L. ed. 804; Sowlos v. master v. Keeler. 123 U. S. 376. 31 Wittevs, 46 Fed. 497 ; Ex parte Boyd, L.ed. 242, 8 Sup. Ct. Rep. 197. 105 U. S. 652, 26 L. ed. 1200. TLamaster v. Keeler, 123 U. S. 389, isiTudson v. Wood, 119 Fed. 704. 31 L. ed. 242, 8 Sup. Ct. Rep. 197. 20Steam S. C. Co. v. Jones. 13 Fed. 883 I § 925 [e] PROCEDURE IN COMMOX-LAW CAUSES. [Code Fed. tion given the earlier conformity law.s I'ndoubtedly R. S. § 910 renders it inajjplicable to the substance of the remedy for the enforcement of judg- ments ;» yet it would seem that there may be subordinate details of prac- tice and procedure and statutory provisions existing for the benefit of the execution debtor to which it would apply. It is to be remembered that there are so many specific Federal provisions respecting executions i" that there is but little room left for the operation of the general conformity law even if it be applicable. [e] State remedies in aid of judgment adopted by this section. Under the early process act it was held that the conformity provision included the proceedings upon, as well as the nature and form of the execu- tion; and hence that an imprisoned Federal debtor might have the benefit of a State insolvency proceeding enabling him to obtain release from jail. 1 3 Under the present law it is settled that the State remedy by proceeding supplementary to execution for examination of the debtor, is available in aid of a Federal judgment, i* A State law authorizing li. fa. against a city is a remedy permitted to the Federal courts under this clause. is Man- damus in aid of a Federal judgment is undoubtedly available in the Federal court under this section, where authorized by State law. However, it is also available in Federal courts in the absence of State law, under R. S. § 911, authorizing the issue of scire facis and other writs, agreeable to law. 16 where there is no other adequate remedy.iT If the State law gives a statutory remedy that is available and should first be tried. is A State law providing a mode for suspending the lien of a judgment upon realty pending appeal therefrom has been held applicable to Federal practice.is But it is only remedies to reach the property and not remedies to reach the person, that are provided for by this section.^ It has been held that a State statute giving the State a right to levy on realty and denying the remedy to others, was not available under this section to permit such levy in favor of the United States as a judgment creditor, in view of other Federal provisions evincing a contrary intent.'* [f] State exemption laws. The State homestead and exemption laws are in force in the Federal sWayman v. Southard. 10 Wheat. iGAnte, § 841. 1, 6 L. ed. 253. I'Riggs v. Johnson Co. 6 Wall. sLancaster v. Keeler, 123 U. S. 389, 166, 18 L. ed. 768; United States v. 31 L. ed. 242, 8 Sup. Ct. Rep. 197. Keokuk, 6 Wall. 518, 18 L. ed. 918. lOSee post, H 1805. et seq. isMoran v. Elizabeth, 9 Fed. 72; i3Beers v. Haughton, 9 Pet. 355, 9 see President v. Mayor, etc. 40 Fed. L. ed. 155. 799. i4Ex narte Boyd, 105 U. S. 647, isUnited States v. Sturgis, 14 Fed. 26 L. ed. 1200; see Bvrd v. Badger, 810. MoAll. 443, Fed. Cas. Xo. 2.266. sFrieaiy v. Giddings. 119 Fed. i5Canal, etc. Street R. R. v. Hart, 438. 114 U. S. 661. 29 L. ed. 226, 5 Sup. 4Clark v. Allen, 117 Fed. 699. 2t. Hep. 1127. 884 Procedure] REMEDIES ON FEDERAL JUDGMENTS. § 925 [g] courts by virtue of this provision, 6 and it was the intent of Congress to ap- ply such exemption laws even against the United States as judgment creditors." Congress might, however, validly enact exemption laws oi its own. 8 [g] Adoption of changes in State law by rule of court. State execution laws passed subsequent to the enactment of the above provision are not in force in the Federal courts unless adopted therein; n and the same rule was rigidly applied under the earlier conformity laws. 12 An invalid State law cannot be adopted. is or if adopted, at least has, no force. !■* Under the earlier process acts the court refused to presume the adoption of a rule of court respecting the State practice.is But the ten- dency to a stricter conformity in all matters of practice has been so much greater since the act of 1872 that the presumption on appeal might now be that existing State laws of execution rather than those of 1872 or 1873 have been adopted by some rule.is It was laid down in an early case that the court has no power by rule to modify or alter a State execution law and adopt it as altered. is There must therefore be exact conformity, either to the State remedies by execution, etc., existing in 1872, or to souie more modern substitute. 6Fink V. O'Neil. 106 U. S. 279, 27 L. ed. 196, 1 Sup. Ct. Rep. 825. TFink V. O'Neil. 100 U. S. 272, 27 L. ed. 196, 1 Sup. Ct. Rep. 325; see Naumburg v. Hyatt, 24 Fed. 905; Webb V. Havner.' 49 Fed. 605. sSee ante' § 799. iiLamaster v. Keeler, 123 U. S. 391. 31 L. ed. 238, 8 Sup. Ct. Rep. 197. 12 Boyle V. Zaeharie, 6 Pet. 658, 8 L. ed. 532; McCracken v. Havward, 2 How. 61.5. 616, 11 L. ed. 397* isMcCracken v. Havward, 2 How. 615, 616. 11 L. ed. 397. I'iBronson v. Kenzie, 1 How. 311, 11 L. ed. 143. isBovle V. Zaeharie, 6 Pet. 648, 8 L. ed. 532. 1 SSee Logan v. Goodwin, 104 Fed. 490, 43 C. C. A. 658. This has been said as to amendatory State attach- ment laws: See ante, § 905[f]. But compare Lamaster v. Keeler, 123 U. S. 391, 31 L. ed. 2.38, 8 Sup. Ct. Rep. 197. isMcCracken v. Hayward, 2 How. 608, 11 L. ed. 397. 883 CHAPTER 25. PROCEDURE IN EQUITY CAUSES IN GENERAL.— BILLS IN EQUITY. § 935. The test of Federal equity jurisdiction. ;§ 936. Forms and modes of proceeding in equity. § 937. Where no positive rule applies, practice of English high court of chancery to be consulted. •:§ 938. Affirmation equivalent to oath required by equity rules. ;§ 939. Power of judge at chambers, during term or vacation, as to orders etc. ;,^ 940. Notice of motions, rules and orders by entry in order book, serv- ice on solicitor or party. When court may abridge time for notice of orders, rules, etc. What motions and applications deemed grantable of course by clerk. Procedure on motions and orders sought during term and not grantable of course. Bills in Equity. — The introductory part. — narrative or stating part and prayer for relief. • — what formal parts of bill may be omitted. — averment as to nonjoinder of parties out of jurisdiction. • — the prayer for process. — the signature of counsel and its legal effect. — interrogatories — form of statement. — interrogatories must be numbered. — footnote respecting interrogatories deemed part of bill. Necessary allegations of stockholder's bill. Necessity for succinctness, and avoidance of impertinence and scan- dal. — timely exception to impertinence and scandal. Amendment of bill before plea, demurrer or answer. Amendment after plea demurrer or answer and after replication. Amendment after answer — special replication not permissible. Permission to amend lost if not availed of by the next rule day. Bills of revivor and proceedings thereon. Supplemental bills and proceedings thereon. Bills of supplement and revivor need not repeat allegations of original. Cross bills for discovery and for relief. Creditors bill against national bank stockholders. Limit to taxable costs on bills in equity. 8S6 ■'§ 941. i§ 942. s 943 § 944. § 945. § 94G. § 947. § 948. § 949 § 950 § 951. § 952 § 953 § 954. § 955 § 956 § 957 § 958 § 959 § 960. § 961. § 9G2. § 963. § 964. § 965. rrocedure] TEST OF FEDERAL EQUITY JURISDICTION. § 935 [b] § 935. The test of Federal equity jurisdiction. Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and com- plete remedy may be had at la.wS^^'^^^ R. S. § 723, U. S. Comp. Stat. 1901, p. 583. [a] Meaning and construction of section in general. This provision was originally part of the judiciary act of 17891 and has Leen continuously in force ever since. The seventh amendment guarantees a right of jury trial in common-law eauses,2 and various enactments of Congress, passed prior to its adoption, equally require the trial of issues of fact by a jury in common-law causess unless waived. * That amendment and those provisions of Congress which antedated it, 5 together with the foregoing prohibition against a resort to equity which also antedated the amendment, constitute the foundation upon which rests the distinction be- tween law and equity so consistently maintained by Congress in its sub- sequent legislation, and by the Federal courts in the uniform current of tlieir divisions. 6 It would be too much to say, howver, that the amend- ment of itself forbids a formal obliteration of the distinction between law and equity as found in the procedure of many States, so long as the sub- stance of the right of jury trial was preserved for cases in fact of a com- inan-law character. But Congress has not seen fit so to legislate. [b] The section merely declaratory but obligatory. The above provision is in fact merely declaratory of a principle which was accepted long prior to its enactment. 9 But its embodiment in a positive statute, mandatory and prohibitive in form.io effectively prevents a fritter- ing away of the constitutional right by judicial enlargements of the equity jurisdiction. It positively preserves the right of jury trial by compelling resort to the common-law side of the court in all cases where adequate remedy can be had at law.n If such remedy exists, a defendant cannot be compelled to go into equity where the right to a jury does not exist. 12 The section is obligatory. i3 It was intended to emphasize the rule which it lAct Sept. 24, 1789, c. 20, § 16, 1 1.55 U. S. 323. 39 L. ed. 172, 15 Sun. ?=tat. 82. Ct. Rep. 129. ' 2Ante, § 910. loWehrman v. Conklin. 1.55 U. S. sAnte, §§ 911-913. 323, 39 L. ed. 167. 15 Sup. Ct. Rep. ■•Ante. § 914. 129. sThe judiciary act with these vari- iiSmith v. American Xat. Bank, ■ous provisions was passed Sept. 24, 89 Fed. 832, 32 C. C. A. 368. 17S9. The seventh amendment was i2Hipp v. Babin, 19 How. 271, 15 submitted for ratification Sept. 25, L. ed. 633: Insurance Co. v. Bailev. ^89. 13 Wall. 621. 20 L. ed. .501: Le.vis v. 6See Ante, § 800. Cocks, 23 Wall. 466. 23 L. ed. 70: 9Boyce v. Grundy, 3 Pet. 215, 7 L. Fussell v. Gregg. 113 T'. S. 550. 28 L. •ed. 6.55; Root v. Railroad, 105 U. S. od. 993, 5 Sup. Ct. Rpp. 631. •?n6. 26 L. ed. 975: Scott v. 'N'eelv, isWehrman v. Conklin. 155 V. S. 1 r. S. 1!0, 35 L. ed. .358, 11 Sup. 323. 39 L. ed. 167, 15 Sup. Ct. Rep. !. 662, 35 L. ed. 305, 11 Sup. Ct. Rep. 682: Tvlor v. Savage, 143 U. S. 79, 36 L. ed. 89. 12 Sup. Ct. Rep. 340: Scott v. Arm- strong, 146 U. S. 499, 36 L. ed. 1059, 13 Sup. Ct. Rep. 148: Lone J. M. Co. V. Megginson. 82 Fed. 89, 27 C. C. A. 63. leCecil Nat. Bank v. Thurbor. 59 Fed. 913. 8 C. C. A. 365; see also Waite V.' O'Xeil, 72 Fed. 348; Levi V. Evans, 57 Fed. 677. 6 C. C. A. 500; Book V. Justice M. Co. 58 Fed. 827: Knight V. Fisher, 58 Fed. 991. 1 "Southern Pac. R. Co. v. United States. 133 Fed. 651, 66 C. C. A. 581. iBovce V. Grundv. 3 Pet. 215. 7 L. ed."655; Lewis v'. Cocks, 23 Wall. 470. 23 L. ed. 70: Watson v. Sutlier- land. 5 Wall. 78. IS L. ed. 580: Allen V. Hanks, 1.30 U. S. 311, 34 L. od. 414, 10 Sun. Ct. Rep. 961: Walla Walla V. Walla Walla Water Co. 172 r. S. 12. 43 L. ed. 341, 19 Sup. Ct. Rep. 77 : 3IcMullen L. Co. v. Strother, 136 Fed. .305. 69 C. C. A. 433. 2 Davis V. Wakelee, 156 U. S. 688, 39 L. ed. 578. 15 Sup. Ct. Rep. 555; Wienver v. Louisville W. Co. 130 Fed. 246. 3Rich V. Braxton, 158 V. S. 406. .39 L. ed. 1022. 15 Sup. Ct. Rp. 1006; Mutual L. Ins. Co. v. Blair. 130 Fed. 971. 4Wylie v. Coxe. 15 How. 420, 14 L. ed". 753; Whitehead v. Sliattuck, 889 <§ 935 [f] PROCEDURE IX EQUITY CAUSES. [Co:le FeJ. adequacy of legal remedy refers to the character of the remedy itself as adopted to the end in view and not to its practical effect. 5 It is not ren- dered inadequate in contemplation of law, by the fact that it fails to pro- duce the money.6 The want of adequate legal remedy must affirmatively Appear. Certain general principles ha^ e been derived in the practical appli- cation of this rule. Actions merely to obtain a decree for the payment of money, 7 and actions simply for the recovery and possession of specific real •or personal property^ must be maintained in Federal courts upon the law side, even though there be allegations of fraud, concealment and the like.9 Ejectment is an adequate remedy for recovering possession of real property ■a.nd claimant having a legal title cannot go into equity. lO A recent case holds that the fact that State courts can vacate judgments in ejectment at laAv does not mean that Federal courts can, and intimates that re- sort to equity is necessary. n [f] Adequacy of remedy "at law" is tested by common law. The adequacy of remedy '"at law" which will forbid resort to equity in the Federal courts under this section has reference to the common law as it existed at the time of the judiciary act,i5 unless subsequently changed by act of Congress. 1 6 Any other rule would have made the equity juris- diction one thing in one State and something else in another, depending upon the local legislation.!" 138 U. S. 151, 34 L. ed. 873, 11 Sup. 8^^^litehead v. Sliattuck. 138 U. S. €t. Rep. 276: Spokane M. Co. v. 151, 34 L. ed. 874. 11 Sup. Ct. Rep. Post, .oO Fed. 431 ; Smith v. American 276: Scott v. Xeelv. 140 U. S. 100. Nat. Bank. 89 Fed. 840, 32 C. C. A. 35 L. ed. 358, 11 Sup. Ct. Rep. 712. 368. 9See Ambler v. Choteau. 107 U. S. 5Thompson v. Allen Co. 115 U. S. 500, 27 L. ed. 322, 1 Sup. Ct. Rep. 554, 2n L. ed. 472, 6 Sup. Ct. Rep. 556. 140: Burdon, etc. Co. v. Leverich, 37 lOSee Gait v. Gallowav. 4 Pet. 339. Fed. OS; Safe D. Co. v. Anniston, 96 7 L. ed. 876; Lewis v Cocks. 23 Wall. Fed. 603. 469, 23 L. ed 70: Ellis v. Davis, 109 eThompson v. Allen Co. 115 U. S. U. S. 503, 27 L. ed. 1006. 3 Sup. Ct. 554, 29 L. ed. 472, 6 Sup. Ct. Rep. Rep. 327; Killian v. Ebbing^liaus, 110 140: O'Brien v. Wheelock. 78 Fed. U. S. 573, 28 L. ed. 246, 4 Sup. Ct. 679 : Van Wvck v. Knevals. 106 U. S. Rep. 232; Arrowsmith v. Gleason. t^OO, 27 L. ed. 201, 1 Sup. Ct. Rep. 129 U. S. 97, 32 L. ed. 630, 9 Sup. 336; Southern Pac. Co. v. Goodrich, Ct. Rep. 237. 57 Fed. 882. nKing v. Davis. 137 Fed. 198. TParkersburg v. Brown. 106 U. S. isMcConihav v. Wright. 121 U. S. 500. 27 L. ed. 244, 1 Sup. Ct. Rep. 201, 30 L. ed.' 932, 7 Sup. Ct. Rep. 442; Ambler v. Choteau, 107 U. S. 940; Cropper v. Coburn, 2 Curt. 405, 586, 27 L. ed. 322, 323, 1 Sup. Ct. Fed. Cas. No. 3,416. Rep. 550: Litchfield v. Ballou, icGrand R. Co. v. Sparrow. 36 Fed. 114 U. S. 190, 29 L. ed. 132. 5 211, 1 L.R.A. 480; Pokegama, etc. Co. •Sup. Ct. Rep. 820; Buzard v. Hous- v. Klamath C-o. 96 Fed^ 55, 50; Peck ton, 119 U. S. 352. 30 L. ed. 454, 7 v. Avers, 110 Fed. 275. 53 C. C. A. Sup. Ct. Rep. 249; Whitehead v. 551. ' f'hattuck, 138 U. S. 151, 34 L. ed. inMissouri K. & T. R. R. v. Elliott, 874. 11 Sup. Ct. Rep. 276: Mills v. 56 Fed. 773. Knapp, 39 Fed. .592; Frev v. Wil- loughbv, 63 Fed. 865, 11 C.'C. A. 463. 890 Trocediire] FORMS AND MODES OF PROCEEDING. § 9o« [g] — hence Federal equity jurisdiction is uniform, not subject to enlarge- ment or restriction by State or English practice. Several important consequences follow from this principle that adequacy •of remedy at law is tested hy the common law. Since that test or stand- ard of measurement is the same in all States, it follows that Federal equity jurisdiction is everywhere uniform, regardless of State legislation. i It also follows that the equity jurisdiction is of the same scope as that exercised by English courts of chancery at the time of the judiciary act,2 and is un- affected by later changes in the English practice.3 It further follows that the creation of new legal remedies by State laws, though available in the Federal courts at law by virtue of the conformity laws,* and though in fact adequate, will not oust the jurisdiction of Federal courts on their equity side to administer the older equitable remedy. 5 The Federal suitor may thus sometimes have the option of a remedy at law taken from the State courts, and a remedy in equity no longer there available. In an early chap- ter of this work the principle that the States are without power to regu- late the procedure or jurisdiction of Federal covirts, was discusssed and its bearing upon the equity jurisdiction was shown.s The doctrine that the Federal courts will administer an enlargement of equitable rights created by State legislation is not really an exception to the rule that the States may not enlarge the equity jurisdiction of Federal courts." Since the en- actment of R. S. §§ SG9 and 72 1 allowing either party to call the other as a witness at law and requiring the production of books and papers, the question arises as to whether a pure bill of discovery will lie. In the face of the above-mentioned enactments such a bill has to a great extent be- come obsolete.^ and it is held that it cannot be maintained where the claim is legal and such bill is the only ground of equitable relief. 9 But a recent case has held it maintainable notwithstanding State and Federal statutes rendering it unnecessary.! § 936, Forms and modes of proceeding in equity. The forms of mesne process and the forms and modes of pro- iSee ante. § 5: see also Gordon v. How. 331, 15 L. ed. 407; Cropper v. Tlobart. 2 Sumn. 401. Fed. Cas. No. Coburn. 2 Curt. 465, Fed. Cas. Xo. .i.OOO. and Pratt v. Xortham. 5 Mason, 3.416: Frazer v. Colorado Co. 5 Fed. 05. Fed. Cas. No. 11,376. per Story, 164. 2 McCrarv. 11. •T.: Robinson v. Campbell, 3 Wheat. eAnte, § [5], 222. 4 L. ed. 375. 7See ante. § 5[ 1. § 10[aal. § 800. 2See i;nte. § 5[ ] sSee Safiord v. Ensign, etc. Co. 120 sBaker v. Biddle, Bladw. 394, Fed. Fed. 480. 56 C. C. A. 630 ; Field v. Cas. Xo. 764. Hastings. 05 Fed. 279: Brown v. M'- 4See ante. §§ 900. 905. 925. DonakL 130 Fed. 965, and cases cited. sKimball v. ^Mobile. 3 Woods. 555. sUnited States v. Bitter, etc. Co. Fed. Cas. Xo. 7.774; Pokegama. etc. 1.33 Fed. 274, 66 C. C. A. 652: Brown Co. v. Klamath, etc. Co. 96 Fed. 55, v. AFDonald. 130 Fed. 964: London. 56: Crand R. Co. v. Sparrow. 36 Fed. etc. Co. v. Dovle, 130 Fed. 719. 211: Pitt^bnrsh. etc. R. R. v. Keo- lOMc^NIuIlen L. Co. v. Strother, l.-^H kuk. 6S Fed.' 22, 15 C. C. A. 1S4; Fed. 301. 69 C. C. A. 433; see also r,ir(l()ii V. TTobiirt. 2 Sumn. 401. Fed. post, § 950, note. ■Cas. Xo. 5.609; Dndu'c v. Woolsev. IS 891 I S 937 PROCEDURE IN EQUITY CAUSES. [Code Fed. ceeding in suits of equity . . . jurisdiction iii the circuit and district courts shall be according to the princjples, rules, and u.-^ages which belong to courts of equity . . . except when it is otlier- wise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition hy the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time to any circuit or dis- trict court, not inconsistent with the laws of the United States. R. S. § 913, U. S. Comp. Stat. ]!)01, p. 683. This provision was originally enacted in 1789.15 It also spocifies similarly as to admiralty practice. is This section is to be read in connection vvitli R. S. § 917,1' whicli gives the Supreme Court very broad powers to regulate Federal e(|uity procedure, and R. S. § 918,18 which gives l»he circuit and dis- trict courts power to regulate their practice by rules. This section is there- fore residuary in character and only applicable in the alisence of specilie statute or rule of the Supreme Court or of the trial court. 1 3 The equity practice is so comprehensively covered by rules of court that it is spUIomi controlling. The rules of the high court of chancery in England are recognized as "the common law of chancery" and an authoritative exposi- tion of the "principles, rules and usages which belong to courts of equity" within this section. i The Supreme Court has expressly declared in the !*Oth equity rule that in other matters than those covered by the Federal equity rules, the practice shall be according to that of the high court of chancery in England; 2 and itself follows that practice with necessary modi- fications in the exercise of its original equity jurisdiction. 3 § 937. "Where no positive rule applies, practice of English high court of chancery to be consulted. In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the High Court of Chancery in England, '^''^ so far as the same may reasonably be applied con- is Act Sept, 29. 17S9. c. 21. § 2. 1 Wheeling, etc. Co. 13 How. .i()3. 14 Stat. 43: see act Mav 8. 1792. c. 36. L. e'o. 10,145. 12 Ante, § 940. 895 « 942 PROCEDURE IN EQUITY CAUSES. [Code Fed. § 942. What motions and applications deemed grantable of course by clerk. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees ; for filing bills, answers, pleas, demurrers, and other pleadings; for making amendments to bills and answers; for taking bills pro con- fesso ; for filing exceptions, and for other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, requii-e any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or re- scinded by any judge of the court, upon special cause shown. 5th equity rule. The concluding sentence of the above rule conforms to a decision of the Supreme Court previously made.is Reading this rule in connection with rule G it is apparent that a distinction is to be drawn between motions and orders which require allowance by the judge on special notice to the ad- verse party, and those grantable of course under this rule.iT § 943. Procedure on motions and orders sought during term and not grantable of course. All motions for rules or orders and other proceedings, which are not grantal)le of course, or without notice, shall, unless a ditl'erent time be assigned by a judge of the court, be made on a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused in his discretion. 6th equity rule. This rule differs from rule 5i9 in that it concerns motions and orders not grantable of course; and from rule 32 in that it governs the procedure as to motions and orders sought during the term and not the power of the judge in vacation. § 944. Bills in equity — the introductory part. Every bill,^^^ in the introductory part thereof, shall contain the i6See Poultney v. Lafavette. 12 is Ante, § 942. Pet. 472, 9 L. ed". 1162. * 20 Ante, § 939. 17 United States v. Parrott, 1 Mc- All. 447, Fed. Cas. No. 15,999. 896 Procedure] BILLS IN EQUITY. § 944 [a] names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. Tlie form, in substance, shall be as follows : "To the judges of the cir- •cuit court of the United States for the district of : A. B., of , and a citizen of the State of , brings this his bill against C. D., of , and a citizen of the State of , and E. F., of , and a citizen of the State of . And thereupon your orator complains and says that," etc.'^^^ 20th equity rule. [a] Bills and informations in general. The authorities upon equity pleading lay down the rule that the original pleading of a complainant in equity is a bill, in the form of a petition, in all cases where complainant is a private party; but in cases of suit in- stituted on behalf of the government, or of those who partake of its preroga- tive (e. g. idiots and lunatics) or whose rights are under its protection (e. g. public charities) the matter of complaint should be offered to the court by way of information by the Attorney General or solicitor or other govern- ment officer; and that such a pleading is called an information. Where the .■government proceeds upon the relation of some person (termed the relator) who has a personal interest in the raatter in dispute, these authorities further declare that the pleading is properly termed an information and bill. 3 But Federal practice presents but few instances of the u?e of information* in suit by the government. It is the established custom for the officers of the government to proceed by ordinary bill in equity in the name of the United States, 5 and Congress has in several particular instance? directed the filing of a "bill in equity" on behalf of the government, 6 or the institu- tion of proceedings in equity "by way of petiton.'"? It is settled also that while the Attorney General has power and is in duty bound to institute proper suits for the government, such suits should be in the name of the United States s The absence of any provision respecting informations in the equity rules further suggests the inapplicability of the ancient learn- ing upon this subject, in Federal practice. sStorv Eq. Pleading, § 7, 8: Mitf. American B. T. Co. 128 U. S. 315. Eq. PI.' 22, 23, 99, 100; Cooper Eq. 32 L. ed. 450, 9 Sup. Ct. Rep. 90; for PI. 1. injunction: United States v. Debs, 4 Benton v. Woolsey, 12 Pet. 27, 9 63 Fed. 436. L. ed. 987: Attv. Gen. v. Runiford C. sSee United States v. Union P. R. •\Vorks, 32 Fed.' 608. R. 98 U. S. 569, 25 L. ed. 143. 5E. g. suits to cancel land patents: ^See United States v. Freight United States v. Hughes, 11 How. Assn. 166 U. S. 291. 41 L. ed. 1011, •552, 13 L. ed. 809; United States v. 17 Sup. Ct Rep. 540. Stone. 2 Wall. 525. 17 L. ed. 765: sSee Attorney General v. Rum- United .jiates v. Throckmorton, OS U. ford C. Works. 32 Fed. 608: United S. 61, 25 L. ed. 93: to cancel patents States v. San Jacinto T. Co. 125 U. for inventions: I'nited States v. S. 285, 31 L. ed. 747, 8 Sup. Ct. Rep. 850. Fed. Proc— 57. 897 § 944 [b] I'RO( KDTHE IX EQUITY CAUSES. [Code Fed. [b] The form of the introductory part. A bill addressed to the •'c-iicuit court," etc., "in chancery sitting" has been held sufficient.!! The introductory part of the bill must give with certainty the names of all the parties. 12 No party can be made defendant to a bill save by name.i3 A bill "against H. H. Day, Thomas J. Andrews, W. H. Clark and one hundred and fifty other pereons of whose name complain- ant is ignorant, and who are designated each by the name of John Doe. and whose true names, when discovered, complainant asks leave to insert," etc., has been held insufficient to support service upon or jurisdiction over such unnamed parties. 14 Where the court's jurisdiction depends upon diverse citizenship, the allegations of the introductory part of the bill become of jurisdictional importance.is It is the invariable rule of Federal pleading that jurisdiction must affirmatively appear.is Under the later Federal statutes defining the jurisdiction of the circuit and district courts, the allegations as to residence often becomes jurisdictionally as important as the allegation of citizenship itself.i^ But an allegation of residence without any averment of citizenship is insufficient to support jurisdiction.! 8 Where one of the parties is a corporation the bill should show under the laws of what State it is organized ;19 and if a State contains more than one district an averment of the corporate "residence" becomes material. 20 if one party is an alien he should be designated as a "citizen and subject of a foreign vState, to wit," etc. 2 Defects in the introductory part of the bill cannot be cured by reference to its caption. 3 Where the jurisdiction of a bill is not rested upon diverse citizenship, failure to comply with the requirements of the above rule might be deemed mere matter of form and disregarded or formally amended, but if juris- dictional the omission is ground for demurrer;* and since the act of 1875 may even be challenged at a later stage of the proceedings. 5 A bill omitting proper averments of citizenship and residence in the introductory part thereof has been ordered dismissed with costs unless proper amendments iiSterrick v. Pugsley, I Flip. 350, Hoiw. 2.32, 2,3.3, 15 L. ed. 896; St. Fed. Cas. No. 13,379. Louis, etc. Ry. v. James, 161 U. S. i2Barth v. MaKeever, 4 Biss. 206, 562, 40 L, ed. 802, 16 Sup. Ct. Rep. Fed. Cas. No. 1,009. 621. Its members are then conclu- i3Ex parte Richards, 117 Fed. 658. sively presumed to be citizens of that i4Kentncky S. M. Co. v. Day, 2 State; See ante, § 2[t]. Sawy. 468, Fed. Cas. No. 7,719. 2 0See Harvey v. Richmond, etc. Ry. !5"See Wright v. Skinner, 136 Fed. 64 Fed, 21; Galveston, etc. Ry. v. 694, holding allegation of citizenship Gonzales, 151 U. S. 504, 38 L. ed. necessary only when jurisdiction de- 248. 14 Sup. Ct. Rep. 401. pends thereon. 2Wilson v. City Bank, 3 Sumn. 422, 16 Ante. § 9. Fed. Cas. No. 17,797; see Stuart v. i^Harvey v, Richmond, etc. Ry. 64 Easton, 156 U. S. 47, 39 L. ed. 341, Fed. 21; see ante, §§ 131, 402. 15 Sup. Ct. Rep. 268. isWolfe v. Hartford L. I. Co. 148 3 Jackson v. Ashton, 8 Pet. 149, 8 U, S. 389, 37 L. ed. 493, 13 Sup. Ct. L. ed. 898. Rep. 602; Cooper v. Newell, 155 U. ^See Harvey v. Richmond, etc. Ry. S. 533. 39 L. ed. 249, 1,5 Sup. Ct. Rep. 64 Fed. 21. 355; See ante, i; 9[d]. sAnte, § 818. 19 Covington D. Co. v. Shepherd, 20 898 Procedure] NARRATIVE OR STATING PART OF BILL. § 945 [al were filed. 6 Such omission is held to be corrected by motion and not by demurrer.'? § 945. — narrative or stating part and prayer for relief. The plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defense or excuse to the case made by the plaintiff for re- lief. ^^^ The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno or any other special order pending the suit, is required, it shall also be specially asked for.^^^ Concluding part of 21st equity rule. For first part see next section. [a] The narrative or stating part of the bill. flatter which was formerly the charging part of the bill may by this rule be embodied in the narrative part. The narrative or stating part is the real substance of the bill. It should contain a narrative of the facts and circumstances of plaintiff's case, the wrong or grievance complained of, and the names of the persons by whom done and agaia§t whom redress is sought. 12 These facts must be distinctly alleged so as to put them in issue, 13 although it is not necessary to enter into minutia of evidence. i* The bill must contain sufficient matter to maintain the case of plaintiff.is An allegation of an essential fact in a. bill by way of recital, but in such form that the existence of the fact appears by necessary implication, is good as against a general demurrer.is A bill for rescission must contain clear and positive allegations showing the equitable right of the complainants to the relief asked. i^ A petition stating a decree entered in a former proceeding, either as matter of inducement or as the basis of plaintiff's action, need not set out the petition on which such decree was rendered. 18 A bill in equity charging fraud should state the facts relied on with sufficient particularity to Justify the conclusion and to apprise the defendant of what he must meet in the way of evidence, but this should be done without undue minuteness of detail. 19 Strictness of pleading is not required of those who come in to assert their claims to property in a suit for the administration of a trust eCarlsbad v. Tihbetts. 51 Fed. 855. isTnvestor Pub. Co. v. Dobinson, 72 nVright v. Skinner. 1.36 Fed. 694. Fed. 60.3. i2Storv Eq. PI. ij 27. iTPost v. Beacon Vacuum Punip isHarding v. Handv. 11 Wheat. Co. 84 Fed. 371. 110, 120, 6 L. ed. 42!t." isDavis v. Davis. 65 Fed. .380. i4Dunham v. Railwav Co. 1 Bond, i^ Field v. Hastings & Bradley Co. 492, Fed. Ca.s. No. 4,150. 65 Fed. 279. isHarrison v. Nixon, 9 Pet. 483, 9 L. ed. 201. 899 § 945 [b] PROCEDURE IN EQUITY CAUSES. [Code Fed. by foreclosure.2 The court may, of its own motion, dismiss a bill which fails tu make out a case for equitable relief.i [b] The prayer for relief. The rule requires a prayer for general as well as for specific relief. Under the general prayer other relief than that specifically asked, may be granted if consistent with the case made out; 5 but not relief inconsistent with that specifically asked ;« nor relief unwarranted by the showing.^ Damages have Ibeen allowed under the general prayer; 8 and specific performance has been «rdered.9 The general prayer will authorize the granting of relief though the party is not entitled to the specific relief asked. lo Relief may some- times be asked in the alternative,! i as that complainant recover the specific property or its value. 12 In a suit to settle bounds the court may order an old obliterated boundary to be remarked. 13 A prayer for discovery may be ignored in the answer where the bill propounds no interrogatories and answer under oath is waived. 1 4 It is only where ne exeat is asked pending suit 7that this rule requires it to be specially prayed.is Failure to pray relief in accordance with this rule would be ground of demurrer to a bill, but would not impair the collateral validity of a decree based thereon. is The waiver of answer under oath, frequently made to avoid the evidentiary ^•alue of the answer under the 41st rule,i7 is properly inserted in this part of the bill. Also any other waiver or tender or offer to do equity. § 946. — what formal parts of bill may be omitted. The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confederacy clause of 2 0Blake v. Pine Mt. Iron & C. Co. sTavlor v. Merchants, etc. Co. 9 43 U. S. 490, 76 Fed. 624. How. 406, 13 L. ed. 187. iFourgeres v. Jones. 66 Fed. 316. lOMoore v. Mitchell, 2 Woods, 483, sOteri v. Scalzo, 145 U. S. 589, 36 Fed. Cas. No. 9,770; Watts v. Wad- L. ed. 824, 12 Sup. Ct. Rep. 895 ; die, 6 Pet. 403. 8 L. ed. 437. Hopkins v. Grimshaw, 165 U. S. 358, uSee Shields v. Barrow, 17 How. 41 L. ed. 739, 17 Sup. Ct. Rep. 401; 130, 15 L. ed. 158; Kilgour v. New English V. Foxall, 2 Pet. 595, 7 L. ed. Orleans G. L. Co. 2 Woods, 144, Fed. 531; Wialden v. Bodlev, 14 Pet. 156. Cas. No. 7,764; Games v. Chew, 2 10 L. ed. 398; Hobson v. McAr- How. 619, 11 L. ed. 402; Jones v. thur, 16 Pet. 182, 10 L. ed. 930; Electric Co. 144 Fed. 765, (C. C. A.) Boon v. Chiles, 8 Pet. 530, 8 L. ed. i2Hubbard v. Urton, 67 Fed. 419. 1034; Jones v. Van Doren, 130 U. S. isVirginia v. Tennessee, 148 U. S. <692, 32 L. ed. 1077, 9 Sup. Ct. Rep. 528, 37 L. ed. 546, 13 Sup. Ct. Rep. 685; Tvler v. Savage, 143 U. S. 98, 36 728. L. ed. 82, 12 Sup. Ct. Rep. 340. i4Excelsior W. P. Co. v. Seattle, eWlsion v. Graham, 4 Wash. 53, 117 Fed. 140, 55 C. C. A. 150. Fed. Cas. No. 17,804; Curry v. Lloyd, isLewis v. Shainwold, 7 Sawy. 403. 22 Fed. 258, 205. * 48 Fed. 492. TKent V. Lake S. C. Co. 144 U. S. isSeo United States v. Agler, 62 92, 36 L. ed. 352, 12 Sup. Ct. Rep. Fed. 824. C50. 17 See post, § 95L sPenbollow v. Doane, 3 Dall. 86, 1 L. ed. 521. 900 Procedure] FRAME OF BILLS IN EQUITY. § 947 the bill, averring a confederacy between the defendants to injure or defraud the plaintiff ; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the de- fendant is supposed to intend to set up by way of defense to the bill; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable therefor. First part of 21st equity rule. For remainder of rule see preceding section. [a] Frame of equity bills. Formerly equity bills consisted of nine parts, viz.: First, the address; second, the introduction; third, premises or stating part; fourth, the con- federating part; fifth, the charging part; sixth, the jurisdiction clause; seventh, the interrogating part; eighth, prayer for relief, and ninth, prayer for process. The five principals of these were the statement, charges, inter- rogatories, prayer for relief, and prayer for process. i The above rule per- mits an omission of the confederacy clause, the charging part, and the jurisdiction clause. But the object sought previously by the charging part, viz., to enable plaintiff to meet some defense or excuse which he antici- pates from defendant, may now be accomplished by stating and avoiding such counter averments in the narrative part of the bill. § 947. — averment as to nonjoinder of parties out of jurisdiction. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the l)ill t hall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. 22d equity rule. This rule is peculiar to Federal practice, where parties, otherwise neces- sary, may be dispensed with if their joinder would oust the jurisdiction of the court.5 Where such parties have not the requisite diverse citizenship they should not be joined and the bill should always show the reason for their nonjoinder. But where the trouble is merely that they are not within iSee Story Eq. PI. §§ 38, 46, notes; sSee ante, § 817. _ Comstock V. Herron, 45 Fed. 6G0. 901 § 948 PROCEDURE OF EQUITY CAUSES. [Code Fed. reach of process of the courts it is not improper to join them as parties since it is possible they will voluntarily appear.^ In suits where service may be made beyond the State or by publication it is clearly proper to join all parties having the requisite diverse citizenship regardless of their resi- dences As respects the concluding portion of the above rule, authorizing prayer for process against a party if he come within the jurisdiction, it is to be remembered that the act of 1887 took away the privilege of suing a person in the district in which he may be found and permits suit only in the district of the residence of plaintiflf or defendant.^ § 948. — the prayer for process. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process. 23rd equity rule. The omission from the prayer for subpoena of the names of some of the defendants named in the introductory part of the bill, is a violation of the above rule and is a fatal defect.i2 It would seem clear that absence of any prayer for process renders a bill demurrable; is though it would not render void an injunction issued by the court upon such a bill.i* Objection for failure to name a defendant in the prayer for process is waived by ap- pearance. 1 5 § 949. — the signature of counsel and its legal effect. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that upon the instructions given to him and the case laid before him, there is good ground for the suit, in tlic niannei' in wliich it is framed. 24th equity rule. «Ante, § 853. (Jnebel v. American R. S. Co. 55 7 Ante, § 860. Fed. 827. sAnte, § 806. isLnited States v. Agler, 62 Fed. 9 Shaw V. Quincv M. Co. 145 U. S. 824. But see Jennes v. Landes, 84 444. 449. 36 L. ed. 768. 12 Sup. Ct. Fed. 74. Rep. 935; South Pac. Co. v. Denton. ^United States v. Agler. 62 Fed. 146 r. S. 202. .36 L. ed. 944, 13 Sup. 824. Ct. Rep. 44: .see ante. § 402. i^Buerk v. Imhaeuser, 8 Fed. 457. i2Carlsbad v. Tibbetts, 51 Fed. 852: 902 ■ Procedure] FRAME OF BILLS IX EQUITY. § 950 [al Signature on the back of a bill has been held sufficient. Signing as "so- licitor" is probably sufficient and as proper as signing "of counsel," is -So- licitor" is in fact the term customarily used to designate the attorney for a party in an equity proceeding, although in this country the English dis- tinction between attorney, solicitor and barrister has lost its legal sig- nificance. 1 7 The requirement for signature of counsel cannot be deemed ob- ligatory where complainant sues in person, in view of R. S. § 747 permitting a party to conduct his own cause in any court of the United States. is A bill defective in this particular is demurrable,! 9 and may be stricken from the file. 2 But the court should permit an amendment as of course. i If the omission is to be deemed merely formal, it can be waived under R. S. § 954 directing the court to ignore merely formal defects unless demurred to. 2 A bill ordered from the files for want of signature may be signed and on motion restored. s § 950. — interrogatories — form of statement. Instead of the words of the bill now in use, preceding the in- terrogating part thereof, and beginning with the words "to the end thereof," there shall hereafter be used words in the form or to the effect following : "To the end, therefore, that the said defend- ants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their sev- eral and respective knowledge, remembrance, information, and be- lief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say — "1. Whether, etc. "2, Whether, etc,"[^^-[*'^ 43rd equity rule, promulgated Mar, 1842. [a] In general. Where plaintiff merely annexed the interrogatories to the bill and failed to refer to them therein, this has been held an informality which may be isStinson v. Hildrup, 8 Bis. 37G, v. TTildrup, 8 Biss, ,370. Fed. Cas. Xo. Fed. Cas. Xo. 13,4;-)!). 13.4.50. I'Stinson v. Hildrup, 8 Biss. 376, iD\vight v. Huniphrev, 3 McLean. Fed. Cas. Xo, 13.450. 104. Fed. Cas. Xo. 4 216; Stinson v. isSee ante, § 403. Hildrup, 8 Biss. 370. Fed. Ca.s. Xo. isDwight v. Humphrev. 3 McLean, 13,4.50; see R. S. § 954. ante. § 813. 104, Fed. Cas. Xo. 4.210." 2See ante. § 813. 20Roach V. Huling. 5 Cranch C. ^Roach v. Huiings, ;5 Crunch C. C. C. 637, Fed. Cas. Xo. 11,374; Stinson 0.37, Fed. Cas. Xo. 11,874. 903 § 950 [b] PROCEDURE IN EQUITY CAUSES. [Code Fed- waived when not prejudicial." If the defendant does not duly answer the interrogatories plaintiff's remedy is by exception to the answer. s The court will then order due answer to be made and tax the costs against defendant. » [b] Discovery. While defendant is now required to answer a bill fully without interroga- tories,! o though not if his answer contains a plea in bar or to the nier- itSjii it is still advisable for complainant who seeks discovery to attach inter- rogatories to his bill. 12 The interrogatory or discovery part of a bill is now of less importance than it was prior to the act of 186413 permitting parties, to be examined as witnesses. i* It has been doubted whether a bill seeking only discovery and not relief, is now permissible.! 5 The answer to the question depends upon whether there is a plain speedy and adequate rem- edy at law as tested in the Federal courts.! 6 State laws giving relief at law previously available only in equity will not extinguish although they may render obsolete, the old equity remedy in the Federal court.! 7 But the act of Congress making parties competent witnesses, has probably made bills for discovery no longer maintainable. § 951. — interrogatories must be numbered. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, etc. ; and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form, or to the effect following, that is to say: "The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3," etc. ; and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such de- fendant is so required to answer, unless such defendant shall re- quire to be furnished with a copy of the whole bill. 41st equity rule as originally promulgated March 1842. The amendment of this rule adopted at the December term, 18G1, is con- cerned with waiver of answer under oath,2 and does not affect this portion of the rule. ^Federal M. Co. v. International L. ed. 1204; United States v. Mc- Co. 119 Fed. 385. Laughlin, 24 Fed. 823; Field v. Has- sPost. § 1101. tings, 65 Fed. 280; see post, § 996 sLangdon v. Goddard, 3 Story, 13, [a]. Fed. Cas. No. 8.061. isEx parte Boyd, 105 U. S. 657, loPost, § 998. 26 L. ed. 1204; biit see National, etc. i!Post. § 996. Co. v. Interchangeable, etc. Co. 83 !2Parsons v. Cummings, 1 Woods, Fed. 26. 461. Fed. Cas. No. 10,775. leSee ante, S 935[c]. 13 Post. S 1735. 17 Ante, § 935 [c], [f]. 14 Ex parte Boyd, 105 U. S. 657, 26. 20 See post, § 1000. 904 Procedure] NECESSARY ALLEGATIONS. § 953 [a]; § 952. — footnote respecting interrogatories deemed part of bill. The note at the foot of the bill, specifying the interrogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. 42d equity rule, promulgated March, 1842. § 953. Necessary allegations of stockholder's bill. 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 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; and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have- cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the share- holders, and the cause of his failure to obtain such action. 94th equity rule 104 U. S. ix. [a] In general. This rule was promulgated January 23rd, 1882. It was framed in the light of the opinion in Hawes v. Oakland, 5 decided at the same term, and defining the facts which must appear to justify the maintenance of a shareholder's suit against a corporation. It applies only to suits institu- ted in the circuit court and not to causes removed from State courts; 6 and to suits against the corporation and others, not merely against the corporation. Demand upon a resident managing agent and failure to make demand upon the directors because they were too far away, has been held an insufficient showing. 7 A bill omitting any allegation of demand upon the- corporate managers has been held jurisdictionally defective; 8 and dismiss- sHawes v. Oakland. 104 U. S. 450, Excelsior P. Co. v. Brown, 74 Fed. 26 L. ed. 827 ; see Corbus v. Alaska T. 323. 20 C. C. A. 428. G. M. Co. 187 U. S. 462, 47 L. ed. 259, ^Corbus v. Alaska T. G. ]M. Co. 23 Sup. Ct. Rep. 160. 187 U. S. 463. 47 L. ed. 359, 23 Sup. 6Leo V. Union P. Rv. 17 Fed. 273; Ct. Rep. 160. Earle v. Seattle, etc. Ry. 50 Fed. 909; ^Dickinson v. Cons. T. Co. 114 Fed. Evans v. Union P. Ry. 58 Fed. 497; 241. 905 § 9r>.} [bl I'ROCEDURE IN EQUITY CAUSES. [Code Fed. able.9 An injunction sought will bo refused where the hill lacks these averments. 10 Plaintiff is required to show the efforts on his own part and not the efforts of others. n The requirement for a showing of the stock- holders efforts to get redress, may sometimes be dispensed with where the facts set forth in the bill demonstrate that such efforts would have been futile.i2 The leading case itself recognizes that there are cases where de- mand cannot be made or where it would be unreasonable to require it.is ]>ut there must be either allegations as to a demand or of facts which legally excuse it.i4 The fact that five of the seven directors participating in a fraudulent transaction are still in office has been held no excuse.15 The allegation as to ownership of the stock is always essential.is Technical compliance with this rule does not prevent an inquiry by the court into the bona fides of the efforts of complainant or the propriety of permitting him to sue.i7 [b] Verification. A stockholder's bill is the only one required to be verified by the equity rules. A bill for an injunction should however be verified if the party de- sires to read it in evidence at the hearing.i § 954. Necessity for succinctness, and avoidance of impertinence and scandal. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts or other instruments, in haec verba, or any other impertinent matter, i^^^ or any scandalous matter^''^ not relevant to the suit. If it does, it may on exceptions be referred to a master by any judge of the court for impertinence or scandal: and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall sBimber V Calivada C. Co. 110 isHawes v. Oakland, 104 U. S. 4G1, Fed. 59. 26 L. ed. 827. lOWeidenfeld v. Allegheny, etc. E. i4LouisvilIe, etc. R. R. v. Neal, 128 R. 47 Fed. 14: Squair v. Lookout M. Ala. 150. 29 So. 867. Co. 42 Fed. 730. isChurch v. Citizens St. Ry. 78 iiDannmever v. Coleman, 11 Fed. Fed. 526. 101, 8 Sawv. 51. leRobinson v. West V. L. Co. 90 i2LafaTette Co. v. Neelv. 21 Fed. Fed. 772. 738; Young v. Alhambra M. Co. 71 iTCorbus v. Alaska T. G. M. Co. Fed. 810; ^Excelsior P. P. Co. v. 187 U. S. 483. 47 L. ed. 259, 23 Sup. Brown. 74 Fed. 321, 20 C. C. A. 428; Ct. Rep. 160. See McHenrv v. N. Y., De Neufville v. N. Y. etc. R. R. 81 etc. R. R. 22 Fed. 131. Fed. 13, 26 C. C. A. 306; Weir v. iSee Woodworth v. Edwards. 3 Bav R. G. Co. 91 Fed. 940; Rogers v. Wood. & M. 120. Fed. Cas. Ko. 18,- Nashville, etc, Ry. 91 Fed. 305, 33 014: Hughes v. Northern P. R. R- C. C. A. 517. 18 Fed. 108: Black v. H. G. Allen Uo. 42 Fed. 622, 623, 9 L.R.A. 433. . 906 1 ProceduieJ IMPERTINENCE AND SCANDAL. § 955 otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. 26th equity rule. [a] Surplusage, irrelevant and impertinent matter. Impertinence consists of any allegation that is irrelevant to the material issues made or tendered. 4 Impertinences are matters not pertinent or rele- vant to the points properly before the court for decision; 5 or such mat- ters as are stated with needless prolixity. 6 Matter which is entirely im- material is impertinent, and should be expunged." Where exceptions are taken for impertinence, the pleading will be given a liberal construction.^ The rule that a bill in equity should contain a clear and explicit description sufficient to give the defendant notice of the subject matter of the com- plaint against him is not abrogated by the above rule.9 The circuit court has power to order the striking from its files of a rambling and ver- bose bill of excessive length, containing impertinent and scandalous matter, and to permit complainants to file within a stated time, as of the date of the original filing, a new bill not exceeding a prescribed length.io The above rule does not abrogate or curtail the inherent power of the Federal courts in equity to strike out rambling or tautological pleadings, and purge their records of scandalous or impertinent matter, on their own motion, and in the absence of exceptions, n Mere argument in an answer as to the ef- fect of facts already apparent in the bill is impertinent, and upon exception will be stricken out.i2 £b] Scandalous matter. Scandal in a pleading has been defined as any unnecessary allegation bearing cruelly on the moral character of an individual, or stating any- thing contrary to good manners or anything unbecoming the dignity of the cf)urt to hear. Facts not material are impertinent and, if reproachful, a^-e scandalous. 16 Matter is not scandalous unless also impertinent, but the re- verse is not true.i7 § 955. — timely exception to impertinence and scandal. Xo order shall Ije made by any judge for referring any bill, answer 4KeIlev V. Boettcher. 85 Fed. 55. 29 lOKellev v. Boettcher 29 C. C. A. C. C. A. 14. 14. 85 Fed. 55. sWood V. Mann, 1 Sum. 578. Fed. nKellev v. Boettcher. 29 C. C. A. fus. No. 17,9'.52. 14. 85 Flea. 55. fiChapman v. School Dist. Deady, 12 Florida Mortg. & Inv. Co. v. Fin- 108. Fed. Cas. No. 2.607. layson. 74 Fed. 671. "Lansrdon v. (ioddard. 3 Story. 13, isKellev v. Boettcher. 85 Fed. 55, Fed. ('as. No. 8.001. 29 C. C. A. 14. See Green v. Elbert, sGri.-^wold v. Hill, 1 Paine. 390, 137 I'. S. 615. 34 L. ed. 792, 11 Sup. Fed. Cas. No. 5.835. Ct. Rop. 188. sElectvolibration v. Jackson, 52 tiToler v. East T. V. & G. Ry. 07 Fed. 773. Fed. 175. 907 § U5t3 PROCEDURE IN EQUITY CAUSES. [Code Fed. or pleading, or other matter or proceeding depending before the court for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be con- sidered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule day, or the master shall certify that further time is necessary for him to complete the examination. 27th equity rule. It is the proper practice to make separate exceptions covering each sep- arate niivtter alleged to be impertinent or scandalous; as an exception taken is properly only considered and allowed or disallowed as a whole, i De- murrer is not the proper way of alleging impertinence. 2 § 956. Amendment of bill before plea, demurrer, or answer. The plaintiff shall be at liberty, as a matter of course, and with- out payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterward, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do of course) after a copy has been so taken, before any answer or plea, or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, with- out delay, furnish him a fair copy thereof free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish in like manner to the defendant a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby.'^^^"^''^ 2Sth equity rule. The Federal statute respecting amendment is applicable in equity as well as at law, and has already been considered. « Different rules apply to 1 Chapman v. School Dist, Deadv, 2Howe. etc. Co. v. Haugan, 140 108, Fed. Cas. No. 2,607. ^ Fed. 1S2. 6Ante. § 813 [j]. 908 ■ PioceJure] AMENDMENT AFTER PLEA. § 937 the amendment of different pleadings and according to the stage of the pro- ceeding when amendment is sought. This rule deals mereh' with amend- ments of the bill prior to "any answer or plea or demurrer." It is to be observed that the rule contemplates the serving of a copy of the amend- ments only; except that where the amendments are numerous, it requires service of a copy of the whole bill as amended. So far as this rule differs from the principles laid down in an early nisi prius case respecting the proper method of amendment, it must be deemed to have superseded it." The natural tendency of careful practitioners would be to file an amended bill rather than amendments whenever doubtful whether the amendments would be deemed "numerous." If there has been plea, answer or demurrer by any of several defendants, it would seem that the right to amend would be governed by the next rules and not by this. 9 The general rule is that nothing which has occurred subsequent to the filing of the bill can be added by amendment, but must be brought in by supple- mental bill.io A special appearance to object to the jurisdiction is not a plea, demurrer or answer; but in one case where there had been such special appearance plaintiff in amending proceeded upon petition and notice to the adverse party, in the mode prescribed by the next rule, althou.q;h the •court declared the case within this one.n The rule requires service of the amendments or of the amended bill upon the parties "affected thereby" "but does not require a new subpoena; and no new subpoena is necessary unless against parties first added by the amendment. 12 While this rule •expressly permits amendments "in any matter whatsoever" it would seem that the substitution of a different cause of action is not a proper amend- ment even at this preliminary stage of the prcceedings. The courts have frequently declared such substitution improper after the defendant has •pleaded;i3 and the safer practice would be for complainant to begin all over again. Where amendment is attempted after defendant has taken a copy ■of the bill from the office, without paying costs or furnishing a copy as required, it is nugatory and plaintiff may withdraw it.i* The amendment need not be supported by affidavit.! 5 § 957. Amendment after plea, demurrer, or answer and after replication. After an answer, or plea, or demurrer is put in, and before replica- tion, the plaintiif may, upon motion or petition, without notice, 'Peirce v. West, 3 Wash C. C. 11 Insurance Co. v. Svendson, 74 .354. Fed. Cas. Xo. 10.910. Fed. 347. 8See post. § 957. i2French v. Hav, 22 Wall. 23S. 22 "See Peirce V. West, 3 Wash. C. C. L. ed. 854; Longworth v. Tavlor, •354. Fed. Cas. No. 10.910. 1 McLean. 514. Fed. v,as. Xo. 8,491. I "See Hobson v. :\rcArthur, 16 Pet. isSee post. § 9.57 [c]. 194. 10 L. ed. 9.30; .Tenkins v. Inter- iiRhemeld F. Co. v. Wittherow, 149 national 13. Co. 127 U. S. 4S9. 32 L. U. S. .570. 37 L. ed. 853, 13 Sup. Ct. pd. 189. 8 Sup. Ct. PvPp. 1190: Mason Rep. 930. V. Hartford, etc. R. R. 10 Fed. 334; isChase E. C. Co. v. Columbia C. Lvstor v. Stieknev. 4 MtCrarv. 109. Co. 136 Fed. 099. 12 Fed. 009. See post. § 961. 909 § 957 [a] FROCEDUKE IN EQUITY CAUSES. [Code Fed. obtain an order from any judge of the court to amend his bill on or before the next succeeding rule day, upon payment of costs or without payment of costs, as the court or a Judge thereof may in his discretion direct. ^''^ But after replication filed the plaintiff s!u:ll not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by athdavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause.^*'^''^®^ 29th equity rule, adopted March, 1842. [a] Ex parte order for amendment after plea, etc, but before replication. This rule deals with amendment of a bill to which the defendant has pleaded, both before and after replication. Before replication leave to amend is obtainable ex parte, after replication it must be upon notic'. It will be observed that this rule does not apply to the subject of amend- ment after a demurrer or plea is allowed, but only after it is filed. 1 9 Tlie 35th rule governs the matter of amendment after demurrer has been al- lowed. 20 As the court is empowered by order to allow an amendment with- out notice at this stage of the case, the opposing counsel cannot maintinn a motion to set aside an order so made, or to strike the amended pleading from the files. 1 Defendant has no right by motion, to compel a com- plainant to amend with a view to disclosing an alleged defect in his case. 2 [b] Amendment upon notice to adverse party, after replication and after hearing. Where a matter might have been sooner introduced into the bill, courts have refused to permit amendment after replication even in small matters. 5 An amended bill filed without leave, upon the day that original was discussed, will be disregarded by an appellate court. 6 An amended bill filed after replication without leave may be stricken out;i^ so also if the amended bill lack the necessary affidavit. 8 Amendments of the bill may be allowed even after hearing, where necessary to do substantial justice.* isNational Bank v. Carpenter, 101 U. S. 568. 26 L. ed. 816. 20 See post. § 086. iLichtenauer v. Chenev, 3 Mc- Crarv. 119. 8 Fed. 876. man. 13 Elatchf. 210. Fed. Cas. No. 2.894. 6Terrv v. ISIcLure, 103 U. S. 443. 26 L. ed. 403. TWashington R. R. v. Bradley. lO' 2Phelps V. Elliott, 23 Blatchf. 470, Wall. 299. 19 L. ed. 894. 26 Fed. 881. s Beaver v. C. A. Richardson & Co. 5R0SS V. Carpenter, 6 McLean, 382, 118 Fed. 320. Fed. Cas. No. 12,072; Clifford v. Cole- sGraffam v. Burgess, 117 U. S. 19L 910 Proredure] AMENDMENT AETER PLEA. § 957 [c] But amendments sought after the decision and just prior to the de- cree, have been refused. 9 V2 The greatest liberality prevails in the allowing of amendments to make the pleadings show the court's jurisdiction if in fact jurisdiction exists; 10 or to bring in or leave out a party. n But it is said that the purpose of amendment after replication must be "not to strengthen or enlarge the complainant's case, nor to change the char- acter or quantity of the relief for which he has asked, but to enable the court to administer substantial justice. "12 The courts have a large dis- cretion in the allowance or disallowance of amendments :13 but are in- disposed to allow amendments changing the character of a bill, after a case is set for hearing.i4 The court's discretion is not so easily moved after hearingia the question in each case depends largely upon its special circum- stances and "the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice." is Under no circumstances should amendment be permitted after final decree; relief must then be had by supplemental bill. 1 7 [c] Substitution of different cause of action. The substitution of a different cause of action is an improper use of the right to amend ;i especially if the statutory period of limitation has 29 L. ed. S-14. 6 Sup. Ct. Kep. 686: Xeale V. Xeales. n Wall. 1. 19 L. ed. .590; Tlie Tremolo l^atent. 23 Wall. 518. 2.3 L. el. 97: Battle v. Mutual L. Ins. Co. 10 Blatchf. 418. Fed. Cas. No. 1109; Hamilton v. Southern N. etc. Co. 1.3 Sawv. 113. 33 Fed. .562 sVzSee Claflin v Bennett, ,51 Fed. 701. 702: Blair v. Harrison. 57 Fed. 257. 6 C. C. A. 326. lOSee fjoward v. De Cordova. 177 V. S. 609, 44 L. ed. 908. 20 Sup. Ct. Rep. 817; Home Co. v. Nobles, 63 Fed. 641 : Fisher v. Rutherford. 1 Baldw. 188. Fed. Cas. No. 4.823: Hil- liard v. Brevoort. 4 ^IcLean. 25. Fed. Cas. No. i;..505: Harvey v. Rich- mond, etc. Rv. (54 Fed. 19; Collinson v. .lackson. 8 Sawv. .3.57, 14 Fed. 305. iiWalden v. Bodley, 14 Pet. 1.56, 10 L. ed. 389: Lewis' v. Darling, 16 How. 8. 14 L. ed. 819: Shields v. Bar- row. 17 How. 1.30. 15 L. ed. 158; Har- rison v. Rowan, 4 Wash. 202. Fed. Cas. No. 6,143: Hubard v. Manhat- tan T. Co. 87 Fed. 51. 30 C. C. A. 520. See ante. § 813 [j]. i2Bass v. Christian Feigensham. 82 Fed. 261. refusing amendment in an infringement easi' enlarging the claim and changing the character f»r quantitv of relief sought. See also ante, S 813 [j]. 91 i3Neale v. Neales, 9 Wall. 9, 19 L. ed. 590; The Tremolo Patent, 23 Wall. 527, 23 L. ed. 97: National Bank v. Carpenter, 101 V. S. 568, 25 L. ed. 816: Roberts v. Northern P. R. R. 158 U. S. 26, 39 L. ed. 873. 15 Sup. Ct. Rep. 756: Hardin v. Bovd. 113 U. S. 761. 28 L. ed. 1141. 5 Sup. Ct. Rep. 771; Richmond v. Irons. 121 U. S. 47, .30 L. ed. 871, 7 Sup. Ct. Rep. 788; United States v. American B. T. Co. 39 Fed. 717: Jones v. Van Doren. 1.30 U. S. 691. .32 L. ed. 1077.9 Sup. Ct. Rep. 685: Gubhins v. Laugh- tensch lager. 75 Fed. 620. i4The" Tremolo Patent. 23 Wall. 527. 23 L. ed. 97. isGubbins v. Laughtenschlager, 75 Fed. 620. leHardin v. Bovd. 113 U. S. 761. 28 L. ed. 1141. 5 Sup. Ct. Rep. 771. iTFrench v. Hav, 22 Wall. 246, 22 L. ed. 854. 1 Shields v. Barrow. 17 How. 130, 15 L. ed. 158: Hardin v. Bovd. 113 U. S. 764, 28 L. ed. 1141, 15 Sup. Ct. Rep. 771 : Richmond v. Irons, 121 U. S. 47. 30 L. ed. 864, 7 Sup. Ct. Rep. 788; Savage v. Wor^ham, 104 Fed. 19. § 957 [dl PROCEDURE IN EQUITY CAUSES. [Code Fed. expired.s A motion to strike such an amended bill from the files is proper.' But it is not a statement of a different cause of action to amend the prayer by asking relief in the alternative;"* or to amend the prayer and omit allegations as to one party; 5 or an amendment amplifying a denial of service of process. 6 [d] Proceedings upon amended bill. The 46th equity rule governs cases in which the bill is amended after answer filed. ■? Where an amended bill is filed no new subpoena is neces- sary against parties already in court, but only against any new parties first joined in the amended bill. 8 The general rule is that defendants have the same right to answer the amended bill as they had to answer the original.9 The court has no discretion to deny defendants a reason- able time in which to answer an amended bill.io In Federal practice it is usual for the parties by agreement or for the court by special rule to fix the time within which an amended bill maj'^ be answered.n If plaintiff amends after he has taken a default it virtually vacates the default. 12 If defendant has answered before amendment, the 46th equity rule applies.! 3 If he has filed a plea or demurrer which has not been disposed of, he may doubtless make the same or any other attack upon the new pleading. But if a plea or demun'er to the original pleading has been disposed of, he cannot make the filing of the new pleading an excuse for raising points already disposed of on such plea or demurrer. Hence he can then only plead or demur where the amendments present new questions, and only 10 such new questions. i* [e] Effect of amendment. x\lthough a bill which has been amended is termed an amended bill, "the amendment is in fact esteemed but as a continuation of the original bill, and as forming part of it, for the original bill and amended bill constitute but one record; so much so that, when an original bill is fully answered and amenaments are afterwards made to which defendant does not answer, the whole recora may be taken pro confesso generally."i7 2.Tudson V. Courier, 25 Fed. 705. L. ed. 854; Blythe v. Hinckley, 84 sOglesly V Attrill. 4 Woods, 114. Fed. 246. 14 Fed. 214. lONeison v. Eaton, 66 Fed. 376, 378, ^Hardin v. Bovd, 113 U. S. 764, 13 C. C. A. 523; Blvthe v. Hinckley, •i8 L. ed. 1411, 5 Sup. Ct. Rep. 771. 84 Fed. 246, and cases cited. See also Maynard v. Tilden, 28 Fed. n Nelson v. Eaton, 66 Fed. 376, «88. 378, 13 C. C. A. 523. sPendery v. Carleton, 87 Fed. 41, i2Nelson v. Eaton, 66 Fed. 376, :]0 C. C. A. 510. 378, 13 C. C. A. 523. 6Mills v. Scott, 43 Fed. 452. laPost, § 1007. 7See post, § 1007. i4l Enclv. PI. & Pr. 490. sFrench v. Hav, 22 Wall. 246, 22 ivFrencli v. Hay, 22 Wall. 246, L. ed. 854: Longworth v. Taylor, 1 22 L. ed. 854; Excelsior P. Co. v. 3IeLean. 514, Fed. Cas. No. 8,491. Brown, 74 Fed. 323; Blythe v. Hinck- sFrench v. Hay, 22 Wall. 246, 22 lev. 84 Fed. 246. 912 Procedure] BILLS OF REVIVOR. S 9G0 § 958. Amendment after answer — special replication not pei- missible. No special replication to any answer shall be filed. But if an}' matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court, or a judge thereof, may, in his discretion direct. 45th equity rule, promulgated March 1842. Rule 11 of the equity rules of 18221 provided that ''no special replication to an answer shall be filed, but by leave of the court, or one of the judges thereof, for cause shown; and if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without costs, at the discretion of the court." Rule 45 supra was obviously framed iu modification of this earlier rule. But so far as respects amendment of the bill after answer, the subject is covered bj' the first portion of rule 29.2 That rule expressly requires that leave to amend be first obtained; 3 though if filed without objection the defect is waived.^ Rule 45 abolishes the special replication entirely; 5 as respects both answer and plea.6 An amended bill or special replication is not necessary in order to avoid the effect of an amended answer which is, at most, only a more extended statement of the grounds of defense previously set forth. 7 § 959. Permission to amend lost if not availed of by the next rule day. If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be con- sidered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. .30th equity rule adopted March 1842. § 960. Bills of revivor and proceedings thereon. Whenever a suft in equity shall become abated by the deatli of either party, or by any other event, tlie same may be revived by a iSee 7 Wheat. VI., 5 L. ed. 367. Coleman v. Martin, f! Blatchf. 2!>1, 2Ant.p, ? 954. Fed. Cas. No. 2.1980. sClements v. :Moore, 6 Wall. 299, «See post . § 1009. ^Nlason v. Hart- 18 L. ed. 78C. ford, etc. R. R. 10 Fed. 3.34. 4Tbid. T Southern P. Co. v. United States, sTavlor v. Benham. 5 Flow. 233, IGSU. S. 1, 42 L. ed. 355, IS Sup. Ct. 12 L. "ed. 131: Wilson v. Stollev, 4 Rep. 18. Mrl.ean. 275. Fed. Cas. No. 1.9(i3: Fed. Proc— 58. 913 I § !u;o [al PROCEDURK IN EQUITY CAUSES. [Code Fed. bill of ]'evivor or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, vsrhich bill may be filed in the clerk's office at any time; and upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, re- quiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not 1)e re- vived. And if no cause shall be shown at the next rule-q. PI. ?? 387. 027, Fed. 3.i3. ' ' Daniell. Ch. Pr. 1722. 1723. 20Slack V. Walcott. 3 Mason. 512. isSee Shainwald v. Lewis. 09 Fed. 513. Fed. Cas. Xo. 12,932, per Story, 495: Greenleaf v. Queen. 1 Pet. 148, J. 7 L. ed. 85: Tappan v. Smith. 5 Piiss. sShuk V. Walcott. 3 Mason. 508, 73, Fed. Cas. Xo. 13.748: Hazloton. 512, Fed. Cas. Xo. 12.932. per Story, etc. Co. v. Citizens St. Rv. 72 Feil. T.: Sharon v. Terrv, 13 Sawv. 387. 320. 30 Fed. 354. " " uStory. Eq. PI. ?§ 387. 027. This GSIack V. Walcott, 3 Mason. 508. is perhaps illustrated bv :\Iotal S. 512. Fed. Cas. Xo. 12,932. per Story, Co. v. Cramlall, 18 O. G'. 1531. Kc.l. J. Cas. Xo. 9.493p where a complnin- "Slack V. Walcott, 3 Mason, 512, ant suing for infringement assigned 513, Fed. Cas. Xo. 12,932, per Story, his patent rights to a firm of which J. he was a member and afterwards 8See ante. § 2. [u] died. 915 § 901 I'ROCEDUKE IN EQUITY CAUSES. [Code Fed, necessary wlien a suit has bi'cume both "defective" and "abated." A sup- plemental bill in the nature of a bill of revivor has been held necessary where a trustee defendant died and it was sought to r«/\ave against the new trustee appointed in his plaee.^5 § 961. Supplemental bills and proceedings thereon. Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for example, by change of interest in the parties), ^'^^ or for any other reason '^'^^"'^'^^ a supplemental bill"^^^ or a bill in the nature of a supplemental bill may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule day, upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead or answer thereto on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by the judge of the court. "^^^ 57th equity rule, adopted March, 1842. [a] Revivor and supplement distinguished. From this rule, read in conjunction with the 56th rule it appears that bill of revivor is proper when a suit has "abated" and supplemental bill when a suit has merely become "defective." The distinction between sup- plemental bills and bills of revivor is therefore the distinction between a defective suit and an abated suit. That distinction is thus stated by Story: "If by any means, any interest of a party to the suit in the matters in litigation becomes vested in another, the proceedings are rendered de- fective, in proportion as that interest affects the suit; so that, although the parties to the suit may remain as before, yet the end of that suit cannot be obtained. Thus, for example, if the party become bankrupt pendin^f the suit, then, according to the practice of chancery, the suit will be held to be defective; but the bankruptcy does not cause an abatement. And if such change of interest is occasioned by, or is the consequence of, th(! death of a party, whose interest is not determined by his death, or liy the marriage of a female plaintiff, the proceedings become likewise abated or discontinued, either in part or in the whole. "i [b] Supplemental bill for change of interest pending suit. A change of interest pending suit should be brought before the court by supplemental bill. 3 Where change occurs after final decree the trans- feree may maintain supplemental bill if he finds it necessary to invoke i5Greenleaf v. Queen, 1 Pet. 148, 3Hoxie v. Carr: 1 Rum. 173, Fed. 7 L. ed. 85. ('as. Xo. 6.802; Tappan v. Smith, iStory, Eq. PL § 329. 5 Biss. 73, Fed. Cas. No. 13,748. 916 Procedure] SUI'l'LEMEN'TAL BILLS. § 901 [c] further action by tlie court. ■* A change of interest arising by voluntary act of the parties, such as a sale, is as much within the above rule as change by operation of law.s The transfer of complainants interest in a patent or copyright pending an infringement suit is a frequent occasion for a proceeding under the foregoing rule. 6 The bill should be a supplemental bill where the transfer of interest is only partial and the transferer still retains an interest;" as where a patent right is transferred pending suit for infringement but complainant retains the right to accrued damages.** But it is properly an original bill in the nature of a supplemental bill where the entire right is transferred and the original party has no further interest in the matter. 9 [c] Supplemental bill to bring in facts subsequent to commencement of suit. Supplemental bill is comrcouly used to bring before the court mat- ters occurring since the original was filedi2 although the cauce could often scarcely be said to be defective in the sense of the foregoing rule, without it. Such matters cannot be introduced by amendment,! 3 but only by sup- plemental bill; and they cannot be introduced by svipplemental bill after decree where cajiable of prior ascertainment. 14 Formerly supplemental bill was used to bring in matter antedating the original bill which was not then known, but amendment is now the simpler method; 15 although if a supplemental bill is necessary for some purposes a coiEplainant has been permitted to incorporate therein matter which should strictly be amendment. 16 A compromise pending suit or a release is pi'operly set up by supplemental bill,i'^ though if a party fail to object to the presentation of the matter by simple petition, the error is not available on appeal. i'^ The extension of a patent pending an infringement suit is properly set 4Secor V. Singleton, 41 Fed. 725. Fed. Cas. No. 3.211; Jenkins v. In- sHazleton, etc. Co. v. Citizens St. ternational Bank, 127 U. S. 489, 32 Ry. 72 Fed. 325. L. ed. 189. 8 Sup. Ct. Rep. 1196. 6Ross V. Fort Wayne. .58 Fed. 404; isCopen v. Flesher, 1 Bond, 440, Baker v. Baker, 89' Fed. 073: Davis Fed. Cas. No. 3,211. V. Smith. 105 Fed. 949. i^Mosgrove v. Kountze, 4 Mc- ' Campbell v. New York, 35 Fed. Crary, 561, 14 Fed. 315. 14: Hoxie v. C'arr. 1 Sum. 173, Fed. it'See Jenkins v. Eldridge. 3 Storv, Cas. No. 6,802. 299. Fed. Cas. No. 7.267; Henrv v. sDavis V. Smith, 105 Fed. 949. Trav. Ins. Co. 45 Fed. 299; Potts sCampbell v. New York. 35 Fed. v. Creager. 71 Fed. 574. 14: Ross v. Fort ^Yayne. 58 Fed. i6Mellor v. Smither, 114 Fed. 404: Hazleton, etc. Co. v. Citizens' 116, 52 C. C. A. 64. See Nevada, St. Ry. 72 Fed. 325: Baker v. Baker. N. Co. v. National N. Co. 86 Fed. 89 Fed. 673; Miller v. Rogers, 29 486. Fed. 401. iTCobui-n v. Cedar, etc. Co. 138 U. i2Shoflield. etc. Co. v. Newman, S. 196. 34 L. ed. 876. 11 Sup. Ct. 77 Fed. 787. 23 C. C. A. 459; Ken- Rep. 258. Supplemental bill is the nedy v. State Bank, 8 How. 610. 12 proper mode of pleading a curative L. ed. 1219; Jenkins v. Eldredge. 3 deed executed pending suit; Reeve Story. 2m. Fed. Cas. No. 7.267: v. Northern Car etc. Co. 141 Fed. 821. Elect A. Co. V. Brush E. Co. 44 Fed. isYeazic v. Williams, 3 Story, 54, 607; Copen v Flesher, 1 Bond, 440. Fed. Cas. No. 16,906. 917 i ;m;i [d] i'KOCEDUUE IN EQUITY CAUSES. [Code Fed. Jurtli by supplemental bill, but it is otherwise when a reissue is obtained. i'* A supplemental bill embodying new matter has been held not sustainable whore the original was detective and afforded no ground for proceeding; 20 or when the new matter went to defeat and not sustain plaintiff's cause of action,! or where it changed the character of the suit; 2 or was antagonistic to the original; 3 or had no connection with the substance of the original. i So also it has been held that allegations of duress and threats respecting the conduct of the suit are not proper matters for supplemental bill.o [d] — after interlocutory or final decree. Supplemental bill is sometimes proper after decree interlocutoryS or linal.io Thus it is permitted where a party seeks the modilicaiion or an- nulment of a decree for newly discovered evidence and is then termed a supplemental bill in the nature of a bill of review.n So also it is used af- ter decree for the purpose of carrying it into efi'ect, as where a foreclosure purchaser is obliged to seek the aid of the foreclosing court in securing the fruits of his purchase.12 [e] Procedure upon supplemental bill. Where a party petitions for leave to file a supplemental bill, the peti- tion need not contain the intended new averments, although it should show the ground upon which the relief is asked. 15 Counter affidavits must be examined a,nd considered by the court.16 Permission to file is usually granted where probable cause appears and without exhaustive consideration of the merits.1'7 But it is discretionaryis if leave to file is not obtained defendant should move to strike it out and demur. 19 Application after 1;' Reedy v. Scott, 23 Wall. 364. 23 L. ed. 109; Jones v. Barker, 11 Fed. o!>7 ; Fry v. Quinla.n, 13 Blatchf. 205, Fed. Cas. No. 5,140. 20 Putney v. Whitmire, 66 Fed. 385 : N. Y. S. & T. Co. v. Lincoln St. Ry. 74 Fed. 67; Mellor v. Smither, 114 Fed. 116, 52 C. C. A. 64. lElectric A. Co. v. Brush E. Co. 44 Fed. 607. 28nead v. McCoull. 12 How. 407, 13 L. ed. 1043; Maynard v. Green, 30 Fed. 643 ; Electric A. Co. v. Brush E. Co. 44 Fed. 607. 3:\laynard v. Green. .30 Fed. 643. 4 Minnesota Ry. v. St. Paul Co. 6 Wall. 746, 18 L. ed. 856. See Hig- ginson v. Chicago, etc. Ry. 102 Fed. 197. 200, 42 C. C. A. 2.54. sLvster v. Stieknev, 4 INIcCrarv, 109. "12 Fed. 609. flRaker v. Baker, 89 Fed. 873; Mu- nici])al S. Co. v. Gamewell, etc. Co. 77 Fp i. 452. i»Voorliies v. Blanton, 9'6 Fed. 497. Central T. Co. v. Western, etc. R. 91 R. 89 Fed. 24; Hazleton T. S. Co. V. Citizens St. Ry. Co. 72 Fed. 325; Secor V. Singleton, 41 Fed. 725. ii^NIunicipal S. Co. v. Gamewell. etc. Co. 77 Fed. 453. But it is held that where the decree is interlocutory the part}- should petition for rehear- ing for newly diseovered evidence and not file such a bill ; Potts v. Creager, 71 Fed. 574. i2Central T. Co. v. Western, etc. R. R. 89 Fed. 24, 28. See also as to ancillary proceedings to construe or enforce a decree. Ante, § 3 [ ]. isParkhurst v. Kinsman, 2 Blatclif. 72, Fed. Cas. No. 10,758. i6Blandv v. Griffith. 6 Fish. Pat. Cas. 434, ■ Fed. Cas. No. 1,5:50. I'Parkhurst v. Kinsman, 2 Blatchf. 72, Fed. Cas. No. 10,758; Oregon T. Co. v. Northern P. Co. 32 Fed. 428. isSheffield, etc. Co. v. Newman, 77 Fed. 787, 23 C. C. A. 450. I'JHenrv v. Travelers Ins. Co. 45 Ked. 299, '303. froceduie] CROSS BILLS FUR DISCOVERY AND RELIEF. § 963 [a] a delay of eighteen months has been denied. 20 Supplemental bill filed five years after notice of a sale and after final decree has been held too late.i No new subpoena is necessary except against parties brought in by such bill.- A bill filed as original and in a separate suit may sometimes be treated as a supplemental bill in a penciing suit between the same parties. s A bill filed as supplemental has been treated as a supplemental answer to a cross bill.* A supplemental bill having no relation to the original should be dismissed. 5 A defense to the original bill set up and overruled is not available against the supplemental bill. 6 The citizenship of parties is immaterial in a supplemental bill though jurisdiction was originally invoked upon grounds of diverse citizenship.'^ The defendants have a right to au.swer a supplemental bill, as provided by the above rule.s § 962. Bills of supplement and revivor need not repeat allega- tions of original. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless til" special circumstances of the case may require it. oAth equity rule, adopted March 1842. Tliis rule is from the English orders in chancery of 1841.10 § 963. Cross bills for discovery and for relief. Where a defendant in equity files a cross bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross bill. The answer of the original plaintiff to such cross hill may be read and used by the party filing the cross bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. 72nd equity rule, adopted March, 1842. [a] This rule in general. So far as the reported cases show, tliis rule h;is seldom re([uired inter- 20Blandv v. Griffith. 6 Fish. Pat. ^Minnesota Rv. v. St. Paul. Co. Cas. 4.34. Fed. Cas. No. 1..530. (I Wall. 74(5. 18 L. ed. 8,56. iTTenrv v. Trav. Ins. Co. 4.5 Fed. r.p.-ntlarge v. Pentlarge, 22 Blatchf. 290. See Miller v. Clark. 49. Fed. 120. 22 Fed. 410. 60'), holding two months delay not 6 Miller v. Rogers, 29 Fed. 401 ; unreasonable. Minnesota Co. v. St. Paul Co. 2 Wall. ^Shaw v Bill, m U. S. 14, 24 L. 609. 17 L. ed. 886. ed. .3,33; Mackintosh v. Flint, 34 Fed. TAnte. § 3. 582. sperkins v. Hendryx. 31 Fed. 523. sFlectric A. Co. v. Brush E. Co. loQrder 47. See ante, § 802 [b] 44 Fed. 607. 919 § 9G3 [b] PROCEDrRE IN EQUITY CAUSES. [Code Fed. pretatioii in court. C'loss l)ills for discovery are much less frequently used now than in 1842 when tlie equity rules were adopted; because plain- tiff is now examinable as a witness.i* The decided cses have, however, established many principles respecting the nature and use and procedure upon cross bills, which require notice. [b] Nature and uses of cross till in general. A cross bill is a bill "brought by a defendant in a suit against the plain- tiff in the same suit, or against other defendants 1 5 in the same suit, or against both, touching the matters in question in the original bill."'i« As indicated by the above rule, cross bill may be used to obtain a dis- covery or to obtain full relief to all parties touching the matters of the original bill.i'? Formerly the plaintill was not examinable as a witness, so that cross bill for discovery was a very important right of the de- fendant and frequently resorted to whereas it is now unnecessary.! s The cross bill itself must be equitable in character : i 'J not merely a claim for which there is adequate remedy at law. 20 In Federal equity practice a defendant must use cross bill and not the modern statutory counterc^aini.^ It is auxiliary in character;* and citizenship of parties thereto is im- material. 5 It must pertain to and grow out of the maf^ers in the original bill and hence should not introduce new matters. 6 But the mere fact that a matter belongs to the same general subject as the original bill is not sufficient to authorize cross bill tliereon.' It l>.as been said, and repeated in many cases, that new parties may not be made by cross bills, because tlie i4See Heath v. Erie Ev. 9 Blatchf. ;31 Fed. -iS;]: Morgans, etc. Co. v. Tex- 316. Fed. Cas. No. 6..307. as C. Rv. 137 U. S. 171, 34 L. ed. i5See Veach v. Rice. 131 U. S. 317. G25. 11 Sup. Ct. Rep. Gl ; Peay v. 33 L. ed. 163. 9 Sup. Ct. Rep. 730. Schenck 1 Woolw. 175, Fed. Cas. Xo. iGStory Eq. PI. § 389. Shields v. 12450. Barrow. 17 How. 145, 15 L. ed. 158: c Avers v. Carver, 17 How. 595. 15 Morgans, etc. Co. v. Texas. C. Rv. 137 L. ed'. 779: Cross v. De Valle. 1 Wall. U. S. 201, 11 Sup. Ct. Rep. 61. 34 14. 17 L. ed. 515: Ex parte Railroad. L. ed. 636 : Rubber Co. v. Goodyear, 95 U. S. 225. 24 L. ed. 355 ; Railway 9 Wall. 809. 19 L. ed. 587; Weaver v. United States, 101 U. S. 641, 25 V. Alter. 3 Woods, 154, Fed. Cas. No. L. ed. 1074: Ayers v. Chicago, 101 17.308: Book v. Justice M. Co. 58 U. S. 187. 25 L. ed. 838: Heath v. Erie Fed. 831 : Sprinsehl M. Co. v. Barn- Rv. 9 Blatchf. 316. Fed. Cas. No. ard. etc Co. 81 Fed. 261. 26 C. C. A. 6,.307 : Forbes v. R. R. Co. 2 m oods. 389. 323. Fed. Cas. No. 4.926; Goff v. I'Storv, Eq. PI. § 389. Kelly, 74 Fed. 327: Lautz v. Gordon. isHeath v. Erie Rv. 9 Blatchf. 28 Fed. 264. See Bowker v. United 316. Fed. Cas. No. 6.307. States. 186 U. S. 141. 46 L. ed. 1093. 1 9 Jackson V. Simmons. 98 Fed. 768, 22 Sup. Ct. Rep. 802: Fidelitv Co. 39 C. C. A. 514. But see North, etc. v. ^Mobile St. R. Co. 53 Fed. 852: Co. v. Lathrop, 70 Fed. 429. 17 C. C. Gilmore v. Bort, 134 Fed. 661. A. 175. TRubber Co. v. Goodvear, 9 Wall. 20Lautz V. Gordon. 28 Fed. 264. SIO. 19 L. ed. 587. But see Morgans. 3Brande v. Gilchrist. 18 Fed. 465. etc. Co. v. Texas C. Rv. 137 U. S. 4Cross V. De Valle. 1 Wall. 14. 17 201. 202, 34 L. ed. 635.*6.36. 11 Sup. L. ed. 515: Avers v. Chicago. 101 U. Ct. Rep. 61: Sutherland v. Lake. etc. S. 187. 25 L." ed. 838. Co. 1 Cent. Law J. 127, Fed. Cas. No. 5First Nat. Bank v. Salem, etc. Co. 13.643. 920 Procedure] CROSS BILLS FOR DISCOVERY AND RELIEF. § 963 [cl detendaiit has another remedy by objection for nonjoinder in the original bill.s But this rule is denied by other cases which aliinn the right of a defendant to make new parties where tliey are necessary to affirmative re- lief touching a matter in question in the original bill. 9 Cross bill is neces- sary where defendant seeks affirmative relief against pliiiitiff,io or against a codefendant.il But matter cannot be litigated betw(?eu defendants by Avay of cross bill, which is foreign to the original bill;i^ or unless neces- sary to a complete decree on the original. 1 3 The general rule is that the court cannot decree affirmatively in defendant's favor without it;!* al- though to this there are certain exceptions.is Cross bill for discovery has been used to ascertain whether plaintiff was a real or nominal party.i^ [c] Instances of its use. In a suit to set aside an agreement for a conveyance, the latter cannot be established without a cross bill by defendant. i In suit to quiet title, cross bill to have the other title declared voids or a fraudulent conveyance set asideS is proper. On bill to enjoin execution sale defendant may main- tain a cross bill to have the judgment declared a lien.* Defendant in a foreclosure suit has been permitted by cross bill to claim penalty for usu- rious interest. 5 In suit to establish title through a certain deed, cross bill may set up a trust in tliat deed in defendants favor.s A proceeding to ^Shields v. Barrow. 17 HoW'. 145, 15 L. ed. 158. 163. Eeaffirmed in: Randolph v. Robinson. 20 Fed. Cas. 262: Adelbert Coll. v. Toledo, etc. Rv. 47 Fed. 8*6: Gregorv v. Pike, 67 Fed. 845. 15 C. C. A 33: Thrus- ton V. Big, etc. Co. 86 Fed. 485. 5'Brandon ^Ifg. Co. v. Prime, 14 Blatehf. 374. Fed. Cas. Xo. L810; Mercantile T. Co. v. Atlantic, etc. Ry. 70 Fed. 525. See Hildebrand v. Beasley, 7 Heisk. 123; Kanawha Lodge V. Swann. 37 W. Va. 178, 16 S. E. 462. loCarnochan v. Christie, 11 ^^Tieat. 466, 467, 6 L, ed. 516. iiUnited States v. rnion Pac. R. R. f)8 U.S. 612,25 L. ed. 143: Nelson V. I^wndes Co. 93 Fed. 538. 35 C C. A. 419. i2Veach v. Rice. 131 U. S. 317. 33 L. ed. 163, 9 Sup. Ct. Rep. 730. i3Putnam v. New Albanv. 4 Biss. 365. Fed. Cas. No. 11 .481 : "Stuart v. Harden. 72 Fed. 402. 18 C. C. .i. 618; Thruston v. Big Stone G. Imp. Co. 86 Fed. 484: Oofl' v. Kellv. 74 Fed. 327 : Springfield v. Barnard, & L, M. Co. 81 Fed. 261. 26 C. C. A. 389. 1 '•Weaver v. Alter, 3 Woods. 152, Fed. Cas. No. 17.308. isUnited States v. Union P. R. R. 9 m U. S. 612, 25 L. ed. 143; Wood v. Collins, 60 Fed. 139, 8 C. C. A. 522; Chapin v. Walker, 2 McCrary, 175, 6 Fed. 704; "RTiite v. Bower, 48 Fed 186; Meissner v. Buck, 28 Fed. 161, E. g. in suits for account, decree may go for a balance found due de- fendant, without anv cross bill. See Story, Eq. PI. § 394, note 4: and in suits for specific performance, per- formance may be decreed in conform- itv with the contentions of defendant w'ithout cross bill. Story, Eq. PI. § 394. Northern R. R. v Ogdensburg. etc. R. R. 18 Fed. 815 (see 20 Fed. 347); Bradford v. Union Bank, 13 How. 57. 14 L. ed. 50. isVoun^ v. Pott. 4 Wash. C. C. 521. Fed. Cas. No. 18,172. iCarnochan v. Christie, 11 Wheat. 466. 467. 6 L. ed. 516. sSchenck v. Peay, 1 Woolw. 175, Fed. Cas. No. 12,4.50. sRemer v. McKay, 38 Fed. 164. ^Chicago, etc. Rv. v. Third Nat. Bank. 134 U. S. 287. 288. 33 L. ed. 900. 10 Sup. Ct. Rep. 550. ^Weatliersbee v. American F. L. Co. 77 Fed. 523. GKingsburv v. Buckner. 134 U, S. 677. 33 L. ed. 1047, 10 Sup. Ct. Rep- (•.38. 21 963 [d] ritocKr»uRK IX equity causes. [Colp red. Ijtain tlie appointment of a new trustee has been deemed to justify cross hill by the beneficiaries for accounting, construction of the trust, eic.i in infringement suit defendant may by cross bill establish his own equitable title; 8 but may not himself allege infringement. ^ And in a trustee's fore- closure suit bondholders cannot by cross bill claim relief for his alleged maladministration of the trust. lo [d] Filing and proceedings upon. In general, it is optional with a defendant to file a cross bill or seek independent relief; is and the filing of cross bill will not be compelled.is It cannot be filed by a stranger to the litigationi" unless permitted to in- tervene.is Cross bill cannot be filed until the original is answered.i'' The old rule was that a cross bill should be filed before the taking of testimony upon the original bill as closed, unless some new matter such as a release arose afterwards. 20 But courts are now more liberal in permitting them at a later stage of the proceedings to give defendants the benefit of a de- cree to which the facts show him entitled; 2 though not to reopen a case for the taking of additional testimony. 2 It is a matter within the dis- cretion of the trial court. * A cross bill has been entertained after answer though filed for the purpose of preventing a dismissal of the litigation by plaintiff.s The filing of a cross bill after the original has been heard and its merits passed upon is improper. 6 It is proper for the trial court to refuse to permit a cross bill which would entail very lengthy and tedious investi- gations not strictly relevant to the matters in issue under the original bill. 7 A cross bill mnust narce defendants, process is necessary thereon and it must be served. 8 But substituted service is permissible as to parties al- 'Hogg v. Hoag, 107 Fed. 807. "Brandon Mfg. Co. v. Prime, 14 Blatchf. 371, Fed. Cas. No. 1,810. sStonemetz Co. v. Brown Co. 46 Fed. 851. loGasquet v. Fidelity, etc. Co. 57 Fed. 80, 6 C. C. A. 253. ' isSharon v. Hill, 10 Sawy. 394, 22 Fed. 28; Washburn, etc. Co.' v. Scutt, 22 Fed. 711. leShields v. Barrow. 17 How. 145. 15 L. ed. 158. ivThruston v. Big S. G. Co. 86 Fed. 484: Gregorv v. Pike, G7 Fed. 837, 15 C. C. A. .33. See Bronson v. Rail- road. 2 Wall. 283, 17 L. ed. 725. 18 See Dickerman v. N. T. Co. 80 Fed. 456, 25 C. C. A. 549; Farmers L. & T. Co. V. San Diego C. Co. 40 Fed. 105. IS Allen V. Allen, Hempst. 58. Fed. Cas. Xo. 18,223. See the rule supra. 2 0Xeal V.' Foster, 13 Saw v. 236, 34 Fed. 499. 2See Xeal v. Foster; Morgans, etc. Co. V. Texas, C. Rv. 137 U. S. 201, 34 L. ed. 625, 11 Sup. Ct. Rep. 61. sRogers v. Riessner, 31 Fed. 5iM. 4]\Iorgans, etc. Co. v. Texas C. Rv. 137 U. S. 201, 34 L. ed. 625, 11 Sup. Ct. Rep. 61. sPullmans P. Co. v. Central T. Co. 49 Fed. 261. GBronson v. Railroad, 2 Black, 532, 17 L. ed. 359. "See Harrison v. Perea. 168 U. S. .320, 42 L. ed. 481, 18 Sup. Ct. Rep. 129. sWashington R. R. v. Bradlev>, 10 Wall. .302, 303, 19 L. ed. 894; ^^'ood V. Collins. 60 Fed. 142, 8 C C. A. 525: Hill v. Groeeiy Co. 78 Fed. 21, 23 C. C. A. 624; Turner v. Southern Home, etc. Assn. 101 Fed. 315, 316, 41 C. C. A. 379: Commercial Bank v. Sandford, 103 Fed. OS; Lowenstein V. Glidewell, 5 Dill. 325, Fed. Cas. Xo. 8,575. 922 rroceilure] CREDITOU'S BILL AGAINST STOCKUOLDLKS. s i • -i ready in court.y The original cause will not be heard until the cross bill is answered. 10 A cross bill which is without effect after the dis- missal of the original bill, should be dismissed.!! But the mere dismissal i ilic original Inil does not dispose of a cross bill seeking affirmative re- lief. 12 Although it is otherwise where the cross bill sets up only defensive matters. 13 Where the cross bill and answers are tiled, a decree disposii; of the whole case should settle the issues raised in them.i^ Sometimes a final decree disposing of the entire litigation may be drawn upon the lines of the cross bill. is An answer to a cross bill filed by a person not named in the bill nor admitted as a defendant will be stricken out.ie When cross bill neither seeks discovery nor affirmative relief it may be dismissed;!" though courts have sometimes disregarded the circumstance that a plead ing is improperly termed a cross bill.is [e] Permission to file. It is said that cross bill may be filed without leave of court and the ([uestion of its propriety be raised later by demurrer.2 This would seem correct as respects cross bill prior to heai'ing or taking of testimony, but where sought at a later time it would certainly be the better practit-' to obtain leave. 3 Leave must be obtained where strangers seek to intervene and file a cross bill;^ though the proceeding may be entertained without it;» and the leave granted may be withdrawn where the cross bill is not properly germane. 6 . § 964. Creditors bill against national bank stockholders. When any national banking association shall have gone into liquidation under the provisions of section five thousand two hun- oSee Fidelity, etc. Co. v. Mobile, isGilmore v. Bort, 134 Fed. 662. St. Ev. 53 Fed. 850, 852; Segee v. and cases cited. Thomas. 3 Blatchf. 11, Fed. Cas. No. i4Moore v. Huntington, 17 Wall. 12.633: Stonemetz v. Brown Co. 46 417, 21 L. ed. 642. Fed. 851: Heath v. Erie Rv. 9 isBlvthe v. Hinckley, 84 Fed. 228. Blatchf. 316, Fed. Cas. No. *6,307 See also Blythe Co. v. Bankers Tns. ( where the motion was for substi- Co. 147 Cal. 82, 81 Pac. 281. tuted service!. But see contra, isPutnam v. New Albany, 4 Biss. Websted L. Co. v. Short, 10 0. G. 365, Fed. Cas. No. 11,481. 1019. Fed. Cas. No. 17.343; Sawyer iTAmerican, etc. Co. v. Marquam, V. Gill, 3 Wood. & M. 97, Fed. Caji. 62 Fed. 960. No. 12.399. isSeo Lavis v. Consumers B. Co. 10 Young V. Pott. 4 Wash. C. C. 106 Fed. 435. 521, Fed. Cas. No. 18.172. 2Neal v. Foster, 13 Sawy. 236, 34 1 i:\Iinncsota PvV. v. St. Paul Co. Fed. 496. () Wall. 747, 18 L. ed. 856. sNorthern R. Co. v. Ogdensburgli, i2Barnard v. Hartford, etc. Ry. etc. R. R. 20 Fed. 347: Brush E. Co. Fed. Cas. No. 1,003: Jackson v. Sim- v. Brush S. Co. 43 Fed. 701. mons, 98 Fed. 768, 30 C. C. A. 514. 4Dickerman v. N. T. Co. 80 Fed. Defendant may be entitled to decree 456. 25 C. C. A. 549. pro confesso on his cross bill : Lowen- sOsborne v. Barge. 30 Fed. 805. Ht*in V. Glidewell, 5 Dill. 325, Fed. eDiekerman v. N. T. Co. 80 Fed. Cas. No. 8,575. 450, 25 C. C. A. 549. 923 § li. C. Wheat. 6. .5 L. ed. ':J75. C. 330. .391. Fed. Cas. No. 10.920, 5Rule 10, Equity Rules 1822. 7 10.921: Halderman v. Halderman, Wheat. 6, 5 L ed. 375. Hemp. 407, Fed. Cas. No. 5,908. 931 S :'77 [bj EQUITY PROCEDURE. [Code Fed. tlie plaintiff raiglit enter an order in the order book that the bill be taken pro confesso and the matter thereof decreed at the next succeeding terra; 7 and did away with the necessity for special rule upon defendant to answer.8 On October 28. 1878, the rule was amended into its present forra.^' and the necessity for waiting until the next term for an absolute decree was done away with.io [b] Construction and operation. Decree pro confesso under this rule is not a decree as of course in con- formity with the prayer of the bill, nor merely such as complainant chooses to make it.is But the court should make only such decree as is proper in law under the allegations of the bill taken as true.i* To order tliat the bill be taken pro confesso. is to order it to stand as if its statements were confessed to be true, and a decree pro confesso is a decree based on auch statements assumed to be true. It is as binding and conclusive as any other decree.i5 Qn appeal the allegations of the bill cannot be questioned, but only their sufficiency to support the decree.is Qn decree pro confesso in an infringement suit, only the amount of damages and profits are to be ascertained upon reference to a master and not questions of the patent's validity. 1" A decree pro confesso may be had if defendant being sued fails to appear, or having appeared, fails to answer, plead or demur, or if he fails to answer after a former plea, demurrer or answer is overruled or declared insufficient.! s Decree pro confesso may be entered after an inef- fective attempt to plead, e. g., by filing a demurrer lacking the necessary affidavit,! 9 as well as where there is a total failure. Decree pro confesso entered after striking defendant's answer from the files as a punishment for contempt, is a denial of due process of law. 20 Although the rule ex- pressly provides that the plainitff may proceed ex parte after entry of order for a decree pro confesso. it has been held that a defendant who is TPuile 18, 19 of Equity Rules of 1842, see 16 Pet. ; O'Hara v. McConnell, 93 U. S. 150, 23 L. ed. 842; Boudinot v. Symmes, Wall. C. C. 139, Fed. Cas. No. 1,695. sSee O'Hara v. McConnell, 93 U. S. 150. 23 L. ed. 842. 9See 97 U. S. 8. loSee also next section. !30hio Central R. R. v. Central T. Co. 133 U. S. 90. 33 L. ed. 563, 10 Sup. Ct. Rep. 237. i^Tbompson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Rep. 788; Sturtevant v. National F. Works, 88 Fed. 614, 32 C. C. A. 57; Wong Him v. Callahan, 119 Fed. 383. i'>Tlioinson v. VVoo^ter. 114 U. S. 104. 29 L. ed. 107, 5 Sup. Ct. Rep. 788; Hefner v. Northwestern R. Co. 123 U. S. 756, 31 L. ed. 313, 8 Sup. Ct. Rep. 341. isThomson v. Wooster. 114 U. S. 104, 29 L. ed. 108, 5 Sup. Ct. Rep. 788; Dobson v. Hartford Co. 114 U. S. 446, 29 L. ed. 179, 5 Sup. Ct. Rep. 948. i7Reedy v. Western E. Co. 83 Fed. 709, 28 C. C. A. 27; Thomson v. Wooster, 114 U. S. 114, 29 L. ed. 105, 5 Sup. Ct. Rep. 788. !8Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 108. 5 Sup. Ct. Rep. 788; Southern P. Co. v. Temple, 59 Fed. 17. !9Sheffield F. Co. v. Witherow, 149 C. S. 576, 37 L. ed. 855. 13 Sup. Ct. Rep. 936. 20Hovev v. Elliott, 167 U. S. 409, 42 L. ed."215. 17 Sup. Ct. Rep. 841. 932 Procedure] DECREE PRO COXFESSO. § 978 before the court though in default, should be given notice of the application for the decree.i And it has been said that the court should never decree pro confesso against a defendant, though in default, if then in court with an answer.2 The cause need not be set for hearing at a regular term after entry of the order pro cpnfesso. but the matter may be decreed "at any time"' after thirty days from such entry. 3 § 978. Entry and vacating of decree taken pro confesso. Wlien the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, miless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the de- fendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and 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. 19th equity rule, as amended October, 1878. This rule, together with rvile 18, was amended into its present form on October 28, 1878.6 The earlier provisions on the subject of decree pro con- fesso have already been referred to." Prior to this amendment, decree pro confesso only became absolute at the next term.s It is said that a default will usually be set aside on motion on condition that defendant plead to the merits and go to trial; 9 though terms will be imposed.io Under the present rules this is onlj' so during the term at which decree was ren- dered; '^ although a decree taken pro confesso on a cross bill which does not finally dispose of the entire controversy has been held not within that principle, becau.->e as tlie decree is interlocutory and not final, the court does not lose control over it with the expiration of the term. 12 There sliould iBennett v. Hoefiier. 17 Blatchf. C. C. 336. Fed. Cas. Xo. 10.920; Bou- 341, Fed. Cas. Xo. l.:^20: Southern P. dinot v. Symmes. Wall. C. C. 139. Co. V. Temple. .5!) Fed. 17. But see Fed. Cas. Xo. 1.09.5: O'Hara v. Mc- Price V. Boden. 39 Fla. 222. 22 So. Connell. 93 U. S. 150. 23 L. ed. 842. 658. ^Kemball v. btewart, 1 :McLcan, -'Halderman v. Halderman, Hemp. 332, Fed. Cas. Xo. 7.682. 407. Fed. Cas. Xo. 5,908, but the court lOHalderman v, Halderman, Hemp, will impose terms. ^07, Fed. Cas. Xo. 5.908. sTliompson v. Wooster, 114 U. S. n.Austin v. Rilev, .55 Fed. S.33; 104, 29 T,. ed. 108. 5 Sup. Ct. Rep. Stuart v. St. Paul, 63 Fed. 644: Seho- 788. And see the next section. field v. Horse, etc. Co. 65 Fed. 433. 697 U. S. 8. i2Blythe v. Hinckley, 84 Fed. 2.34. 'See ante. § 977 [a]. See also Bvlthe Co. v. Bankers Ins. sSee Pendleton v. Evans, 4 Wash. Co. 147 Cal 82, 81 Pac. 281. 933 1179 EQUITY PROCEDURE. [Code Fed. be a showing of a meritorious det'ense,i3 and application should be made at the earliest possible moment. i^ Where default is prematurely enteredis or there was no due service of subpoena, 1 6 it may be set aside on motion. § 979. Demurrer and plea in general. The clel'eudant mav at any time before the bill is taken for con- fessed, or afterwards witii the leave of the court, demur^^^"'^'^^ or pleadi^^^'f'^ to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue ;'^^^ but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying the fraud and combination, and the facts on which the charge is founded. '^''^ 32nd equity rule. [a] In general — time of filing. This rule is the same as rule 18 of the equity rules of 1822, except that "ill every case" is substituted for 'in any case;" "the bill specially charges" is substituted for "the bill charges"; and "facts" is substituted for "fact. "20 There is no difference between dilatory pleas and pleas in bar as to the time when they must be filed. 1 It is defendant's duty under rule 18 to demur or plead at the rule day after his appearance ; 2 but by this rule de- fendant may do so afterwards provided order for decree pro confesso has not been entered. 3 This rule as to demurrer and plea to bills applies also to demurrer and plea to cross bills.* There is no such thing as demurrer to an answer.5 The proper practice is to set the cause for hearing on bill and answer; 6 and a demurrer filed has been treated as an application to isSchotield v. Horse Co. 65 Fed. 437. See Harvey v. Richmond Co. 64 Fed. See Southern P. Co. v. Temple, 50 19, where belated demurrer was per- Fed. 17; Stuart v. St. Paul, 63 Fed. mitted. 644. »See Greeiiwalt v. Duncan. 16 Fed. i4Comly V. Buchana, 81 Fed. 58. 35. 5 McCrarv, 132; Brandon M. Co. isFellows V. Hall, 3 McLean, 281. v. Prime, 14'Blatchf. 371. Fed. Cas. Xo. 1.810: Hunt v. Oliver, Fed. Cas. Xo. 6.894. 5Banks v. Manchester. 128 I'. S. Fed. Cas. Xo. 4,722. isBlythe v. Hinckley, 84 Fed. 241. 2oSe'e 7 Wheat. 7, 5 L. ed. 376. lEwing V. Blight, 3 Wall. Jr. 139, 251, 32 L. ed. 428, 9 Sup. Ct. Kep. Fed. Cas. No. 4,589. 2See ante, § 977, 36; Walker v. Jack. 88 Fed. 576. 31 C. C. A. 462; Adams v. Bridgewater ^Hayman v. Keally, 3 Cranch C. C. Co. 6 Fed. 179: Crouch v. Kerr. 38 325. Fed. Cas. No. 6,265; Oliver v. Fed. 549. Decatur, 4 Cranch, C. C. 458. Fed. eBarrett v. Twin, etc. Co. Ill Fed. Cas. Xo. 10,494; I\Iason v. Jones, 1 45. H. & H. 323, Fed. Cas. No. 9,239. 934 I Procedure] DEMURRER AND PLEA IN GENERAL. § 970 [(■] set down the cause upon bill and answer." A demurrer filed without leave and after answer and submission, is too late.s [b] Nature and effect of demurrer. Demurrer admits all facts well pleaded.12 But cannot itself introduce new facts. 13 It does not admit conclusions of law contained in the bill;i* as, the alleged construction of an instrument therein set forth, is or allega- tions that an act was '"colorable" or a "scheme" or a "breach" or a "fraud"; is or that rates are "unjust and unreasonable."!^ An allegation in obvious conflict with the record in another suit made part of the bill will l)f^ regardfil as a mere conclusion of law, not admitted by demurrer.is However, reason- able deductions are admitted by demurrer as well as matters expresslj- alleged; IS and matters alleged are admitted, though complainant might have left them to be set up in the answer. 20 Allegations of fact in demurrer must be disregarded.! [c] Grounds of demurrer. When the bill shows on its face a want of equity, » or that complainants claim is barred by laches 6 or by the statute of limitations, the point may be raised by demurrer. But the demurrer should be special and not gen- eral demurrer for want of equity." So if multifariousness is apparent 'Grether v. Wriijlit, 75 Fed. 742, •23 C. C. A. 40S. See Orm.sby v. Union P. R. R. 4 Fed. 170, where special de- murrer made to part of answer. sXewman v. IMoody. 10 Fed. S08. !2Pul]man C. Co. v. ^lissnuri P. Rv. 115 U. S. 500, 20 L. ed. 400. 6 'Sup. Ct. Rep. 194; Ansjle v. Chica- go, etc. Rv. 151 C. S. io. ^^S L. ed. 55. 14 Sup. Ct. Rep. 240: Dillon v. Bernard, Holmes. 380. Fed. Cas. No. 3.915. isStewart v. Alasterson. 131 U. S. 158, 33 L. ed. 114, Sup. Ct. Rep. 082: Lamb v. Starr. 1 Deady, 350. Fed. Cas. No. 8.021; Puget Sound Bank v. King Co. 57 Fed. 433; Star Ball. etc. Co. v. Khilm. 145 Fed. 834. !4Pullman C. Co. v. Missouri Pac. Rv. 115 V. S. 500. 20 L. ed. 400. 6 Sup. Ct. Rep. 104: Preston v. Smith. 20 Fed. 884. isDillon v. Biu-nard. 21 Wall. 437, 22 L. ed. 073. isFogg v. Blair. 130 U. S. 127, 35 L. ed. 104. 11 Sup. Ct. Rep. 476. 1 "Reagan v. Farmers L. & T. Co. 154 r. S. 401. 38 L. ed. 1014. 14 Sup. Ct. Rep. 1047. isCornell v. Green. 43 Fed. 10.'.. See Ulman v. laeger, 67 Fed. 980. isAmorv v. Lawrence. 3 Cliff. 52:;. Fed. Cas. No. 336. 20Post V. Beacon Co. 80 Fed. 1. 32 r. C. A. 151. iStar Ball. etc. Co. v. Klahn. 1-I.T Fed. SU. r.Farlev v. Kittson. 120 U. S. 303. 30 L. ed.' 6S8. 7 Sup. Ct. Rep. 534. 6:\Iaxwell v. Kennedv. 8 How. 222. 12 L. ed. 1051 : Rhode Island v. Mass- achusetts. 15 Pet. 272, 10 L. ed. 721 : Lansdale v. Smith. 106 U. S. 392. 27 L. ed. 219. 1 Sup. Ct. Rep. .350: Speidel v. Henrici. 120 U. S. 387. 30 L. ed. 718. 7 Sup. Ct. Rep. 010; Brvan v. Kales. 134 LT. S. 135, 33 L. ed. 829. 10 Sup. Ct. Rep. 4.35: Copen V. Flesiier 1 Bond. 440. Fed. Cas. No. 3. 211 ; Hubbard v. Manhat- tan T. Co. 87 Fed. 51. 30 C. C. A. 520. "National Bank v. Carpenter. 101 U. S. .568. 25 L. ed. 815: Coddington v. Pensacola. etc. R. R. 103 U. S. 412. 26 L. ed. 401 : Nash v. Ingalls. 101 Fed. 645. 41 C. C. A. 545; Wisnev v. Ogden. 4 Wash. C. C. 631, Fed. Cas. No. 17.014: Nicliolas v. ilurray, 5 Sawv. 320, Fed. Cas No. 10,22*3. 935 ; 970 [d] EQUITY PROCEDUUE. [Code Fed. upon the face of the bill, the party suffering therefrom, s may take advan- tage of it by demurrer;!' and if sought to be claimed at all it must be either by demurrer, plea or answer.io Want of jurisdiction apparent on tlie face of a bill is ground for demurrer.n Formerly that question had to be raised by demurrer or plea, but the statute now permits it to be raised later or to be noticed by the court.12 Want of certainty in a bill is properly raised by demurrer and not by motion; is and the demurrer must be special and not general. 1 4 The fact that a portion of the relief demanded is barred by limitations may be raised by demurrer. is A defect of parties apparent on the face of a bill should be taken advantage of by demurrer; 16 otherwise by plea or answer.i'? Demurrer for want of parties should name such parties. is Formal defects in a bill arising from noncom- pliance with requirements of the equity rules and appearing on the face of the bill may be questioned by demurrer; is or motion to strike out. 20 They are otherwise waived,i although the same is not true as to de- murrer for want of equity. 2 But the propriety of issuing ne exeat cannot be raised by demiirrer;^ nor can questions of laches or the statute of limitations be disposed of on de- murrer where the bill avers excuses for laches," or it is a mixed question of law and fact.s [dj Special demurrer must be specific. When specially demurring defendant should distinctly designate and properly refer to the parts demurred to. 10 Demurrer to "so much as sets up a special contract" is not specific enough. n So demurrer for want of necessary parties should name them. 12 ^Hill V. Bonaffon, 2 Wklv. 356, Fed. Cas. No. 6,488. ;> Bunnell v. Stoddard, 2 A. L. R. 14o. Fed. Cas. No. 2.135: loOliver v. Paitt. 3 How. 402, 11 L. ed. 622: Barnev v. Latham, 103 r. S. 215, 26 L. ed. 514; Hefner v. Northwestern, etc. Ins. Co. 123 U. S. 751. 31 L. ed. 309, 8 Sup. Ct. Rep. 337. iiNoyes v. Willard, 1 Woods, 187, Fed. Cas. No. 10,374; Bond v. Ver- mont Val. R. R. 12 Blatchf. 280, Fed. Cas. No. 11.265. 12 See ante § 818 [a]. 1 3Einstein v. Schrublv, 89 Fed. 540. i4Pacific L. S. Co. V. HanleA'. 98 Fed. 327. i5:\Ipmphis v. Postal Tel. Co. 145 Fed. 602 (C. C. A.) lePelham v. Edelmeyer, 15 Fed. 264, 21 Blatchf. 188. I'Sheffiield, etc. Co v. Newman, 77 Fed. 787. 23 C. C. A. 459. isDwight V. Central etc. R. R. 9 Fed. 785. H'Dwight V. Humphreys, 3 Mc- Lean, 104. Fed. Cas. No. 4.216. where bill not signed bv counsel. Pelham v. Edelmever, 15 Fed. 262, 21 Blatchf. 188. 20See Roach v. Hulings. 5 Cranch C. C. 637, Fed. Cas. No. 11,874. 1 Wood worth v. Edwards, 3 Woodb. & M. 120, Fed. Cas. No. 18,014. 2 Foster v. Swasev. 2 Woodb. & M. 217. Fed. Cas. No.' 4,984 permitting that at the hearing and after an- swer. sShainwald v. Lewis, 69 Fed. 487. "LTlman v. laeger, 67 Fed. 980. sBeekman v. Hudson, etc. Rv. 35 Fed. 3. lOAtwill v. Ferrett, 2 Blatclif. 39, Fed. Cas. No. 640; Chicago, etc. R. R. v. Macomb, 2 Fed. 18^ iiOrmsbv v. L'nion Pac. Ev. 4 Fed. 170. i2Dwight V. Central & R. R. 9 Fed. 785. 20 Blatchf. 200. 936 ■ Procedure] DEMURRER AND PLEA IX GENERAL. § 97'.» [f] [e] Demurrer for want of equity and ore tenus. The genera] demurrer in chancery is demurrer for want of equity. De- murrer that the bill does not state facts sufficient to constitute a cause of action is not used.is The gist of such a demurrer is either that there is no right of action or ground of relief at alli-i or else that adequate remedy exists at law. General demurrer has been held sufficient to raise the ques- tion of a misjoinder of party plaintiff.i5 But demurrer for want of equity will not be sustained where the facts alleged show some ground of equitable relief. 16 Where the vagueness of a bill in certain of its material allega- tions left the exact facts uncertain, demurrer has been overruled. !■? Some- times also a court of equity will decline to decide doubtful questions of law upon demurrer, where a minute variation between the allegations of the bill and the facts which the proofs might disclose, would perhaps vitally change the legal aspect of the case; but under such circumstances will overrule the demurrer without prejudice to the right to raise the same questions at the hearing.is Demurrer ore tenus is only permissible where there is a demurrer of record to the whole bill;i9 and it is said it must be coextensive with such record demurrer. 20 [f] Nature and effect of plea. The proper office of a plea is to present some distinct fact which of itself creates a bar to the suit, or to the part to which the plea applies, and thus avoid the necessity of making the discovery asked for, and the ex- penses of going into the evidence at large.4 Tt does not. like an answer, meet all the allegations of a bill:^ nor. like a demurrer, admit those allega- tions with a view to denying the equity of the bill. Yet it must be a com- plete bar to the bill or to so much of it as it is directed^ It must com- pletely cover the whole bill if it is interposed to the whole.' This does not mean that it must meet allegations of the bill seriatim, and in de- fault thereof be accompanied by an answer, but merely that it must meet the whole subject to which it applies and professes to cover, or it will be isNicholas v. Murrav. 5 Sawv. 30 L. ed. 6S8. 7 Sup. Ct. Rep. .534; 320. Fed. Cas. No. 10.22.3. " United States v. California & O. L. i4Gal]agher v. Roberts. 1 Wash. Co. 148 U. S. 30. 37 L. ed. 354. 13 C. C. 320. Fed. Cas. Xo. 5,194. Sup. Ct. Rep. 458: Farley v. Hill, isConsolidated R. M. Co. v. 150 V. S. 574. 37 L. ed. 1186, 14 Sup. Coombs, .39 Fed. 25. Ct. Rep. 186. leHodges v. North M. R. R. 4 r.Reard v. Bowler, 2 Bond. 13. Fed. Dill. i04 Fed. Cas. No. 6.5(51 : Failev Cas. No. 1.180: Kirkpatrick v. v. Talbee. 55 Fed. 892: Pacific L. S. White. 4 Wash. C. C. 595. Fed. Cas. Co. V. Hanlev, 98 Fed. 327. No. 7.850: Simms v. Lvle, 4 Wa-^h. i-See Union t. R. R. v. Meier, 28 C. f . 301. Fed. Cas. No. 12.891. Fed. 9. sMillisran v. Milledgc. 3 ('ranch. isKansas v. Colorado. 185 U. S. 228. 2 L. ed. 417: Rhode TslanSharp V. Reissner. 9 Fed. 447, 20 Blatchf. 10; C^iisholm v. Johnson, 84 Fed. 385; Union S. Co. v. Phila. etc. R. R. 69 Fed. 833. 2 0Gilbert v. Murphy, 100 Fed. 161; Bimker Hill. etc. Co. v. Shoshone Co. 109 Fed. 504, 47 C. C. A. 200; Lamb V. Starr, Deadv, 350, Fed. Cas. No. 8,021 ; Wheeler v. McCormick, 8 Blatchf. 267, Fed. Cas. No. 17,498; Newby v. Oregon, etc. Ry. 18 Fed. Cas. p. 43. And more than one will only be allowed for obvious necessi- tv; Lamb v. Starr, Deadv, 350, Fed. Cas. No. 8,021. See Garrett v. New York T. Co. 29 Fed. 129; Unit- ed States v. Gillespie. 6 Fed. 803; Emma S. M. Co. v. Emma S. M. Co. 7 Fed. 401; Miller v. Rickey. 123 Fed. 604 and cases cited. iRliode Island v. Massachusetts, 14 Pet. 259. 10 L. ed. 446; Gaines v. Masseaux. 1 Woods. 118, Fed. Cas. No. 5,176; Hostetter Co. v. E. G. Lvons. 99 Fed. 736; :\filler v. Rickey, 123 Fed. 607; Giant P. Co. v. Safotv etc. Co. 19 Fed. 509; Knox Co. v. Rairdon Co. 87 Fed. 969. 2Rhode Island v. ^lassachusetts, 14 Pet. 259, 10 L. ed. 446. sBrigss V. Stroud. 58 Fed. 718. 939 S OT'J Ij] EQUITY PROCEDURE. [Code Fed. tious,* or prior patent and abandonment. & If a plea contains more tiian one point the court will put defendant to his election as to which to stand upon,6 or else perhaps order the pleas to stand as an answer.^ But a single defense sought to be raised by plea may result from a number of distinct facts, and if so a plea setting them forth is not duplicitous.s [j] Demurrer, plea, and answer to different parts of an entire bill. Plea in bar to the whole bill must sometimes be supported by an answer; 11 and plea which is only intended as a bar to a part of a bill, must always be accompanied by demurrer or answer to the rest. 12 Since a de- murrer to the whole bill will be overruled if any part is good,i3 it is essential that demurrer be confined to such parts of a bill as are alleged lo be insufficient in law, and that the defendant meet the remainder either by answer or plea or both. Thus the discovery parts of a bill may be good, although all the remainder is demurrable and if so demurrer to the whole must be overruled.i* However, if the relief is the principal part of the bill and discovery only incidental, a demurrer to the whole bill may be sustained if the plaintiff is not entitled to the relief sought, i'' De- murrer to part followed by answer to the rest is proper and allowable,! 6 but there is no rule in equity allowing a party to demur, plead and answer to the whole bill at the same tirae;i" nor allowing a plea to be filed with an answer which extenas to all matters covered by it.is Nor will a party ordinarily be permitted to file a demurrer to the whole bill and several pleas at the same time,i9 or demurrer to the whole bill and answer to the whole.2 If he does so the answer is then deemed a waiver of the de- murrer,! or defendant may be required to elect. 2 If defendant demurs to 4Fayerweather Will Cases, 103 Fed. 548. r>Societe Fabr. v. Lueders. 105 Fed. 633. eNoyes v. Willard. 1 Woods, 187, Fed. Cas. No. 10,374. TReissner v. Anness, 12 0. G. 842, Fed. Cas. No. 11,686. sMacVeagh v. Denver C. W. Co. 85 Fed. 74. 29 C. C. A. 33; Hazard V. Durant, 25 Fed. 26. 11 See infra, note [k]. 12 Ferguson V. O'Hara, Pet. C. C 493. Fed. Cas. No. 4,740. isLiviiigston V. Story. 9 Pet. 658. 9 L. ed. 255 ; Pacific R. R. v. Missouri Pac. R. R. Ill U. S. 520, 28 L. ed. 498. 4 Sup. Ct. Rep. 583 : Stewart v. Masterson. 131 U. S. 158, 33 L. ed. 114. 9 Sup. Ct. Rep. 682; United States v. Southern P. Co. 40 Fed. 611 ; :Merriam v. Holloway P. Co. 43 Fed. 450: Buerk v. Imhaeuser, 8 Fed. 457; La Croix v. May, 15 Fed. 236; Mercantile T. Co. v. Rhode Island Co. 36 Fed. 863; Northern P. R. R. v. Roberts. 42 Fed. 734. 14 Livingston v. Story, 9 Pet. 658, 9 L. ed. 264. 15 Johnson v. Ford, 109 Fed 501. ispierpont v. Fowle, 2 Wood. & M. 23. Fed. Cas. No. 11,152; Cres- cent Citv Co. v. Butchers, etc. Co. 12 Fed. 225'. 1'' Crescent, etc. Co. v. Butchers, etc. 12 Fed. 225. isGrant v. Phoenix, etc. Ins. Co. 121 U. S. 115, 30 L. ed. 905, 7 Sup. Ct. Rep. 841. li* United States v. American B. T. Co. 30 Fed. 523. 2 0Strang v. Richmond, etc. R. R. 101 Fed. 511, 41 C. C. A. 474. 1 Strang v. Richmond, etc. R. R. 101 Fed. 511. 41 C. C. A. 474; Hayes V. Davton. 8 Fed. 702, IS Blatchf. 420. 2Haves v. Davton, 8 Fed. 702, 18 Blatchf. 420. 940 Procedure] PLEA AND DEML'RREU. § 980 part and answers as to the rest, the demurrer is not thereby vvaived.s By the 37th rule, if a part}' now answers part of a bill to which he has de- murred, it is provided that that shall not be ground for overrruling the de- murrer. < The 39th rules permitting matter available as plea in bar or to the merits to be set up in the same way in the answer has had a tendency to discourage the practice of filing demurrer, plea in bar and answer to dif- ferent parts of a bill, since defenses can be safely and advantageously made by answer. [k] Answer in support of plea. .Sometimes a plea requires answer in its support. The above rule makes this essential in case of plea to part of a bill charging fraud or combina- tion. 9 So, where a plea is intended to meet merely a part of the bill it is of course necessary that there be answer or demurrer to the rest.io Where a plea is interposed as a complete bar. there may be allegations in the bill bearing upon the fact alleged in the plea, which will be taken as ad- mitted unless answered. Hence the rule is that defendant must also answer to those facts in a bill which would be evidence to dispute his plea;ii and to interrogatories bearing upon the fact alleged in his plea. Ordinarily a plea denying the diverse citizenship alleged need not be supported b.\ answer; 12 nor a plea of the statute of limitations.! 3 A plea to the whole hill stating nothing but legal conclusions, accompanied by answer to the whole, may be disregarded. i< The liling of an answer to the whole bill is a waiver of the plea. is § 980. Certificate and affidavit to accompany plea or demurrer. Xo demurrer or plea shall be allowed to be filed to any bill, imle.S6, 31 C. C". A. 114. 11.874T sFaverweather v. Hamilton Coll. isRankin v. Miller, 130 Fed. 229. 103 Fed. 546. i^See ante, § 980; § 979[i]; Union 4The proper coui'se; see Brazoria S. Co. v. Philadelphia, etc. R. R. 69 Co. V. Youngstown B. Co. 80 Fed. 13, Fed. 833. 25 C. C. A. .306. and cases cited. isMvers v. Dorr. 13 Blatchf. 22. sCoodvear v. Tobv. 6 Blatchf. 130, Fed. Cas. No. 9.988: Daniels v. Bene- Fed. Cas. No. 5.58.5. For a similar diet, 97 Fed. 374, 38 C. C. A. 592; rule at law see Griswold v. Baclieller, (Jibberson v. Cook^ 124 Fed. 987: 77 Fed. S57: Commercial Bank v. Slo- Hatcli v. Bancroft 1. Co. 67 Fed. 802. comb, 14 Pet. 60, 10 L. ed. .354: Com- 1 6 Ante, § 979 [g]. 942 I Procedure] SETTING PLEA OR DEMURRER FOR ARGUMENT. § 981 [c] allowed rule 35 governs as to costs and amendment of the billji^ and after plea allowed, plaintiff may file a replication.! s. If the demurrer or jilea is overruled or the plea is decided for plaintiff on replication rule 34 gov- erns as to the costs and the necessity that defendant then answer. 1 9 If complainant fails to reply to a plea or set it or a demuiTer down for argu- ment, the penalty is the dismissal of his bill. 20 it is irregular to file rep- lication to answer supporting a plea, and ignore the plea.i It is improper to demur to a plea; the mode of testing its legal sufficiency is by setting it down for argument,2 that being the legal equivalent.s The setting of a plea or demurrer for argument is a waiver of certain formal defects therein. 4 [b] Disposal of plea set for argument. Courts of chancery exercise a large discretion in dealing with pleas in order to avoid the injustice to a plaintiff often involved in determining the cause under the technical rules which apply to them.^ If the issue raised by plea approaches closely to the issue upon the merits as it would be presented by answer, it is customary to overrule the plea and require de- fendant to answer without prejudice to the right to raise the same de- fenses therein. s A good illustration of this practice is often afforded by infringement suits where plea of non-infringement is interposed. 9 A plea many be good in part and bad in part. 10 In that event it will be overruled in part and declared good in part Avith leave for plaintiff to file a replica- tion.! 1 Rule 34 governs the further proceedings where a plea is overruled; 12 and rule 35 where the plea is sustained.! s [c] Taking issue on the plea and effect of finding in defendant's favor. If complainant elects to take issue on the truth of the fact or facts alleged in the plea, rather than upon its legal sufficiency, he should file a r.^plication traversing the allegations.! 6 Special replication is no longer iTPost. § 986. 718; Gilbert v. Murphv. 100 Fed. isPost. § 986 [b]. 161. i9See post. § 985. 9Chisholm v. Johnson, 84 Fed. 2 0Post. § 982. 385: Sharp v. Eeissner, 9 Fed. 447. !See Beals v. Illinois, etc. R. R. 20 Blatchf. 10; Kom v. Weibush. 33 133 r. S. 290. 33 L. ed. 608. 10 Sup. Fed. 51 : see Knox Co. v. Rairdon, Ct. Rep. 314. etc. Co. 87 Fed. 969. 2Zinunerman v. So Relle. 80 Fed. lOWvthe v. Palmer. 3 SaAvy. 412, 417. 25 C. C. A. 518. Fed. Cas. Xo. 18.120: Kirkpatrick v. sBurrell v. Haokley. 35 Fed. 833; White. 4 Wash. C. C. 595. Fed. Cas. see ante. § 979[g]. " Xo. 7. 850: Rhino v. Emery. 79 Fed. 4 See Farmers' L. & T. Co. v. Chi- 483. cago. etc. Rv. 61 Fed. 543: Good- iiRhino v. Emery. 79 Fed. 483. vear v. lobev. 6 Blatclif. 130. Fed. i2Post, § 985. Cas. Xo. 5,585. !3Post. § 986. "Rhode Island v. Massachusetts, leSee Mvers v. Dorr. 13 Blatchf. 14 Pet. 257. 10 L. ed. 445. 23. Fed. Cas. No. 9.988; McAleer v. sSee Rhode Island v. Massachu- Lewis. 75 Fed. 734: Earll v. ]Metro- setts. 14 Pet. 257. 10 L. ed. 445: politan St. Ry. 87 Fed. 528: Snder- Chisholm V. Johnson. 84 Fed. 38-1: berg v. Armstrong, 110 Fed. 709. and see Briggs v. Stroud, 58 Fed. 943 S !i,si [c] EQUITY I'KOCEDUUE. [Code Fed. ])c'nuis.sible.i' Fonueily a paity who took issue upon a plea instead of disputing its legal sufficiency, was deemed to have admitted that the plea was a bar if true; so that if its truth was found dismissal of the bill fol- lowed as matter of course.is. The Supreme Court adopted that principle from the English chancery practice in a case decided in 1821, and observed: "It is not perceived that any serious mischief can arise from it. Counsel will generally be able to decide on the merits of any defense which may be spread on a plea, and if insufficient it is not probable that they will do otherwise than set it down for argument. Nor will they ever take issue upon it but in a case which presents a very clear and sufficient defense, if the facts be proved."'iS' But rule 10 of the equity rules, adopted in the .following year contained the proviso which has been preserved in the rule now in force that the facts, if found for defendant, ''shall avail him as far as in law and equity they ought to avail him." The authorities seem to agree that this proviso has modified the earlier rule. 20 The question is, how far it has affected or modified that rule. Upon the one hand the court must consider the inequity of compelling a defendant to go to the expense of proving his plea; and upon the other, the inequity of having a case turn upon the existence or non-existence of facts which are perhaps not material or properly controlling. It was this latter consideration which has been deemed responsible for the rule.i It may safely be said that the Federal courts will no longer consider the filing of replication to a plea so conclusive an admission of its legal sufficiency as to debar them from examining its merits and overruling it if bad in substance; 3 or from considering other facts adduced by complainant to avoid its effect. * The court is not necessarily required to dismiss the bill, though the plea be j)rnvcn true. 5 "Under the existing rule the court may, upon final hearing, do, at least, what, under the old rule, might have been done when the benefit of a plea was saved to the hearing."6 But of course if the plea meets and satisfies all the claims of the bill, it ought to avail defendant 1 v:\Iason v. Hartford, etc. R. R. 10 Pet. 210, 10 L. ed. 423, decided while Fed. 334. the rules of 1822 were in force. isStorv Eq. PI. § 697; Hughes v. iQreen v. Bogue, 158 U. S. 49!). 39 Blake, c' Wheat. 453, 5 L. ed. 303: L. ed. 1061, 15 Sup. Ct. Rep. 983. Gernon v. Boccaline. 2 Wash. C. C. sMatthews v. Lalance & (t. M. Co. 199. Fed. Cas. No. 5.366: see Cottle v. 2 Fed. 235, 18 Blatchf. 84; Green v. Krenientz, 25 Fed. 494. and Birdseye Bogue. 158 U. S. 478, 39 L. ed. 1061, V. Heilner. 27 Fed. 289, overlooking 15 Sup. Ct. Rep. 975; Soderberg v. the clianse in the rule. Armstrong. 116 Fed. 709; American 1 "Hughes v. Blake, 6 Wheat. 472, G. Co. v. ^Edison P. Works. 68 Fed. 5 L. ed. 308. 451; but see contra: Daniels v. Bene- 20Pearce v. Rice, 142 U. S. 28. 35 diet, 97 Fed. 374, 38 C. C. A. 592; L. ed. 925, 12 Sup. Ct. Rep. 130: Gibberson v. Cook, 124 Fed. 987; Green v. Bogue. 158 U. S. 478, 499, 39 Mvers v. Dorr, 13 Blatchf. 22, Fed. L. ed. lOOf. 15 Sup. Ct. Rep. 983; Cas. No. 9,988. Elgin, etc. Pump Co v. Nichols. 65 4Elgin. etc. Co. v. Nichols, 65 Fed. Fed. 217, 12 C. C. A. 580; Soderberg 215. 12 C. C. A. 578. V. Armstrong, 116 Fed. 710; Farlev sPearce v. Rice. 142 U. S. 28. 35 V. Kittson, 120 U. S. 314. 30 L. ed. L. ed. 930, 931, 12 Sup. Ct. Rep. 130. 684. 7 Sup. Ct. Rep. 534; but see sPearee v. Rice. 142 U. S. 42. 35 Rhode Island v. Massachusetts. 14 L. ed. 930. 931, 12 Sup. Ct. Rep. 130. 944 ■ Procedure] PLEA AND DEMURRER. § 982 so as to require final decree thereon in his favor." If upon the replication to the plea the facts are found parth' for complainant and partly for de- fendant the court may, under this rule, mould its relief accordingly.^ Upon decision for plaintiff on replication to the plea he was formerly entitled to decree forthwith, the defendant being debarred from answer and other de- fenses, but under rule 3-4 the court should now rule defendant to answer.9 It is irregular to file replication only to the answer supporting a plea and not to the plea as well.io § 982, Effect of failure to set down for argument or take issue. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument on the rule day when the same is filed, or on the next succeeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that purpose. 38th equity rule, promulgated March, 1842. Under the equity rules of 1822 this penalty only attached where plaintiff did not reply or set for hearing before the second term after the filing of the plea or demiuTer.i* A bill will not be dismissed under this rule unless the party had proper notice under rule 4i5 of the filing of the plea or de- murrer,! 6 or where the plea or demurrer was defective as respects certifi- cate or affidavit. 1" The rule does not apply to a case where the demurrer has been overruled and there is no plea.is Plaintiff cannot insist on the imposition of this penalty against him when defendant has waived it and the cause has proceeded to decree in defendant's favor.13 The court may refuse to dismiss under this rule where no regular rule day is observed and the practice has grown up of entertaining and disposing of demurrers Informally, and on every day of the term. 20 It has l)een said that the ob- ject of this rule and of rule .13! was to speed a cause during vacation. 2 THorn V. Detroit D. Co. 150 U. S. i-^Aute. § 040. 625. 37 L. ed. 1203, 14 Sup. C't. Eep. ifiXewbv v. Oreson. etc. R. R. 1 218: see McAleer v. Lewis. 75 Fed. Sawy. 03,' Fed. Cas. Xo. 10,145. 734. iTXational Bank v. Insurance Co. sSee Earll v. Metropolitan St. Rv. 104 U. S. 54, 26 L. ed. 603. 87 Fed. 528. ' i^Poultnev v. Lafavette. 3 How. PWestervelt v. Librarv Bureau, 118 SI. 11 L. ed! .503. Fed. 824, 55 C. C. A. 4.36; see post, lOChicago. etc. R. R. v. I'nion R. § 985. M. Co. 100 U. S. 702. 27 L. ed. 1081, loSee Reals v. Illinois R. R. 133 3 Sup. Ct. Rep. 594. U. S. 200. 33 L. ed. 60S. 10 Sup. Ct. 20See Eloctrolihration Co. v. Jack- Rep. 314. son. .52 Fed. 773. 14Ru1p 21 of Eq. Rules of ] S22, 7 lAnte, § 981. Wheat. VI, et seq. 5 L. ed. 376; see 2Electrolibration Co. v. Jackson, Poultney v. Lafayette. 3 How. 81. 52 Fed. 773. 11 L. ed. .503; Parton v. Prang. 3 ClifF. 5.37. Fed. Cas. No. 10,784. Fed. Proc— 60. 945 § nS3 EQUITY rROCEDURE. [Code Fed. § 983. Demurrer or plea not to be overruled because less ex- tensive than might be. 'No demurrer or plea shall be lu-ld l)a(l and overruled upon argu- ment, only because sueli demurrer or plea shall not cover so much of the bill as it might by law have extended to. 36tli equity rule, promulgated March, 1S42. The 32ud rul-e permits defendant to demur to part, plead to part and answer as to the rest. 5 The part of the bill which is not met by plea or demurrer must of course be met by answer. § 984. — because the answer also partly covers same matters. ]SJo demurrer or plea shall be held bad and overruled upon argu- ment, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. 37tli equity rule, promulgated 1842. The 32nd rule permits defendant to demur, plead and answer to different parts of a bill.s This rule and the 36th rule are first found in the equity rules of 1842 and do not appear in the earlier rules of 1822.9 The object of this ruleio is to avoid the effect of the prinicple that answer is a waiver of a plea or demurrer to the same matter.n It saves a defendant from the effect of that principle where his answer extends to "some part" of the saane matter, but not where the answer extends to the whole of the matter covered by the plea or demurrer. 12 This rule does not apply where a plea or demurrer extends to the whole bill;i3 and plea or demurrer can- not be filed at the same time with an answer to the whole. i* if a plea be filed with an answer to the whole bill, it is superseded: is or may be ordered to stand as part of the answer. i« Sometimes a plea requires answer in its support;!'? but in such cases the principle that answer is waiver of the plea was not available in equity practice prior to the above rule,i8 so that there is no need to invoke it to avoid that consequence. iAnte. § 979. 79 Fed. 867: Mercantile T. Co. v. sAnte. § 979. Missouri, etc. Ry. 84 Fed. 383. 9See Haves v. Davton. IS Blatchf. isHuntington 'v. Laidlev, 79 Fed. 420. 8 Fed! 702. ' 867; see :Mercantile T. Co. v. Mis- loHuntington v. Laidlev. 79 Fed. souri, etc. Rv. 84 Fed. 383. 867. " 14 Ante, § 979 [j]. iiFerguson v. O'Harra, Pet. C. C. isHudson v. Randolph. 66 Fed. 216. 493, Fed. Cas. No. 4,740: Sims v. 13 C. C. A. 402: Marshal v. Otto. .59 Lvle. 4 Wash. C. C. .301. Fed. Cas. Fed. 249. Xo. 12.891: Stearns v. Page. 1 Story, leLcwis v. Baird, 3 :\rcLean, 56, 204, Fed. Cas. No. 13,339. ' Fed. Cas. No. 8.316. i2Grant v. Phoenix M. L. I. Co. ivAnte. § 979 [k]. 121 U. S. 115, 30 L. ed. 908, 7 Sup. isSee Lewis v. Baird, 3 McLean, Ct. Rep. 841 ; Huntington v. Laidlev, 56, Fed. Gas. No. 8^316. "946 Procedure] COSTS ON PLEA OR DEMURRER OVERRULED. § 985 [b] § 985. Costs on plea or demurrer overruled — defendant then to answer. If, upon the hearin^y-, any demurrer or plea is overruled, the plaintiff" shall be entitled to his costs in the cause up to that period unless the court shall be satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay. '^^^ And, upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule day, or at such other period as, consist- ently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default Avhereof, the bill shall be taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly. "^^^ 34th equity rule, promulgated March, 1842. [a] The old rule — allowance of costs. Rule 20 of the equity rules of 1822 provided that "if a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received, but the defendant shall proceed to ansM^er the plaintiff's bill; and if he fail to do so within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed, and the mat- ter thereof be decreed accordingly."! So, rule 22 declared that costs should "be paid as where an answer is adjudged insufficient."2 A plea that is palpably bad will be overruled with costs. 3 But a defendant will be deemed to have had "good groimd" for interposing plea or demurrer if he has acted in good faith and with a reasonable belief that it was meritorious.* [b] Defendant to answer on demurrer or plea overruled or disproved. The above rule provides that defendant shall answer only upon the over- ruling of demurrer or plea. It does not expressly apply to a case where plaintiff has taken issue of fact upon a plea and has prevailed; i. e., where the plea has been "disproved."' The old rule was that after plea to the Tuerits was disposed on an issue of fact, defendant could set up no other defense and decree thereupon went against him. Tt seems, however, that rule .34 applies to a plea disproved, and requires the court to direct defend- ant to answer as in the case of plea overruled because insufficient in law.7 In otlier words rule 34 alters the old chancery practice in that respect. iSee 7 Wheat. X. 5 L. ed. 376. Kittson. 120 U. S. 303, .30 L. ed. 684, 2Ree 7 Wheat. X. 5 L. ed. 376. 7 Sup. Ct. Rep. 5.34; Dalzell v. :Manu- 3Soo Matthews v. L. & G. M. Co. 2 facturing Co. 14*) U. S. 315, 326, 327, Fed. 2.35, 236, 18 Blatchf. 84. 37 L. ed. 749, 13 Sup. Ct. Rep. 886; •tChisholm v. .Johnson, 84 Fed. 384. Stead v. Course, 4 Cranch, 413, 2 TWestervelt v. Librarv Bureau, 118 1.. ed. 663. Fed. 824, .55 C. C. A. 43(5; Farlev v. 947 S 086 EQUITY PROCEDURE. [Code Fed. The dofendant may answer as of right, if plea or demurrer be overruled^ and a decree pro confesso will not be entered on overruling of plea, unless the court is satisfied that it was interposed for delay. 9 Where defendant failed to answer in the sixty days allowed him after demurrer overruled or at the rule day following the overruling of a subsequent plea in abate- ment, there was no error in ordering decree pro confesso.io The defend- ant should howevere be ruled to answer, n § 986. Costs where demurrer or plea allowed — amendment of bill — reply to plea. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonablc'^^^'^''^ 35th equity rule, promulgated March, 1842. [a] Costs and amendment. Rule 22 of the equity rules of 1822 provided that "upon a plea or de- murrer being . . . adjudged good, the defendant shall have his costs;"i5 but there was no provision of the earlier rules for amendment of the bill. Permission to amend is discretionary is under this rvile, and not matter of right.i^ Unreasonable delay in obtaining leave and amending is good ground for refusal of leave to file.is A party must show he has asked per- mission to amend before he can review the question on appeal. 1 9 Where plaintiff asks permission to amend, to explain the laches which led the court to sustain the demurrer, it is sometimes the court's duty to grant such permission.2 So where demurrer is sustained for misjoinder of par- ties plaintiff, the decree may very properly grant leave to amend by strik- ing out the party objected to;i or permit dismissal as to him, on motion. 2 s sWooster v. Blake, 7 Fed. 816. 682, 44 C. C. A. 673; Boston, R. R. ^American, etc. Co. v. Leeds, etc. v. Parr, 98 Fed. 484. Co. 140 Fed. 981. i'? National Bank v. Carpenter, 101 lOMcGregor v. Vermont L. & T. U. S. 567. 25 L. ed. 815; Hunt v. Co. 104 Fed. 709, 44 C. C. A. 146. Rousmaniere, 2 Mason, 342, Fed. 11 lender the early rules this was Cas. No. 6,898. prerequisite to entry of decree pro isAllis Co. v. Withlaeoochee. 105 confesso. though defendant had not Fed. 682, 44 C. C. A. 673; Boston R. appeared at all : Halderman v. R. v. Parr^ 98 Fed. 484. Halderman, Hemp. 407, Fed. Cas. No. isNational Bank v. Carpenter, 101 5.908; see ante, § 977 [a]. U. S. 567, 25 L. ed. 815. i58ee 7 Wheat. X. 5 L. ed. 376. 20Lant v. Manley, 75 Fed. 634 21 10 National Bank v. Carpenter. 101 C. C. A. 457. U. S. 567. 25 L. ed. 815; Ketehum iVictor T. M. Co. v. American G. V. Driggs, 6 McLean, 13. Fed. Cas. Co. 118 Fed. .50. No. 7.735; Dwight v. Humphrevs. 3 2Walker v. Powers, 104 U. S. 245, McLean. lOL Fed. Cas. No. 4>216; 26 L. ed. 729. Allis Co. V. Withlaeoochee, 105 Fed. 948 J I Procedure] COSTS WHERE DEMURRER OR PLEA ALLOWED. § 98G [bl If instead it is absolute, it slioiild be without prejudice to another suit. 3 [b] Right to reply to plea sustained as legally sufficient. While the equity rules nowhere provide in terms that plaintiff may reply to a plea which, having been set down for argument, has been held suf- ficient in law. it is settled that plaintiff has the right thereupon by reply to take issue upon its truth. 5 sHouse V. :\Iullen. 22 Wall. 42, 22 v. Dalles M. R. Co. 140 U. S. 616, 3.5 L. ed. 838. L. ed. 565, 11 Sup. Ct. Rep. 988: sRhode Island v. Massachusetts, 14 Mac\'eagh v. Denver, etc. Co. 85 Fed, Pet. 257, 10 L. ed. 445 ; United States 75, 29 C. C. A. 33. 049 CHAPTER 2Y. EQUITY PROCEDURE (CONTINUED)— ANSWER, REPLICATION AND ISSUE. § 990. The answer — matters pleadable in bar may be included. § 997. Signing and verification of answer. § 998. Interrogatories not necessary to obtain full answer. § 999. What interrogatories need not be answered. § 1000. Answer not evidence where answer on oath waived. 5j 1001. Exceptions to answer — time for taking — formal requisites. ij 1002. — setting exceptions for hearing unless answer amended. >? 1003. — answer on allowance of exceptions and penalty for failure. S 1004. Payment of costs upon exceptions allowed or overruled. i^ 1005. Setting cause for hearing on bill and answer. ^ 10O6. Amendment of answer and supplemental answer. ij 10O7. New or supplemental answer after amendment of bill. i; 1008. Full costs not allowed if separate answer by solicitor for several defendants unnecessary'. ■■ 1009. Limit of taxable costs on answer. >? 1010. Replication — time of filing — issue. |> 996. The answer — ^matters pleadable in bar may be included. The rule, that if a defendant submits to answer he shall answer fully'^^^"'^'^^ to all the matters of the bill, sliall no longer apply in eases where he might by plea protect liimself from such answer and discovery. 1^^^ And the defendant sball be entitled in all cases by answer to insist upon all matters of defense (not l^eing matters of abatement, or to the character of tlie parties, or matters of form"^^^) in bar of or to the merits of tlie bill, of which he may lie entitled to avail himself by a plea in bar: and in such answer ho shall not be compellable to answer any other matters than lie would be coni- ])ellable to answer and discover upon filing a plea in bar and an answer in support of such plea, toucbing tbe matters set fortb in the bill to avoid or repel tbe bar or defense. f^^ Thus, for example, a bona fide purchaser for a valuable consideration, without notice, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to 950 Procedure] THE ANS^YEU— MATTERS PLEADABLE. § 99G [b] make any further answer or discovery of his title than he wouhl be in any answer in support of such plea.^^^^ 39th equity rule, promulgated March. 1S42. [aj The answer in general. Rule 23 of the equity rules of 1822 provided that "The defendant, instead of filing a formal demurrer or plea, may insist on any special matter in his answer, and have the same benefit thereof, as if he had pleaded the same matter, or had demurred to the bi]l."i It will be observed that rule 3!) supra provides for answer in lieu of plea only and not in lieu of demurrer. It provides for the substitution of answer for plea, only in cases of plea in bar or to the merits; and it does away with the necessity which existed under the early rule, that defendant answer fully even though his plea set up a bar to the relief.2 However it is not to be construed as forbid- ding the setting up in the answer of matter which is strictly in abatement. 3 It merely leaves the pleader in such a case, under the rule which requires him to answer fully.* An answer in equity has two distinct purposes, viz.: the setting up of the defense, and the discovery of facts in response to plaintiff's interrogatories. It is a pleading, and also an important feature of the proof. However, the discovery feature of the answer, once of very great importance, is now of but slight and infrequent value, since the modern statutes everywhere permit the parties to be called as witnesses. » Its evidential value is still further restricted by rule 41,6 which permits plaintiff to destroy its force in that respect, by waiver of answer under oath, and by rule 39 supra abrogating the need for full answer if defendant sets up matter available as plea in bar. The answer now may sometimes be no more than a plea.T Hence it is chat the rules testing the sufficiency of answer, observed at a time when the answer was an important part of the proof, are not now safe guides in the majority of cases. s [b] Form and effect of answer in general. A fact admitted by answer need not be proved. 12 If undonied an alle- gation of the bill is presumed true. 1 3 If the answer after admitting alle- gations of the bill, sets up facts in avoidance they must be proven, n An admission in an an.swer cannot supply the omission of a material fact in iSee 7 Wheat. X. 5 L. ed. 376. spield v. Hastings. 05 Fed. 280. 2See Gaines v. Agnellv. 1 Woods. i2riarke v. White. 12 Pet. 190, 238. Fed. fas. No. 5.173." L. ed. 1046: Clements v. Moore. 6 3E. g. Rule 52. deals with the case Wall. .?lo. IS L. ed. 786. wliere the answer suggests a defect isHarpending v. Dutch R. Church, of parties: post. § 1025. 10 Pet. 487. 10 L. ed. 1029. ■»Infra. note[c]. i^Clarke v. White. 12 Pot. 190, 9 5Ex parte Bovd. 105 I'. S. 657. 26 L. ed. 1046: Clements v. Moore. 6 L. ed. 1204: Field v. Hastings, 65 Wall. 315, 18 L. ed. 786; Bush v. Fed. 280. Alarshull. TTow. 289. 12 L. ed. 440; ePost. § 1000. Randall v. Phillips. 3 i^Iason, 378, "See Stinison v. Raw.son. 02 Fed. Fed. Cas. Xo. 11.555. 426. 951 § 996 Ic] EQUITY PROCEDURE. [Code Fed. the bill so as to justify relief thereon. is if a charge made upon infor- iiiatioii and belief in an answer, is not supported by proof at the hearing it is to be deemed unproven.is The defense of payment or set off is not required to be pleaded according to any particular form.i" An answer may set up all matters of defense in bar or to the merits of the billji'J and matters of law as well as fact.is It may set up several defenses but they .should be separately and clearly alleged.20 If they are inconsistent the lesult is to deprive the defendant of the benefit of either. 1 A joint answer is permissible if all the parties swear to it. 2 An answer need not be ac- companied by the certificate of merits required in the case of plea and de- murrer.3 It may not be excepted to because not properly entitled. * A paper on file may from circumstances be presumed to be the answer al- though no endorsement of filing appears thereon. 5 An answer should be responsive,6 though this does not mean that new matter or a defense founded thereon is to be held objectionable because irresponsive. 7 Answer must not be impertinent, 8 or irrelevant, 9 or scandalous. But the fact that it is rambling and verboseio is not ground for motion to strike out. [cj The general rule — full answer necessary. It is still the general rule that defendant nuist answer fully. "The ma- terial allegations in the bill of complaint ought to be answered, and ad- mitted or denied, if the facts are within the knowledge of the respondent, and, if not, he ought to state what his belief is upon the subject, if he has any; and if he has none, and cannot form any, he ought to say so,i3 and call upon the plaintiff for proof of the alleged facts or waive that branch of the controversy." 14 It is not proper to ignore allegations of the bill by 15 Jackson v. Ashton, 11 Pet. 249, n L. ed. 698. leMonroe C. Co. v. Becker, 147 U. S. 47, 37 L. ed. 72, 13 Sup. Ct. Rep. 217. i7Bausman v. Dennv, 73 Fed. 69. isHolton V. Guinn, "65 Fed. 450; Von Schroder v. Brittain. 98 Fed. 169. i9Farmers' L. & T. Co. v. Northern P. R. R. 76 Fed. 15. 2 0Graham v. Mason, 4 Cliff. 88, Fed. Cas. No. 5,671: and not intro- duced by expanding denials of alle- gations in the bill: Osgood v. Oloe Co. 69 Fed. 291. lOzark Co. v. Leonard, 24 Fed. 660. 2Davis V. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631. sBailev Co. v. Young, 12 Blatehf. 199, 1 Ban. & A. 362, Fed. Cas. No. 751. 4McCorray v. O'Connor, 87 Fed. 586, 31 C. C. A. 114: Osgood v. Aloe, etc. Co. 69 Fed. 291. sBoyd v. Wyley, 18 Fed. 355. 6 See Comstock v. Herron. 45 Fed. 660; Prentiss Co. v. Godchaux. 66 Fed. 234, 13 C. C. A. 420. TAdams v. Bridge Co. 6 Fed. 179; see Gunnell v. Bird, 10 Wall. 308, 19 L. ed. 913; Harrison v. Perea, 168 U. S. 311, 42 L. ed. 478, 18 Sup. Ct. Rep. 129; Whittemore v. Patten, 84 Fed. 51 ; Florida Co. v. Finlayson, 74 Fed. 671; Langdon v. Goddard, 3 Story 13, Fed. Cas. No. 8,061; Os- good V. Aloe Co. 69 Fed. 291; Bar- rett V. Twin, etc. Co. Ill Fed. 45. sLangdon v. Goddard, 3 Story, 13, Fed. Cas. No. 8,061. 9 See Miller v. Buchanan. 5 Fed. 366. 10 Stokes V. Farnsworth, 99 Fed. 836. isSee In re Holladay. 27 Fed. 830. i4Brown v. Pierce, 7 Wall. 211. 19 L. ed. 136; Peters v. Tonopali M. Co. 120 Fed. 588; Commonwealth T. Co. V. Cummings, 83 Fed. 767; Brooks 952 ■ Procedui-eJ THE ANSWER — MATTERS PLEADABLE, § 996 [d] omitting all notice of them; is nor to deny generally all allegations not ad- mitted, ifi Defendant need not answer every detail of evidence which plain- tiff has included in his bill, provided he meets every allegation essential to plaintiff's case.i' He need not answer immaterial allegations.! s A general answer is sufficient to general allegations.! » An averment in the answer that defendant "does not admit" certain facts has been held not ground for exception. 20 A denial of fraud is insuflicient without a denial of the facts from which fraud is inferred.! Denial upon information and belief is suffi- cient if defendant has no personal knowledge.2 Denial according to "rec- ollection and belief" is insufHcient where allegation is direct that the thing was done by defendant. 3 A want of knowledge of allegations as to which defendant's knowledge, if any, must be direct and personal, must be expressly averred and denial on information and belief is insufficient. 4 But a mere statement that defendant has no knowledge is neither an ad- mission nor a denial.s An answer that defendant had "no knowledge, in- formation and belief" is insufficient where the question was as to his knowledge, remembrance, information and belief."6 A literal denial will not be taken as an admission at the hearing, although on exception it might have been held insufficient." Answers to interrogatories must be responsive ;S and if responsive cannot be impertinent. 9 Where an answer is false in fact, upon a material fact as to which defendant could have made no mistake, it may be wholly disregarded.! o If the answer is not full plaintiff's remedy is by exception;!! and if after repeated exceptions the defendant still fails to make proper disclosure, the bill may be taken pro confesso as to that portion.! 2 [d] — answer by corporation. Although a corporation cannot be required to answer under oath, it can be required to answer and must answer fully ;!5 and its answer may V. Bvam, 1 Storv 296, Fed. Cas. No. sTavlor v. Luther, 2 Sum. 228, 1,947. " Fed. Cas. No. 13,796. isCommon wealth T. I. Co. v. Cum- 4Kittredge v. Claremont Bank. 1 mings. 83 Fed. 767. W. & ]\i. 244. Fed. Cas. No. 7.S59. leField v. Hastings. 65 Fed. 279. ^Brooks v. Byam, 1 Story. 206, iTHolton V. Guinn. 65 Fed. 450. Fed. Cas. No. 1.947. !8Hardeman v. Harris, 7 How. eBrooks v. Byam, 1 Story. 296, 729, 12 L. ed. 889: Peters v. Tono- Fed. Cas. No. 1,947. pah M. Co. 120 Fed. 588. ^United States v. Ferguson. 54 Fed. laParsons v. Cumming, 1 Woods, 28. 461. Fed. Cas. No. 10,775. s Walker v. Derby, 5 Biss. 134, Fed. 20Sclniltz v. Phenix I. Co. 77 Fed. Cas. No. 17,068; Sargent v. Larned, 390. Thiii case was reversed on the 2 Curt. 340. Fed. Cas. No. 12.364. merits: Phenix Ins. Co. v. Schultz, sLownsdale v. Portland, Doady. 1, 80 Fed. 337, 25 C. C. A. 453. Fed. Cas. No. 8.578: Chapman v. iWormeley v. Wormelev, 1 Brock. School Dist. Deady, 108, Fed. las. 330, Fed. Cas. No. 18.047. No. 2.607. 2Slater v. :\[axwell, 6 Wall. 274, 18 !oScammon v. Hobson, 1 Hask. 406. L. ed. 796: Bobinscm v. M.-nidell, 3 Fed. Cas. No. 12.4.34. Cliff. 169, Fed. Cas. No 11.959. But !iSee post. § 1101. it does not require two witnesses in !2Hale v. Con. Ins. Co. 20 Fed. rebuttal: Earle v. Art L. P. Co. 344. 95 Fed. 544. isGamewell Co. v. New York, 31 953 § 996 [e] EQUITY PROCEDURE. [Code Fed. be excepted to for insufliciency in that respect. is When a bill requires answer as to information and belief, a defendant corporation must by its officers make full inquiries before answering. i" A corporation cannot any more than an individual defendant, deny merely upon information and belief where knowledge must be personal and direct if it exist at all, and want of knowledge should be averred. 1 5, Where the answer of a corpora- tion is upon the oath of an officer having personal knowledge as to the matters alleged, it is evidence within the rule requiring two witnesses or one and corroborating circumstances to overcome it;i9 otherwise where the officer has not personal knowledge. 20 [e] Where full answer unnecessary. Under rule 44, interrogatories which are improper and therefore de- murrable, need not be answered; 3 although the pleader should specify the reasons for such failure to answer. Under rule 3.9 supra, defendant is ex- cused from answering fully to the allegations or interrogatories of a bill where his answer sets up the equivalent of a plea in bar or to the merits. This rule takes from plaintiff the benefit of full answer and leaves him with the burden of proving his bill. His compensation is the right to summon defendant as a witness. It results from this rule that where the answer sets up a bar to the bill, it is no longer ground of exception that it does not fully answer the whole bill.* However, if the matter set up in bar is at variance with allegations in the bill, defendant should meet those allegations in the answer, just as a plea in bar sometimes requires answer to variant allegations of th" bill, to be filed in support of the plea. 5 Other- wise plaintiff" might set down the ease on bill and answer, whereupon the allegations of the bill would avail against the answer which failed to meet them. The mode of proceeding and the effect of different modes, where a defendant has filed other than a full answer in reliance upon rule 39, is thus stated by Mr. Justice Bradley : "If the bar set up and claimed as such be insufficient, or if it be unsupported by proper averments, or by a proper answer to rebut allegations of the bill repugnant to the bar, the com- plainant may except for insufficiency, set the cause down on bill and answer only, or file a replication and proceed to proofs, according to the exigency of the case. If the bar set up should be insufficient as such, I Fed. 312; Colijato V. Compaarnie Fran- 20Savings & L. Soc. v. Davidson, caise, 23 Elatchf. 86, 23 Fed. 82. 97 Fed. 696, 38 C. C. A. 365. leXational. etc. Co. v. Interchange- 3Post. § 999: Fuller v. Knapp, 24 able. etc. Co. 83 Fed. 26; contra Fed. 100; Fed. etc. Co. v. Inter- United States V. McLaughlin, 24 national, etc. Co. 119 Fed. 385; Fed. S23. " Boyer v. Keller. 113 Fed. 580. I'Kittredge v. Claremont Bank. 1 ^Gaines v. Agnellv. 1 Woods, 238. W. & M. 244, Fed. Cas. No. 7.859! Fed. Cas. No. 5,173 :' Samples v. City isBurpee v. First Nat. Bank. 5 Bank. 1 Woods, 523. Fed. Cas. No. Biss. 405. Fed. Cas. No. 2,185. 12,278. isGantt V. Cox. etc. Co. 199 Pa. 5See ante. § 97n[kl. This is St. 20s, 48 Atl. 992; Carpenter v. obvious from the wording of rule 39, Pro\"idence. etc. Ins. Co. 4 How. 219, supra. 11 L. ed. 931. '.154 Procedure] THE ANSWER—MATTERS PLEADABLE. § 996 [g] think the complaint would he entitled to except,, a.s for want of a full answer. 6 To avoid answering the exceptions, the defendant, in such case, would require leave of the court before he could amend the bar set up in the an.swer. If, instead of excepting, the complainant should go to proofs, the burden would be on him to prove his bill, and on the defendant to prove his bar, each being entitled to examine the other as a witness. If on the other hand, he should set the cause down for hearing on bill and answer only, the answer would have to be taken as true and the bar tliere- in as proved; and though insufficient as a defense, the complainant could not haAe a decree unless the answer admitted those allegations of the bill on which the prayer for relief was founded.'"' It is proper practice for a defendant answering by matter in bar to claim it in his answer as such bar and as excuse under this this rule, for failure to answer in full.s It had been held that this rule cannot be invoked by a defendant who by answer sets upon every conceivable matter in defense, since a plea sets up some single, distinct conclusive defense. 9 Xor does the rule authorize the raising of a defense in the answer wliich has already been adjudged bad on plea.io [f] Pleas in abatement — to the jurisdiction, character of parties, etc. Pleas in abatement are excluded from the operation of the 39th rule. 1 5 It was formerly the rule that where the bill averred the requisite diverse citizenship defendant could not controvert the allegation by answer but was required by rule 39 to file a special plea. 1 6 But this rule was changed by the passage of an act of 1875.1" A defect of parties may be taken ad- vantage of by answer. IS [g] Procedure after answer filed — where answer insufficient. If a7i answer is defective in any of the requisite formalities, plaintiflF may move to strike it out or take it off the file.i Plaintiff may set the cause for hearing on bill and answer if of opinion that by the uncontro- verted allegations of the bill, the admissions of the answer, and the legal insufficiency of any affirmative matter therein, he is entitled to a decree. 2 6E. g. see McClaskev v. Barr, 40 i^See Ante, § 818; Nashua R. R Fed. 563. " v. Lowell R. R. 136 U. S. 373, 34 L TGaines v. Agnellv, 1 Woods. 238, ed. 3G7, 10 Sup. Ct. Rep. 1,007 Fed. Cas. No. 5,173.' Bland v. Fleeman, 29 Fed. 672: Edi 8 See Gaines v. Agnellv. 1 Woods, son Co. v. United States Co. 35 Fed 238. Fed. Cas. No. 5,173.' 136; Simon v. House, 46 Fed. 319; sNational. etc. Co. v. Interchange- Missouri R. R. v. ^Meeh, 69 Fed. 755, able, etc. Co. 83 Fed. 26. 16 C. C. A. 510, .30 L.R.A. 250. loPentlarge v. Pentlarge, 22 Fed. isSee post. ? 1025. 412, 22 Blatchf. 120. iSee Bailev W. M. Co. v. Young, 12 isUnited States v. Gillespie, 6 Fed. Blatchf. 199," Fed. Cas. No. 751 : Put- 803, nam v. New Albany, 4 Biss. 365, Fed. isWickliffe V. Owings, 17 How. 51, Cas, No. 11,481 :' Allen v. Mayor, 15 L. ed. 44: Pond v. Vermont, etc. etc. 18 Blatchf. 239, 7 Fed. 483. R. R. 12 Blatch.f. 280, Fed. Cas. No, 2See post, § 1005. 11.265: Holmes v. Oregon, etc. R. R. 9 Fed. 238, 7 Sawv. 380. 955 § 997 EQUITY PROCEDURE. [Code Fed If the answer is not full or contains impertinent, or scandalous matter the proper course is to take exceptions thereto; 3 and not to move to strike out.< If none of these objections are available plaintiff should proceed to rep- lication and issue; 5 unless he desires to amend his bill. 6 Demurrer to an answer is never proper. 7 § 997. Signing and verification of answer. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commis- sioner appointed by any circuit court to take testimony or deposi- tions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a State or Territory, or before any notary public. 59th equity rule, as amended 1889. The amendment of March 5, 188910 to the rule as promulgated in March 1842 consisted in the addition of the words "or before any notary public." Answers do not require certificate of merits by the counsel, as in the case i)f demurrers and pleas.n Since the amendment of 1889 it would seem that an answer may be verified abroad before a notary public duly certi- fied by a United States consular officer, or by a secretary of legation or consular officer himself. 12 The early rule was that an answer from be- yond the seas must be taken by a commissioner under a dedimus from the court.is By rule 91 affirmation in lieu of oath is valid.i* Plaintiff may waive the requirement of answer under oath. is An answer must be signed by counsel unless taken before commissioners.! 6 The general rule is that an answer must be signed by the party as well as by counsel, 1 7 al- though the equity rules do not expressly require it. A corporation answer- ing a bill of discovery should do so under its corporate seal.is § 998. Interrogatories not necessary to obtain full answer. It shall not hereafter be necessary to interrogate a defendant specially and particul irly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery. Order of Dec. 1850, repealing 40th equity rule promulgated March, 1842. 3See post. § 1001. 335. Fed. Cas. No. 11,607; Herman 4Stokes V. Farnsworth, 99 Fed. 837. v. Herman. 4 Wash. C. C. 555, Fed. 5 See post, § 1005. Cas. No. 6,407. 6Ante. § 957. i^See ante. § 938. 'See ante, § 979 [a]. isSee post. § 1000. lOSee 129 U. S. 701. leDavis v. Davidson. 4 McLean, iiMcGorrav v. O'Connor, 87 Fed 136, Fed. Cas. Xo. 3.031. 586. 31 C. C.\\. 114. i^Storv Eq. PI. § 875; Holton v. i2See R. S. § 1750, U. S. Comp. Guinn, 65 Fed. 450. Stat. 1901, p. 1196. isContinental Xat. Bank v. Heil- isRead v. Consequa, 4 Wash. C. C. man, 66 Fed. 184. 956 Procedure] ANSWER NOT EVIDENCE. § 1000 At the December term 18501 it was "ordered that the fortieth rule . . . be and the same is hereby repealed and annulled. And it shall not hereafter be necessary" etc., as stated above. The 40th rule originally pro- vided that "A defendant shall not be bound to answer any statement or charge in the bill, unless especially and particularly interrogated there- to; and a defendant shall not ue bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer: and where a defendant shall answer any statement or charge in the bill to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent." There was no similar provision in the rules of 1822.2 The rule as original- ly adopted was construed in several eases. 3 T^Tiile a party must now, without interrogatories, answer as fully as the rules of equity pleading require,* it is still advisable to propound interrogatories especially if discovery is part of the purpose of the bill. 5 § 999. What interrogatories need not be answered. A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demurrer; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. 44th equity rule promulgated IMarch, 1842. Where a defendant declines to answer some of the interrogatories he should specify each and state the reason for declining to answer with tin; same distinctness as though he had demurred.8 If defendant claims that answer to an interrogatory would disclose trade secrets he should so state.9 It is of course also proper for defendant to demur specially to improper interrogatories, i o y § 1000. Answer not evidence where answer on oath waived. If the complainant, in his bill, shall waive an answer under oath, or shall onlj^ require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, through un- der oath, except such part thereof as sball be directly responsive to iSee 10 How. V. ev W. M. Co. v. Young. 12 Blatchf. 2See 7 ^Vheat. V. et seq. 5 L. ed. 199, Fed. Cas. Xo. 751 (1874), where 375. the original rule 40 is apparently sSee Treadwell v. Cleveland, .3 Mc- treated as in force. Lean. 283. Fed. Cas. No. 14.155; sBoyer v. Keller. 113 Fed. 580. Langdon v. Goddard, 3 Story. 13, 'J Federal, etc. Co. v. International, Fed. Cas. Xo. 8,061. etc. Co. 119 Fed. 385. 4 Ante. § 996 [c]. loCoop v. Development Inst. 47 5 Parsons v. Cummings, 1 Woods, Fed. 899, 901. 461. Fed. Cas. Xo. 10, 775. See Bail- 957 § loOO EQTMTY PROCEDURE. [Code Fed. such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit, with the same effect as here- tofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a witness in his own behalf under section three of the act of Congress of July 2, 1864.1^ Amendment of 41st equity rule, promulgated at ])ecember term, 1871. The original rule was concerned with the form of interrogatories is and is not affected by this amendment. Prior to the amendment, the rules of equity pleading made the answer evidence for defendant, even a defen- dant corporation 17 to be overcome only by two witnesses or one witness and corroborating circumstances, is unless plaintiff waived answer under oalh and defendant accepted the waiver.iu The attempted waiver could be thwarted if defendant answered under oath notwithstanding it. 20 Hence complainant could not prevail where defendant's answer was under oath and uncontradicted 1 or impugned only by one witness. 2 ^ This rule still applies where plaintiff fails to waive answer on oath; and he must produce two witnesses, or one and corroborating circumstances to overthrow verified answer.? But since the enactment of the law of 1864.4 permitting parties to be summoned as witnesses there has been an ob- vious propriety in recognizing the superior value of testimony procured by oral examination, and relegating the answer to the rank of an ordinary pleading. Hence by waiving answer under oath plaintiff can now de- stroy the evidential value of the answer; except for purposes of a hearing isSee post, § 1735. et seq. 16 See ante, § 951. i7See ante, § 99ti[d]. isTobey v. Leonard, 2 Cliff. 40, Fed. Cas.^No. 14.067: Oilman v. Lib- bev, 4 Cliff. 447. Fed. Cas. Xo. 5,445; Hay ward v. Nat. Bank, 4 Cliff, 294, Fed. Cas. No. 6,273; Ciernor v. Boccaline, 2 Wash. C. C. 199. Fed. Cas. Xo. 5.366; \^■nlker v. DeVbv, 5 Biss. 134. Fed. Cas. Xo. 17,068. 19 Patterson v. Oaines, 6 How. 588, 12 L. ed. 553. 20Holbrook v. Black. 18 L. R. 89, Fed. Cas. Xo. 6.590; Pleath v. Erie Ry. 8 Blatchf. 347. Fed. Cas. Xo. 6,300; see Amory v. Lawi'ence. 3 Cliff. 524, Fed. Cas. Xo. 330. and Stewart v. Allen, 47 Fed. 400. which fail to note change in rule since 1871. iLenox v. Prout, 3 Wheat. 520, 4 L. ed. 449: Union Bank v. Gearv, 5 Pet. 98, 8 L. ed. 60; Higbee v. Hop kins. 1 Wash. C. C. 230. Fed. Cas. Xo. 6,466; Carpenter v. Prov. W. 1. Co. 4 How. 185, 11 L. ed. 931 ; Hughes V. Blake, 1 Mason, 515, Fed. Cas. No. 6.845; Lanodon v. Goddard, 2 Story, 267, Fed. Cas. No. 8.060; Could V. Gould, 3 Story, 516, Fed. Cas. Xo. 5.637; Creelev v. Smith. 3 Storv, 659. Fed. Cas. N"o. 6,722. 2fowne V. Smith, 1 W. & M. 115, Fed. Cas. Xo. 14,115; Delano v. Winsor, 1 Cliff. 501, Fed. Cas. Xo. 3,754 : Pomerov v. Manin, 2 Paine, 476. Fed. Cas. No. 11,260. 3Slessinger v. Buckingham, 17 Feil. 454. 8 Sawv. 469; Latta v. Kilbonrn, 150 U. S. 524, 37 L. ed. 1169. 14 Sup. Ct. Rep. 201 ; Monroe C. Co. v. Beck- er, 147 U. S. 47, 37 L. ed. 72, 13 Sup. Ct. Rep. 217; Walcott v. Watson, 5^ Fed. 429. 4 Post § 1735, et seq. 958 frocediire] EXCEPTIONS TO AXSWER. S 1001 upon bill and ans\ver,5 or of its use, if verified, as an affida.vit upon in- cidental interlocutory motions. 6 Where plaintiff waived answer under oath it was settled prior to the amendment of the 43rd rule, that interrogatories might be ignored, and such is still the lavv.T If a bill seeks discovery plaintiff should therefore never waive answer under oath. While plaintiff has no right to have interrogatories answered if he waives oath, it would seem that he has a right to have his bill otherwise fully answereds ac- cording to the rules of equity pleading, !' unless defendant's answer comes within the exception to the rule requiring full answer ;io and that exception will be to an answer where oath is waived, for insufficiency.! i The amend- ment of 1871 permitting plaintiff' to destroy the evidential value of the answer, nowhere states that the settled equity rule as to full answer ia to be disregarded in such a case, and the analogy drawn from the rule as to answers by corporations which though not under oath were always re- quired to be full,i2 is against the contention. There is convenience and advantage in the rule that unverified answer should still be full and specific though in such a case not evidence but a pleading merely.is Exception for impertinence may lie although answer tmder oath is waived.i* Though unverified answer is no longer evidence for defendant, the burden still rests upon plaintiff" to prove the allegations of his bill,i5 just as in the case of general issue at law.is § 1001. Exceptions to answer — time for taking- — formal requi- sites. After an answer is filed on any rule day, the plaintiff shall bo allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof; and if no exceptions shall be filed thereto within that period, tlio answer shall be deemed and taken to be sufficient. 61st equity rule, promulgated March 1S42. 5 See post. S 1005. 9 Ante. 5; 9fl0[c]. sUnited States v. Workingman's, loAnte. § 99(i[e]. etc. Co. 54 Fed. 994. 26 L.R.A. 158. nWhittomore v. Patten. 81 Fed. "Union Bank v. G^earv. 5 Pet. 99, 527; National, etc. Co. v. Inter- 112. 8 L. ed. 60: Huntington v. changeable, etc. Co. 83 Fed. 26. But Saunders, 120 U. S. 80. 30 L. ed. 580, see contra: Tillinghast v. Chace, 121 7 Sup. Ct. Rep. 357: Excelsior W. Fed. 435. P. Co. V. Seattle. 117 Fed. 140. 55 C. i2Antc. ?; 996[d]. C. A. 156; Tillinghast v. Chace. 121 isSee Whittemore v. Patten. 81 Fed. 435. Fed. 527. sl'lilmann v. Brewing Cn. 41 Fed. ^Barrett v. Twin C. P. Co. Ill 369: Whittemore v. Patten. 81 Fed. Fed. 46. 527, and cases cited: National, etc. i^Stewart v. Allen, 47 Fed. 400. Co. V. Interchangeable, etc. Co. 83 isSee Union Bank v. Geary, 5 Fed. 26. Bvit see contra: Tilling- Pet. 99. 112. 8 L. ed. 60. hast V. Chace. 121 Fed. 435. 959 s JOOl la I KliLlTV ruOCEDUUE. [Code Fed. [a] The rule of 1822. Rule 14 of the equity rules of 1S22 provided that "If the plaiiitift's at- torney or solicitor shall except against any answer as insufficient, he may lile his exceptions, and leave rule with the clerk to make a better answer within two calendar months." The defendant could then amend or stand upon the suthciency of his answer and set if for argument at the next term.i LbJ Remedy by exception distinguished from others. The different courses open to a plaintiff after answer filed have already been stated. 2 One of them is the filing of exceptions where the answer is insufficient. "Insufficient" in this sense means not complete, or full, or specific, or otherwise in conformity with the rules as to full answer else- where stated.3 "Insufficient" is also applied to the legal insufficiency of the entire answer as a defense, and of such defect plaintiff will usually take advantage by setting the cause down on bill and answer ;'4 and should not do so by exception. 5 So if the answer is formally defective, as in being improperly entitled the remedy is motion to strike out and not exeeption.6 Answer filed in support of a plea is not subject to exception, but plaintiff should either reply or set down the plea for argument, v The exception for insufficiency only raises the questions where a sufficient discovery has been made whether averments have been fulh^ answered and whether averments excepted to are scandalous or impci'tinent.s A demiu'rer to an answer is improper. 9 [c] Matters for exception. An exception that allegations which support the equity of the bill are neither answered, admitted, or denied, is good, and will be sustained. is A denial on information and belief of any of the facts in the bill, is a good ground of exception where defendants knowledge must be direct and person- al. 14 It seems the better rule that exception lies for insufficiency although answer under oath is waived. li^ An early case held that after exception for impertinence had been taken and allowed, exception for insufficiency could iTWheat. VI. et seq. 5 L ed. 376. sPennsvlvania Co. v. Bav. 1.38 Fed. 2 Ante. § 996 [g]. 204. sBarrett v. Twin C. P. Co. Ill 9 Ibid. Fed. 46; see ante. § 096 [c]. isHardeman v. Harris. 7 How. 726, ^United States v. McLaughlin. 24 12 L. ed. 889; Read v. Consequa. 4 Fed. 823: see post, § 1005. Wash. C. C. 335. Fed. Cas. No. 11,- sException seems not a proper 607. mode of taking issue as to the legal i^Bradford v. Geiss. 4 Wash. C. C. sufficiency of the answer as a de- 513. Fed. Cas. No. 1.768. fense: In re Sandford F. & T. Co. isUhlmann v. Brewing Co. 41 Fed. 160 U. S. 257, 40 L. ed. 417, 16 Sup. 369; Whittemore v. Patten, 81 Fed. Ct. Rep. 293: Barrett v. Twin C. P. 527: National, etc. Co. v. Inter, etc. Co. Ill Fed. 46; Stokes v. Farns- Co. S3 Fed. 26: contra Tillinghast v. worth 99 Fed. 837: Walker v. -Tack, Chace, 121 Fed. 435; and see ante, 88 Fed. 576. 31 C. C. A. 462. § 1000 note. eOsgood V. Aloe Co. 69 Fed. 291 : 7Hatch V. Bancroft. 67 Fed. 802; ante. § 996 [g]. 960 I> Procedure] SETTING EXCEPTIONS FOR HEARING. § 1002 then be filed; is but the present rule seems to require all exceptions to be filed at the same time. 1 7 Neither this rule nor the earlier one specifically recognizes exception to an answer for impertinence, although the cases have permitted exception upon that ground where matter was clearly not mate- rial or relevant. 18 [d] Form and disposal of exceptions, waiver and admission thereof. An exception for insufficiency should state the charges in the bill and the answer thereto, verbatim, that the court may properly judge it.i The exceptions may be amended by adding a prayer thereto.2 In deciding upon exceptions the answer will be liberally construed, having regard to the case made by the bill; 3 and if the allegations of the bill are general the an- swer may be equally so.* Going to trial on the merits is waiver of an ex- ception; and if plaintiff does not except for failure to deny allegations in the bill, the allegations are not deemed admitted but he must prove them. 5 § 1002. — setting exceptions for hearing unless answer amended. Where exceptions shall be filed to the answer for insufficiency, within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule day thereafter before a judge of the court, and shall enter, as of course, in the order book, -an order for that purpose ; and if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient; provided, however, that the court, ■or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. G3rd equity rule, promulgated March, 1842. Rule 14 of the equity rules of 1822 permitted defendant within two months after exception to put in an amended answer without costs; or if he deemed his answer suflicient or neglected to amend, permitted plaintiff to set down the exceptions for argument at the ne.xt term. But after the isPatriotic Bank v. Washington i Brooks v. Byara, 1 Story, 296, Bank, .5 Cranch C. C. G02. Fed. Cas. Fed. Cas. No. \,M~; Bower' Co. v. No. 10.806. Wells Co. 43 Fed. 301 : Schultz v. I'But see Barrett v. Twin C. P. Co. Phoenix Ins. Co. 77 Fed. 37.5. Ill Fed. 46. 2\A-liittemorc v. Patten. 84 Fed. 51. isBarrett v. Twin C. P. Co. Ill sCriswold v. Hill, 1 Paine, 390, Fed. 46: Chapman v. School Dist. Fed. Ca.s. No. 5.8.35. Deady. 108. Fed. Cas. No. 2.607; see 4Parsons v. Cummiiigs. 1 Woods, Patriotic Bank v. Washington Bank, 461. Fed. Cas. No. 10,77.'>. :5 Cranch C. C. 602, Fed. Cas. No. sLovell v. Johnson, 82 Fed. 206. 10,806. Fed. Proc— 61. 961 ? 1003 EQI'lTY rHOrEDURE. [Code Fed. expiration of tAVO months "on any second insuHicient answer put in," no furtlier or otlier answer was allowable except on payment of costs. 8 Ex- ceptions should be set for hearing on the rule day before the judge.9 Refer- ence to a master before that time is a waiver of them;io and plaintiff may withdraw them upon leave obtained, and reply forthwith.!! If the excep- tions are disallowed plaintiff has a right to file a replication and it would be improper to order dismissal without according that right. 12 § 1003. — answer on allowance of exceptions and penalty for failure. If. at the hearing, the execptions shall he allowed, tlie defendant shall be bound to put in a full and complete answer thereto on the next succeeding rule day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct. 64th equity rule, promulgated March 1842. If answers to interrogatories are evasive defendant will be ordered to make full disclosure and pay the costs of the hearing. is Under Eule 16 of the equity rules of 1822 a second insufficient answer entailed a penalty of double costs it being further provided that "defendant may be examined upon interrogatories, and committed until he or she answer them; or the plaintiff may more the court to take so much of his bill as is not answered as confessed and may file his replication, obtain commissions, and proceed to hearing in the usual manner."i6 It is improper for the court to enter final decree against defendant upon the sustaining of exceptions, unless defendant elect to stand upon his answer.i7 § 1004. Payment of costs upon exceptions allowed or overruled. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the pre- sRule 14. see 7 ^Ylleat. VI. et seq. U. S. 258. 40 L. ed. 417. 16 Sup. Ct. 5 L. ed. .370. Rep. 29.3. 9La Vega v. LajisJev. 1 Woods, 428, i^Langdon v. Coddard, a Story, 13, Fed. Cas. No. 8.123. " ^'^^- fa^ >^o- 8-061. „-, .- iGSee / Wheat. X. et seq. 5 L. ed. lOIbid. o-,^ di (). iiPenn v. Butler, Wall. C. C. 4. it[„ ^o Sandford F. & T. Co. lf!0 Fed. Cas. No. 10.931. u. S. 2.58. 40 L. ed. 417, IG Sup. Ct. I2ln re Sandford F. & T. Co. 160 Rep. 293. 962 3 Procedure] SETTING CAUSE FOR HEARING. I 1005 vailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions- Goth equity rule, pronnilgated March 1S42. Rule 15 of the equity rules of 1822 provided similarly for payment by one party to the other of "such costs as shall be allowed by the court."i9 § 1005. Setting cause for hearing on bill and answer. Plaintiff may set a cause down for hearing upon l)i]l and answer. The effect is to admit the truth of all matter well ])leaded in the answer, but to deny its legal sufficiency. It is conseciuently a proper proceeding where plaintiff believes that an answer in tlie nature of a confession and avoidance is no defense, or that the answer con- tains enough admissions, either express or because of insufficient denials, to entitle him to the relief prayed: and sometimes it is proper where the answer is in the nature of a plea in bar under Rule 30. Author's section. While the equity rules contain no express provision for setting a cause downi upon bill and answer the right to follow that course is deducible from rule 60. It is a well recognized and proper mode of preceeding under cer- tain circumstances. 2 At a hearing upon bill and answer the averments oi the answer are to be taken as true.3 Allegations of fact in the bill denied in due form in the answer are to be taken as disproved, and material aver- ments of fact in the answer stand admitted:'' whether responsive or not.'' But legal conclusions in the answer or allegation at variance with facts of which the court takes judicial notice, are not admitted. 6 It raises the same (juestion as would a demurrer to the answer, which however is never prop- er." Sometimes when denuirrer is improperly interjwsed the court will treat it as an application to set down for hearing on bill and answer; 8 or strike it out and give leave so to set the cause down.s The question at 197 Wheat. X. et seq. 5 L. ed. 376. Sup. ft. Rep. .36: United States v. iPost. S 1006: see Banks v. Man- Flournov. etc. Co. 71 Fed. .577. chesier. 128 V. S. 2.51. :?2 L. ed. 428. 4T'nit'ed States v. Trans-M. F. A-- 9 Sup. Ct. Rep. .36. soc. .58 Fed. 77. 7 C. C. A. 1.5. 24 L. -See instances: T.ake F. Ry. v. R.A. 7.3. Iniiianapolis Nat. Bink. 6.5 Fed." 600: sLake E. R. R. v. Indianapolis United States v. Trans-Missouri F. Bank. 6.5 Fed. 600. Assoc. 58 Fed. 58. 77.24 L.R.A. 73.7 sT'nited States v. Flournoy. etr'. r. r. A. 15: Banks v. Manchester. 128 Co. 71 Fed. 577. T'. S. 244. 32 L. ed. 425. 9 Sup. Ct. 'See ante. S n7nr'il- Rep. 36. sOrether v. Wright. 75 Fed. 744, 2.3 "l/>eds V. Marine Ins. Co. 2 Wheat. C. C. A. 498. 3H4. 4 L. ed. 268: Banks v. Manches- ^Crouch v. Kerr, 38 Fed. .550. tcr. 128 U. S. 4.51. 32 L. ed. 428. P 963 § 1006 EQUITY PROCEDURE. [Code Fed. such a hearing is the legal siifliciejicy of the answer.io But if it appear that the bill itself is fatally defective decree may be for dismissal of the bill;ii although sometimes it would seem plaintiff should be allowed to file a replication if the decision is against him. 12 If the answer be held legally insufficient, it will generally be in order to direct decree for plain- tifl' forthwith; 13 although there might be circumstances under which de- fendant should be permitted to amend.i* Where the answer sets up matter 5n the nature of plea in bar or to the merits under rule 39,i5 it was intimated by Mr. Justice Bradley in a ease at circuit that although the bar ■was legally insufficient, plaintiff could not prevail at a hearing, upon bill ■and answer "unless the answer admitted those allegations of the bill on which the prayer for relief was founded."i6 § 1006. Amendment of answer and supplemental answer. After an answer is put in, it may be amended as of course, in .any matter of form, or by filling up a blank or correcting a date, or reference to a document or other small matter, and be resworn at any time before a replication is put in or the cause is set down for .•a hearing upon bill and answer. But after replication, or sueli setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defenses or qualifying or altering the original statements except by special leave of the court or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affi- davit; and in every case where leave is so granted, the court or the judge granting the same may in his discretion require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. '^^^"^''^ fiOth equity rule promulgated March 1842. lOBanks v. Manchester. 128 U. S. isSee Lake Erie Ry. v. Indianapo- L'51. 32 L. ed. 429, 9 Sup. Ct. Rep. .36; lis Bank. 60 Fd. 690'; United States Tinited States v. Flournoy, 71 Fed. v. Flournoy. etc. Co. 71 Fed. 579. 577. 14 Where exceptions are sustained 11 See Bullinger v. Mackey, 14 to an answer the right to amend is Blatchf. 355. Fed. Cas. No. 2,126: absolute: In re Sandford, etc. Co. United States v. Trans-M. F. Assoc. 160 U. S. 258, 40 L.'ed. 417, 16 Sup. .58 Fed. 58, 7 C. C. A. 15. 24 L.R.A. Ct. Rep. 293: ante, § 1003; rule 60 73, where that was done. (post. § 1006) deals with amendment 12 See In re Sandford F. & T. Co. after the case is set down upon bill 160 U. S. 258, 40 L. ed. 417, 16 Sup. and answer, but not after decision. Ct. Rep. 293. where, however, the 1 5 Ante. § 996. answer was questioned on a general isdaines v. Agnelly, 1 Woods, 238, exception to its sufficiency and not by Fed. Cas. No. 5.173. quoted in ex- setting down. In Bullinger v. Mackev. tenso ante, § 996 [e]. 14 Blatchf. 355. Fed. Cas. No. 2.126. leave to file replication was refused. 964 rrorediiie] AMENDMENT OF ANSWER. § 1006 [bl [a] Rules as to amendment in general. The rules of 1822 contained no provision respecting amendment of an- swers. There is a Federal statute respecting amendments and directing the courts to disregard mere formal defects, which applies in equity as well as at law; and the above rule must be read in connection therewith. i* Amendment of the answer after exception filed is governed by rules 63 and 64.2 After replication or the setting of the case for hearing on bill and answer, permission to amend the answer is a matter within the sound discretion of the court.i That discretion should be exercised with a view to promoting substantial justice. 2 Mistakes of dates, matters of form, and verbal inaccuracies may generally be corrected at any time,3 or the defect may be disregarded under the provisions of the Federal statute.* But other amendments are less easily obtained as a cause approaches its final disposition; 5 especially where want of diligence is evident. 6 Yet the granting of leave to amend after a hearing on exceptions to the master's report, is a matter of discretion, not reviewable on appeal." Amendment changing the character of the answer will rarely be admitted after hear- ing :« or an amendment for the purpose of introducing matter known to defendant, when the answer was filed ;» or an amendment contrary to an express stipulation of the counsel. lo "Where the party relies upon new facts which have come to his knowledge since the answer was put in, or where it is manifest that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvertence and oversight, there is generally less n ason to object to the amendment than there is where the whole bearing of the facts and evidence must have been well known before the answer was put in.n [b] New or supplemental answer. The strict distinctions drawn between amended and supplemental liills,i4 do not seem to prevail in the nomenclature of answers. A supph'niental answer seons to have been first used by Lord Thurlow in lieu of the older method of taking the original answer from the files and substituting a new 19 Ante, § 813. sGubbons v. Laughtenschlager, 75 20Ante. § 1002. 1003. Fed. 61.5; Schultz v. Phenix Ins. Co. 1 Smith V. Babcock. 3 Sum. 583, 75 Fed. 375. Fed. Pas. Xo. 13.008. per Story. J.; eindia R. Co. v. Phelps. S Blatchf. Caster v. Wood. 1 Bald. 289. Fed. Cas. 85. Fed. Cas. Xo. 7.025. Xo. 2.505; Ritchie v. McMullen, 79 ^Hudson v. Randolph. 60 Fed. 216. Fed. 522. 25 C. C. A. 50; Hudson v. 13 C. C. A. 402. Randolph, 66 Fed. 216, 13 C. C. A. nValdon v. Bradley. 14 Pet. loO, 402. 10 L. ed. 308; see Sm'ith v. Bahcock. 2Callowav v. Dobson. 1 Brock. 119, 3 Sum. 583. Fed. Cas. No. 13.008. Fed. Cas. Xo. 2,325; Smith v. Bab- sSee Suvdam v. Truesdale. 6 Mc- cock. 3 Sum. 583, Fed. Cas. No. 13,- Lean. 459," Fed. Cas. No. 13.656. 008, per Storv J. loSthultz v. Phenix Ins. Co. 75 3 Smith V.' Babcock. 3 Sum. 583, Fed. 375. Fed. Cas. Xo. 13.008: Rhode Island V. nSmith v. Babcock, Sum. 583, MassachusPtts, 13 Pet. 23, 10 L. ed. Fed. Cas. Xo. 13.008, per Story, J. 41. nAnte, § 9G1. 4Ante, § 813. 965 il § 1007 EQUITY PROCKDURE. [Code Fed. one, a practice which sometimes resulted in flat contradiction between the two sworn documents. On filing supplemental answer the original still stands subject to the explanations contained in the supplement. ^ 5 Where the original contained a mistake which is sought to be corrected, it is im- portant that the supplement contain an explanation of the suppo.sed mis- take,! 6 and in such cases supplemental answer is preferable to an amend- ment of the original, at least where answer is under oath. Supplemental answer is also proper where new matter of defense is discovered after the putting in of the original;!' new matter thereafter arises or which de- fendant desires to have brought to the courts attention,! « such as a re- lease.! s However, if a less formal mode of introducing such matters is not objected to at the time, it is no ground of objection on appeal. 20 The practice of destroying the evidential character of the answer by waiver of verification.! § 1007. New or supplemental answer after amendment of bill. In every case where an auienduieiit shall be made after an.swer filed, the defendant shall put in a new or supplemental answer on or before the next succeeding rule day after that on wliich the amendment or amended bill is tiled, unless the time is enlarged or otherwise ordered by a judge of the court ; and upon his default, the like proceedings may be had as in cases of an omission to put in an answer. 46th equity rule, promulgated March 1S42. The use "amendment" and ''supplemental answer" has already been re- ferred to. 5 An amended answer to an amended bill which repeats matter in the original answer has been held so far impertinent. 6 § 1008. Full costs not allowed if separate answer by solicitor for sc-eral defendants unnecessary. When the same solicitor is employed for two or more defendants, and separate answers sliall l)e filed, or other proceedings had by two or more of the defendants separately, costs shall not be allowed for such separate answers or other proceedings, unless a master, upon reference to him. shall CL'rtii'y that such separate answers and isSee story K.]. PI. nOl. I'^^ce Kelsey v. Hobby. 10 Pet. 277. isSmith V. Babcock. 3 Sum. 583. ^^ ^- ^^- '■^"■*- Fed. Cas. No. 13.008. 20Kelsey v. Hobby. 16 Pet. 277. 10 ^ , ,^ , L. ed. !)(i4; Coburn v. Cedar V. L. Co. !'Suydam v. rruesdule, 6 McLean, j.-^s V S I'lC ■>>> .34 I ed 876 11 459. Fed. Cas. Xo. U.Or^O: Caster v. Sup Ct Pen "•'''jh"' W_(hk1. 1 Bald. 28!1. Fed. Cas. Xo. ' {^nt^^ ^ jooo. -■^"■*- 5 Ante, § imWHol. !8See Williams v. Gibbes. 20 How. sCier v. Gr^gg, 4 McLean, 202, Fed, 535, 54L 15 L. ed. 1013. Ca^. \o. 5,406. 966 ■ Procedure] REPLICATION. S 1010 [a] other proceedings were necessary or proper, and ought not to have been joined together. § 62nd equity rule promulgated March, 1842. The rules of 1822 contained no similar provision. § 1009. Limit of taxable costs or answer. In order to prevent unnecessary costs and expenses, and to pro- mote brevity, succinctness, and directness in the allegations of . . . answers, the regular taxable costs for every . . . answer shall in no case exceed the sum which is allowed in the State court of chancery in the district, if any there be; but if there be none, then it shall not exceed the sum of three dollars for every . . . answer. 25th equity rule promulgated March, 1842. The rule also includes taxable costs on bills.io § 1010. Replication — time of filing — issue. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication tliei-eto on or before the next succeeding rule day thereafter •S^'^ and in all cases where the general replieati(m is filed the causes shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on eitlier side. If the plaintifF shall omit or refuse to file such replication within the pre- scribed period, the defendant shall ])e entitled to an order, as of course, for a dismissal of the suit; and the suit shall thereupon stand dismissed. f'^' unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filcl nunc ])ro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. ^^^ 6Gth equity rule, promulgated March, 1842. [a] Replication in general. Replication to a pica is elsewhere considerodis special replication for the purpose of int inducing new matter in avoidance of a substantive de- fense in the answer or plea was allowable under the rules of 1S22. thotigh only upon leave first obtained. n But the rules of 1842 abolished tlie spe- cial replication:'"' aTid if filed it may now be stricken out on motion. I'l lOAnte. § !)t)4. Fed. Cas. Xo. 4.18.">: Vattier v. Hinde, I3.\nte. § nSlfcT. 7 Pet. 2rv2, S L. ed. 070. i4Rule II. 7 Wheat. VT. 5 L. ed. ir.Ante. § OoS. 370; See earlv cases thereon: Du- isMason v. Hartford, etc. R. R. ponti V. Mussy. 4 Wash. C. C. 128. 10 Fed. .^.34. 067 § 1010 [b] EQUITY PROCEDURE. [Code Fed, Plaintiff need only file general replication and the cause is then deemed "to all intents and purposes at issue, without any rejoinder or other plead- ing on either side." However, there are various other courses open to a plaintiff after the filing of the answer.iT Replication puts in issue all matters well alleged in the answer,i8 not responsive to the bill.is If none be filed the answer must be deemed true and plaintiffs can offer no evidence to contradict facts well alleged in the answer.20 New matter in a repli- cation may now be treated as surplusage. 1 Where defendant has filed a plea, and answer in its support, it is irregular for plaintiff to file a replica- tion only to the supporting answer; his course is either to reply to the plea and answers or else set the cause for arguments on the bill, plea, and supporting answer.* Replication is unnecessary after answer to bill of revivor.5 If parties proceed to final hearing without objection for want of a replication, the defect is waived and not available on appeal. 6 The replication cannot be used to perform the office of exceptions.'? I [b] Time for filing. Construing this rule in connection with the Glst,io it has recently been held that plaintiff has until the second rule day after answer, in which to file his replication.il If not seasonably filed motion to dismiss should be granted; 12 as of course. 1 3 But if a belated replication is filed without leave the court has discretion to permit it to stand;'* and it is said that the filing of replication out of time is and should be indulged. is Each answer as filed must be sea.sonably replied to regardless of the state of the cause as to other defendants. 1 6 Where motion to strike the answer from the files is pending the suit will not be dismissed for want of replication.! 7 The filing of replication has been permitted at the final hearing where testimony has been taken without any objection for want thereof. is 17 See ante, § 9f>6[g]. isBrown v. Pierce. 7 Wall, 212. 19 L. ed. 134. isHumes v. Scruggs, 94 U. S. 24, 24 L. ed. 51. 20Brow-n v. Pierce, 7 Wall. 212, 19 L. ed 134. iWarren v. Van Brunt, 19 Wall. 646. 22 L. ed. 219. 2See ante, § 981 [c]. sSee ante. § 981 [a]. 4See Beals v. Illinois, etc. R. R. 133 U. S. 290, 33 L. ed. 608. 10 Sup. rt. Rep. 314. 5Fretz v. Stover. 22 Wall. 204. 22 L. ed. 769; Mason v. Hartford, etc. R. R. 19 Yea. 56. 6Brown v. Pierce, 7 Wall. 212. 19 L. ed. 134; Fretz v. Stover, 22 Wall. 204, 22 L. ed. 769; Clements v. Moore, 6 Wall. 299, 18 L. ed. 786. ^Robinson v. American, etc. Co. ]'^5 Fed. 603. 68 Fed. 331. lOAnte. § 1001. iiHendrickson v. Bradley. 85 Fed. 508. 29 C. C. A. 303; but see Hevraan V. Uhlman, 34 Fed. 686. i2Blue, etc. Co. v. Flovd- Jones. 26 Fed. 817. isRobinson v. Satterlee. 3 Sawv. 1.34. Fed. Cas. No. 11.967. i4Fischer v. Hayes. 6 Fed. 76. 19 Blatchf. 26: see Coleman v. Martin. 6 Blatchf. 291, Fed. Cas. No. 2.9S;). isHendriokson v. Bradley, 85 Fed. 509, 510, 29 C. C. A. 303. isColeman v. Martin, 6 Blatchf. 2»1, Fed. Cas. No. 2.986. iTAllis V. Stowell, 5 Fed. 203. 10 Biss. 57; Fischer v. Wilson, 16 Blatchf. 220, Fed. Cas. No. 4.812. is.Tones v. Brittan. 1 Woods, 667, Fed. Cas. No. 7,455; In re Thomas, 45 Fed. 787. 968 CHAPTER 28. EQUITY PROCEDURE (CONTINUED)— PARTIES. § 1019. When nonjoinder of necessary or proper parties unobjectionable- § 1020. If very numerous all parties need not be joined. § 1021. When trustees may be sued without joining beneficiaries. § 1022. When heir at law a proper or unnecessary party. § 1023. Joint and several obligors iray be severally sued. S 1024. Guardians and prochein amis. § 1025. Objection for defect of parties — hearing where objection taken in- the answer. § 1026. Objection for defect of parties at the hearing. § 1019. When nonjoinder of necessary or proper parties unob- jectionable. In all cases where it shall appear to the court that persons, who- might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdic- tion of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion pro- ceed in the cause without making such persons parties \^^^ and in such cases the decree shall be without prejudice to the rights of the absent pa.rties.^^^ 47th equity rule, promulgated March, 1842. [a] In general. This rule is to be read in connection with R. S. § 7371 which expressly excuses the joinder of parties who are ''neither inhabitants of nor found w-ithin the district in which suit is brought and do not voluntarily appear.'* In so far as covering the same ground as R. S. § 737 the equity rule is of course subordinate thereto; although it better expresses what is actuai- 1}' intended by R. S. § 737.2 The 47th rule deals also with nonjoinder of persons within the jurisdiction who lack the requisite diversity of citizcn- aliip.3 The Federal courts classify parties according to rules of their own lAnte, § 817. S. 611. 37 L. ed. r)77. 13 Sup. Ct. Rep. 2See Swan L. Co. v. Frank, 148 U. 6fll . ^See ante, § S17[b]. § 1019 [a] EQUITY PROCEDURE [Code Fe. as proper or formal, necessary and indispensable; and the words "neces- sary or proper parties" in the above rule have a meaning which has become well settled in Federal jurisprudence. < It is the policy of the Federal courts to orotect the constitutional righto of resort to a Federal tribunal in controversies between citizens of different States whenever there is a controversy, however, involved in other disputes, that cau be separated and there settled. They will therefore dispense with necessary parties who .should be joined, but cannot without ousting their jurisdiction; 6 although they act in such cases in the exercise of discretion. ^^ They never allow a contention that a merely formal party should be joined where the result would be a divestiture of their jurisdiction. 8 But this does not mean that ordinarily and where no question of such divestiture is involved, the Fed- eral courts will disregard the usual right to join formal parties or the usual rule that all persons materially interested in the subject matter of a suit should be made parties in order to prevent multiplicity of suits and insure a final decree. 9 On the contrary it is recognized that necessary par- ties must be joined, lo in all cases where such joinder will not oust their jurisdiction. They will also range parties to a dispute as plaintiffs or de- fendants, according to their essential relation to a controversy so that the alignment will show diverse citizenship.il But that is as far as they can go. If joinder of an indispensable party without whom no decree could be made, would oust the jurisdiction, the 4lbid. sAnte, § 2[q] et seq. sHunter v. Robbins. 117 Fed. 920; ^Yilliams v. Crabb, 117 Fed. 193. 54 C. C. A. 213. 59 L.R.A. 425; Mallow V. Hinde, 12 Wheat. 197. 6 L. ed. 599; Harrison v. Urann, 1 Story 64, Fed. Cas. No. 6.146; Jov v. Wirtz. 1 Wash. C. C. 517, Fed. Cas. >(o. 7.5.54: Drake V. Goodrigde. 6 Blatchf. 151, Fed. Cas. Xo. 4,062: Tug River Co. v. Brigel. S6 Fed. 818. 30 C. C. A. 415: Union, etc. Co. v. Dangberg, 81 Fed. 73: Siou.x C. R. R. v. Trust Co. of North America, 82 Fed. 124, 27 C. C. A. 73; Insurance Co. v. Svendsen, 74 Fed. 346: Elmendorf V. Tavlor, 10 Wheat. 152, 6 L. ed. 292; Cameron v. Mc- Roberts, 3 Wheat. 591, 4 L. ed. 467; Pavne v. Hook. 7 Wall. 425. 19 L. ed. 260: McGahan v. Bank 156 U. S. 236, 39 L. ed. 403, 15 Sup. Ct. Rep. 347. ''California v. Southern P. Co. 157 I^ S. 229, 39 L. ed. 683, 15 Sup. Ct. Rep. 591 ; Mechanics' Bank v. Seton, ] Pet. 306. 7 L. ed. 152; Elmendorf v. Taylor. 10 Wheat. 152, 6 L. ed. 292. sWormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651 ; Carneal v. Banks. 10 Wheat. 181, 6 L. ed. 297 ; Ward v. Arredondo, 1 Paine, 410, Fed. Cas. No. 17,148: Anthonv v. Campbell, 112 Fed. 212. 50 C. C. A. 195; Cleveland T. Co. V. Stone, 105 Fed. 794 ; Mackay V. Gabel. 117 Fed. 873: Fisher v. Shropshire, 147 U. S. 133, 37 L. ed. 109. 13 Sup. Ct. Rep. 201. fllNIechanics' Bank v. Seton, 1 Pet. 306. 7 L. ed. 1.52; Ribon v. Railroad, 16 Wall. 450. 21 L. ed. 369; Caldwell V. Taggart. 4 Pet. 202, 7 L. ed. 828. 10 Caldwell V. Taggart, 4 Pet. 190, 7 L. ed. 828; Morgan v. Morgan, 2 Wheat. 298. 4 L. ed. 245; Williams V. Bankhead, 19 Wall. 563. 22 L. ed. 184: Mandeville v. Riggs, 2 Pet. 487, 7 L. ed. 493; Van Reinisavk v. Kane, 1 Call. 371. Fed. Cas. No. 16.871; West v. Randall, 2 Ma.ss. 181, Fed. Cas. No. 17.424; Bowman v. Watlien, 2 McLean. 379, Fed. Cas. No. 1,740. iiSee ante. § 2[q] ;Bunce v. (Jalla- gher, 5 Blatchf. 481, Fed. Cas. No. 2,133; Parsons v. Lyman. 4 Blatchf. 432, Fed. Cas. No. 10,779: Brown v. Pac. M. S. S. Co. 5 Blatchf. 526, Fed. Cas. No. 2. 025; Campbell v. •Tames, 2 Fed. 338, 18 Blatchf. 92; Lalance v. Haberman M. Co. 93 Fed. 197. 970 a Procedure] NUMEROUS PARTIES NEED NOT BE JOINED. § 1020 cause must be dismissed or remanded to the State court whence it came.i- Where a defect of parties might be cured by amendment it will not be prop- er to order dismissal without giving opportunity for the absent party to bi' brought in. 13 The court should grant leave to n ake new parties ;H unles-^ it is apparent that the new party would oust the jurisdiction.! » The dis missal when made should be without prejudice.is [b] Persons not parties not to be aftected by decree. This proposition was well settled prior to the adoption of the above rule or of the act of 1839 which is now R. S. § 737.19 It rests upon the funda- mental principle that no persons rights shall be adjudicated unless actually or constructively before the court. 20 The rights of absent parties are to be reserved.! § 1020. If very numerous all parties need not be joined. Where the partie.s on either side are very numerous, and cannot, witlioiit manifest inconvenience and oppressive delays in the suit, he all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, hav- ing sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it.^^' But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. i^^^ 48th equity rule, promulgated March, 1S42. i2T?iddlp V. Mandeville. 5 Cranch. i4Hunt v. Wickliffe. 2 Pet. 201. 7 322. 3 L. ed. 114; Ru:^sell v. Clark. 7 L. ed. 3»7 : Dandridge v. Washing- Cranch. 04. 3 L. ed. 271: Marshal v. ton's Ex. 2 Pet. 370. 7 L. ed. 4.54; Beverly. .5 Wheat. 313, 5 L. ed. Bank v. Carrollton R. R. 11 Wall. fl7; Connecticut v. Penn^vlvania. o 024, 20 L. ed. 82; see Hoe v. Wilson, Whrat. 424. 5 L. ed. 125; Harding v. !> Wall. .504, 10 L. ed. 762: see Taylor ITandv, 11 Wheat. 132, 133. 6 L. ed. v. Holmes, 14 Fed. 515; Collins Mfg. 420: Mellow V. Hinde, 12 Wheat. 108, Co. v. Ferguson, 54 Fed. 722; Con- {; L. ed. .590: Barney v. Baltinmre. 6 solidated W. Co. v. Babcock. 70 Fed. Wall. 2S0. 18 L. ed. 825: Herndon v. 2.52: Shields v. Barrow. 17 How. 145, Ridgway. 17 How. 425. 15 L. ed. 15L. ed. 158. 100: Bank v. Carrollton R. R. 11 i^See Minnesota v. Northern Sec. Wall. 024. 20 L. ed. 82: Traders' Co. 184 T'. S. 235. 40 L. ed. 499, 22 Bank v. Campbell. 14 Wall. 87, 20 L. Sup. Ct. Rep. 308. e.l. 832: Ribon v. Rnilroad. 10 Wall. i«Dandridgp v. Was/hington. 2 Pet. 440, 21 L. ed. 307; Young v. Cushing, 378. 7 L. ed. 4.54. 4 Biss. 450. Fed. Cas.Xo. 18.150: i«See ante. § 817[d]: Finley v. First Nat. Bank V. Smith. 6 Fed. 215; Bank of U. S. 11 Wheat. :!04. L. Collins Mfg. Co. V. Ferguson. 54 Fed. ed. 480; Coiron v. Millaudon, 19 721; Shingleur v. .Jenkins. Ill Fed. How. 113. 15 L. ed. 575. 4.)J. 20 Ante, ? 81710]. i:iMilligaii v. Milledge. 3 Cranch. iCalhoun v. St. Louis, etc. Co. 14 228. 2 L. ed. 417. 420; Hoxie v. Fed. 9, 9 Biss. 330. Carr, 1 Sumn. 173. Cas. No. 6.802. 971 § lo;io[a] EQUITY PROCEDURE. [Code l-ed.- [aj In general. In an early case at circuit the learned Story thus stated the rnlo: "Where the parties are very numerous and the court perceives that it will be almost impossible to bring them all before the court; or where the (juestion is of general interest, anil a few may sue for the benefit of the ■whole; or where the parties form a part of a voluntary association lor public or private purposes, and may be fairly supposed to represent the rights and interests of the whole; in these and analogous cases if the bill pui-ports to be not merely on behalf of the plaintiffs, but of all others interested, the plea of the want of parties will be repelled, and the court will proceed to a decree."^ He referred to it also in an early supreme court decision. 6 It is an exception to the rule that all indispensable parties must be joined." It is applicable where the parties on botli sides are numerous,, as, in case of dispute between two factions of a church body. 8 There must be some interest common to a numerous class ;» and each .such common interests if there be more than one, must be represented.! " There must be such a rejjrescntation as to insure a fair trial in behalf of all.n And the court will permit other parties to come in while the cause is in fieri and take the benefit of the decree, or show it to be erroneous, and award a re- hearing; or will entertain a bill or petition to bring the rights of nonpar- ties more distinctly before the court if there be uncertainty or danger of in- jury or injustice.i2 Under this rule certain stockholders may be permitted to sue for a very nimierous class similarly interested; is and a few bond- holders may sue for all;!'* or certain creditors may maintain creditor's bill oil behalf of all.i5 Strike leaders may be sued in order to reach a body of r.West V. Randall, 2 Mason. 181, Fed. Cas. No. 17,424. sMandeville v. Riggs, 2 Pet. 487, 7 L. 494 : see later cases ; Brown v. Pacific M. S. S. Co. 5 Blatchf. 525 Fed. (^as. Xo. 2.025; Campbell v. Railroad, 1 Woods, 368, Fed. Cas. No. 2,3()0, per Bradlej% J. ; Wilmer V. Atlanta, etc. R. R." 2 Woods, 447 Fed. Cns. No. 17,776; Mcintosh v. Pittsburg. 112 Fed. 707: Wood v. Dinnnier, 3 Mason, 317, Fed. Cas. No. 17,044, per Story, J.; Stevens v. Smith. 1^6 Fed. 71l'. 'Ante. § 8]7[b]-[c}; see Mcintosh V. Pittsburg. 112 Fed. 707; West v. Randall, 2 ]\Iason, 181, Fed. Cas. No. 17.424. sSniith v. Swormstedt. 16 Hoav. 302, 14 L. ed. fl42 ; see Society of Shakers v. Watson, 68 Fed. 730, 15 C. C. A. 632. 641 ; see Wood v. Dum- mer. 3 Mason, 308. Fed. Cas. Ao. 17,944. Where some creditors sued some stockholders. 9 Scott v. Donald. 165 U. S. 116. 41 L. ed. 648. 17 Sup. Ct. Rep. 262. lOSmitHi V. Swormstedt, 16 How. 302. 14 L. ed. 942. iiMcArthur v. Scott, 113 U. S. 392,. 28 L. ed. 1015. 5 Sup. Ct. Rep. 652: Christian v. Atlantic, etc. R. R. 133 U. S. 241, 33 L. ed. 589, 10 Sup. Ct. Rep. 260; Stevens v. Smith, 126 Fed. 711. 12 West V. Randall, 2 Mason. 181,. Fed. Cas. No. 17.424: Campbell v. Railroad, 1 Woods. 368, Fed. Cas. No. 2,366; Coann v. Atlanta, etc. Co. 14 Fed. 4: 4 Woods. 503; Alger v. Anderson, 78 Fed. 733. 13 Brown v. Pacific M. S. S. Co.. 5 Blatchf. 525. Fed. Cas. No. 2.025. 14 Campbell v. Railroad Co. 1 Woods, 368. Fed. Cas. No. 2,366; Coann v. Atlanta, etc. R. R. 14 Fed. 4, 4 Woods. 503: Wilmer v. Atlanta, etc. R. R. 2 Woods, 447, Fed. Cas. No. 17.776. i5West V. Randall, 2 Mason. ISl,. Fed. Cas. No. 17,424. 972 Procedure] WHEN TRUSTEES MAY BE SUED. § 1021 .sti'ikers.16 There are also cases where a very numerous body of lieirs may l)e sued by joining a few representatives.!" A suit against an vuiincorpo- rated association of dealers which names the association together with a large number of its individual members and it officers, is sufficient. is Wliere some persons who should be named defendants are unknown to plaintiff, as in the case of unknown heirs, it has been deemed permissi- ble under this rule to join those known and allege want of knowledge as to others. 19 [b] Decree where a few sue or defend for all not binding on non parties. The concluding portion of the above seems to modify the general doctrine that parties not named may yet be bound, on the principle of representa- tion, to the fullest extent, 2 although the cases have sometimes declared that a suit by or against some in behalf of all, will be binding upon all, not- withstanding this rule. 3 This provision against prejudicing the rights of non parties in the decree where a suit is by or against some in behalf of all, certainlj' does not prohibit the whole class, when plaintiffs, from tak- ing the benefit of a decree obtained by some for all; nor prevent a plain- tiff, obtaining decree against some representatives of a numerous class of defendants, from bringing in others than the individuals named by supplemental proceedings, and making his decree effective against them after they have had oppotrunity to defend against it. 4 It permits others of the class to come in while the cause is still in fieri and object to pro- ceedings taken and relief sought by parties claiming to represent the classs although those coming in and seeking the benefits of a decree are imdoubtedly bound by such decree.^ It seems clear that this rule was not intended to impair the binding force of a decree upon quasi parties such as cestui que trust who are duly represented in court by their trustee.? § 1021. When trustees may be sued without joining benefic- iaries. In all suits concerning real estate which is vested in trustees by devise, and snch trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially inter- ested in the estate or the proceeds, or the rents and profits, in the isAmerican. etc. Wire Co. v. Wire. Woods, .^OS. Fed. Cas. Xo. 2..366: Mc- etc. Union, 90 Fed. OOii, fiOT. Tntosli v. Pittsburg. 112 Fed. 707. i^See Stevens v. Smith, 126 Fed. ■JAmerican. etc. Wire Co. v. Wire ■711. Drawers' Union. 90 Fed. 605. isUnited States v. Coal Dealers' sCoann v. Atlanta C. Co. 14 Fed. Assn. 8.5 Fed. 2.52. 260: compare 4, 4 Woods, ii0.3. American, etc. W. Co. v. Wire. etc. 6Campl)eil v. Railroiul. 1 Woods, I'nion. no Fed. 606. .368, Fel. Cas. Xo. 2..Si;i! : Calhoun v. 1 "Alger v. Anderson, 78 Fed. 744. St. Louis Ry. 14 Fed. 10. !) Biss. .330. 2American. etc. Wire Co. v. Wire TSee Kerrison v. Stewart. !13 U. S. Drawers" Union. 90 Fed. 60.5. 15."). 23 U. cd. 843. sSee Cani[)l)ell v. TJailro.ul, 1 973 S 1021 EQUITY rUOCEDURE. (Code Fed. same jnanncr and to the same extent as the executors or adminis- trators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estates, or rents and profits, parties to the suit ; but the court may, upon consideration of the matter on the hearill,L^^ if it shall so think fit, order such persons to be made paities. 4!)th equity rule, promulgated March, 1842. There seems to be but few direct references to the foregoing provision, among the reported cases. In one case it was referred to for an analogy re- specting cases where an executor may be sued without joining the devisees. « The general rule is that in suits res])ecting the trust property, brought either by or against the trustee, the cestui que trust as well as the trustee, are necessary parties ;» and that the trustees as well as beneficiaries are necessary ])arties to a suit to defeat the trust, especially where they have large powers respecting the trust estate. lo To this general rule there are well-established exceptions, one of which is expressed by the 49th rule supra. The cases have further held that if suit is brought by trustee to recover the trust property or to reduce it to possession and in nowise af- fects his relation with his cestui que trust, It is unnecessary to make the latter parties.n Nor are the beneficiaries necessary parties to a sait by a stranger against the trustee, to defeat the trust, or by the trustee against strangers to enforce it. 12 This is true where the trustee has such powers or is under such obligations in the execution of the trust, that the beneficiaries will be bound by what is done by and against him;i3 but is subject to exception where the trustee holds a mere naked legal title for the benefit of himself and another.^* Bondhoklers are not nec- essary parties in a suit by or against the trustee and yet will be bound by the judgment rendered. is Creditors are bound by judgments again.st an >^See Chew v. Hyman. 7 Fed. 14. plaintiffs : Kiiapp v. Railroad 00. 20 10 Biss. 240. holding devisees neces- Wall. 123. 22 L. ed. 328. sary parties in foreclosing a mort- i2Kerrison v. Stewart, 93 U. S. gage given bv the testator. 160. 23 L. ed. 843: Talley v. Cur- sCarev v. Brown, 92 U. S. 171, 23 tain. .54 Fed. 48. 4 C. C. A* 177. L. ed. 409: Ross v .Ft. Wavne, 63 i3Kerrison v. Stewart, 93 U. S. Fed. 469, 11 C. C. A. 288: Wescott IfiO. 23 L. ed. 843; Vetterlein v. V. Wayne. 11 Fed. 303; Smith v. Barnes. 124 U. 8. 172. 31 L. ed. 401, Portland. 30 Fed. 737; Griswold v. 8 Sup. Ct. Rep. 441; Richter v. Bacheller. 75 Fed. 473. Jerome. 123 V. S. 246, 31 L. ed. 137, lOO'Harra v. McConnell, 93 U. S. 8 Sup. Ct. Rep. 112; Rejall v. fireen- 154. 23 L. ed. 840: McArthur v. Scott, hood. 92 Fed. 945. .35 C. C. A. 97. 113 U. S. 396. 28 L. ed. 1015. 5 Sup. i4See Rand v. Walker. 117 U. S. Ct. Rep. 652; Kerrison v. Stewart, 344. 29 L. ed. 907. 6 Sui>. Ct. R-n. 93 U. S. HiO, 23 L. ed. 843; Wood- 770: Steinkulil v. York. 2 Flip. .S«0. ward v. McConnaughc/, 106 Fed. Fed. Cas. No. 13.356; ChaflSn v. Hull, 760, 45 C. C. A. 602. 49 Fed. 526. uCarev v. Brown, 92 U. S. 171, 23 isRichter v. .Jerome. 123 U. S. 246, L. ed. 4'69: Wescott v. Wayne, 11 31 L. ed. 137, 8 Sup. Ct. Rep. 112; Fed. 303. The trustees are the real Reals v. Illinois, etc. R. R. 133 U. S. 974 I Procedure] GUAHDIAXS AND PROCHEINS AMIS. § 1024 assignee for their benefit. is An assignee of a patent may sue for in- fringement without joining the assignor.iT The court may in its discretion, order beneficiaries to be made parties;is and in suit against their trustee, they may be admitted as parties without amendment of tlie complaint. 19 § 1022. When heir at law a proper or unnecessary party. In suits to exec-ute 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 es- tablished against him. 50th equity rule, promulgated March, 1842. § 1023. Joint and several obligors may be severally sued. In all eases 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 con- cerning such denumd all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. .51st equity rule promulgated March, 1842. If an obligation or liability is both joint and several, plaintiff has his o])tion to save individually or jointly. 3 An individual defendant has no right to say that plaintifi' must sue severally if he has elected to sue jointly. 4 But if plaintiff' has once had judgment either joint or several that ends his right of election. 5 If a liability is only joint and not also several, all living joint obligees must be joined. 6 § 1024. Guardians and prochein amis. (iuardians ad litem to defend a suit may be appointed by the 29.5. .'^3 L. ed. till. 10 Sup. Ct. Rep. if'Edrington v. .Jefferson. Ill U. S. 31(i: Kent v. Lake. etc. Co. 144 U. 774, 28 L. cd. 504. 4 Sup. Ct. Rep. S. no. :m L. ed. 35a. 12 Sup. ct. Rep. 683. fi.55; Credit Co. v. Arkansas R. R. 15 ^Pirie v. Tvedt, 115 V. S. 43. 20 Fed. 52, 5 McCrarv 23; Farmers' L. L. ed. 331. 5 Sup. ft. Rep. 1034. 1101 : & T. Co. v. Kansas R. R. 53 Fed. The Beaconsfield. 1,58 U. S. 307. 30 1SI5: Clvde v. Richmond, etc. R. R. L. ed. 993, 15 Sup. Ct. Rep. 800; 55 Fed. 448: Woods v. Woodson, 100 Sessions v. .Tohnson. 95 U. S. 347. 24 Fed. 519, 40 C. C. A. .525. L. ed. 596. i«Rejall V. Creenhood. 92 Fed. 947, ^Louisville, etc. R. R. v. Ide. 114 .35 C. C. A. 97: Vetterlein v. Barnes. U. S. 56. 29 L. ed. 63. 5 Sup. Ct. Rop. 124 r. R. 172,' 31 L. ed. 401. 8 Sup. 735. Ct. Rep. 442. sSessions v. Johnson. 95 I" S. 347. i-rni(ni T. Co. v. Walker E. Co. 24 L. ed 596. 122 Fed. 815. eFarni v Tesson, 1 Black, 315, 17 isKerrison v. Stewart. 93 U. S. L. ed. C7. 160. 23 L. ed. 843; Toler v. East Tennessee Rv. 67 Fed. 171. 975 f 1024 [a] EQUITY PROCEDURE. [Code Fed. court, or b}' any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselvesJ''^ All infants and other persons so incapable may sue by their guar- dians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons. f^^ ^'^^ 87th equity rule promulgated March 1842. [a] The rule in general. In the ecjuity rules of 1822 the only provision respecting parties, is con- tained in rule 27 and concerned with guardians ad litem. It provides that: "Orders for the admission of a guardian ad litem, to defend a suit, may be made either by the court or one of the judges thereof." 9 "In prac- tice in the courts of law," observes Judge Story, "an infant generally sues by his prochein ami; but in all cases defends by his guardian" and again "when it is said that he must sue and be sued by his guardian, it is not to be understood as of course, that it is by his general guardian, but by his guardian ad litem, admitted by the court for this purpose. "lo It would seem that the 87th rule supra, is designed to require that an infant or other incompetent shall always defend by guardian ad litem ; and that an infant or other incompetent sue either by prochein ami or regular guard- ian. The language used is susceptible of the construction that such per- son must sue by guardian rather than prochein ami, if he has any. But such cannot have been the intent since the suit might often be in hostility to the regular guardian, and hence that construction would be inimical to the ward's interests. [b] Infants or other incompetents as defendants. Since it is error to proceed to decree against a minor defendant or other incompetenti2 without appointment of guardian ad litem, is it is not only proper but necessary to have such guardian appointed by the court. 1 4 In practice the regular guardian may often be appointed also guardian ad litem. 15 It is improper for a court to appoint a guardian ad litem for in- fant defendants who is suggested by plaintiff's counsel and without no- tice to the infants or their friends; 1 6 at least where the court acts entire- ly upon the suggestion and without itself becoming satisfied of the ap- pointee's fitness. The court will sometimes in case of suit to which in- fants are joint parties plaintiff by their next friend, order them to be sSee 7 Wheat. VI. et seq., 5 L. ed. i4Bank of linited States v. Ritchie, 377. S Pet. 144, 8 L. ed. 890. loStory Eq. PI. § .58. note. isSee Simmons v. Baynard, 30 Fed. 12E. g. a lunatic: See Harrison v. 5.32, where infants held bound bv ap- Rowan. 4 Wash. C. C. 202, Fed. Cas. pearance of father as guardian ad ^^'^o. 0.143. litem; Story Eq. PI. § 58. note. 130'Hara v. McConnell, 93 U. S. isBank of U. S. v. Ritchie, 8 Pet. 152, 23 L. ed. 840. 144, 8 L. ed. 890. 976 I Procedure] OBJECTION FOR DEFECT OF PARTIES. § 1025 joined as defendants instead, and appoint guardian ad litem for tliem.i" The guardian ad litem cannot by admissions or stipulations surrender rights of the infant. is It has been held error to decree against infants iipon an unsworn answer by guardian admitting the allegations of the bill, and without any evidence being taken. is But in a more recent case, a consent decree has been held binding upon infants. 20 Service upon a minor is not absolutely essential, and he may be bound if properly repre- sented in court by a guardian. 1 The mere weakness or ignorance of a guardian ad litem will not invalidate a decree where his interests were protected by intelligent counsel. 2 [c] — suing as plaintiff by -next friend or guardian. "When an infant claims a riglit or suffers an injury on account of which it is necessary to resort to a court of chancery to protect his rights, his nearest relation, not concerned in point of interest in the matter in question, is supposed to be the person who will take him under his pro- tection and institute a suit to asseri Ms rights . . . and it is for this reason that a person who institutes a suit on behalf of an infant is termed 'his next friend.' "5 It is improper to sue by a next friend who has a personal interest. 6 A next friend cannot by admissions or stipulations sur render rights of the infant;' though he may waive formalities of procedure if without prejudice to the infants rights. 8 He cannot accept a release not conformable to a decree secured in the infant's favor.? The next friend ■should bring the suit in the infant's name and not his own; 10 but he need not exhibit with the bill, evidence of special authority to sue as such.u § 1025. Objection for defect of parties — hearing where objec- jection taken in the answer. Where the defernlant shall, by his answer, suggest that the bill is •defective for want of parties, the plaintiff shall be at liberty, with- iTSee Jarvis v. Crozier. 98 Fed. Y. 5.31. 45 Am. St. Rep. 6.3.3. 40 N. E. •75,3. 218. 28 L.R.A. 359. isKingsbury v. Buckner. 134 U. S. 2Thompson v. Maxwell L. Co. 108 080, 33 L. ed.*1047, 10 Sup. Ct. Rep. I'. S. 407, 42 L. ed. .530. 18 Sup. Ct. 038: White v. Miller. 158 U. S. 128, Rep. 121. 30 L. ed. 021. 15 Sup. Ct. Rep. 788. sDaniell Ch. Pr. 00. quoted in Hi Bank of U. S. v. Ritchie. 8 Pet. Jarvis v. Crozier. 08 Fed. 755. 144. 8 L. ed. 800. e.Tarvis v. Crozier. 08 Fed. 755. 20Thompson v. Maxwell, L. 0. TKingsburv v. Buckner. 134 U. S. Co. 168 I'. S. 460, 42 L. ed. 530, 18 680. 33 L. ed. 1047. 10 Sup. Ct. Rep. Sup, Ci. Rep. 121 ; compare White v. 638. .Tovce. 158 U. S. 140, 30 L. ed. 021, sibid. 15' Sup. Ct. Rep. 788. sMorris v. Harmer. 7 Pet. 563. 8 iManson v. Duncanson. 166 U. S. L. ed. 781. •533. 41 L. ed. 1105. 17 Sup. Ct. Rep. lOMorgan v. Potter, 1.57 U. S. 108. 047: contra Woolridse v. :\I(Kenna. 30 L. ed. 070. 15 Sirp. Ct. Rep. 500. 8 Fed. 600; sec Thaw v. Ritcliie. 136 nKingsliurv v. Buchner. 134 V. S. V. S. 548. .34 L. ed. 5.38. 10 Sup. Ct. 070. 33 L. ed. 1047, 10 Sup, Ct. Rep. -Rep. 1044: Sloane v. Martin, 145 X. 038. T^ed. Proc— 62. 977 i § 1026 EQUITY PROCEDURE. [Code Fed. in fourteen days after answer filed, to set down the cause foi' argu- ment upon that objection only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book, in the form or to the effect following (that is to say:) "Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his case, but shall pro- ceed 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 ;is of course to an order for liberty to amend his bill by adding uartics.. But the court, if it thinko fit, shall be at liberty to dismiss ilu'biil. 52nd equity rule, promulgated March, 1842. A defect or misjoinder of parties may be taken advantage of by demurrer where apparent on the face of the bill. 1 4 it may also be raised by plea,i& which plaintiff' may set down for argument or to which he may reply. is Under the foregoing rule it may also be taken in the answer. In any of these cases plaintiff may elect to amend rather than to stand upon his bill.iT While defendant may object to a defect of parties in the answer it is not an objection which will under rule 39i8 excuse full answer. The objection, however taken, should specify the names, description and necessity for the omitted parties. 1 9 This rule provides so speedy a way of settling an issue as to defect of parties, that a court on application for leave to file several pleas may very properly refuse leave to file one raising the question of the character of the parties.2 § 1026. Objection for defect of parties at the hearing. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to w^hom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties. 53rd equity rule, promulgated March, 1842. The usual rule is that objection for defect of parties must be raised by demurrer, plea or answer ;< and that it comes too late at the hearing.^ The right to object at that time in extreme cases, was, however, recognized i4Ante. § 970[c]. 20See u- ited States v. Gillespie, 6 ir.Ante. § 97n[h]. Fed. 803. i«Ante, § P81-. ^Greenleaf v. Queen. 1 Pet. 138. 7 17 Ante, §§ fl57. 958. L. ed. 85. IS Ante, § 99 nllovvod bv State laws. !3See Van Hook v. Pendleton. 2 4 Post. 104n. So. riile 2.5 of the Blatclif. S5. Fed. Cas. Xo. 16,852; equity rules of 1822 provided that Bischofl'sc-lieim v. Baltzer, 10 Fed. 2, "Testimony may be taken according 20 Blatchf. 229. to tl'.e acts of Congress or under a i^Rule 26, see 7 Wheat, VI et seq. commission." See 7 Wheat. VI, et 5 L. ed. 377. soq, ,5 L. ed. 376. 982 1 Proceduie] TESTIMONY ORALLY BEFOUE EXAMINER. § 1037 [b] order a commission. is Upon motion for preliminary injunction a party desiring to take the testimony of an unwilling witness should obtain the appointment of an examiner by the court, providing for due notice to the opposite party. 16 In appointing an examiner it is contrary to equity practice to limit the character of the testimony he may receive,i7 or to deny a party the right to take testimony because it seems irrelevant. i'* Scandalous and impertinent testimony is penalized by the imposition of costs; 19 and it is the settled practice of courts of equity to include all evi- dence, relevant and otherwise, in the record, so that the trial and after- wards the appellate court may pass finally upon the cause. 20 If parties agree to the taking of testimony before any officer qualified to administer oaths without appointment as examiner, the deposition so taken should be filed in the cause and may not be suppressed by the party for whom it was taken. 1 So if the parties agree to the taking of the testimony by a type- writer in counsel's office and only in the constructive presence of the ex- aminer, neither has a right to abandon that agreement and compel the further proceeding to be actually before the examiner, without adequate cause. 2 A Federal court has no jurisdiction to order the removal of docu- ments produced before an examiner, on subpoena duces tecum to another district. 3 [b] Oral examination before examiners outside the district. There is some question whether this provision is to be interpreted as re- ferring only to testimony adduced from witnesses at the place where the proceedings are had, or as including also the taking of the testimony of witnesses elsewhere. It is not in terms confined to "the evidence to be adduced" at the place where the proceedings are had; and Mr. Justice Bradley in a case at circuit thought the rule should be liberally interpreted as permitting the taking of testimony before an examiner outside the court's jurisdiction whenever a party desires it.7 Several subsequent cases have sanctioned the practice of appointing special examiners to take testi- mony orally beyond the district and of empowering a master to take testi- mony orally in other districts ;8 though recognizing sometimes the need for discretion in the exercise of the power, to avoid unnecessary hardship and 15 See post, § 1048. niott Iron Works v. Standard M. isHnmmerschlag Mfg. Co. v. Judd, Co. 48 Fed. 34.'i. 2G Fed. •2n2. 2Ballard v. McCluskcy. rrl Fed. 1 "United States v. American B. 677. T. Co. .39 Fed. -ZnO. "Popper v. Rogers. 1.17 Fed. 173. isFayerweatilior v. Ritcli. SO Fed. TRnilroad v. Drew. 3 WooiU. m] , 529; see Parisian C. Co. v. Kschwege, Fed. Cas. Xo. 17.434; In re Stewart. 92 Fed. 721; Whitehead, etc. Co. v. 29 Fed. 813; Johnson Co. v. Steel Co. O'Callahan. 130 Fed. 243. 48 Fed. 191. approved in White v. iflSee post. S 1042. Toledo, etc. P. R. 79 Fed. 13.1. 13(5. 20Spe Plensp v. Carlington. 02 U. 24 C. C. A. 407, but declaiing the S. 7, 23 L. ed. 521 ; Faycrweather v. courts should be cautious in excrcis- Ritch. 89 Fed. 529; Lloyd v. Pennio. ing the power of appointing exam- 50 Fed. 4; Xelson v. United States, iners elsewhere. 201 U. S. 92. 50 L. ed. G73, 20 Sup. sM-ujone v. Colorado, etc :VIin. Co. Ct. Rep. 353. 135 Fed. SoO; In re Steward. 29 Fed. 983 § 1037 [c] EQUITY PROCEDURE. [Code Fed. expense. 9 The propriety of so doing has however been questioned by able juoijes, who have pointed out the unnecessary expense that the practice might entail. 10 Undoubtedly it is proper and in accordance with the spirit of this rule, for the court on issuing a commission to take testimony else- where, to permit a party so desiring, to examine orally, though the other submitted interrogatories.il So parties may validly agree to take testi- mony elsewhere in the United States orally before an examiner.i2 But it does not seem to the writer that the rule was intended to refer to any other evidence than that to be adduced at the place where the proceedings are had. Any other construction gives the words "thereupon all the wit- nesses to be examined shall be examined before one of the examiners of the court" a sweeping force which brings them into direct conflict with the statutory provisions permitting the use of depositions of witnesses more than one hundred miles away and in other districts, and authorizes them to be taken before other than Federal court examiners. [c] Examiners in equity. Although examiners in chancery are nowhere provided for either by Federal statute or rule, their existence as an adjunct of the business of Fed- eral courts of equity followed naturally from the adoption of customs and practices of the chancery courts of England, after which our procedure is modeled.15 They are referred to and their existence is assumed in the equity rules of 1822 ;i6 and again in the present rules. 1 7 The courts are not required to appoint a special examiner in each case, but may appoint one or more standing examiners. In the southern district of New York the practice of appointing standing examiners goes back to 1828 and the right to appoint a standing examiner is settled. is It is not uncommon for par- ties by agreement to dispense with the actual presence of an examiner,!* or agree upon some person without special appointment by th>i court.- o § 1038. — parties or their counsel to be present — cross examina- tion. Such examination shall take place in the presence of tlie parties 813: Johnson, etc. Co. v. Steel Co. uSee Bischoffschein v. Baltzer. 10 48 Fed. 191: Bate. etc. Co. V. Gillette, Fed. 1. 20 Blatohf. 220: Bate, etc. 28 Fed. 676: White v. Toledo, etc. R. Co. v. Gillette, 28 Fed. 676. R. 79 Fed. 133. 24 C. C. A. 467: In i2See In re Allis, 44 Fed. 21G. re Spoflford, 62 Fed. 443: Consol. F. i5See ante. § 037. Co. V. Columb. Co. 85 Fed. 54. leSee Rule 28. 7 \Mieat. VI. ct 9See White v. Toledo, etc. R. R. seq. 5 L. ed. 377. 79 Fed. 133. 24 C. C. A. 467; Ma- iTRule 78. post § 1057 and ni^e gone V. Colorado, etc. Min. Co. 135 67 ut supra. Fed. 850. The court may require a is Van Hook v. Pendleton, 2 commission and interrogatories in its Blatchf. 8.5, Fed. Cas. No. 16.852. discretion. See post § 1048. isS^e Ballard v. McCluskey, 52 lOLacombe and Blatchford. .i.J. Fed. 677. in the southern district of New York: 2o;Mott Iron Works v. Standard M. Arnold v. Chee'^eborough. 35 Fed. 16. Co. 48 Fed. 345, But see In re Spoflford, 62 Fed. 443. 984 ProcedureJ TAKING OF TESTIMONY. § 1040> or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and reexamination, all of which shall be conducted as near as may be in the mode now used in coin- mon-law courts. Fart of § 67th equity rule as amended ilay 3, 1892. The above provision was the same in the amendment adopted at the- December term, 1861. & The amendment of 1892 merely re-enacted this particular portion of the rule. 6 If a party refuses to produce a witness for cross-examination, his testimony in chief will be suppressed." Upon re- fusal to continue cross-examination in an agreed mode dispensing with the actual presence of an examiner, the court may declare the witnesses testi- mony closed where there was no adequate reason for departing from the agreement. 8 § 1039. — how testimony to be reduced to writing. The depositions taken upon such oral examination shall be re- duced to writing by the examiner, in the form of question put and answer given; provided, that, by consent of parties, the examiner may take down the testimony of any witness in the form of narrative. Part of 67th equity rule as amended May 3, 1892. The earlier amendment adopted at the December term, 1861, provided that "the depositions taken' upon such oral examinations shall be taken down in writing by the examiner in the form of narrative, unless he determines the- examination shall be by question and answer in special instances."! i § 1040. — to be transcribed by stenographer or typewriter on re- quest. At the request of either party, with reasonable notice, the depo- sition of any witness shall, under the direction of the examiner, be taken down either by a skilful stenographer or by a skilful type- writer, as the examiner may elect, and when taken stenographically shall be put into typewriting or other writing ; provided, that such stenographer or typewriter has been appointed by the court, or is approved by both parties. Part of 67th equity rule as amended ^lay 3, 1892. This portion of the amendment of 1892 is entirely new. There is no of- ficial statutory court reporter in the Federal courts. 5See 20 L. ed. U. S. 917. sBallard v. McCluskev. 52 Fed. 677. 6Ree 1.39 U. S. 707, "See 20 L. ed. U. "S. p. 917; 1 TSliapleigh v. Chester, etc. Ck). 47 Black, 6. Fed. 848. 985 S 1041 EQUITi' PROCiODUKE. L< <>de I'e>l. § 1041. — signing of the testimony by the witness or examiner. The testimony of each witness, after such reduction to writing-, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend ; pro- vided, that if the witness shall refuse to sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. Part of 67th equity rule as amended May 3, 1892. The earliei provis^ion upon this subject was contained in an amendment of 1861 and provided that the deposition when completed "shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same."i ' § 1042. — statement by examiner — objections to questions — penalty for irrevelant matters. The examiner may, upon all examinations, state any special mat- ters to the court as he shall think fit ; and any que^stion or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions; and the court shall have power to deal with the costs of incompetent, immaterial, or irrele- vant depositions, or parts of them, as may be just. Part of § 67th equity rule as amended May 3, 1892. As respects this portion of the amendment of 1892, it merely carries forward the earlier amendment adopted at the December term, 1861, and is to this extent identical therewith.i" The court does not in advance limit the testimony to be taken, to any particular issue or issues. is The ex- aminer can only note exceptions and not pass upon their validity.io It is for the court to protect against the injection of scandalous and impertinent matters into the testimony by the imposition of costs. 20 Even privileged matter such as letters between husband and wife should be produced before the examiner and made part of the record, so that the trial and appellate courts may pass thereon. 1 It is not the practice for the court to pass upon questions of the relevancy of evidence during an examination b^fo'-*^ the 14 See 20 L. ed U. S. p. 917; 1 2oSoe Kellev v. Boettcher. 8.5 Fed. Black, 6. 57. 29 C. C. A.' 14: Brown v. Worster. iTSee 1 Black. 6. 113 Fed. 20; Griffith v. Shaw, 89 1820 L. ed. U. S. 917; United States Fed. 313; Zunkel v. Litchfield. 21 v. American B. T. Co. 39 Fed. 230. Fed. 196. Some of the circuit courts See Parisian C. Co. v. Eschwege, 92 have rules UDon this subject. Fed. 721. iLloyd v Pennie, 50 Fed. 4. iflBlease v. Garlington. 92 U. S. 7, 23 L. ed. 521. 986 Proceduie] TRANSMISSION OF TESTIMONY TO CLERK. S 1043 examiner,2 but to order the answer taken and reserve judgment thereon to the hearing. 3 But where part of an answer is stricken out, the court in another district where evidence is being taken, will on application exclude testimony offered on that part.* Failure to object when the evidence is taken will not forfeit the right to make objection at the hearing.5 § 1043. — compulsory attendance of witnesses, j In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practised with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Part of 67th equity rule as amended May, 3, 1892. This portion of the amendment of 1892 merely carries forward and is identical with the earlier amendment adopted at the December term, 1861.8 The penalty for refusal to appear or testify is prescribed by equity rule 78,9 and by R. S. § 868. lo Where by consent, testimony in another jurisdiction is taken upon oral examination before an examiner instead of deposition or commission, the court having jurisdiction in the district where the examination occurs, is the one having power to punish a contumacious witness.! 1 § 1044. — notice of time and place of examination. Xotiee shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by •order in each cause. Part of G7lh equity rule as amended May 3, 1892. This portion of the amendment of 1892 merely carries forward and is identical with the earlier amendment adopted at the December terra. 1861.1* The taking of evidence by referees without the giving of any notice has been held fatal to an award.is § 1045. — transmission of testimony to clerk of court. When tlie examination of witnesses before the examiner is con- cluded, tlio original depositions, authenticated by the signature of zDowagiac Mfg. Co. v. Lochren, sDiamond, etc. Co. v. Kelly Bros. 143 Fed. 211, rule applied to ancil- 120 Fed. 282. l:irv court before whicl) evidence is "See 1 Black 6. 20 L. ed. U. S. 917. tnken. 9 See post § 10.57. ^-KT • i./-i /-.li- in lOSee post. § 1767. ,n; ?^'°";a ''• ""■ ' iiTn re Allis. 44 Fed. 216. KM hcd. AJ. i^j;,pg ^ Black. 6. 20 L. ed. 917. 4 Independent, etc. Co. v. Boorman. is New York v. Du Bois, 86 Fed. 137 Fed. 99.5. S89. 987 § 1046 EQUITY TUOCEDURE. [Code Fed. tlie examiner, shall be transmitted by him to the clerk of the court,, to 1)e there filed of record, in the same mode as prescribed in section 805 of the revised statutes. Part of 07th equity rule as amended May 3, 1892. The portion of the earlier amendment of 1802 superseded by the above,., used the term "deposition" instead of "depositions," and referred to § 30- of the act of 1789, instead of to R. S. § 865 which is the early statute carried forward into the revision. An examiner need not file the prtjofs^ until his fees are paid.iT § 1046. — court may prescribe order of taking and time for com- pleting oral testimony. Where the evidence to be adduced in a cause is to be taken orally,, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defend- ant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties or by leave of court first obtained, on motion for cause shown. Part of amendment to 67th equity rule promulgated at December term, 1869, as amended May 3, 1892. The amendment of 1892 consists merely in the substitution of "as before provided" for "as provided in the order passed at the December term, 1861, 1 9 aniendijig the 67th General Rule."2o The matters referred to by "as before provided" are the preceding nine sections of this text.i By rule 69 testi- mony is to be taken in three months after the cause is at issue.2 The rules of 1822 gave six months from the time of replication, for the taking of evi- dence, and permitted either party at the expiration of that time to set the cause for hearing. Depositions taken afterwards unless by consent, special order, or taken out of the district, were not admissible.3 Prior to the above amendment it was the practice in equity for parties to proceed inde- pendently in the taking of their proofs, and not in the orderly manner of courts of law, where plaintiff's proof, defendant's defense and plaintiff's- rebuttal follow in regular sequence. Under this amendment, and that of 1861, respecting oral examination of witnesses,* a party may now hare the evi- dence adduced in a mode very similar to that prevailing in trials at law. iTFrosp V. Biedenfeld, 14 Blatchf. zpost § 1055. 402. Fed. Cas. No. 5,111. 3See Paile 25, 7 Wheat. VI, et scq. i^See 1 Black, VI. 5 L. ed. 376. 2f^Spe 9 Wall. VIT. 139 U. S. 707. 4Ante, §§ 1037, et seq. lAnte, g§ 1037-1045. 988 a'rocedure] TAKING OF TESTIMONY. § 1048 Leave may be obtained to take evidence in surrebuttal upon notice setting up tlie precise fact which applicant desires to prove. 5 § 1047. — who to pay for stenography and typewriting. The expense of the taking down of depositions by a stenographer and of putting them into tA'pewriting or other writing shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the •court shall adjudge should ultimately bear them. Part of amendment of G7th equity rule, promulgated May 2, 1892. § 1048. — but court may direct a commission and written inter- rogatories. Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons, satisfactory to the court or judge. Part of amendment of December term, 1861, of 67th equity rule. The amendment of May 3, 1892, merely carried forward this provision without change, although modifying the amendment of 1861 in other re- spectss The purpose of the amendment adopted at the Decen-l.er tes-n;. 1861, was to require the taking of the testimony of witnesses within the jurisdiction, orally instead of by written interrogatories where either party so requested; 9 whereas the earlier rule only permitted that practice when both consented and agreed thereto. The amendment concluded with this provision for written interrogatories, on motion, "for special reason satis- factory to the court or judge." While not altogether clear, the intent would seem to have been to protect against possible hardship or inconvenience in tlie working of the new practice, and to reach cases where oral examination would not be feasible for part of the witnesses, though within the juris- diction.! « It seems not to apply to the taking of testimony on commis- sion outside of the court's jurisdiction, since that is covered by another pro- vision of the same rule.n "In the usual way" refers to what had been the ancient and customary mode of taking depositions on commission in courts of equity and not to the statutory model 2 under R. S. § 866.13 Since the amendment of 1861 that way has become the exception and not the usual way.i^ 5Rubber T. \V. Co. v. Columbia. nSee post. § 1049. etc. Co. 89 Fed. 593. laBisHioff-^cheim v. Baltzer, 10 sSee 1 Black. VI. 20 L. ed. IT. S. Fed. 3. 20 Blatchf. 229. •917, 1.39 U. S. 707. isSee post, § 1705. 9 Ante. § 1037. uBischotfscheim v. Baltzer, 10 loSee Bi-^choffscheim v. Baltzer. 10 Fed. 3. 20 Blatchf. 229. Fed. 3, 20 Blatchf. 229. 939 § 1049 EQUITY TROCEDURE. [Code Fed. § 1049. Taking testimony by commission upon interrogatories. x4fter the cause is at issue, commissions to take testimony mav be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories Ijefore the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time the commission may issue ex parte. Part of 67th equity rule promulgated March, 1842. , [a] In general. This portion of the 67th rule has been unafl'ected by the numerous amend- ments since made. However, since the amendment permitting either party to demand oral examination of witnesses before examiners. is the practice of taking the testimony of witnesses within the jurisdiction, on written interrogatories is infrequent. Commission is still a convenient mode of ob- taining testimony outside the court's jurisdiction.! 9 The rules of 1822 re- quired that the "interrogatories shall be filed in the clerk's office ten days previous to a rule day, after which the defendant shall be allowed five days to iile his cross-interrogatories, unless he waives his right."20 [bj Execution of commission. Tlii' authority of commissioners is special and must be strictly pursued.J It must be executed in the place directed and none other.4 Each inter- rogatory must be separtely answered and an omission is faiaT to the whole deposition; 5 especially an omission to answer the jTeiieral inter- rogatory. 6 All must be substantially answered." The cross, as wfll as the direct interrogatories must be put; 8 if there are any.:' Ifp^y. ever, if the interrogatories are hypothetical, or to be asked in a certain event which does not happen, or refer to records which speak for them- selves, they need not be answered.io It is no objection that direct and isAnt^. § 1037. i9See ante, § 1036 [b]. 2 0Rule 26. see 7 Wheat. VI, et seq. 5 L. ed. 377. 3Armstrong v. Brown, 1 Wash. C. C. 43, Fed. Cas. No. 542; Munns v. De Nemours, 3 Wash. C. C. 31. Fed. Cas. No. 9,926: Willings v. Consequa. 1 Pet. C. C. 301, Fed. Cas. No. 17.- 767 : Lonsdale v. Brown, 3 Wash C. C. 404, Fed Cas. No. 8,492. ■ipoudereau v. Montgomeiv 4 Wash. C. C. 186. Fed. Cas. No. f,694; Phoades V. Selin. 4 Wash. C. C. 715. Fed. Cas. No. 11,740. BKetland v. Bissett, 1 Wash. C. C. 144. Fed. Cas. No. 7,742. ePichardson v. Golden. 3 Wash. C. C. 109, Fed. Cas. No. 11.782; Phoades V. Selin. 4 Wash. C. C. 715, Fed. Cas. No. 11,740. ^Dodge V. Israel. 4 Wash. C. C. 323. Fed. Cas. No. 3.952. ^Gilpins V. Consequa. 3 Wash. C. C. 184. Fed. Cas. No. 5.452. S'lf not. the deposition is admiss- ible on the direct interrogatories. Cass V. Stinson, 3 Sumn. 98, Fed. Ca-. No. 5.262. loBell V. Davidson. 3 Wash. C. C. 328, Fed. Cas. No. 1,248. 990 ii: I'roceduie] FORM OF THE LAST INTERROGATORY. § 1051 cross-interrogatories are answered at different times; n or that a material part of the evidence is elicited in the answer to the general interrogatory.ii It has been held that application for commission to take testimony abroad is not grantable as of course, but only in the court's discretion upon a showing of the materiality of the evidence to be adduced ;i3 although this seems at variance with the established principle that a party's latitude in the taking of testimony is not to be restricted by any determination of the court in advance as to what is relevant. i* § 1050. — naming of the commissioners. In all cases the commissioner or commissioners may be named b}' the court or by a judge thereof; and the presiding judge of the coui't exercising jurisdiction may, either in term time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony. Part of 67th equity rule as amended December term, 1854, and May 3. ]8<)2. The proviso enabling a judge to delegate the power of naming commis- sioners, to the clerk was added by amendment at the December term, 1854; and on ]May 3, 1892, the paragraph was redrafted as given abovs, bv em- bodying the proviso and the original statement in one sentence.i^ The rules of 1822 provided that "Commissions to take depositions may be executed by any person qualified to take testimony according to the laws of the State, or by any person or persons, not exceeding three, appointed or named in the commission by order of the court, or by any judge thereof in vacation."! 8 in many districts the authority above given is exercised by a standing rule empowering the clerk to name commissioners. § 1051. — form of the last interrogatory. The last interrogatory in the written interrogatories to take testi- mony now commonly in use shall in the future be altered, and stated in substance thus : "Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be ma- terial to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer." 71st equity rule, promulgated March, 1842. iiGilpins V. Consequa. 3 Wash. C. i^See United States v. American B. C. 184, Fed. Cas. No. 5.452. T. Co. .?9 Fed. 230; Fayerweather v. ]2Rhoadps V. Selin. 4 V.'ash. C. C. Ritdi. 89 Fed. 529: Parisian C. Co. 715. Fed. Cas. No. 11.740. v. Escliwege. 92 Fed. 721. isUnited States v. Parrott, 1 '^\c- iTSee 139 V. S. 707. All. 447, Fed. Cas. No. 15,999. isRule 26, see 7 AMieat. VT, et seq. 5 L. ed. 377. 991 § 1052 EQUITY PROCEDURE. [Code Fed. In answer to this question, any further knowledge witness may have material to the cause is admissible. If there is no answer whatever to this interrogatory, the deposition is fatally defective. § 1052. Taking testimony by deposition under statutory pro- visions. Te.stiniony may also be taken in the cause, after it is at issue, by deposition, according to the act of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross examination of the witness, either under a commission or by a new deposition taken under the acts of Congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. 68th equity rule, promulgated March, 1842. The rules of 1822, provided that "Testimony may be taken according to the acts of Congress, or under a commission."! There are a number of statutory provisions respecting the taking of depositions, which are given elsewhere. 2 It has been said that this rule permitting deposition only after a cause is at issue, in effect modifies R. S. § 803,3 which permits de- position in any cause "depending in a district or circuit court" and permits a proceeding under R. S. § 863 only if the cause is at issue as well as ••'depending."^ This reasoning seems unsatisfactory, since courts are on principle, powerless to modify statutes by rule, and R. S. § 862 expressly declares the mode of proof in equity to be according to the rules "except as herein specially provided.''^ § 1053. Taking of testimony de bene esse. After any bill filed and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners, as the judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and y)lace of taking his testimony. 70th equit}' rule, promulgated March, 1842. iRule 25. see 7 Wheat. VI. et seq. 5 L. ed. 370. 2Ree post. 8 1,761, et seq. See Bis- chnffschoim v. Baltzer, 10 Fed. 3, ■20 Blatchf. 229. sPost, § 1,761. 4 Stevens v. Missouri K. & T. Ry. 104 Fed. 9.34. 5 See ante, § 1036. 992 Procedure] TAKING OF TESTIMONY. § 105.1 The provision of the rules of 1822 was very similar to the above. 7 Con- gress has also made provision for the taking of testimony de bene esse.s A party may not have his own testimony taken under this rule.9 § 1054. Taking testimony in open court at hearing. Upon due notice given, as pre.scribed by previous order, the court may at its discretion permit the whole or any specific part of the evi- dence to be adduced orally in open court, on final hearing. Amendment of 67th equity rule, promulgated May 15, 1893.12 The promulgation of this amendment set at rest whatever doubt may have existed after the adoption of the Revised Statutes, 1 3 as to die pro- priety of oral examination of witnesses in open court in equity cases. i ♦ The court is not, however, required to permit oral examination; i5 and the general practice is not to take evidence orallj^ in open court. is To be available on appeal, testimony taken in open court must be reduced to writing and incorporated in the record, and this includes testimony that has been ruled out. it An order to take testimony at the hearing must be obtained upon notice and not ex parte.is Such order is held not in conflict with a subsequent order for taking testimony by deposition. 1 9 § 1055. Testimony to be taken within three months. Three months and no more shall be allowed for the taking of testi- mony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time ; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Part of 69th equity rule, promulgated March, 1842. The rules of 1822 allowed six months after answer and replication, lor 7See Rule 24, 7 Wheat. 6, et seq., rule 78 (post, § 10.57) also infcren- 5 L. ed. 376. tially recognizes the practice. sSee post § 1.761. isBlease v. Garlington. 92 U. S. 1. sEslava v. IMazanges, 1 Woods, 23 L. ed. 523. 624, Fed. Cas. No. 4,527. isRauroad Co. v. Dn-w. 3 Woods. 12149 U. S. 793. 692, Fed. Cas. No. 17.434. i3See ante, § 1036 [a]. The revised it Southern B. & L. Assn. v. Carey, statutes omitted earlv enactments on 117 Fed. 334; In re De Oottardi. 114 the subject. ' Fed. 342; In re Lip.=;ct. 119 Fed. 3S0; KPrior to the revised statutes the Massenberg v. Dennison. 107 Fi^l. 21, right was settled: Sickles v. Glou- 46 C. C. A. 120: MoWilliams v. Conn, cester Co. 3 Wall. .Ir. 186. Fed. Cas. W. Co. 119 Fed. .509: Blease v. Car- No. 12.840: Van Honk v. Poii'lle»>n, lington, 92 U. S. I, 23 L. ed. 52,3. 2 Rlatchf. 85. Fed. Cas. No. 16,852; i^Mears v. i.ockhart. 94 Fed. 274. so- F.le-a.se v. (Darlington, 92 I . S. 3ti C. C . A. 2.39. 1. 23 L. ed. .523: In re Clarke. 9 laMagone v. Colorado, etc. Min. Blatchf. 372. Fed. Cas. No. 2,801 ; Co. 135 Fed. 846. . Fed. Proc— 63. 993 § 1056 EQUITY PROCEDURE— (Continued). [Code Fed. tiie taking of the depositions. 3 Where either party has elected to have the testimony taken orally* there is a further right to move the court to as- sign a time for taking plaintifl's proof, and a time for defendant's defense thereafter and finally for taking plaintilT's reply. » If the court does not direct proofs to be taken in that mode, then each party proceeds independ- ently to take his proofs and has the full period of three months in which to complete it. 6 The limitation of three months applies both to defendant and plaintiff.' It will be enforced unless the parties, otherwise agree, or the court grants an extension. « A cause will not be deemed at issue within this rule until at issue as to all defendants, or else confessed as to those not at issue.9 But a defendant as to whom the cause is at issue has a right to proceed to take testimony and if plaintiff wishes to wait until he is at issue with all, it is better practice to get an order enlarging his time.io The granting of further time for taking proofs is discretionary and its refusal is not reversible error unless a flagrant i)reaeh of discretion. n Be- lated proofs may be filed nunc pro tunc in the court's discretion,! 2 or stricken out. is An applicant for further time should state the names of proposed witnesses and the evidence desired to be taken, with the reasons for the delay in taking the proofs. i* Depositions taken after the time has expired cannot be read in evidence where timely objection is made. is A plea at issue under replication will be overruled where evidence is not taken in its support within the allotted three months.ie So if no evidence i.i taken in season under an answer filed with a demurrer, decree may go for plaintiff, on the overruling of the demurrer.i'? This rule does not apply to taking testimony on reference to a master.is A party should move to suppress lielated proofs or they may be received. 1 9 An order enlarging the time should be sought upon notice to the opposite party.2 § 1056. Publication of the testimony. Immediatel}' upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court upon 3 See Rule 25, 7 Wlieat. VI. et seq. 5 L. ed. 376. 4Ante, § 1037. 5 Ante. § 1046. eingle v. Jones, 9 Wall. 486, in L. ed. 621. vingle v. Jones. 9 Wall. 486, 19 L. ed. 621. sErown v. Worst er, 113 Fed. 20. sGilbert v. Van Arman, 1 Flipp. 421, Fed. Cas. No. 6,414. lOColeman v. Martin, 6 Blatchf. 2i91. Fed. Cas. No. 2.fl8fi. 11 Ingle V. Jones, 9 Wall, 486. 19 L. ed. G21 : see Wooster v. Howe S. !M. Co. 10 Fv.i-'^' Hut a reference of the entire decision of a case is improper except by the consent of both parties.16 A court may in its discretion itself state an account after examining the testimony taken by the master.i" Matters of -tompu- tation and account are a common subject for reference.is Boundaries may be ascertained by reference ; 1 9 or the propriety of a receiver's petition to reduce wages; 20 or the amount of a receiver's compensation.! After order for decree pro confesso the ascertainment of damages suffered by phiintiff or the computation of an account, is often a proper preliminary to a de- cree.2 Claims of all sorts against a fund in court may be ordered present- ed before the master. 3 Reference is proper where parties are unable to settle upon interrogatories and some are questioned as irrelevant.'* It is often proper where a receiver is sued upon a claim for damages ;« or to ascertain the proper compensation of a receiver's counsel. 6 A plea of res judicata will be referred unless it clearly appears that the causes of action were not the same.'? § 1069. Appointment and compensation of masters. The circuit courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof, including the justice of the Supreme court, the circuit judges, and the district judge for the district concurring in the appointment) and they may also appoint a master pro hoc vice in any particular case.^^^ The compensation to be allowed to every master in chan- cery for his services in any particular case shall be fixed by the circuit court in its discretion, having regard to all the circumstances i4Dumont v. Fry, 13 Fed. 423. 20United States T. Co. v. Omaha, isSee Kimberlev v. Arms, 12f) U. etc. Ry. 63 Fed. 737. S. 512, 32 L. ed. 764, 9 Sup. Ct. Rep. iGasquet v. Crescent C. Co. 49 Fed. 355: United States T. Co. v. Mer- 493. pantile T. Co. 88 Fed. 140, 31 C. C. 2 See Reedv v. Western E. Co. 83 A. 427; Third Nat. Bank v. National Fed. 709, 28" C. C. A. 27; Thompson Bank, 86 Fed. 852, 30 C. C. A. 436; v. Wooster, 114 U. S. 114, 29 L. ed. Farrar v. Bemheim, 75 Fed. 136, 21 105, 5 Sup. Ct. Rep. 788; Pendleton C. C. A. 264. V. Evans, 4 Wash. C. C. 391, Fed. leKimberleyv. Arms, 129 U. S. 524, Cas No. 10,921. 32 L. ed. 764,* 9 Sup. Ct. Rep. 355. 3 See Fidelity, etc. Co. v. Shenan- iTWheeler v. Billings. 72 Fed. 301, doah Co. 42 Fed. 372; Central T. Co. 1 8 C. C. A. 573. V. Texas Ry. 32 Fed. 448 ; post, §— . i8St. Colomhe v. United States, 7 ^See Zunkel v. Litchfield, 21 Fed. Pet. 625, 8 L. ed. 807: Hatch v. In- 196. dianapolis. etc. R. R. 9 Fed. 856: 11 sSee Central T. Co. v. Marietta, Biss. 138: see Wann v. Coe, 31 Fed. etc. Ry. 75 Fed. 41. 369; Harding v. Handy, 11 Wheat. 6 Walters v. Western R. R. 69 Fed. 126, 6 L. ed. 427: Burns v. Rosen- 706. stein, 135 U. S. 455, 34 L. ed. 193, 10 ^Park, etc. Co. v. Bruen, 133 Fed. Sup. Ct. Rep. 817. 807. i«See Murphy v. So. Ry. 99 Fed. 469. 1000 rrocedure] APPOIN'TMENT AND COMPENSATION OF MASTERS. § 10G9 [b] 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 en- titled 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. '^''^ 82nd equity rule, as amended April 16, 1894. [a] In general. The amendment of April 16, 1894,io consisted in substituting the portion of the above rule embraced within the parenthesis for the proviso, "both the judges concurring in the appointment," found in the rule as originally adopted in 1842.1 1 The rules of 1822 contained no provision respecting the appointment of masters. The appointment of both standing and special masters is discretionary. 12 Such appointments should be made by the court, as a master is an officer 1 3 of the court, and no notice thereof need be given. 14 By an act of 1879 Congress made clerks and other deputies ineligible for the position except for special reasons to be assigned by the order of appointment; is and by act of 1887 relatives of the judge may not be appointed officers of the court.i^ It is not essential to the validitj' of any standing appointment that the master give a bond or the appointment be recorded.!'? it has been held that a party cannot raise the question of the disqualification of an appointee under the acts of Congress, by motion to set aside a sale made, because such an attack upon the appointment is collateral. 18 Appointment of a clerk as special master is not reversible error where the order of appointment inadvertently omits to set forth the special reason therefor. 19 Erroneous statements in a final report re- produced inadvertently from an earlier report at which time the state- ments were true is not ground for removal of the master for bad faith and malice.2o [b] Compensation and attachment therefor. A master must file his report whether his fees are paid or not, but at- taclnnent will issue if they are not paid;'' and the issuance of attachment lOSee 152 U. S. 709. i^Seaman v. Northwestern, etc. 11 Pee 17 Pet. 20 L. ed. p. 918. Co. 86 Fed. 493, 30 C. C. A. 212; i2Van Hook v. Pendleton. 2 isSeaman v. Northwestern, etc. Blatchf. So, Fed. Cas. No. 16,852; Co. 86 Fed. 492, 30 C. C. A. 212; isBate F. Co. v. Gillette, 28 Fed. Elg\itter v. Northwestern, etc. Co. 86 673. Fed. 500. 30 C. C. A. 218. i^Finance Com. v. Warren, 82 Fed. isBriggs v. Neal. 120 Fed. 224. 50 525: 27 C. C. A. 472; Seaman v. C. C. A. 572. Northwestern M. L. I. Co. 86 Fed. 2oMason v. Pewabic M. Co. 100 497. 30 C. C. A. 212. Fed. 340. 15 Ante, § 603. 4Frese v. Biedenfeld. 14 Blatchf. 16 Ante, § 443. 402, Fed. Cas. No. 5,111. 1001 § lOTO EQUITY PROCEDURE — (Continued). [Code Ted. is not stayed by proceedings for appeal. 5 On adjournment of a lioaring a master's fee should be paid by the party asking the adjournment and properly should be paid at the tinie.6 Each party should pay liis own costs in the lirst instance anl leave their final disposition to be determined in the decree." A master's compensation should be measured by the work done, time employed and the responsibility assumed, having also in view the magnitude of the interest involved.^ It should not be fixed finally until .after the services are rendered; and an interlocutory order fixing them at a sum per annum may afterwards be modified. 9 Where a special master's fees are allowed and embodied as costs in a decree which is thereafter re- versed so that the costs are imposed upon the other party, the master is entitled to interest from date of the allowance of his fees.io § 1070. Time when matter referred must be brought on before master. Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance and for \yhose benefit the reference is made shall cause the same to be pre- sented to the master for a hearing on or before the next rule day .succeeding the time when the reference was made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. 74th equity rule, promulgated march, 1842. The rules of 1S22 merely required the master to assign a day for hear- ing whenever a matter was referred. is § 1071. Time and place for hearing — adjournments — speeding the hearing. Upon every such reference it shall be the duty of fchc master, as soon as he reasonably can, after the same is brought before him, to assign a time and place for proceedings in the same, and to sMyers v. Dunbar, 12 Blatchf. 380, 4,-516; Middleton v. Bankers, etc. Co. Fed. Cas. No. f),!)!10: compare Jesup 32 Fed. 524; Finance Comm. v. War- V. Wabash, etc. R. R. 94 Fed. 20. ren. 82 Fed. 525. 27 C. C. A. 472: see 6Brickill V. New York. 55 Fed. 56.5. Brown v. King. 62 Fed. 529. 10 C. ^United States P Co. v. American C. A. 541, refusing further eompensa- P. C. Co. 81 Fed. 506: Brickill v. tion to special master in railroad New York, 55 Fed. 565. But a party foreclosure. seeking an accounting will usiially be sPleasants v. Southern Ry. 93 Fed. required to pay the compensation: 93. 35 C. C. A. 220. T/rner v. Kayt'on, 17 Fed. 539. 21 loJesup v. Waba.sh, etc. R. R. 94 Blatchf. 428. Fed. 20 sSee Duuirhtv v. West. S Blatchf. isSee Rule 29, 7 Wheat. VI. et seq. 107. Fed. ("ns. No. 4,030; Erie Rv. v. 5 L. ed. 377. Heath, 10 Blatdif. 214, Fed. Cas.' No. 1002 Piocerlure] REFERENCES TO MASTERS. § 1072 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 ap- pointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings, to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at lil)- erty to apply to the court, or a judge thereof, for an order to tiic master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. 75th equity rule, promulgated March, 1842. By rule 29 of the equity rules of 182216 it was provided that "When a matter is referred to a master to examine and report thereon he shall assign a day and place therefor, and give reasonable notice thereof to the parties, or to the attorney or solicitor of such party as may not reside within the district, and if either party shall fail to attend at the time and placv-. the master may adjourn the examination of the matter to some future day and give notice thereof to the parties, in which notice it shall be expresse.l that if the party fail again to appear, the master will proceed ex parte; anl if after receiving such notice the party shall again fail to appear, the mas- ter may proceed to examine the matter to him referred, and to report the same to the court, that such proceedings may be had thereon as to the court shall seem equitable and right." The granting of adjournments!" and of leave to reopen the liearing for further proofs after it has been closed and the report prepared, is largely discretionary. is § 1072. Master to regulate proceedings before him, examine wit- nesses, procure evidence, etc. The master shall regulate all the proceedings in every hearing before him, upon every such reference; and he shall liave full au- thority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other docu- ments applicable thereto; and also to examine on oath, viva voce, .all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, imder a couiiui.s- sion to be issued upon his certificate from the clerk's ofTice. or by leSee 7 Wheat. VI. ct seq. 5 L. ed. isfentral T. Co. v. Ricliniond. etc. .•^77. R. R. tin Feil. 7l)l : Central T. Co. v. iT'lliird Xat. Bank v. National Marietta, etc. R. R. 75 Fed. 41. -Bank. BG Fed. 852. 30 C. C. A. -ir.C. 1003 § 1072 EQUITY PROCEDURE— ( Continued). [Coae Fed. deposition, according to the act of Congress, or otherwise, as here- inafter provided ; and also to direct the mode in which the mat- ters requiring evidence shall be proved before him; and generally to do all other acts and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. 77th equity rule, promulgated March, 1842. The equity rules of 1S22 contained no provision respecting references other than that elsewhere quoted, 2 but they were deen:ed to recognize the propriety of the examination of witnesses before master.s When rule 77 was adopted parties were not competent witnesses in their own behalf and the authority "to examine the parties in the cause, upon oath" meant merely the usual right to a discovery of evidence against them and not a right in either party to make himself a witness in his own behalf.^ Un- doubtedly the provision no longer has so narrow a meaning. This rule gives the master discretion as to the order of proof,a the granting of adjourn- ments, 6 or the opening of the cause after report drafted, for further proofs, ^ It has been held to permit him to require the production of correspondence leading up to contract on an accounting in an infringement suit.s The evi- dence already taken in a cause is properly before the master; 9 including evidence at a former accounting.io A witness whose testimony has previ- ously been taken cannot be again examined before the master upon the same matters, without special order of court, though he may be examined upon collateral or independent matters. n The master may use book entries of accounts without vitiating his report on an accounting, though the books themselves had previously been ruled out as not books of original entry. i2 It is proper for him to refuse newly discovered evidence on an issue al- ready adjudged by interlocutory decree. 1 3 Where evidence offered is ob- jected to, the master should receive it subject to the objection, so that the court may thereafter review the matter.i^ It is proper also to request the master to report specially, such evidence as furnishes ground of excep- 2Ante, § 1071, note. sGass v. Stinson. 2 Sum. 605. Fed. 3Story v. Livingston, 13 Pet. 368, Cas. No. 5,261 ; see rule SO. post, 10 L. ed. 200. § 1074. 4Foote V. Silsbv, 3 Blatchf. 507, lOReed v. Lawrence, 29 Fed. 915. Fed. Cas. No. 4.920. uGass v. Stinson, 2 Sum. 605, Fed. sWooster v. Gumbirnner, 20 Fed. Cas. No. 5. 261 : Jenkins v. Eldridge, 167. .3 Story, 299, Fed. Cas. No. 7,267. fiThird Nat. Bank v. National i2Robinson v. Alabama INIfg. Co. Bank, 86 Fed, 852, 30 C. C. A. 430. 89 Fed. 218. ^Central T. Co. v. Richmond, 69 isDeitch v. Staub, 115 Fed. 309, 53 Fed. 761; Central T. Co. v. Marietta C. C. A. 137. R. R. 75 Fed. 41: Piper v. Brown, i^Kansas, etc. Co. v. Electric, etc. Holmes, 196, Fed. Cas. No. 11.181. Ry. 108 Fed. 702. sGoss Co. V. Scott, 119 Fed. 941. 1004 Procedure] PROCEEDINGS ON REFERENCE. § 1075 tion.ia It is not a proper practice to move the court to instruct the mas- ter while making his investigations, but a party aggrieved has his remedy by exception to the report.is But the fact that execution of the master's orders will involve considerable expense of time and money, may justify the hearing of an application to modify or vacate them. 1 7 The authorities have frequently sanctioned the right of a master in his discretion to proceed beyond the district to take testimony,! 8 and even abroad.i» § 1073. Mode of producing accounts — examination of account- ing party. 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 accounts so brought in shall be at liberty to examine the accounting party, %dva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. 79th equity rules, promulgated March, 1842. § 1074. Affidavits, depositions and documents already in evidence may be used. All affidavits, depositions and documents which have been pre- viously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master. 80th equity rule, promulgated March, 1842. This rule means that testimony in any cause2 may be brought before the examiner without being retaken, by calling his attention to the parts relied upon, in making up the case; but does not authorize the using of it in argument after the case made, when the opposite party no longer has op- port\iiuty to answer or explain it. 3 § 1G75. Creditors and claimants may be examined — evidence re- duced to writing. The niaslor shall be at liberty to examine any creditor or other person coining in to claim before him, either upon written inter- rogatories or viva voce, or both modes, as the nature of tiie case may isDonnell v. Columbian Tns Co. 2 Toledo, etc. R. R. 70 Fed. 133, 24 C. Sumn. :?()(;, Fed. Cas. No. 3.0S7. C. A. 4G7: Dowagiac Mfg. Co. v. isLull v. Clark, 20 Fed. 4.54; post. Loehren. 143 Fed. 214. ^ 107!). But in case of extreme hard- isBate, etc. Co. v. Gillette, 28 Fed. ship i^ ma" be done: Welling v. La G73. Bau. 32 Fed. 2!)3, 23 Blalchf. .305. 2See Cimiotti U. Co. v. Bowsky. i"Bate, etc. Co. v. (lillette. 28 Fed. 113 Fed. 699. 673. 3 Bell V. United States S. Co. 32 18 See Cons.nidnted F. Co. v. Co- Fed. 550. lumbian Co. 85 Fed. 54; White v. 1005 I lore EQUITY rUOCEDUKE— (Coutinued). LCoJe Fed^ appear to him to ro(|uii'e. The evidence upon .such examinnritiii shall be taken down by the master, or by some other person !)y his order and in his presence, if either party requires it, in order that, the same may be iised by the court if necessary. 81 st equity rule, promuloated March. 1842. § 1076. Reference to master in decree for accounting of de- cedent's personalty. Every decree for an account of the personal estate of a testator or intestate sliall contain a direction to the master, to whom it is re- ferred to take the same, to inquire and state to the court what parts, if any, of such pei-sonal estate are outstanding or undisposed of,, unless the court sliall otherwise direct. 73rcl equity rule, promulgated March 1842. § 1077. Master's report. At the conclusion oi' the investigations made by the master pur- suant to the order of reference it is his duty to report to the court concerning the premises. The report should be returned into the- clerk's office and a dissatisfied party may then except thereto pur- suant to rule 83.'^ Author's section. A master may be permitted to withdraw his report for correction, but should not then reverse his former findings except upon notice to the par- ties. 8 The master after preparing a draft of his report should submit it to the solicitors and have a hearing upon their objections before filing it.9 though in some districts this practice is not followed where there has been full argument by counsel on both sides prior to the draft of the report, lo So it is not as essential where the objection is to the principal finding which probably would not have been changed as a result of the objection. n All the evidence should be included in the report, although in making his find- ings, the master may disregard immaterial evidence. 12 § 1078. Report should refer to, and not recite affidavits, deposi- tions, etc. In the reports made by the master to the court no part of any state of facts, charge, affidavit, deposition, examination, or answer TPost, § 1079. Gav Co. v. Camp. 68 Fed. 68, 15 C. C. ^National, etc. Co. v. Davton, 9 A. 226. Fed- 822. ■ loHatp]! v. Indianapolis, etc. Rv.. i U. S. 224. 34 L. ed. 97. 10 Sup. Ct. Sawy. 625. Fed. Cas. Xo. 14.754; Rep. 736; Robinson v. Rudkins. 28 United States v. Williams. 67 Fed. Ks'd. 8: Campbell v. James. 31 Fed. 384, 14 C. C. A. 440: Fisher v. 525; Petersburg Co. v. Dellatorre, 70 Simon. 67 Fed. 387. 14 C. C. A. 443. Fed. 64.3, 17 C. C. A. 310; Omaha v. S«e in re Pentlargo. 17 Blatchf. 306. Reddick. 63 Fed. 1, 11 C. C. A. 1. Fed. Cas. No. 10>()2; and Coleman "Huntington v. Little Rock R. R. v. Neil, 11 Fed. 401, refusing relief 16 Fed. 906. 3 McCrarv 581. where several terms had elapsed. sWitters'v. Sowles". 32 Fed. 1.30, nHicklin v. Marco. 64 Fed. 609. 24 Blatchf. .550; Henderson v. Car- i2See Robinson v. Rudkins, 28 Fed. bondale. etc. Co. 140 I'. S. 25, 35 L. 8. ed. 332. 11 Sup. Ct. Rep. 691. i3Post. § 1094. Moelle v. Sher- oHovev v. McDonald. 109 V S. 158, wood, 148 U. S. 21, 37 L. ed. 350, 27 L. ed. 888, 3 Sup. Ct. Rep. 1.36. 13 Sup. Ct. Rep. 420. loRobinson v. Rudkins. 28 Fed. S; i4Mootrv v. Gravson. 104 Fed. 613, Hicklin v. Marco, 64 Fed. 609; Lin- 44 C. C. A. 83. coin Nat. Bank v. Perry. 66 Fed. i^See post, § 1096. 887; United States v. Castro, 5 in Wall. v. 1015 § 1094 EQUITY PnOCEl)ITRE—( Continued). [Code Fed. a balance duo on a mortgage after sale of the security. 1 9 It authorizes personal judgment for a deficiency ; 20 even in the absence of any prayer therefor, though it is better practice to insert such prayer.i The mort- gagee is entitled to deficiency decrees as matter of right where the proceeds are less than the judgment. 2 § 1094. Rehearing. Every petition for a rehearing^'*^'''^ shall contain the special mat- ter or cause on which such rehearing is applied for, shall he signed »)}' counsel, and the fact therein stated, if not apparent on the rec- ord, shall he 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 recoi'ded, if an appeal lies to the Supreme Conrt. 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.f^^ 88th equity rule, promulgated March. 1842. [a] Nature of remedy by rehearing in equity. For error in a final decree, other than clerical error or accidental omis- sion, 5 the appropriate remedy during the term at which the decee is ren- dered in appealable cases, and also during the next term in nonappealable cases, is petition for rehearing. The remedy is also used for tlie correction of error in an interlocutory decree,*! although motion will, it seems, sullice and the use of petition for rehearing in such a case has been declared tech- nically improper.7 After the term in appealable cases, the remedy for other than clerical error is by bill of review and never by petition for rehearing.8 [b] Grounds for rehearing — discretion. Rehearing in Federal eijuity practice is not a matter of right but rests in the sound discretion of the court.n That discretion is to be exercised isNoonan v. Lee, 2 Black, 499, 17 Whiting, 1 Storv, 218, Fed. Cas. No. L. ed. 278; Orchard v. Hughes, 1 786; Gillette v. Bate Co. 12 Fed. Wall. 77, 17 L. ed. 560. 108: Rogers v. Marshall, 12 Fed. 614. 20Walker v. Dreville, 12 Wall. 442, "Pullam v. Pullam. 10 Fed. 5^; 20 L. ed. 429. Campbell Co. v. Marden, 70 Fed. 339. 1 Seattle, etc. Co v. Union Trust Co. For motion to open interlocutory de- 79 Fed. 179, 24 C. C. A. 512. cree, see Reeves v. Keystone Bridge 2 Northwestern M. L. Asso. v. Co. 11 Phila. 498, Fed. Cas. No. Keith, 77 Fed. 374, 23 C. C. A. 196. 11,661. 5These are reviewable by motion sRoemer v. Simon, 91 U. S. 1.50, under rule 85 ante. § 1()92. For- 23 L. ed. 267; Scott v. Blaine, 1 merly however bv petition: Jenkins Baldw. 287, Fed. Cas. No. 12,525; v. Eldridge. 3 Story, 299, Fed. Cas. Scott v. Hore, 1 Hughes, 163, Fed. No. 7.267. Cas. No. 12.535. '^See .Tenkins v. Eldredge, 3 Storv, nBuffiington v. Harvey, 95 U. S. 290, Fed. Cas. No. 7.267; Baker "v. 99, 24 L. ed. 381; Roemer v. Bern- 1016 I'rocediire] REHEARING. S 1094 [c] in accordance with established principles. 12 The grounds for rehearing are analogous to those at law which constitute the basis for new trial. is Death of the judge before actual delivery of his opinion is ground for re- hearing. i< A showing that the decision is in conflict with an express statute is also ground. 15 Xewly discovered evidence if material and not before obtainable is ground for rehearing if suliicient to uphold bill of review after the term;i6 or to warrant granting of new trial at law.i" Errors of law apparent in the decree or upon the record are grounds for rehearing.is Excusable non-attendance of counsel at the hearing may be ground for granting rehearing. is Rehearing sought by a defeated complainant upon the ground of want of jurisdiction, will be denied. 20 Errors or fault of counsel in arguing the causei do not constitute ground for rehearing. Xor does newly discovered evidence that would not change the result, 2 or that is merely cumulative in character, 3 or that might bj' diligence have been discovered. < An appli- cation based upon the same facts and arguments will not be considered: 5 nor one supported only by counsel's certificate that the case is meritorious. 6 Surprise in the conduct of the case by opposing counsel is no ground for rehearing.i [c] Time for filing petition. As pruvulcd by the rule, the petition will not lie after the close of the heim, 13-2 U. S. 103. 33 L. ed. 277. & M. 1. Fed. Cas. No. 3.061; ITunter 10 Sup. C't. Rep. 12: American, etc. v. [Marlboro. 2 Woodb. & M. 168, Co. V. Sheldon. 1 Fed. 870. 18 Blatchf. Fed. Cas. No. 0,908: Baker v. Whit- 50: Daniel v. Mitchel, 1 Story. 198; ing. 1 Story, 218, Fed. Cas. No. 786. Fed. Cas. No. 3.563: American, etc. -ISIcCloskev v. DuBois. 9 Fed. 38, Co. v. Sheldon. 18 Blatchf. 50, 1 Fed. 20 Blatchf. 7: Munson v. New York, 870. 11 Fed. 72, 20 Blatchf. 358: Bentley i2Anierican Co. v. Slieldon. 1 Fed. v. Phelps. 3 Woodb. & ^L 403. Fed. 870. 18 Blatchf. 50. Cas. No. 1,332. isRailway R. Co. v. North, etc. R. SBaker v. Whiting. 1 Storv, 218, R. 20 Fed. 411. Fed. Cas. No. 780: Rogers v. Mar- i^Doggett v. Emerson, 1 Woodb. & shal. 13 Fed. 59, 3 McCrarv, 87; M. 1. Fed. Cas. No. 3.961. Witters v. Sowles. 32 Fed. 765;" Acme isRailwav Co. v. North, etc. Co. Co. v. Carv Co. 99 Fed. 500. 20 Fed. 41 L 4Baker v. ,\'hiting. 1 Storv. 218, leBaker v. Whiting. 1 Story, 218. Fed. Cas. No. 780: Williman'tic Co. Fed. Cas. No. 786. v. Clarke Co. 24 Fed. 799: Prevost v. iTBentlev v. Phelps. 3 W. & M. Gratz, Pet. C. C. 364, Fed. Cas. No. 403. Fed. Cas. No. 1.332; Hunter v. 11.400: Central T. Co. v. Worcester Marlboro, 2 Woodb. & M. 168, Fed. Co. 91 Fed. -312: Hicks v. Ferdinand. f"a.s. No. 6,908. 20 Fed. Ill; Sowles v. Bank. 133 is American, etc. Co. v. Sheldon, 1 Fed. 846. Fed. 870. 18 Blatchf. 50. sTufts v. Tufts. 3 W. & M. 426. isBlair v. Silver P. M. 93 Fed. 332. Fed. Cas. No. 14,232. 2 0Southern D. Co. v. Silva, 89 Fed. e.Tenkins v. Eldredge. 3 Story, 209. 418. Fed. Cas. Xo. 7.267: Fmerson v. iRailway R. Co. v. North etc. Co. Da vies. 1 W. & M. 21. Fed. Cas. No. 26 Fed. 411; Witters v. Sowles, 31 4.437: Tufts v. Tufts. 3 W. & M. 426, Fed. 5, 24 Blatchf. 359: Page v. Fed. Cas. No. 14.232. Holmes Co. 2 Fed. .333, 18 Blatchf. Ti..verest v. Buffalo Co. 22 Fed. 118; Doggett v. Emerson, 1 Woodb. 252, 22 Blatchf. 524. 1017 § 101)4 [dj EQUITY PROCEDURE— (Coutinued). [Code Fed. term of tlio entry of decree; lo the only exception being in cases not appeal- able. n An order granting a rehearing filed at a snbsequent term is void and may be disregarded.! 2 A petition filed too late may however sometimes be treated as a bill of review. is The authorities hold that a petition filed iind entertained at the term may be disposed of thereafter, and time for appeal only then begins to ran,i* notwithstanding the rule only permits the "granting" of rehearing at the same term. When the court keeps one term open until the beginning of the next, the petition may be filed any time before the next term. is The fact that part of a fund or- dered to be distributed by final decree is still in court at the next term will not justify petition at that time. 1 6 Whei'e the parties six months af- ter the decree, dismiss their appeal taken and apply for rehearing for newly discovered evidence, they are guilty of inexcusable laches. 1 7 Petition for rehearing during the term may be entertained although appeal has been taken, the result being to destroy the effect of the appeal. i» [d] Form and contents — procedure. The petition if based upon new evidence should state its nature, and also lie supported by affidavits expressly made part of the petition, setting it forth. 1 The petition should show diligence in seeking it before, and its materiality. 2 The diligence should be shown by positive testimony and not by mere assertion.s The application is not ex parte but should be on notice to the adverse party. ■* It must be by petition and ordinary motion will not suffice.5 The petition must be signed by counsel. •> Verification should not be before a notary who is also one of the counsel.^ If sought loBank of Lewisourg v. Sheffev, 140 U. S. 445, 35 L. ed. 493., 11 Sup. Ct. Rep. 755; Barker v. Stowe, 4 B. & A. 4S5, Fed. Cas. No. 995; Brooks V. R. R. Co. 102 U. S. 107, 2« L. ed. 92: Poole v. Nixon. 9 Pet. Append. 770, Fed. Cas. No. 11,270; Easton v. Houston, etc. Ry. 44 Fed. 7. iiNewman v. Moody, 19 Fed. 808; Wooster v. Handv, 21 Fed. 51 ; Clarke V. Threkeld. 2 Cranch, C. C. 408. Fed. Cas. No. 2.865. i2Sheffey v. Bank. 33 Fed. 318; Glenn v. Lucas, 43 Fed. 550. i3See Hoffman v. Knox. 50 Fed. ^89. 1 C. C. A. 535. i4New Orleans v. Fisher, 91 Fed. 585. 34 C. C. A. 15: In re Worcester Co.' 102 Fed. 810, 42 C. C. A. 037: First Nat. Bank v. Woodrum, 80 Fed. 1004; Goddard v. Ordway, 101 U. S. 745. 25 L. ed. 1040; Aspen. Co. v. Billings. 150 U. S. 31, 37 L. ed. '98G. 14 Sup. Ct. Rep. 4; Giant P. Co. v. Cal. P. Co. 5 Fed. 197, 6 Sawy. .527. But see Glenn v. Noonan, 43 Fed. 103, 550. isFirst N. Bk. v. Woodrum, 86 P>d. 1004. lellalsted v. Forest H. Co. 109 Fed. 820. iTNorton v. Walsh, 49 Fed. 769. isVoorhees v. Noye M. Co. 151 U. S. 135. 38 L. ed. 101^ 14 Sup. Ct. Rep. 295. lAllis V. Stowell, 85 Fed. 481, Barker v. Stowe, 4 B. & A. 485. Fed. Cas. No. 995; McLeod v. New Albany. 06 Fed. 378, 13 C. C. A. 525. It is also proper to state such evidence by supple'nental bill or answer accom- panying the petition. Baker v. Whit- ing. 1 Storv, 218, Fed. Cas. No. 786. "2Gillette'v. Bate R. Co. 12 Fed. 108; 3 Page V. Holmes Co. 2 Fed. 330. IS Blatchf. 118; Hicks v. Otto. 85 Fed. 728; Allis v. Stowell, 85 Fed. 481. 4Giant P. Co. v. Cal. V. Co. 5 Fed. 197. sHarman v. Lewis. 24 Fed. 530. sAllis v. Stowell, 85 Fed. 481. nbid. ff 1018 Procedure] PROPER FINAL PKOCKSS IX EQUITY. i 1090 because of the excusable nonattendance of counsel it should be accompanied by a showing of a meritorious defense.* The usual practice is to obtain and serve with a copy of the petition, an order upon the opposite party to show cause at the next rule day why it should not be granted. The matter should then be heard on the answer to the petition or aflidavits in opposition and an\' briefs filetl.s [e] Effect of filing petition and of granting it. The filing of the petition will suspend the operation of a docrcei- and •destroy the effect of an appeal already taken^s and the finality of tlie decree for purposes of appeal. !■* Upon granting petition for rehearing of an inter- locutory decree, the court should set aside its former decree: altimii;!! the mere reopening of a case after interlocutory decree, on petition for re- hearinir to let in lunvly discovered evidence, should perhaps not be accom- panied by an order vacating the interlocutory decree.is § 1095. Proper process to enforce orders and decrees. Unless otherwise provided in these rules, or specially ordered hy the circuit court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to .enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. Part of the 7th equity rule, promulgated March, 1842. The rule also provides that subpoena is the proper mesne process. n deneral statutory provisions as to the form and amendment of Federal process and the power of Federal courts to issue various writs are given in .-another chapter.2 ^ 1096. Proper final process in equity. Final process to execute any decree may, if the decree be solely sBlair v. Silver P. Mines, 03 Fed. isVoorhees v. Noye M. Co. 151 U. ^32. S. 135. 38 L. ed. 101. 14 Sup. Ct. Rep. sSee Giant P. Co. v. Cal. V. Co. 295. .5 Fed. 107. where a Supreme Court KBrookett v. Brockett, 2 How. 239, justice heard the case. But motion 11 L. ed. 251: R. R. Co. v. Bradleys. for leave to file the petition is some- 7 Wall. 575. 10 L. ed. 274; Andrew.s limes used: Moelle v. Sherwood, 148 v. Thum. 64 Fed. 149, 12 C. C. A. T. S. 21. 37 L. ed. 350, 13 Sun. Ct. 77; Kinman v. Wester Mfg. Co. 170 Rep. 42f). In many districts there V. S. 678. 42 L. ed. 1104. 18 Suj). Ct. are local niles governing the proce- Rep. 786. .dure isSee Rogers v. Marshall, 15 Fed. i^'urockett v. Brockett. 2 How. 239. 193, 4 McCrary. 307. 11 L. ed. 251: Aspen Co. v. Billings, iflAnte. § 068. 150 V. S. 36. 37 I., ed. 988. 14 Sup. Ct. 20Ante. § 836 843. Rep. 4: Rotors v. Marshall. 12 Fed. -G14. 1019 § 10i)6 [a] EQUITY PKOOEDUKE — (Continued). [CoJc Veil. for the payment of money, be by writ of execution, in the form used in tlie circuit court in suits at common law in actions of as- sumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or tlie 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 services, to take notice ;''^ and upon affidavit of the plaintill', liled in the clerk's office, that the same has not been complied with within the prescribed tiiin', the clerks shall issue a writ of attachment against the delin(iu(^nt party, from which, if attached thereon, he .shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court or of a judge thereof, upon motion and affidavit, enlarging the time for the performaiue thereof. If the delinquent party cannot be found, a writ of so- questration shall issue against his estate upon the return of non est invcMitiis, to compel obedience to the decree. ^^^ ^^^ 8th equity rule, promulgated. March. 1842. [a] In general. 'Ihero are several statutory provisions respecting the execution of Fod- C'lal jiulgnients and decrees applicable bolli at law and in equity. giv*!i in a subsequent ehapter.5 With some few exceptions a Federal court is not empowered to issue process outside its own district and this applies to pro- cess of executions and often final process to enforce its decrees." But equity usually acts in personam and not in rem, and though land or other propeity to be affected by its decree is beyund the jurisdiL-tion, it will, by constraJMt upon the person of the defendant, compel performance of the act necessary to render its decree efi'ective.s It has been held that upon decree for pay- ment of money supplementary proceedings under the State law may be bad since available upon Federal judgment at law in assumpsit. 9 [b] Bill to enforce decree in equity. A supplementary bill in equity is often necessary to enable parties to procure the fruits of a decree in equity as well as of a judgment at law. 3See ante, § 1091. Lewis v. Darling. 16 How. 13. 14 L. sPost. §§ 186.5 et seq. ed. 819: Xorthern. etc. R. R. v. 6See post, § 1865. Michigan. C. R. R. 15 How. 24:5. 14 'Watkins v. Holman, 16 Pet. 57. L. ed. 674: Booth v. Clarke, 17 H )w. 10 L. ed. 873; Booth v. Clark, 17 .332. 15 L. ed. 164: Corbett v. Nut. How. 333. 15 L. ed. 164. 10 Wall. 475. 19 L. ed. 976; Phelps sMassie v. Watts. 6 Cranch. 158. v. McDonald, 99 U. S. 308, 25 L. ed. 3 L. ed. 181 ; Watts v. Waddle. 6 473. Pet. 401, 8 L. ed. 437; Watkins v. oSage v. St. Paul Ry. 47 Fed. 3. Holman, 16 Pet. 57, 10 L. ed. 873; 1020 Procedure] ENFORCEMENT OF ORDERS. § 1098 B\U to carry a decree into execution will always lie where farther decree Lecomes necessary ;i 3 and is maintainable in the same or in another ■court. 14 Bill of revivor may be necessitated by the death of parties. is i^iipplemental bill may be necessitated by transfer of complainant's rightis.16 So a decree in equity for the payment of money, although debt may be maintained thereon,i' may be the basis of creditor's bill and receivership proceedings,! s or statutory supplementary proceedings.!'' Aid in tlie en- forcement of a decree may however be refused for inequity therein. 20 Bills of this character are ancillary and maintainable regardless of the juris- ■dictional citizenship of the parties. 1 § 1097. Writ of assistance to compel delivery of possession. 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 assi.'stance from the clerk of the court. 9th equity rule, promulgated March, 1842. The writ of assistance is an appropriate process against parties bound by decree who refuse to surrender possession.* The power to act under this writ extends only to parties to suit and those coming in imder them after ■suit commenced.^ It is commonly used to put the purchaser at foreclosure •sale into possession. 6 § 1098. Enforcement of orders by or against persons not parties. Everv person not being a party in any cause, who has obtained an •order, or in whose favor any order shall have been made, shall loe enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person not being a partv in any cause against whom obedience to any order of the court isThompson v. Maxwell, 95 U. S. M. 13« U. S. 561, 34 L. ed. 1005, 11 ■.399 24 L ed. 481. Sup. Ct. Rep. 402, Corapton v. Jcsup, i4Shie]ds v. Thomas, 18 How. 262, 68 Fed. 26.3. 15 C. C. A. 397. 15 L. ed. 36S. lAnte. S 3 [d] et seq. isSee Rutledge v. Waldo, 94 Fed. aprinted "or" in published rules. 265. Ante, § 960. 'iGormley v. Clark, 134 U. S. 350, i6Rw Root V. Woolworth, 150 U. 33 L. ed. 909. 10 Sup. Ct. Rep. 5.)4; ■S. 411. 37 L. ed. 1123. 14 Sup. Ct. Terrell v. Allison, 21 Wall. 289. 22 Rop. 136. L- ed. 634; Pratt v. Burr. 5 Biss. 17 Pennington v. Cibson, 16 How. 36, Fed. Cas. No. 11.372; Lacassagne 77 14 L. ed. 847. Compare Corbin v. Chapuis, 144 U. S. 125. 36 L. ed. V (Iraves. 27 Fed. 644. 371. 12 Sup. Ct. Rep. 662. isShainwald v. Lewis, 6 Fed. 766, sComer v. Felton, 61 Fed. 7.35, 10 7 Sawv 14S: Con pton v. .lesup, 68 C. C. A. 28; Thomp.son v. Smith, 1 Fed. 2V>3. 15 C. C. A. 397. Dill. 458. Fed. Cas. No. 13.977. i'.tSa<'e v. St. Raul Ry. 47 Fed. 3. eTerrell v. Allison. 21 Wall. 289, 20Lawrence M. Co. v. .Javnesville 22 L. ed. 634. See ante, § 841. [ ] 1021 J 1009 EQUITY PROCEDURE— (Continued). [Code Fo.l. iiiav be enfoix-eil, sliall be liable to tlie same process for on forcing obedience to such order as if he Avere a party in the cause. lOth equity rule, promulgated March, 1842. § 1099. Bill of review. Wlicn the term of the rendition of final decree has elapsed, bill of review in the court rendering the decree, is a proper remedy for correction of error apparent upon the record; or for procuring a vacation of the decree upon the ground of newly discovered evi- denceJ^^"'^'^^ If sought upon the former ground the bill must l)e filed within the time allowed for appealJ'^^-'^^i If sought upon the ground of newly discovered evidence, the granting of leave to file the bill is matter of discretions^] i^^'^ The bill should show performance of the decree or legal excuse for nonperformance. f^®] Author's sectiuu. [a] Nature of remedy by bill of review. After the expiration of the termio of entry of a final appealableii decree,, remedy for error therein, other than clerical, must be sought by appeal to a higher tribunal or by bill of review before the same court. Bill of re- view is maintainable after the term of entry of final decree for error therein apparent upon its face,i2 or on account of newly discovered evidence material in character, that could not earlier have been discovered with due- diligence. is Where error of law is the ground) assigned, this must be shown from the pleadings, proceedings and decree, without refer- ence to the evidence.i* The only questions open are those upon the face of tlie record without the evidence.is. Nothing else can avail the party. 16 The complainant cannot go into the evidence at large to es- tablish error in the decree. 1 7 Bill of review is maintainable only by parties lolf the decree is nonappealable Massie v. Graham, 3 McLean, 4i, petition for rehearing may lie at the Fed. Cas. No. 9,263. next term. Ante. § 1094. i4 8helton v. Van Kleeck, 106 U. S. 11 Whiting V. Bank. 13 Pet. 13. 10 53,1. 21 L. ed. 209. 1 Sup. Ct. Rep. L. ed. .33. See O'Connor v. O'Con- 491 : Putnam v. Day, 22 Wall. 65, nor. 142 Fed. 449 — (CCA.) . 22 L. ed. 764. i^Clark V. Killian, 103 U. S. 709, isThonipson v. Maxwell, 95 U. S. 26 L. ed. 607: Osborne v. San Diego, 397. 24 L. ed. 481. etc. Co. 178 U. S. 32, 44 L. ed. 966, isWillaniette Co. v. Hatch, 12.5 20 Sup. Ct. Rep. 860. U. S. 7, 31 L. ed. 629, 8 Sup. Ct. isTlill V. Phelps, 101 Fed. 650, 41 Rep. 811; Reed v. Stanly, 89 Fed. C. C. A. 569: Beard v. Burts. 95 430. U. S. 4.36. 24 L. ed. 485; Irwin v. iv Whiting v. Bank, 13 Pet. 14, 10 Mevrose, 7 Fed. 533, 2 McCrary 244. L. ed. 33: Kennedv v. Georgia Bank,. The rule respecting bills of review 8 How. 609, 12 L.'ed. 1209. goes back to Lord Bacon's ordinance. 1022 Procedure] BILL OF REVIEW. § lOOn [bj lo the decree or their privies; is and only bj' parties aggrieved.i^ One ac- cepting the benefits cannot maintain the bill. 20 Strangers to the decree must proceed by supplemental bill in the nature of bill of review ; 1 or by original bill. 2 Bill filed by a stranger is not a bill of review. 3 During the term of the rendition of the decree newly discovered evidence may be set up by a bill in the nature of a bill of review.* If neither error of law nor new evidence oe shown the bill must be dismissed; 5 or leave to file it may be refused. 6 [b] Grounds for luaintaining in general. Bill of review is not maintainable to a consent decree;!' nor to a com- promise decree petitioning land. 10 Nonjoinder of parties plaintiff is not ground for bill of review when defedant was not injuriously affected there- by. n Fraud in obtaining the decree is ground for bill of review.12 The fact that a judgment at law in which a decree is based has since been reversed is ground for bill of review to set aside the decree.i3 Error of law ceases to be ground for the bill after judgment on appeal. 1* Decree entered pursuant to the Supreme Court's mandate is not ground for bill of review.15 Wh*>n decree is entered for jjlaintifi" though the bill states no ground for relief, bill of review is a proper remedy. is But supposed error in the construing of the evidence is no ground for bill of review; i" nor error resulting from misconception of the evidence or the conclusions deducible therefrom. is The fact that a law in accordance with which the decree was made has since been declared invalid in the State court, has been isLacassagne v. Chapuis. 144 U. S. 125. 36 L. ed. 368. 12 Sup. Ct. Rep. 6.50 : Thompson v. Maxwell, 0.5 U. S. .307. 24 L. ed. 481. inVhiting v. Bank. 13 Pet. 14. 10 L. ed. .33: Brown v. White, 16 Fed. 000. 4 AVoods. 614. 20Hill V. Phelps. 101 Fed. 650. 41 C. C. A. 569. iThompson v. Schenectadv R. R. 110 Fed. 634. 2Kingsburv y. Buckner, 134 U. S. 675. 33 L. ed. 1047. 10 Sup. Ct. Rep. 638. sCutter v. Iowa AY. Co. 06 Fed. 777. 4Whiting v. Bank. 13 Pet. 13, 10 L. ed. 33. And also by petition for rehearing, ante. § 1004. 5Purcell V. Miner, 4 Wall. 521. 18 L. ed. 435. eXic-kle v. Stewart. Ill V. S. 776. 28 L. ed. 509. 4 Sup. Ct. Rep. 700. sThompson v. MaxweU, 05 U. S. 397, 24 L. ed. 481. loibid. iiTliomas v. Harvev. 10 Wheat. 152. 6 L. ed. 287. 12 Reed v. Stanlv, 89 Fed. 4.30: Pittsburg, etc. R. R. v. Keokuk B. Co. 107 Fed. 781, 46 C. C. A. 639; Terrv v. Commercial Bk. 92 U. S. 456. "23 L. ed. 620. 13 Ballard v. Searls. 1.30 U. S. 54. 56. 32 L. ed. 846. Sup. Ct. Rep. 418. I'iKingsburv v. Buckner. 134 U. S. 671. .33 L. ed. 1047. 10 Sup. Ct. Rep. 638: Franklin S. Bk. v. Taylor. .5.3 Fed. 854. 4 C. C. A. .55: Leslie v. Urbana, 56 Fed. 762, 6 C. C. A. 111. I'Kimberly v. Arms. 40 Fed. 554. i«Ohio R." R. V. Central T. Co. 1.33 U. S. 8.3, 33 L. ed. 561. 10 Sup. Ct. Rep. 235. I'Annes v. Kimberlv, 136 U. S. 620. 34 L. ed. 557. 10 Sup. Ct. Rep. 1064. is.Tourolomon v. Ewing, 85 Fed. 103. 29 C. C. A. 41. 1023 § 1099 [c] EQUITY PROCEDURE — (CoBtinued). [Code Fed. held no ground for bill of review.is And the absence of counsel from the hearing is not ground. 20 [c] — newly discovered evidence. The evidence must be new or else such as the party could not by dili- gence have known. < The failure to produce the testimony earlier must be accounted for.5 The new evidence must be controllings and not be nuM-e- ly cumulative;' or mere impeachment of witnesses ;S or evidence that should have been known ;» or evidence merely increasing doubt as to ihe real truth. 10 Where the alleged new matter relates to the proceedings on the sale under a foreclosure decree this cannot have any effect on the de- cree and hence bill of review thereto should be dismissed. n A change in a legal rule resulting fi'om a new decision of the Supreme Court is not new matter justifying bill of review thereon.'^ 2 [d] Time for filing. The rule is established that a bill of review must ordinarily be filed within the time for taking an appeal where the review sought is not founded on newly discovered evidence.io Thus where error of law is the ground upon which bill of review is based, it must be filed within that time.16 But the fact that an appeal was pending during part of the time after decree, may excuse the filing of bill of review within the two years;!" although the bill should be filed promptly thereafter. is Attempt- ed appeal to the Supreme (]ourt of the United States in a case properly i9Hoffman v. Knox, 50 Fed. 481, uShelton v. Van Kleeck, 100 U. 1 C. C. A. 53.5. S. 5.35, 27 L. ed. 269. 1 Sup. Ct. Rep. 2 0Tilghman v. Werk, 39 Fed. 680. 491. 4Paibber Co. v. Goodyear. 9 Wall. i2Ti]ghman v. Werk, 39 Fed. 680. 806. 19 L. ed. 828; Beard v. Burts, iwTorgenson v. Young, 136 Fed. 95 U. S. 436, 24 L. ed. 485; Society 381, and cases cited, of Shakers v. Watson, 77 Fed. 512, leThomas v. Harvey, 10 Wheat. 23 C. C. A. -363. 151. 6 L. ed. 287; Kenedv v. Bank, 5Easlev v. Kellom. 14 Wall. 281, 8 How. 609, 12 L. ed. 1209; Ensmin- 20 L. ed. 890. The question of dil- ger v. Powers, 108 U. S. 302, 27 L. igence is a preliminary one to be ed. 732, 2 Sup. Ct. Rep. 043; Cham- disposed of on the application for berlain v. Peoria Ry. 118 Fed. 32, 55 leave to file the bill and no issue C. C. A. 54; Pacific R. R. v. Mis- need be joined by pleadings: Kelley souri Rv. Co. 12 Fed. 641, 2 McCrary, V. Diamond, etc. Co. 142 Fed. 8;i8. 227; McDonald v. Whitney, 39 Fed. eFreeman v. Clay, 52 Fed. 1, 2 C. 467: Reed v. Stanly, 80 Fed. 433; C. C. A. 587. Taylor v. Charter 6. I. Co. 17 Fed. 7 Southard V. Russell, 16 How. 569. 567, 3 McCrary, 487; Copeland v. 14 L. ed. 10.52 (Unless perhaps in Brunning, 104 Fed. 169, (six months' writingK time for appeal); also Reed v. Stan- sSouthard v. Russell, 16 How. 569, ley, 97 Fed. 521. 38 C. C. A. 331. 14 L. ed. 1052. iTEsminger v. Powers, 108 U. S. 9Societv of Shakers v. Watson, 77 303. 27 L. ed. 732, 2 Sup. Ct. Rep. Fed. 512,' 23 C. C. A. 263; Dumont 643. V. Dcs M. V. R. R. 131 U. S. clx, 25 isCentral & Co. v. Grant L. Wks. L. ed. 520. 135 U. S. 227, 34 L. ed. 97, 10 Sup. loSocietv of Shakers v. Watson, Ct. Rep. 730. 77 Fed. 512, 23 C. C. A. 263. 1024 Procedure] BILL OF REVIEW. § 1099 [f] appealable to the circuit court of appeals lias been held not to excuse the tiling of bill of review within the six months prescribed for appeals to the Jatter court. 19 Bill of review will not lie for errors of law, after judg- ment on appeal; 20 nor to review a decre entered in pursuance of the Su- preme Court's mandate;! nor can the lower court grant a bill of review •during the pendency of an appeal. 2 Nine years" delay is fatal to bill of review. 3 Where decree is against absent parties served only by publication it only becomes final at the end of a year and the time for bill of review runs from that time.* [e] Performance of decree as condition precedent. The general rule is that a decree must first have been performed and costs paid before bill of review will lie." However, this rule is administra- tive and not jurisdictional and in a proper case may be disregarded. s Pov- erty, want of assets, or otlier inability will exuce performaiice.9 [fj Form and proceedings upon bill of review. A petition for rehearing filed too late, may perhaps be treated as bill of review. 12 Leave must be obtained to file bill of review for newly dis- covered evidence.i3 But a bill for error of law may be filed without leave.i* unless the party is unable to aver performance of the decree, in which case ■application should be made upon notice.i5 Original bill in the nature of bill of review may be filed without leave;i6 but not supplemental bill.i' Where the cause has been appealed and there decided, the appellate court must also grant leave; is though the leave there granted is usually formal and does not prevent the lower court afterwards exercising its own dis- isBlythe Co. v. Hincklev, 111 Fed. sDavis v. Speidon. 104 U. S. 84.85, 827, 49 C. C. A. 647. " 26 L. ed. 660. 20Southard v. Russell, 16 How. i2Knox v. Columbia Co. 42 Fed. 570, 14 L. ed. 1052; Kingsbury v. 378 (reversed 50 Fed. 484, 1 C. C. Buckner. 1.34 U. S. 671. 672, .33 L. A. 5.35.) ed. 1047, 10 Sup. Ct. Rep. 638; In isRicker v. Powell, 100 U. S. 107, re Camewell etc. Co. 73 Fed. 911, 20 25 L. ed. 527. This is so although ■C. C. A. 111. other grounds are also stated; Arms iKimberlv v. Arms. 40 Fed. 554, v. Kimherly, 136 V. S. 629, 34 L. 2Emsmin"ger v. Powers. 108 U. S. ed. 557. 10 Suj). Ct. Rep. 10()4. 302, 27 L. ed. 732. 2 Sup. Ct. Rep. i4Davis v. Speiden. 104 U. S. 87, 643; Kimberlv v. Arms. 40 Fed. 548. 26 L. ed. 660: Copeland v. Brun- sHendrvx v. Perkins. 114 Fed. 801, ing. 104 Fed. 169. 32 C. C. A. 435. See also Tilghman ir.Waillemet Co. v. Hatch, 19 Fed. V. Werk, 39 Fed. 680; Duncan v. At- ,349, 9 Sawy. 643. Irintic R. R. 88 Fed. 840. itiRitchie v. Burke, 109 Fed. 16; ■» Beach v. Mosgrove, 16 Fed. .305, Xorthern. etc. Co. v. Young, 12 Fed. 4 McCrary. 50. SO!). 11 Biss. 33'1. TRicker v. Powell. 100 C. S. .108, i 'Thompson v. Schenectady Ry. 25 L. ed. 527; Kimberley v. Arms, 119 Fed. 6.34. 40 Fed. 555; Hofimaii v". Knox, 50 ispittsburg, etc. R. R. v. Keokuk Fed. 492. 1 C. C. A. 585; Miller v. B. Co. 107 Fed. 781. 46 C. C. .\. 6.39; Clark, 47 Fed. 851. Southard v. Russell, 16 How. .571. 14 sDavis V. Speiden, 104 IT. S. 84. 85, L. ed. 10.52: Society of Shakers v. 26 L. ed. 660: ^^■alla^let Co. v. Hatch. Watson, 77 Fed. 512, 23 C. C. A. 263. 19 Fed. 349, 9 Sawy. 043. Fed. Proc— 65. 1025 § 1000 [g] EQUITY TROCEDURE— (Continued). [Code Fed. tretion in permitting i\ui filing of the bill. 1 9 If laches clearly appear the appellate court will refuse leave on the ground. 20 The evidence in the orig- inal cause need not be set forth in the bill except to show its relevancy to the new matter,i and is surplusage which may be stricken out on motion or made ground of special demurrer. 2 All parties to the original decree should be parties to the bill of review.^ A bill in the nature of a bill of review may introduce new parties. 4 The opposite party may demur to bill of review and such demurrer does not admit the truth of facts averred in- consistent with the decree.^' Where demurrer is sustained the bill will be dismissed. 6 Demurrer will raise the point that a bill is too late if ap- parent on the face thereof, otherwise the contention should be raised by answer." Answer and replication are proper to a bill of review based upon new evidence.8 Performance of the decree should be averred or legal excuse therefor; 9 although failure to make such averment has been held no ground of demurrer but only of motion to stay. 10 [gj Discretion in allowing. ^A'lK•re the bill is sought because of newly discovered evidence leave to file the same rests in the sound discretion of the court,i< and this rule holds Avhere that ground is joined with the contention of error of law.is This discretion is to be exercised sparingly. 1 6 Even though the new evi- dence would change the decree, the court may refuse to reopen the decree if productive of mischief to innocent parties. 1 7 [h] Effect of granting or denying. A decree sustaining demurrer to a bill of review and dismissing it, leaves the original decree in full force and effect. is i9Board, etc. v. Deposit Bank, 120 TCopeland c. Bruning. 104 Fed. Fed. 165: Sevmour v. White Co. 92 1G9. Fed. 115, 34 C. C. A. 240. See Bos- sBuffington v. Harvev. 95 U. S. ton, etc. R. R. v. Bemis Co. 98 Fed. 103. 24 L. ed. 381. 121. 38 C. C. A. 661. sKimberly v. Arras. 40 Fed. 54S. 2 0Boston R. R. v. Bemis Co. 98 136 U. S. 629. 34 L. ed. 557, 10 Su;). Fed. 121, 38 C. C. A. 601. Ct. Rep. 1064. ' iDavis V. Speiden. 104 U. S. 87, lOMiller v. Clark, 47 Fed. 850. 26 L. ed. 660: Copeland v. Bruning, i^Thomas v. Harvev, 10 Wheat. 104 Fed. 169: Wallamet I. Co. v. 151. 6 L. ed. 287 : Rubber Co. v. Good- Hatch. 19 Fed. 349. 9 Sawy. 643. vear, 9 Wall. 806. 19 L. ed. 828: 2Buffington v. llarvev. 95 U. S. Ricker v. Powell, 100 U. S. 107, 25 99. 24 L. ed. 381. ' L. ed. 527: Camp & M. Co. v. Parker. 3Bank of United States v. White, 121 Fed. 196. 8 Pet. 268, 8 L. ed. 938. But see i5Ricker v. Powell, 100 U. S. lOS. King V. Dundee. 28 Fed. 33, dispens- 25 L. ed. 527; Kimberly v. Arms, ing with formal parties. 40 Fed. 558. nVhiting V. Bank, 13 Pet. 13, 10 leCraig v. Smith. 100 U. S. 234, L. ed. 33. 25 L. ed. 577. sShelton v. Van Kleeck, 106 U. S. i^Ricker v. Powell, 100 U. S. 107. 534, 27 L. ed. 269, 1 Sup. Ct. Rep. 25 L. ed. 527. 491. I'^Buffington v. Harvey, 95 U. S. eBuffinsrton v. Harvey, 95 U. S. 99, 99. 24 L. ed. 381. 24 L. ed. '381. 1026 I'roceiliire] FINAL RECORD WHAT TO CONTAIN. J 1100 § 1100. Final record what to contain. In equity . . . causes, only the process, pleadings, and de- cree and such orders and memorandums as may be necessary to show the jurisdiction of the court and regularity of the proceedings, shall be entered upon the final record. R. S. § 750 U. S. Comp. Stat. 1901. p. 501. This provision was carried forward into the Kf vised Statutes from an act of 1853.2 It also specifies admiralty causes.* 3 Act Feb. 26. 1853, c. 80, § 1, 10 Stat. 163. lAnte. S 102. Fed. 509; Industrial Co. v. Electrical 2Gray v. Chicago, etc. R. R. 1 Co. 58 Fed. 732, 7 C. C. A. 471. Woolw. 03. Fed. Cas. No. 5.713. sSee Parker v. Judges, 12 Wheat. 5Goodyear. etc. Co. v. Folsom, 3 501, L. ed. 729. Fed. 509; Industrial Co. v. Electrical aGoodyear, etc. Co. v. Folsom, 3 Co. 58 Fed. 732, 7 C. C. A. 471; Unit- Fed. oOO' ed States v. Weber, 114 Fed. 950. lokle v. Crosby, 104 Fed. 582. el'nited States v. Weber, 114 Fed. nKlein v. Fleetford, 35 Fed. 98; 9.50; Gray v. Chicago, etc. R. R. 1 Westerly W. Wks. v. Westerly, 77 Wdolw. 03, Fed. Cas. No. 5.713; Fed. 783. Dreutzer v. Frankfort L. Co. 05 Fed. 1030 rroccriuie] INJUNCTIONS. § 1112 [b] [a] In general. This rule also provides for injunction against proceedings at law.ic and for dissolution of injunctions awarded in vacation. J 2 Special injunctions are those obtainable only on notice, as distinguished from common injunc- tions grantable without notice. It has been said that all injunctions are special in the United States courts ;i4 although the .35th equity rule rec- ognizes the distinction betAveen common and .special injunctions. The "due" notice required by this rule is relative and is to be interpreted in each case by its circumstances and the exercise of the court's discretion. is Reasonable notice is essential. is The provision of R. S. § 718,i7 permitting a preliminary restraining order, does not repeal the provision of this rule requiring notice for the granting of interlocutory injunctions. is Notice may be waived by appearance.19 [b] Issuance and effect of interlocutory injunction. Interlocutory injunction is intended merely to preserve the status quo pending the ultimate decision of the suit. 2 It should not direct the restora- tion of property to its condition prior to a trespass complained of.s Man- datory injunction is only properly granted at final hearing.4 There should be a showing of probable right and probable danger that the right would be defeated if not granted. s If the court is doubtful respecting its ulti- mate decision and serious injury might result to complainant it is proper to grant the interlocutory injunction.6 The court need not be satisfied that complaint will finally prevail.'' If it is manifest that on final hear- ing injunction should issue, it is proper to grant the preliminary de- cree. 8 The fact that irremediable injury may result from its refusal while the defendant would not be greatly incommoded by its issuance, will i2Post, § 1115. i^ilndustrial Co. v. Klectrical Co. isPost, § 1116. 58 Fed. 738, 7 C. C. A. 471. i.T>„ T> 1 T TUT s -Kt oQf\ i^Marsh v. Bennett. 5 McLean, 117, i4Perrv v. Parker, 1 W. & M. 280, r^^.i o,, v-^ niir» • '» T? J /-I ' -V' n r,in T 1 f^d. t as. So. 9,110. Fed. Gas. >.o. 11.010; Lawrence v. or»„.,,.„.. „*.„ \.^ i • d r> T> 1 TIT MI Ain T- 1 r> ^Denver, etc. v. Atcliinsoii. 11. R. Bowman, 1 McAlI. 41!). Fed. Las. n^ tt o nc-r no t i >n. . ._. ■VT oioJ rpv, 4. f -VT .-> iTno ^^^ ^1 . S. 66 < , 28 L. 0(1. 2!) 1 . 4 Sup. ■J-\^. 7\l f ^?. ■• 'T ' <^t. Rep. 185. ' c. -32, § 5 1 Stat. .J34, required no- .^^Jth,,,, p. ^ ,, , Oakland. ."8 tice in all cases: Perrv v. Parker, p^ , -q supra; Xew York v. Conecticut, 4 ^McCaulev v. Kellogg, 2 Woo.ls, 13. Dall. 2, 1 L. ed. -lo: but that pro- p^^ ^^^ ^^ g ^.gg vision was not earned forward into sOeorgia v. Brailsford. 2 Dall -(O.",, the revLsed statutes, and is there- , ^^ ^^^ ^.^^, Colorado K. K. IJ. v. forenotinforce; \uenglingv John- ^,,^; ^^^ j^ ^^j ,,^.^, son, 1 Hughe-!, 60/. 610, Fed. ( a-^. (p n \ ^ Xo. 18 195;, I>Klus_tnal^ ^^'a ^"^-i" «'a1''SO" v. Corson, 88 Fed. 581, 32 tr.cal Co. o8 led. /../, / C. C. A. 4/1. ^ ^ ^ ^.3. ^^,,.^^^ ,. j^^^.j, -,, ,,^,, i5Lawience v. Bowman. 1 McAll. 71.5. .2.5 c. C. A. 161. See Star Co. 4M», Fed. Cas. No. 8,1.34, v. Colvcr P, H. 141 Fed. 12!>, hold- isNew York v. Oonnecticut, 4 Dall. ing a clear case must appear. 2, 1 L. ed. 715: Mowrev v. India '.*^anitarv etc. VVks. v. Cal. Rv. napolis, etc. U. Pv. Co. 4 Biss. 78, Fed. \\-ks. 04 Fed. 603. Cas. No. H.S'.U. sAllington v. Booth. 78 Fed. 878, IT Post. 5 1113. 24 C. C. A. 378. 1031 § 1113 KQUITY I'liOCEDIIRK — (Continued). [Codo Fed. incli?ie the court to grant it.s On the other hand if plaintifl's right is doubtful and defendant amply able to pay any damages these considerations incline the court against issuing the preliminary writ.io If the bill is too indefinite it will not issue. n It was formerly the rule that the decision upon an interlocutory injunction was discretionary and not reviewable.! 2 But an act of 18!)1 made such decrees appealable prior to final decree, al- though upon review the existence of considerable discretion will be recog- nized. is § 1113. Injunction bond. Tlie reqiiireiiient of a bond as condition precedent to the grant- ing of an injunction is discretionary in Federal practice. Author's section. It is in the discretion of the judge granting an interlocutory injunction to require or dispense with a bond, and his action in that behalf is not reviewable on error.ie There can be no question of the court's power to require a bond or to mitigate the terms imposed, at any time.i' The bond may be enforced summarily by the court in ancillary proceedings; is or upon the dissolution of the injunction, is or it may be sued upon in a Stale court. 2 If the bond given is insufficient the court on motion will require additional security. i In many cases the propriety of requiring a bond has been recognized; 2 especially where complianant is a nonresident alien. 3 The fact that the United States is not required to give a bond has been made ground for refusing preliminnry injunction in a doubtful case.4 § 1114. Temporary restraining order may issue. Whenever notice is given of a motion for an injunction out of a circuit or district court, the court or judge thereof may, if there 9See Indianapolis G. Co. V. Indian- Rep. .529: McCaull v. Braham. 16 apolis. 82 Fed. 24.5; Charles v. Mar- Fed. 42, 21 Blatchf. 27S: Coosaw ]\1. ion. 98 Fed. 166. Co. v. Carolina M. Co. 7.5 Fed. 84)7. lOSee Paine v. United States Co. See Tullock v. Neulvane, 184 U. S. 90 Fed. 543: Home Ins. Co. v. Nobles, 510, 46 L. ed. 665. 32 Sup. Ct. Rep. 63 Fed. 642 : Star Co. v. Colver, P. H. 377- 141 Fed. 129. isLeslie v. Brown, 90 Fed. 174, ^^•2 iiLeo V. Union Pacific Ry. 17 Fed. C. C. A. .556: Files v. Davis, 118 Fed. 273. 468. i2See Buflington v. Harvev, 95 U. i»Wcst v. East. etc. Co. 113 Fed. S. 100. 24 L. ed. 381 : United States 744. 51 C. C. A. 41f>. v. Chicag-o. 7 How. 191. 12 L. ed. 660. 2 0Meyers v. Block. 120 U. S. 214, i3See ante, § 78 and notes. .30 L. ed. 642. 7 Sup. Ct. Rep. 525. isRussell V. Farlev. 105 U. S. 433, iGoIdmark v. Kreling. 25 Fed. 26 L. ed. 1060: Mevers v. Block, 120 .349. U. S. 206. 30 L. cd. 642. 7 Sup. Ct. 2See Staffords v. King. 90 Fed. 1:?6, Rep. .525: Briggs v. Neal. 120 Fed. .32 C. C. A. 536. 228, 56 C. C. A. 572. sLowenfeld v. Curtis, 72 Fed. 105. iTRusscll v. Farlev. 105 U. S. 441. •iUnited States v. .Jellico Co. 43 26 L. ed. 1060: IMevers v. Block. 120 Fed. 898. U. S. 214, 30 L. ed. 644, 7 Sup. Ct. 1032 I'locedure] INJUNCTION IN VACATION. § 1115- 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 oi'der may be granted with or without security,, in the discretion of the court or judge. R. S. § 718, U. S. Comp. Stat. 1901, p. 58fl. This provision gives power to isbue restraining oicior to preserve the ptalu quo,!' and without notice. 6 But it does not give power to issue man- datory injunction." Restraining order should not issue unless there is a clear case of threatened injury reasonal)ly to be apprehended, not other- wise capable of being averted nor compensated in damages. s If a bill does not make out such a case restraining order should be refused. 9 There should be moral certainty of irreparable injury.' o it may issue in advance of subpoena, where the bill is filed with the court although not formally deposited with the clerk until two days later. n In some districts it is the practice upon application for injunction to issue an order that defend- ant do nothing prejudicial to plaintiff's rights until the motion for in- junction be heard. 12 Where restraining order is obtained the court should not let the j)laintiff fix the hearing on the motion too far aliead, but rather anticipate the next rule day.i3 § 1115. Injunction in vacation to continue only to next term. In every case M'here an injunction — either the common injunc- tion or a special injunction — is awarded in vacation, it shall, unless pi'eviously dissolved by the judge granting the same, continue un- til the next term of the court, or until it is dissolved by some other order of the court. Part of 55th equity rule, promulgated March, 1842. If issued during vacation by a district judge it expires with the new term unless the circuit court order it to continue, 1 6 and the concluding clause supra "or until it is dissolved bj' some other order of the court" does not apply. 1^ But if ordered by a circuit justice or, it would seem, by a circuit judge it continues under this rule until "dissolved by some other order of the court."i8 sSpring Vallcv \V. W. v. Bartlett, nl'niversal. etc. Co. v. Stoneburn- It; Fed. 615, 8 s'awy. 565. cr. IKl Fed. 251, 51 C. C. A. 208. ePavne v. Kansas Rv. 46 Fed. 54fi. ' -^<'<' Fanshawe v. Tracy, 4 Biss. vChicago. etc. R. R.' v. Burlington -^^'O^ Fed. C'ius. No. 4,643; United R R 34 Fed. 481. States v. Anon. 21 Fed. 767: Fre- ,', ^ ■ ,\n, ' ,„ i • , >-, -o mont v. Merced M. Co. 1 ^IcAll. 268, Mn.h.stnal Co. V. Klectncal Co o8 ^^^j ^.^^^ ^.^, ? /?' ' w >, A T^ i-r^'V i-Walworth v. Cook Countv. .> Trust Co. V. Wabash R. R. 2,> Fed. 1. ^.^^ ,33 j,^^^ ^.^^ ^^ ,-,3^-. sWorth M. Co. v. Bingham, 116 i6.\nte, § 1111. Fed. 785, 54 C. C. A. 119. niirav v. Chicago, etc. R. R. 1 lORyan V. Seaboard R. R. 80 Fed. \Voodw.'63, Fed. Cas. No. 5,713. 397. inbid. 10.33 § 1116 EQIITV PROCEDURE— (Continued). [Code Fed. § 1116. Injunction to stay proceedings at law how obtained. Whenever an injnnction is asked for by the bill to stay proceed- ings at law, if the defendant do not enter liis apjiearance and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon mo- tion, without notice, to such injunction. Part of 55tli equity rule, promulgated March 1842. Injunction to stay proceedings at law will be granted only at the in- stance of a party thereto or one interested therein.i Where granted with- out answer it will not be dissolved until answer filed; 2 and motion to dis- soIyc will be considered only on questions raised in the answer. -^ § 1117. Enforcement and violation of injunction — attachment. The 7th and 8th equity rules" make attachment of the person of defendant the proper process for enforcing obedience to orders and decrees and punishing their violation. These rules ap- ply fully to injunctive orders and decrees. In case of vio- lation of such an order or decree, it is proper to bring the same to the court's attention by affidavit or affidavits setting forth the act or neglect relied upon, with the particularity and circumstance required by good pleading, accompanied by motion for attachment or order to show cause. Thereupon the court should issue order to show cause at a designated time and place, why attachment should not issue; or it may issue attacliment in the first instance. If the contempt be proven fine or imprisonment may be resorted to by way of punishment,^ or impiisonment may be ordered to compel obedience to the order or decree .'^ Author's section. Disobedience of, or resistance to injunctive orders and decrees consti- tutes contempt. 10 The proceedings in cases of contempt are discussed gen- erally in another chapter.n Power to issue attachment in the first instance, upon evidence of violation of an injunctive order, undoubtedly exists, although order to show cause will usually first issue.i2 If the order has not been served this may be ground for refusing to issue the attach- iNew York v. Connecticut, 4 Dall. sAnte. §§ 1095. 1096. 5, I L. ed. 715. lOAnte. § 807 [e] [f]. 2Read v. Consequa, 4 Wash. C. C. nAnto. S 807 [lil. 174, Fed. Cas. No. IhGOO. i2See Fansliawe v. Tracy, 4 Biss. 3 Farmer v. Calvert L. Co. 1 Flipp. 490. Fed. Cas. Xo. 4,643^ United 228, Fed. Cas. Xo. 4,651. States v. Anon, 21 Fed. 767, 768; Ku- TAnte, §8 109.5, 1096. rcka Co. v. Superior Ct. 116 V. S. 8 Ante, § 807, as to punishment for 410, 29 L. ed. 671, 6 Sup. Ct. R-|.. contempt. 429; Comlv v. Buchanan, 18 Fed. 58. 1034 Procedure] IN.TUXCTIOX. § 1119 ment.13 The affidavit need not be by a party, at least where alleging acts of violence.!* It is no objection that the motion for attachment fails to name the parties to be attached if otherwise obtainable from the record. 15 Sometimes information is used to call attention to the violation of a court's injunctive order.i*' Xominal line and costs are deemed sufficient punish- ment if tlie disobedience was unintentional. i" The tine may be ordered paid to complainant as compensation in certain cases.is Costs should be paid by complainant if unsuccessful in showing the contempt. 1 9 § 1118. Interlocutory State injunction against national banks forbidden. Xo . . . injunction . . . shall be issued against such a.ssociation [a national bank] or its property before final judgment in anv suit, action or proceeding, in any State, county or municipal court. Part of R. S. § 5242. U. S. Comp. Stat. 1901. p. 3517. This provision was originally part of § 52 of the national bank law of lS(i4 and also forbids attachment and execution. 2 Later provisions respect- ing jurisdiction of suits by or against national banks did not repeal it.'- It (Iocs Tiot forbid interlocutory injunction in the Federal court though the cause was commenced in a state tribunal and removed.* Since the Federal jurisdiction of suits respecting national banks has been curtailed, » without impairing the force of this prohibition, 6 only citizens of some other State ■can now get preliminary injunction against a national bank, as they alone arc aMc to proceed in tin- Federal court." unless a Federal question is in- Tolvcd. § 1119. Injunction by national bank to stay receivership pro- ceedings. Whenever an association again.st which proceedings have been iiisiit iiti'd. on account of any alleged refusal to redeem its circulating 7!(>tes as aforesaid, denies having failed to do so. it may. at any time \\ irhiii ton days after it has been notified of tlie appointment of an i^Bi.tc R. Co. v. Cillette. 24 Fed. 1 9 Hennessey v. Budde, 82 Fed. 541. •one. 2 Ante. § 24. nCastner v. Pocahontas C. Co. SFreeman M. Co. v. Nat. Bank. 160 117 Fed. 1S4. Mass. .-^98. .S5 X. E. 865: Raynor v. ir.Amer. V. Co. v. .Jacksonville Rv. P«f- ^'«t. Bank. 93 X. V. 371: Van 5-^ Fed 937 ' '^^^^ '"'■ Peoples Nat. Bank. 173 N. Y. ", ... ■ ',, -x J oi * r. u ri ^14. 105 Am. St. Rep. 6GG. 66 N. E. itiSee United States v. Debs, 04 .,. ^ ^'"'''^- ^'^^- 4Hower v. Weiss M. & K. Co. 55 I'.Morss v. Dom. S. M. Co. 38 Fed. pp^j 33(5 5 p q \ 120. 482: Comly v. Buchanan, 81 Fed. 5 Ante. § 24. 58. 6 Freeman ^I. Co. v. Nat. Bank, i;h. R. 99. Fed. Cas. No. 3,767. U. S. 94. Fed. Cas. No. 11.463; How- in'niteil StiUes v. Black. 11 land v. Soule, 1 Deady, 413, Fed. Cas. Blatchf. 543, Fed. Cas. No. 14,600. No. 0.800. 1 0.36 Fioceduie] INJUXCTIOX BY DISTRICT JUDGE. § 1121 f fired upon him. 20 As the provision is contained in the title of the Revised Statutes respecting internal revenue, it may be that it is not applicable to otlier forms of taxation. 1 The income tax law of 1804 was tested by means of a stockholder's suit against a trust company, enjoining it from paying the tax as invalid.2 § 1121. Injunction by district judge to stay proceedings on distress warrant. Anv person who considers himself aggrieved by any warrant of distress issued under the foregoing provisions [against an officer failing to account for pu])lic moneys] may prefer a bill of com- plaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he comphiins: and thereupon the judge may grant an injunction to stay proc'cd- ings on sucli warrant altogether, or for so much tliereof a.s the nature of the case requires. But no injunction shall issue till the ])arty applying for it gives bond, with sufficient security, in a sum to be pi-eseribed by the judge, for the performance of such judgment as nuiy be awarded against him; nor sliall the issuing of such injiui'-- tion 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 nec(>ssary on tlu' 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 injunction may be granted or dis- solved by the district judge either in or out of court. R. S. § 3636, U. S. Comp. Stat. 1901, p. 2421. 'Phis provision is found in tlie title of the Revised Statutes dealing with "The Public Moneys" and was (irii,nnally enacted in 1820.^ 20Kissiuger v. Bean, 7 Biss. 60. Piatt, 1.39 V. S. 507, .35 L. ed. 277, Fed. C'as. No. 7.8.50: Fravser v. Rus- 11 Sup. Ct. Rep. 648. sell 3 Hughes. 227. Fed. Cas. Xo. 2Pollock v. Farmers L. & T. Co. .5.067. 157 U. S. 429, 39 L. ed. 759, 15 Sup. ^See Pacific S. W. Co. v. United Rep. 673. States. 187 I'. S. 452. 47 f- ed. 255. 5Act .May 15. 1820, c. 107 §§ 4, 5, 23 Sup. Ct. Rep. 157; Shelton v. :! Stat. 595. 1037 S 1122 EQUITY TROCEDLRK — (Continued). [Code Ted. § 1122. — revisory proceedings before circuit justice or judge. AVhen the district judge refuses to grant an injunction to ,-5tay proceedings on a distress-warrant, as aforesaid, or dissolves such injunction after it is granted, any person who considers himself ag- grieved by the decision in tlie premises may hiy before the circuit justice, or circuit judge of tlie circuit within which such district lies, a copy of the proceeding had before the district judge; and there- upon tlie 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, subject to tlie same conditions, shall be had upon such injunction in the circuit court as are prescribed in the distiict court. R. S. § 3637, U. S. Comp. Stat. 1901, p. 2421. This provision is taken from acts of 1820 and ISGO.fi By act of 1891 all the appellate powers of the circuit court were taken away and vested in the circuit court of appeals and in the Supreme Court.'? § 1123. Persons ineligible to act as receiver. It sliall not be lawful to appoint any of the officers named in this section [i. e. a marshal, deputy marshal, attorney or assistant at- torney of any district, jury commissioner, clerk of marshal, baililf, crier, juror, janitor of any public building, civil or military em- ployee of the government, clerk or employee of any United States justice or judge] receiver or receivers in any case or cases now pend- ing or that may be hereafter brought in the courts of the United States. Part of § 20, act May 28, 1896, e. 252, 29 Stat. 184, U. S. Comp. Stat. 1901, p. 501. The section also forbids such officers acting as United States comoiis- sioners.9 Another section forbids the appointment of court clerks or their deputies as receivers except under special circumstances. lo § 1124. Receiver suable without leave of appointing court, but subject to its control. Every receiver or manager of any property appointed by any 6Act May 15. 1820. e. 107. §§ 4. 6, ^See ante, § 77. 3 Stat. 595: Act Apr. 10. 1809, c. 22, flSee ante. § 673. § 2^ 16 Stat. 44. loAnte, § 603. 1038 riocedure] RECEIVERS. § 1124 [a] court of the United States may be sued in respect of any act or transaction of his in carrying on tlie business connected witli 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 receiver or manager was appointed, so far as the same shall be nec- ? essary to the ends of jusiiceJ''^ 'i § 3 of act Mar. 3, 1887, c. 373, 24 Stat. 554, as corrected Aug. 13, 1888, e. 866, § 2, 25 Stat. 436, U. S. Comp. Stat. 1901, p. 582. [aj In general. Prior to this provision the Federal Supreme Court recognized and enforced the general rule that a receiver cannot be sued touching the property in charge without consent of the appointing court; i* and that suit without such leave con.stitued contempt.is In one of the circuits, however, the practice of providing in the appointing order that the receiver might be sued without consent was followed;! 6 and perhaps led to the enactment of the above section. It is now settled in conformity therewith, that a receiver may be sued in another court, State or Federal, touching his re- ceivership acts, without leave.i^ So, if a receiver sues in a State court, defendant may plead a .set-ofl' there without leave of the appointing court. is The provision has been construed as placing a receiver in the same position as respects suit, as the concern or owner he represents: is as intended to protect the right of jury trial in actions of a legal character; 20 and, again, as merely dispensing with the need for permission to sue, and leaving the judgment obtained merely advisory and subject to red\iction as in case of trial of issues of fact out of chancery.i It takes away all discretion in the i4Davis V. Gray. 16 Wall. 218. 21 ner, 172 U. S. 2.38. 43 L. ed. 4.30. 19 L. ed. 447: Barton v. Barbour. 104 U. Sup. Ct. Kep. 163: Central T. Co. v. S. 128. 26 L. ed. 673. See iVale v. Kast. etc. Rv. 59 Fed. 523; Central Phipps. 14 How. 374, 14 L. ed. 459, T. Co. v. St. Louis R. R. 40 Fed. 426; holding that receiver not suable in Jones v. The St. Nicholas, 49 Fed. Federal court. 671. isplxpress Co. v. R. R. Co. 99 U. isCrant v. Buckner. 172 V. S. 238, S. 198. 25 L. ed. 319. 43 L. ed. 430. 19 Sup. Ct. Rep. 163. lesec Dow v. Memphis R. R. 20 isEddy v. Lafavette, 49 Fed. 807, Fed. 260, per Caldwell. J.; Barton v. 1 C. C. A. 441. Barbour. 104 U. S. 126. 26 L. ed. 673, 20McNulta v. Lockridge. 137 111. per Miller. J., dissenting. 270, 31 Am. St. Rep. 362. 27 N. E. ivMcXulta V. Lochridge. 141 V. S. 452; AfTirmed 141 V. S. 330, .35 L. 330. 35 L. ed. 796. 12 Sup. Ct. Rep. od. 790. 12 Sup. Ct. Rep. 11. 11 ; Texas & P. R. R. v. Cox. 145 V. iMissouri P. Rv. v. Texas & P. Rv. S. 601. 602, .3'6 L. ed. 829, 12 Sup. Ct. 41 Fed. 311. contra: Central T. Co. R