THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF A N [ih .;:( A TREATISE Constitution and Jurisdiction OF THE United States Courts ON PLEADING, PRACTICE AND PROCEDURE THEREIN AND ON THE POWERS AND DUTIES OF UNITED STATES COMMISSIONERS WITH RULES OF COURT AND FORMS BY Hon. a. H. GARLAND LATE ATTORNEY-GENERAL OP THE UNITED STATES AND ROBERT RALSTON Esq. FORMER ASSISTANT U. S. ATTORNEY FOR THE EASTERN DISTRICT OF PENNSYLVANIA ASSISTED BY JOHN H. INGHAM Esq. OF THE PHILADELPHIA BAR IN TWO VOLUMES Volume I PHILADELPHIA T. & J. W. JOHNSON & CO. 1898 Copyright by T. .V .J. W. .lollNSO.N \ CO. 1898. (^ PREFACE. rpHE purpose of the present treatise is to cover the whole sub- ject of the Jurisdiction and Practice of the Federal Courts including the Court of Claims, the Courts of the District of Columbia and the Courts of the Territories. During the last ten years the Jurisdiction of the Federal Courts has been the subject of important legislation, the most noteworthy statute being that by which the Circuit Courts of Appeals were established. These changes and their effects are fully set forth in the appropriate chapters. A chapter is devoted to proceedings before United States Com- missioners. The jurisdiction and powers of the Interstate Com- merce Commission are also fully discussed. A large collection of useful forms has been added to the work. The Rules of Court are also given in full, and especial attention is called to the manner in which the Rules of the Circuit Courts of Appeals are arranged so as to give due eifect to their corres- pondence and variations in the different Circuits. 7^^<^oo TABLE OF CONTENTS. SECTION PAGE 1 CHAPTER I. JUDICIAL POWER OF THE UNITED STATES. 1 Independent Powers of the Legislative, .Judicial and Executive De- partments, 2 Where the Judicial Power is Vested, 3 3 Extent of Judicial Power, 4 4 Amendment Construing this Section 4 5 Summary of Eeasons on which the Judicial Power Rests, 7 6 Jurisdiction of the Supreme Court, 8 7 The Original Jurisdiction of the Supreme Court not Exclusive, ... 9 CHAPTER II. CONSTITUTION AND ORGANIZATION OF FEDERAL COURTS. 8 Duty of Congress to Provide for, 12 9 Judicial Districts, 12-32 CHAPTER III. ORGANIZATION OF DISTRICT COURTS. 10 District Judges, Appointment and Residence, 33 11 Salary of Judges, 33 12 Judges Prohibited from Practising Law, 34 13 Clerks ; Appointment of ; Official Bonds, 34 14 Duties of Clerks 35 15 Compensation of Clerks, 35 16 Commissions for Receiving and Paying Out Money, 37 17 Deputy Clerks ; Compensation, 38 18 Official Bond of Deputy Clerks, 38 19 Records, where kept 38 20 Marshals and their Deputies, 39 21 Official Oaths of Marshals and their Deputies, 41 22 Marshals' Fees and Salaries, 42 23 Marshal's Bond, 43 V vi TAltl.K OK CONTKNTS. •CCTIOK ""*'" 24 Siiiu on Miirsliiils' lionilit; Cost"*, '*'* '2b Hiiiul to Uciuiiin AftiT Juil>;inent ; Liiiiitiilioii <>f Aolioii on 45 'Hi I )utie8 and I'owere of Marehals, *''' 27 iMity of the I)eputy in (iwe of tlie Dentil of the Marslial ^<> 28 District and Assislnnt I >i»trict Atlornuys; A iipointment, 4G *21> I >istrict Attorneys' Fws and Compensation, 47 :!ii Duties of District Attorney, '^'^ 31 Dnty to I'rosecnte for Crinu-s, ^2 3"J He is the Uei-oKnizetl Otlittr of tiic < Government, 52 30 Term and Oath of Ollice of District Attorney ; Vncancy, 53 CllAITKU IV. TKliMS AND 8IC8.S10NS OF THE CIRCUIT AND DlSTFilCT COURTS. 34 Regular Terms of the Circuit and District Courts, 55-79 CHAPTr:R \. JURISDICTION OF THE DISTRICT COURTS. 35 Jurisdiction ; Special and Limited, 80 3)llisifinH, 99 53 Lil)el Against the Vessel and Miuster, 99 54 Assault and Uattery, 100 55 Injury to Passengers, . . ]01 56 Suits on Debentures, . 101 57 Suits for Damage-s against < Ouspiratoi-s ; F/|ual Rights of all Persons, . 102 58 Suite to Recover < )ni(cs, Hemove (Jflicers and ngainst National Ranks, 102 59 Suits against Consuls and \'ice-Consuls, 103 GO In Rankruptcy, IO3 TABLE OF CONTENTS. Vll CHAPTER VI. PLEADING AND PRACTICE IN ADMIRALTY. SECTION PAGE 61 General Principles, 104 62 The Libel, 104 63 Process cannot Issue until the Libel is Filed ; Service 105 64 The Mesne Process, 105 65 Several Claims for Damages, 105 66 Suits Against the Ship's Tackle, etc 106 67 Order for Process to Issue ; Stipulation for Costs, 106 68 New Sureties, when Required ; Bail Reduced, 107 69 Attachment in Case of Contracts or Torts, 107 70 When Attachments may be Dissolved, 108 71 When the Marshal may take Bail ; Summary Process, 108 72 When a Warrant of Arrest cannot Issue, 109 73 The Claim ; Pleading of a Claimant in Proceedings in rem, .... 109 74 Where the Property Arrested is Owned by Several or Jointly ; Time of Filing Claim and Answering ; Claim and Answer, 110 75 The Claim must be Verified ; Stipulation for Costs, 110 76 When the Ship will be Delivered to a Claimant, Ill 77 Appraisement in such Case conclusive on Party to whom Delivery made, Ill 78 Perishable Goods Sold, 112 79 Where a State Court has Acquired Jurisdiction, 112 80 Information and Libel on Seizures, 113 81 How Decrees may be Enforced, 114 82 Prize Causes, 114 83 Process in Case of Seizure, 115 84 Condemnation of Property Employed in Aid of Insurrection, .... 116 85 Authority of the Court over Funds derived from Confiscated Property, 116 86 Distinction between Instance and Prize Causes, 117 87 Seizures Cognizable in the District Court of the District into which the Property may be Taken, 117 88 Trial by Jury ; when, 118 89 Libels in Instance Causes, 118 90 Amendments, 119 91 Defendant to give Security, 119 92 Answer ; Verification, , . . . . 120 93 Exceptions to Libel and Answer 120 94 Default on Failure to Answer, 121 95 When a Further Answer will be Required ; Incriminating Evidence, 122 96 The Defendant may Require the Libellant to Answer Interrogatories, 123 97 When the Verification of an Answer to Interrogatories may be Dis- pensed with, 123 98 Practice where New Facts are Alleged in the Answer, 123 99 Cross-bill, when Filed ; Security for Costs, 124 100 Attachment Proceedings ; Garnishee, 124 I viii TABLE OF CONTENTS. 8«mo5 '•*«'« 101 Attached Property in the Hands of a Tliinl I'lirty, wlion Brought into Court, 125 102 Where the Libellant does not Appear; Dismissal of Suit, 125 103 A Detreeon Defjuih may be Hesmmiasioncrs, i-^ 107 Bail on Arrest ; Imprisonment for I )ebt, 1-*^ 108 Extension of Admiralty Jurisdiction, P-^ 109 Embezzlement or Loss of Property Shipped; Liability of Owner of Vessel Limited, ^'^^ 110 Proof in such Cases before a Commissioner 131 111 AVho may Defend in Such Cuses 132 112 Furtlier Proof Taken on Appeal in the Circuit Court of Appeals, . . 132 113 "When District and Circuit Courts may Kegulate Practice 134 114 Appeals to the Circuit Court of Appeals and Supreme Court 134 115 Time of Tiking Appeals to the Circuit Courts of Appeals, 134 116 What must be Certified by tiie Clerk on Appeals 135 117 Appeals to the Supreme Court in Prize Causes, 136 CHAPTER VII. JUDICIAL CIRCUITS AND ORGANIZATION OF THE CIRCUIT COURTS. 118 Judicial Circuits, 137-151 CHAPTER VIII. JURISDICTION OF THE CIRCUIT COURTS. 119 Jurisfliction, Original and Appellate, 152 120 Suits of & Civil Nature at Common Law or in Equity, 155 121 Injunction of State Courts Proliibited, 159 122 The Value of the Matter in Dispute, 159 123 Suits Arising under the Constitution or Laws of the United States, . 162 124 Controversy between Citizens of Different States, 164 125 ^Vho are Citizens, 165 126 Parties Merely Nominal or Formal, 167 127 The Proper Citizenship of the Parties should Appear in the Record, 168 128 Nominal and Formal Parties, 169 129 Evidences of Citizenship ; Persons of African Descent, 109 130 Executors and .\dministrator8, 170 131 Parties hiiving only l>iuital>le Interests, 171 132 Where Citizenship in Ivpiity Not Important, 171 133 When Parties may be Dismissed 173 134 Corporations are Citizens, 173 TABLE OF CONTENTS. IX SECTION PAGE 135 Burden of Proof of Citizenship of Corporations, 175 136 When the United States are Plaintiffs, 175 137 Where Citizens of the same State claim Lands under Grants of Differ- ent States 176 188 Controversy between Citizens of a State and Foreign States, Citizens or Subjects 177 139 Exclusive Cognizance of Crimes, 178 140 Cognizance of Crimes where the Punishment is Death, 179 141 Capital Cases Reraitte.i from District to Circuit Courts, 181 142 Offences on the High Seas, where Triable, 181 143 Offences in other Cases, where Triable, 182 144 Where a Civil Suit must be Brought ; Patent Suits, 182 145 Attachment of Property will not Confer Jurisdiction, 184 146 Wliere Service may be had by Publication, 184 147 Where all of the Defendants cannot be Served in other Cases, . . . 186 148 When a Party may or may not be Omitted, 187 149 Formal Parties may be Dispensed with, 188 150 Suits on Contract in Favor of an Assignee, 188 151 Suits by Indorsees, 192 152 Corporiition Citizens ; Bonds and Coupons not Promissory Notes or Bills of Exchange, 192 153 Where a Corporate Bond is Payable to Bearer, 193 154 Facts Showing Jurisdiction must be Averred, 194 155 Implied and Kesulting Powers, 196 156 A Statute Covering the Subject of a Former One is Substituted Therefor, 196 157 Suits under Import, Revenue and Postal Laws, and for the Enforce- ment of Penalties and the Condemnation of Property, .... 196 158 Suits under Laws Regulating Immigration and Commerce, 197 159 Suits for the Enforcement of Liens or the Removal of Incumbrances, 198 160 Suits for Seizure under the Slave-trade Laws, 198 161 Suits Arising under tlie Patent, Copyright and Trademark Laws, . . 199 162 Suits by and against National Banks, 202 163 Suits by Receivers of National Banks, 203 164 Suits to Redress the Deprivation of Rights, 204 165 Appellate Jurisdiction of the Circuit Courts, 205 166 Jurisdiction in Cases Transferred from the District Courts on Account of the Disability of the Judge, 205 167 Always Open for Certain Purposes, 205 168 Causes for Removal of Suits from State Courts, 206 169 Two Classes of Causes for Removal, 207 170 All Suits of a Civil Nature, 207 171 Suits Arising under the Constitution, or Laws, or Treaties of the United States, 208 172 Either Party may Remove when the Controversy is between Citizens of Diflerent States, 210 173 Where one Party is an Alien, 213 174 Manner of Removal, 213 X TABLE OF CONTKNTS. IICCTIO!* ''*''■ 175 When the Petition for Removal must be Fihtl, 214 176 The Act must be SubsUmtially Cx)m|>liew Paid, _ 466 431 Interest on Judgments of the Court of Claims AflBrmed in the Supreme Court, 468 432 Payment of the Judgment a Full Discharge, 469 433 Appeals from tlie Court of Claims to the Supreme Court, 469 434 Right to Appeal, not to Writ of Error, 470 435 Time and Manner of Taking Appeals, 470 436 Eegulations Prescribed by tlie Supreme Court of the United States Relating to Appeals from the Court of Claims, 470 437 Application for Allowance of Appeals ; Within what Time to be Made, 471 438 Findings of Fact and Conclusions of Law Filed in Open Court, ... 471 439 Where a Request is Made to Find Facts, 473 440 Court of Private Laud Claims, 474 History, Jurisdiction and Practice of the Court of Claims, by Chief Justice Richardson, 475-508 CHAPTER XVII. COURTS OF THE DISTRICT OF COLUMBIA. TERRITORIAL COURTS. THE INTERSTATE COMMERCE COINIMISSION, 441 The Supreme Court of the District of Columbia, 509 442 Inferior Courts of the District, 515 443 Court of Appeals of the District, 517 444 Territorial Courts, 523-534 445 Interstate Commerce Commission ; Statutes, 534 446 Jurisdiction, Powers and Procedure of the Commission, 540 CHAPTER XViri. UNITED STATES COMMISSIONERS. 447 Commissioners of the Circuit Courts Abolished, . . . 547 448 Power of Commissioners to Require Security to Keep the Peace and for Good Behavior, 550 449 There must be an Information or Complaint, 551 450 Proceedings on Examination, 551 451 Recognizance of Witnesses 552 452 When the Prisoner must be Committed ; Duty of the Commissioner to Make a Return, 552 453 Commissioners may Enforce Awards of Consuls, etc., in Certain Cases, 553 454 Offenders Against the United States ; When Arrested by Commis- sioners, 554 xviii TABLE OF CONTENTS. SECTION PAOg 455 Usual Mode of Procedure Against Offenders in the State Courts Pur- sued, . . 555 456 Information or Complaint under Oath 555 457 Notice to the District Attorney, 556 458 Preliminary Hearing ; Witnesses, 556 459 Witness Fees; IIow Paid, 558 460 Decision of the Magistrate ; Commitment 558 461 Waiver of Examination, 558 402 Removal of Prisoner to Another District, 559 463 Significance of the word "Seasonably," 559 464 Amount of Bail ; What the Recognizance should Contain, 560 465 Extent of Liability of Sureties, 561 466 Copies of Process to be Returned to the Proper Court, 561 467 Provisions for the Discharge of Poor Convicts, 562 468 Commissioners' Power to Arrest Foreign Seamen in Case of Contro- versies, etc., at Sea, 563 469 Commissioners' Authority in Certain Cases to Arrest Deserting Foreign Seamen, . •. 565 470 Commissioners may Summon INIasters of Vessels in Certain Cases for Non-payment of Wages, 566 471 Commissioners ; Appointment and Powers under Statutes Relating to Equal Civil Rights, 567 472 Bail and Afiidavits in Civil Causes may be taken by Commissioners, and Stipulations in Admiralty, 568 473 Commissioners may take Depositions de bene esse, 569 474 Reasonable Notice must be Given, 570 475 A Party may Waive His Rights ; Contents of Notice, 570 476 Mode of Taking Depositions de bene esse, 571 477 Transmission of Deposition to the Court 571 478 What must Appear before the Deposition can be Used, ...... 672 479 The Deposition Must be Reduced to Writing by the Commissioner or the Witness ; Answers to Interrogatories, 572 480 Certificate of the Commissioner to the Deposition, 572 481 What must be Shown on the Trial to Warrant the Reading of a Deposition, 574 482 Compelling Witnesses to Appear and Testify, 574 483 Commissioners may take Oaths and Acknowledgments in Certain Cases ; also Depositions in Admiralty under Rule 49, 575 484 Commissioners may Issue Warrants where Revenue Laws are Violated, 576 485 Commissioners may Issue Warrants for the Arrest of Fugitives for Extradition, 576 486 There must be a Complaint under Oath, 579 487 What the Warrant of Arrest Should Contain, 579 488 What the Magistrate Must Certify, 579 489 Commissioners' Fees ; Accounts; Vouchers, 580 490 How to Obtain an Allowance and Payment of Commissioners' Fees, . 582 TABLE OF CONTENTS. xix SECTION PAQB 491 The Accounts of Commissioners and other Ministerial OflScers Sub- ject to Revision by the Accounting Officers of the Treasury Department, 583 492 The Practice and Procedure on Preliminary Examinations before Commissioners Applicable Generally, 583 493 Statutes Local in their Operation, 584 CHAPTER XIX. WRITS OF PROHIBITION. 494 Authority of the Court to Issue, 586 495 The Writ will Issue only in the Cases Expressly Provided for by Statute, 588 496 Where it will not Issue, 590 497 Application for the Writ, 591 CHAPTER XX. WRITS OP MANDAMUS. 498 A Common Law Prerogative Writ, 592 499 Provisions of the Revised Statutes Relating to Writs of Mandamus, . 592 500 Functions of the Writ, 594 501 Where there is a Discretion, 594 502 Instances where it has been Issued , 595 503 When a Mandamus is Necessary for the Exercise of Jurisdiction, . . 597 504 Practice and Proceedings, 598 505 When the Writ will not Issue, 598 506 The General Principles and Practice Applicable to all Courts, . . , 599 CHAPTER XXI. WRITS OF HABEAS CORPUS. 507 When Federal Courts may Issue, 600 508 Provisions of the Statute ; Habeas Corpus and Certiorari, 603 509 The Writ not of Course ; Jurisdiction must be shown, 605 510 Allowance, Direction and Return of the Writ, 605 511 Proceedings Governed by the Common Law, 607 512 The Court cannot Inquire into the Facts of the Case, 608 613 Appeals, 609 514 Appeals — Continued, 610 515 In Cases Involving the Law of Nations, 612 516 Appeals ; How taken 612 517 Custody of Prisoners on Habeas Corpus, 613 XX TABLE OF CONTENTS. CHAPTER XXII. PROCEDURE IN CRIMINAL CASES. PAGE SECTION 518 Practice in Criminal Cases 614 519 Provisions of the Statutes for Criminal Procedure, 614 520 What Crimes are Infamous, 620 521 Consolidation where there are Two or More Offences 620 522 Defects of Form in Indictments, 622 523 Copy of Indictment in Treason and other Capital Cases, with a List of the Jurors and Witnesses, to be Delivered to the Defendant, 622 524 Offences uot Capital, 623 525 Defendant may be Found Guilty of a Less Offence, 023 526 Indictments Remitted from the Circuit and District Courts to Each Other, 624 527 Remission from District to Circuit Court of Difficult Cases, .... 625 528 Judgments for Fines, How Collected, 625 CHAPTER XXIII. PROVISIONS OF THE REVISED STATUTES REGULATING PROCE- DURE IN THE FEDERAL COURTS. 529 Procedure in Federal Courts, 626-651 CHAPTER XXIV. PROVISIONS OF THE STATUTES COMMON TO MORE THAN ONE COURT OR JUDGE. 530 Exclusive Jurisdiction of Courts of the United States ; Common Provisions, 652-677 CHAPTER XXV. PROVISIONS OF THE STATUTES RELATING TO JURIES. 531 Jurors, Qualification, Selection, and the Constitution of Juries, . 678-685 CHAPTER XXVI. PROVISIONS OF THE REVISED STATUTES RELATING TO EVIDENCE. 532 AVitnesses, Depositions, Subpoenas, Certificates, Authentications and other Matters Relating to Evidence, 686-720 TABLE OF CONTENTS. XXI CHAPTER XXVII. PKOYISIONS OF THE REVISED STATUTES ON LIMITATIONS. SECTION PAGE 533 The Statutes of Limitations, 721-724 CHAPTER XXVIII. FEES AND COSTS. 534 Provisions of the Statutes Relating to Fees of Officers, 725-754 RULES OF COURT. Rules of the Supreme Court of the United States, 755-776 Rules of Practice for the Courts of Equity of the United States, . . . 777-808 Rules of Practice for the Courts of the LTnited States in Admiralty and ]\Iaritime Jurisdiction, on the Instance Side of the Court, in Pursuance of the Act of August 23, 1842, Chapter 188, .... 809-828 Order in Reference to Appeals from the Court of Claims. Regulations Prescribed by the Supreme Court of the United States under which Appeals may be taken from the Court of Claims to said Supreme Court, 829-830 Rules of the Circuit Courts of Appeals. Original Rules with Variations, 831-873 Additional Rules and Orders of Particular Circuits, . . . 874-892 Rules of the Court of Claims, 893-919 FORMS. Caption and Title of Suit and Jurisdictional Clause in Suits at Law or in Equity, 920-922 Forms of Declarations, 922-929 Forms of Pleas, 930-933 Naturalization Forms, 933-937 Forms in Equity 938-1014 Forms in Admiralty, 1015-1073 Forms for Removal of Causes, 1074-1085 Forms in Criminal Cases, 1085-1091 Supreme Court Forms, Original Jurisdiction, 1091-1112 Forms in Appellate Proceedings, 1112-1136 Forms for Court of Claims 1136-1166 Forms in Proceedings Before Commissioners, 1167-1181 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER I. JUDICIAL POWER OF THE UNITED STATES. Independent Powers of the Legislative, Judicial and Ex- ecutive Departments. § I. The wisdom of those concerned in framing the Con- stitution of our government is nowhere more conspicuous than in those provisions of it which relate to the judicial power. They were familiar with the theories of political philosophers as well as the experiences of other nations in their efforts to estab- lish free governments, and, with the knowledge derived from these sources, they wisely resolved that our government should consist of three departments — legislative, judicial and executive — each having powers to be exercised independent of the others. These elements had been urged as essential to the success of a free government by patriots, statesmen and speculative phil- osophers, and it was believed by them, if not generally regarded as a maxim, that these three necessary departments of a govern- ment should be kept separate and distinct and independent of each other. The distinguished political writer Montesquieu had maintained this doctrine with great force and vigor in his commentary on the English Constitution, wherein he observed : " When the legislative and executive powers are united in the same person or in the same body of magistrates there can be no liberty, be- cause apprehensions may arise lest the same monarch or senate should enact tyrannical laws or execute them in a tyrannical man- » I 2 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ner;" that wore the judicial power "joined with the legislative, the life and liberty of the subject would be exposed to arbitrary- control; for the judge would be the legislator;" and that "where it is joined to the executive power, the judge might behave with violence and oppression." And he concludes by saying : " There would be the end of everything were the same man, or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of in- dividuals." ^ Sir William Blackstone had also impressed the necessity of an independent exercise of these functions of a well-regulated gov- ernment, in his usual terse and forcible style. In his Commen- taries on the Laws of England, he observes : " In all tyrannical governments the supreme magistracy, or the right both of mak- ing and of enforcing laws, is vested in the same man, or one and the same body of men ; and wherever these two powers are united together there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But where the legislative and executive authority are in distinct hands, the former will take care not to intrust the lat- ter with so large a power as may tend to the subversion of his own independence, and therewith of the liberty of the subject." 2 In Kilbourn v. Thompson,^ Mr. Justice Miller said: " It is be- lieved to be one of the chief merits of the American system of written constitutional law, that all the powers entrusted to gov- ernments, whether State or national, are divided into the three grand departments of the executive, the legislative and the judi- cial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public ser- vants, and that the perfection of the system requires that the lines which separate and divide these departments shall be Jaroadly and clearly defined. It is also essential to the success- ^ Montesquieu, B. ii, ch. 6. ^ I Bl. Com. 146. See also The Federalist, No. 47. 3 103 U. S. 168. JUDICIAL POWER. o ful working of this system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other." It requires no argument to show the importance of a judiciary department of the government of all civilized people, or that the scope of judicial power should be co-extensive with the legisla- tive department. If it were otherwise there would be no power to enforce the rights of persons, and there would be no remedy for a violation of those rights. On this subject Mr. Story observes : " Where there is no judicial department to interpret, pronounce and execute the law, to decide controversies and to enforce rights, the government must either perish by its own imbecility, or the other depart- ments of government must usurp powers for the purpose of com- manding obedience, to the destruction of liberty."^ There must be a judicial power to give effect to the will of the legislative power, and the want of this was among the vital defects of the original confederation of the states.^ This power must be co-extensive with the legislative, and be capable of de- ciding every judicial question which grows out of the Constitu- tion and laws.^ Where the Judicial Power is Vested. § 2. The Constitution declares that " the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." * It has been maintained with much ability that, under this pro- vision. Congress had no discretion as to the creation or organiza- tion of a Supreme Court and of inferior courts; that the language was mandatory, and that Congress could not have refused to create these courts without a violation of its duty.^ But it is un- necessary to discuss this question, as power was, by the Consti- ^ Story on the Const. ? 1574. See * i Const, art. 3, ?. i. also I Kent Com. 294. ^ Martin v. Hunter, i Wh. 304 ; " The Federalist, Nos. 33, 39, 80; i The Moses Taylor, 4 Wall. 411 ; i Story on Const. 344-384. Kent Com. 318. * Cohens v. Virginia, 6 Wheat. 384. 4 FEDERAL PLEADING, PRACTICE AND PROCEDURE. tution, conferred on Congress for this purpose, and it has pro- vided for the organization of a Supreme Court and of inferior courts. The importance of limiting the court of final resort to one Su- preme Court will be obvious. If there were more than one, a diversity of decisions might and probably would occur ; and this diversity, relating not only to general principles of the municipal law, but to the interpretation of statutes and the Constitution, would lead to doubts, distrust and disputes, and subject the administration of justice by the federal courts to reproach and disgrace. The Constitution left Congress to provide for the organization and constitution of the federal courts. It prescribes the extent of the judicial power of the United States, and expressly pro- vides in what cases the Supreme Court shall have original juris- diction, giving it appellate jurisdiction in other cases. Extent of Judicial Power. § 3. On the subject of the extent of judicial power the Consti- tution provides : " The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and mari- time jurisdiction; to controversies to which the United States shall be a party ; to controversies between two or more states ; between a state and citizens of another state ; between citizens of different states ; between citizens of the same state claiming lands under grants of different states, and between a state or the citi- zens thereof and foreign states, citizens or subjects." ^ Amendment Construing this Section. § 4. It may be proper here to refer to a controversy that arose soon after the ratification of the Constitution in 1787, as to the proper construction of a clause of the foregoing section. The 1 Const, art. 3, ? 2, ch. i. The cases stead of citing them here they will be before the Supreme Court of the noted and to some extent discussed United States, in which this clause of as the work progresses and the dif- the Constitution has been passed ferent features of the clause are con- upon are quite numerous, but in- sidered. JUDICIAL POWER. 5 question presented was, whether a state could be sued in a federal court by a citizen of another state. Congress had provided for the organization of the Supreme Court and district and circuit courts, and given thern, respectively, jurisdiction in certain cases. It had long been a maxim of the law that a sovereign power could not be sued in its own courts except by its consent. On the other hand a government in its corporate capacity may sue like an individual, and the various states of the Union have au- thority to sue in the state and federal courts. In the case of Chisholm v. Georgia,^ the Supreme Court held that the Constitu- tion gave that court jurisdiction of a suit brought against a state by a citizen of another state. This interpretation of the Constitu- tion, however, excited much opposition and dissatisfaction, and led to the adoption of an amendment which prohibited the con- struction which it had received by the Supreme Court. The amendment is as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." ^ ^ 2 Dall. 419. United States in a very diflferent * Amend. Const, art. 11. In Chis- view." holm V. Georgia, supra, Mr. Chief Among the lucid expositions of the Justice Jay, who gave the opinion of various provisions of the Constitution the court in the case, in construing contemporary with the origin of tliat the constitutional provision, made a instrument contained in The Federal- distinction between a suit against a ist we find some considerations of this state and one against the United subject in No. 81, now credited to States, holding that the former might Alexander Hamilton. He says: "It be sued by a citizen of another state, has been suggested that an assign- but not the latter. He said : " In all ment of public securities of one state cases of actions against states or in- to the citizens of another would en- dividual citizens the national courts able them to prosecute that state in are supported in all their legal and the federal courts for the amount of constitutional proceedings and judg- those securities — a suggestion which ments by the arm of the executive the following considerations prove to powers of the United States. But in be without foundation. It is inherent cases of actions against the United in the nature of sovereignty not to be States there is no power which the amenable to the suit of an individual courts can call to their aid. From without its consent. This is the gen- this distinction important conclusions eral sense and the general practice of are deducible ; and they place the mankind ; and the exception as one case of a state and the case of the of the attributes of sovereignty, is KEDERAI. PLEADING, PRACTICE AND PROCEDURE. Whatever may have been the true construction of this clause of the Constitution, it is now settled by this mandatory amend- ment. now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in tlie plan of the conven- tion, it will remain with the states, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article on taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from any constraint but that which flows from the obligations of good faith. "The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will. "To what purpose would it be to authorize suits against states for the debts they owe ? How could recov- eries be enforced? It is evident it could not be done without waging war against the contracting state; and to ascribe to the federal courts, by mere implication and in destruc- tion of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and un- warranted." It would appear from this that the opinion of the court in Chisholm V. Georgia diflered from that of Mr. Hamilton at the time he was urging the adoption of the Constitution. It is evident that some of his conclu- sions were erroneous, as suggested by the question, " How could recoveries be enforced?" It might be replied, as we enforce judgment against ordi- nary municipal corporations, backed by the executive power of the United States. See Story on Const. \ i, 678. In Hans v. Louisiana, 134 U. S. i, it was held that a state cannot be sued in a circuit court of the United States by one of its own citizens upon the ground that the case is one that arises under the Constitution or laws of the United States. Chisholm v. Georgia was questioned by a majority of the court, through Mr. Justice Bradley in a very interesting opinion ; but Mr. Justice Harlan dissented, because the comments on that case were not necessary to the decision of the case then before the court, and besides, the decision m Chisholm v. Georgia was based upon a sound interpreta- tion of the Constitution as that in- strument then was. The Supreme Court has no original jurisdiction of a suit between a state on the one side and citizens of another state and citizens of the same state on the other side. California v. South. Pac. Co., 157 U. S. 229. In 1865 Congress constituted a Court of Claims, with jurisdiction to hear and determine all claims founded on any law of Congress, or upon any regulation of an executive depart- ment, or upon any contract express or implied with the government of the United States, and all claims wliich may be referred to it by either house of Congress, which may be sug- gested to it by petition filed therein. See Rev. Stat. ch. 21. JUDICIAL POWER. 7 Summary of reasons on which the judicial power rests. § 5. Before proceeding to the consideration of the organiza- tion and jurisdiction of the federal courts we will notice that brief summary of reasons on which each of the enumerated judicial powers of the Constitution rests, as set forth in the opinion of Mr. Chief Justice Jay in the case of Chisholm v. Georgia, supra. He said: "It may be asked what is the precise sense and latitude in which the words 'to establish justice,' as here used [in the preamble of the Constitution], are to be under- stood? The answer to this question will result from the pro- visions made in the Constitution on this head. They are speci- fied in the second section of the third article, where it is ordained that the judicial power of the United States shall extend to ten descriptions of cases, namely: i. To all cases arising under this Constitution; because the meaning, construction and operation of a compact ought always to be ascertained by all the parties, not by authority derived from only one of them. 2. To all cases arising under the laws of the United States ; because, as such laws, constitutionally made, are obligatory on each state, the measure of the obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3. To all cases arising under treaties made by their authority; because, as treaties are compacts made by and obligatory on the whole nation, their operation ought not to be affected or regulated by local laws or courts of a part of the nation. 4. To all cases affecting ambas- sadors, or other public ministers and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. 5. To all cases of admiralty and maritime jurisdiction; because, as the seas are the joint property of nations, whose rights and privileges rela- tive thereto are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6. To contro- versies to which the United States shall be a party; because, in cases in which the whole people are interested, it would not be equal or wise to let any one state decide and measure out justice due to others. 7. To controversies between two or more states; because domestic tranquillity requires that the contentions of 8 FEDERAL PLEADING, PRACTICE AND PROCEDURE. states should be peaceably terminated by a common judicatory; and because in a free country justice ought not to depend on the will of either of the litigants. 8. To controversies between a state and citizens of another state; because, in case a state (that is, all the citizens of it) has demands against some citizens of another state, it is better that she should prosecute her demands in a national court than in a court of the state to which those citizens belong, the danger of irritations and criminations arising from apprehensions and suspicions of partiality being thereby obviated; because, in cases where some citizens of one state have demands against all the citizens of another state, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due the former; and true republican government requires that free and equal citizens should have free, fair and equal justice. 9. To controversies between citizens of the same state claiming lands under grants of different states; because, as the rights of the two states to grant the land are drawn into question, neither of the two states ought to decide the contro- versy. 10. To controversies between a state, or the citizens thereof, and foreign states, citizens or subjects ; because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations or people ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with the import- ance of them to the preservation of the tranquillity, the equal sovereignty and the equal rights of the people." The profound wisdom which dictated these provisions of the Constitution is manifest from the clear outline and condensed statement of the grounds on which they rest, and the experience of a century has fully confirmed the views of its earlier expounders. Jurisdiction of the Supreme Court. § 6. The original as well as the appellate jurisdiction of the Supreme Court is fixed by the Constitution. It provides that in all cases affecting ambassadors, other public ministers and con- suls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.* In all the other cases ^ The Supreme Court has original United States against a state to de- jurisdiction of a suit brought by the termine the boundary between that JUDICIAI< POWER. y 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.^ It is manifest that the Supreme Court cannot lawfully exercise original jurisdiction except in the enumerated cases, and that no act of Congress could give it any additional jurisdiction, or take from it any of the judicial powers conferred upon it by this pro- vision of the Constitution.^ The Original Jurisdiction of the Supreme Court not Exclu- sive. § 7. It has been a question of considerable controversy whether the grant of original jurisdiction to the Supreme Court in the specific cases mentioned in the Constitution was designed to make this jurisdiction exclusive; whether it should be construed to give it jurisdiction in such cases, exclusively of other federal courts which might be, and have since been, erected and organized under acts of Congress, in pursuance of the authority given by the Constitution for this purpose. This question has never been authoritatively settled by the Supreme Court; for, although in state and a territory ; such a suit is Island v. Massachusetts, 12 Pet. 657 ; properly brought in equity and not at and that court through Mr. Justice law. United States v. Texas, 143 U. Harlan, maintained jurisdiction of a S. 621. In determining the boundary suit between the United States and lines between states the Supreme the State of Texas to settle their Court will proceed with the greatest claims to Greer county in that state, caution and deliberation and no order instituted by the attorney general can stand unless a full opportunity to under an act of Congress directing be heard has been granted. Iowa v. the bringing of the suit : U. S. v. Illinois, 151 id. 238. Texas, 143 U. S. 621. The Chief ' Art. 3, sec. 2, Const. U. S. Justice and Mr. Justice Lamar dis- ' Marbury v. Madison, i Cr. 137; sented, holding: " The original juris- (1801) Wiscart v. Dauchy, 3 Dall. diction which depends solely upon 321; I Kent. Com., sec. 15, p. 314, the character of the parties is confined et seq.; Ex parte Vallandingham, i to the cases enumerated, in which a Wall. 248 ; Ex parte Yerger, 8 Wall, stale may be a party, and this is not 85; The Alicia, 7 Wall. 571; Ken- one of them," and "The judicial tucky V. Dennison, 24 How. 66. power also extends to controversies Under this provision of the Consti- to which the United States shall be a tution original jurisdiction in the party, but such controversies are not Supreme Court to settle boundaries included in the grant of original juris- between states has been recognized diction. To the contrary here the ever since the decision in Rhode United States is a party." 10 FEDERAL PLEADING, PRACTICE AND PROCEDURE- the case of United States v. Ravara/ commenced in the circuit court for the district of Pennsylvania, it was held that Congress could give other federal courts concurrent jurisdiction in such cases, the opinion of the Supreme Court in the subsequent case of Marbury v. Madison" would appear to be in conflict with this doctrine; and in the still later case of United States v. Ortega,^ the question was involved in the record, but the court did not find it necessary to decide it. It has, however, been maintained by jurists of great eminence and ability that it is not essential to construe this provision of the Constitution as giving the Supreme Court exclusive original jurisdiction in the cases specified, and that there is nothing in it inconsistent with the power of Congress to create inferior courts and confer upon them original jurisdiction concurrent with the Supreme Court, in the same specific cases ; and this construc- tion was ably maintained by Mr. Justice Nelson, in Graham v. Stucken.* The judicial powers of the United States, as we have seen, were vested in the Supreme Court, and in such inferior courts as Con- gress should establish. When inferior courts were first organ- ized and established, as they were by the Judiciary Act of 1789, Congress gave the circuit and district courts jurisdiction of cer- tain causes of which the Supreme Court also had jurisdiction, by virtue of the provisions of the Constitution, The provisions of this act have remained unchanged in this respect, and were in- corporated into the Revised Statutes.* This practical contemporaneous exposition and legislative interpretation of the Constitution by Congress, some of whose members were especially interested in framing the Judiciary Act and had been members of the convention that framed the Con- stitution, and the long acquiescence in and tacit recognition of this interpretation by the courts, both state and federal, and by Congress, is certainly quite satisfactory if not conclusive on this question. In support of this view, Mr. Justice Nelson, in Gra- ham V. Stucken, supra, says : " The last clause of section 2, arti- ^ 2 Dall. 297. on Constitution, \ 1705 ; i Kent Com. 2 I Cr. 137. 315. 3 II Wh. 467. ^Stat. L. 78; Rev. Stat. \\ 629, * 4 Blatch. 50. See also St. Luke's 687 ; Act of March 3, 1875, ch. 137, Hospital V. Barclay, 3 Id. 259 ; Story 18 Stat. L. 470. JUDICIAI^ POWER. 11 cle 3, of the Constitution declares that in all cases affecting am- bassadors, and other public minister and consuls, and in those in which a state shall be a party, the Supreme Court shall have original jurisdiction. Congress, in distributing and regulating this grant of jurisdiction, provided, in section 13 of the Judiciary Act, that the Supreme Court should have exclusive jurisdiction in all cases against ambassadors, etc.; and original, but not ex- clusive, jurisdiction in all cases ' in which a consul or vice-con- sul shall be a party,' thus clearly rejecting the idea that the grant in the Constitution in respect to consuls was exclusively to the Supreme Court." In Ames v. Kansas,^ Waite, C, J., said : " We are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction." And in U. S. v. Louisiana,^ Field, J., said: " In Ames v. Kansas the question was very fully examined and the conclusion reached that the original jurisdiction of the Supreme Court in cases where a state is a party is not made ex- clusive by the Constitution and that it is competent for Congress to authorize suits by a state to be brought in the inferior courts of the United States." In view of these decisions it may be affirmed that Congress has the power to confer on any or all of the inferior courts of the United States, which she has constituted or may hereafter con- stitute, original jurisdiction in any or all of the class of cases in which the Constitution has also conferred original jurisdiction on the Supreme Court. iiiiU. S. 449. 2j23U. S. 32. 12 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER II. CONSTITUTION AND ORGANIZATION OF FEDERAL COURTS. Duty of Congress to Provide for. § 8. The Constitution vested the judicial power of the United States in one Supreme Court and such inferior courts as Con- gress might from time to time constitute. It was further pro- vided by the Constitution that the President "shall nominate and, by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court; "^ and that "the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." ^ It was the manifest duty of Congress, under the circumstances, to provide for the organization of a Supreme Court and inferior courts of the United States. In pursuance of this plain duty Congress did, by the act of September 24, 1789, divide the United States into judicial dis- tricts and provide for the organization of the Supreme Court and district and circuit courts, and their jurisdiction, the number of justices of the Supreme Court, their precedence and salaries, and the appointment of clerks and marshals. Some changes have necessarily been made in this organic act, but its provisions re- main substantially the same in the Revised Statutes, which, with the amendments thereof, divide the United States into districts as follows : Judicial Districts. § 9. The United States is divided into judicial districts as follows : ^ States constituting one district.* — The Territory of Alaska^ ^ Const, art. 2, ? 2. * Rev. Stat. ? 531, as amended by * Const, art. 3, § i. Act of June 26, 1876 ; 19 Stat. L. 61. » Rev. Stat., ? 530. * Act of May 17, 1884, 23 Stat. L. 24: I Supp. R. S. 430. FEDERAL COURTS. 13 and the States of Colorado, Connecticut, Delaware, Idaho,^ In- diana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Min- nesota, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota,^ Oregon, Rhode Island, South Dakota,^ Utah,* Vermont, Washington, West Virginia and Wyoming,^ each, constitute one judicial district. Alabama. — The state is divided into three districts, the southern, middle and northern.^ The SOUTHERN DISTRICT includes the counties of Baldwin, Choctaw, Clarke, Conecuh, Escambia, Marengo, Mobile, Monroe, Washington and Wilcox. The MIDDLE DISTRICT includes the counties of Autauga, Barbour, Bullock, Butler, Chilton, Chambers, Clay, Coffee, Coosa, Covington, Crenshaw, Dale, Dallas, El- more, Geneva, Henry, Lee, Lowndes, Macon, Mont- gomery, Perry, Pike, Randolph, Russell and Talla- poosa. The NORTHERN DISTRICT is divided into two divisions. Northern Divisioti. — Colbert, Cullman, Franklin, Jack- son, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan and Winston. Southern Division. — Bibb, Blount, Calhoun, Cherokee, Cleburne, De Kalb, Etowah, Fayette, Greene, Hale, Jefferson, Lamar, Pickens, St. Clair, Shelby, Sumter, Talladega, Tuscaloosa and Walker. Arizona. — The territory is divided into four districts. First district. — Cochise and Pima. Second district. — Pinal, Gila and Graham. Third district. — Maricopa and Yuma. Fourth district. — Yavapai, Apache, Coconino and Mo- have.^ 1 Actof July 3, 1890, 26 Stat. L. 215: 5 Act of July 10, 1890, 26 Stat. L. I Supp. R. S. 767. 222 : I Supp. R. S. 768. The Yellow- 2 Act of Feb'y 22, 1889, 25 Stat L,. stone National Park is part of the dis- 676: I Supp. R. S. 645. trict of Wyoming. Act of May 7, 2 Act of Feb'y 22, 1S89 : i Supp. R. 1894: 2 Supp. R. S. 183. S. 645. 6 Rev. Stat. I 532 : Act of May 2, * Act of July 16, 1894, 28 Stat. L. 18S4, 23 Stat. L. 18. 107 : 2 Supp. R. S. 197. ^ Act of Feb'y 11, 1891, 26 Stat L. 747: I Supp. R. S. 893. 14 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Arkansas.^ — The State is divided into two districts, the eastern and the western. The WESTERN DISTRICT includes the counties of Benton, Washington, Carroll, Boone, Madison, Newton, Craw- ford, Franklin, Johnson, Logan, Sebastian, Scott, Yell, Polk, Sevier, Howard, Pike, Little River, Hempstead, Miller, Lafayette, Nevada, Columbia, Union, Ouachita and Calhoun. It is divided into two divisions, the Texarkana and Fort Smith divisions. Texarkana Divisioii. — Sevier, Howard, Pike, Little River, Hempstead, Miller, Lafayette, Columbia, Nevada, Ouachita, Calhoun and Union. Fo7't SmitJi Division. — The remaining counties of the western district. The EASTERN DISTRICT includcs the residue of the state. It is divided into three divisions, the eastern, northern and western divisions. Eastern Division. — Mississippi, Crittenden, Lee, Phil- lips, Clay, Craighead, Poinsett, Greene, Cross, Saint Francis and Monroe. Northern Division. — Independence, Cleburne, Stone, Izard, Baxter, Searcy, Marion, Sharp, Fulton, Ran- dolph, Lawrence and Jackson, Western Division. — The remaining counties of the eastern district. California. — The state is divided into two districts. The SOUTHERN, composed of the counties of San Luis Obispo, Fresno, Tulare, Kern, Santa Barbara, Ventura, ^ Act of Feb'y 20, 1897, 29 Stat. L. district of Arkansas, was erected into 590 : 2 Supp. R. S. 558. All crimes a separate district by Act of Mar. i, or offences hereafter committed in 1889, 25 Stat. L. 783: i Supp. R. S. any of the divisions of the said dis- 670. After September i, 1896, the trict shall be cognizable within such district court of Indian Territory was division, and all prosecutions for given exclusive jurisdiction of all crimes or offences heretofore com- offences committed in the territory, mitted in the district as heretofore Act of Mar. i, 1895, 28 Stat. L. 693 : constituted shall be commenced and 2 Supp. R. S. 396. For previous acts proceeded with as if this act had not relating to judicial districts in Arkan- been passed. — Ibid. The Indian Ter- as see 2 Supp. R. S. p. 2 notes. ritory, formerly part of the western FEDERAL COURTS. 15 Los Angeles, San Bernardino, San Diego, Orange, Riverside, Madera and King ; and the northern, com- posed of the remaining counties of the state.^ Florida. — The state of Florida is divided into two judicial dis- tricts, the northern and southern. The SOUTHERN DISTRICT embraces the counties of Monroe, Manattee, Lee, De Soto, Hillsboro, Hernando, Polk, Pasco, Citrus, Alachua, Baker, Bradford, Brevard, Clay, Columbia, Dade, Duval, Hamilton, Lake, Madison, Marion, Nassau, Orange, Osceola, Putnam, Saint Johns, Sumter, Suwannee, and Volusia; and all the territory within the remaining counties constitutes the northern DISTRICT.^ Georgia. — The state is divided into two districts, the northern and southern. The NORTHERN DISTRICT is divided into two divisions :^ Eastern Division. — Banks, Bartow, Campbell, Clarke, Clayton. Chattooga, Carroll, Cobb, Coweta, Catoo- sa, Cherokee, Dade, Dekalb, Douglas, Dawson, Elbert, Fannin, Fayette, Franklin, Floyd, Fulton, Forsyth, Gordon, Greene, Gilmer, Gwinnett, Hab- ersham, Hall, Hart, Haralson, Henry, Jackson, Lumpkin, Morgan, Milton, Madison, Murray, Newton, Oglethorpe, Oconee, Paulding, Pickens, Polk, Rabun, Rockdale, Spalding, Towns, Union, Walker, Walton, Whitfield, and White. Western Division. — Chattahoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Miller, Muscogee, Quitman, Randolph, Schley, Stewart, Talbot, Tay- lor, Terrell, Troup, and Webster. The SOUTHERN DISTRICT is divided into three divisions, called the eastern, western and northeastern divisions of the southern district of Georgia : Eastern Division. — Appling, Berrien, Bulloch, Bryan, ^ Act of August 5, 1886, 24 Stat. 1879, 1° Stat. L. 2S0: i Supp. R. S. L. 308. Formerly the entire state 214. constituted a single district. Rev. 'Western Division established by Stat. I 531. Act of Mch. 3, 1891, 26 Stat. L. mo; =^ Rev. Stat. I 534: Act of Feb. 3, i Supp. R. S. 954. 16 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Brooks, Clinch, Camden, Coffee, Charlton, Col- quitt, Chatham, Decatur, Echols, Emanuel, Effing- ham, Glynn, Irwin, Lowndes, Liberty, Montgom- ery, Mcintosh, Pierce, Screven, Tattnall, Thomas, Ware, Wayne, and Worth. Western Division. — Baker, Baldwin, Bibb, Butts, Cal- houn, Crawford, Dodge, Dooley, Dougherty, Han- cock, Houston, Jasper, Jones, Laurens, Lee, Ma- con, Mitchell, Monroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, Wilcox, and Wil- kinson. Northeastern Division. — Burke, Columbia, Glascock, Jefferson, Johnson, Lincoln, McDuffie, Richmond, Taliaferro, Washington, Wilkes, and Warren.^ Idaho. — The state constitutes one judicial district. It is divided into three divisions : Northern Division. — Latah, Nez Perce, Idaho, Sho- shone, and Kootenai. Central Division. — Ada, Alturas, Boise, Canyon, El- more, Logan, Owyhee, and Washington. Southern Division. — Bear Lake, Bingham, Bannock, Cassia, Custer, Fremont, Lemhi, and Oneida.^ Illinois. — The state is divided into two districts, the northern and southern. The NORTHERN DISTRICT is divided into two divisions : Northern Division. — Boone, Bureau, Carroll, Cook, De- Kalb, Du Page, Grundy, Jo Daviess, Kane, Kan- kakee, Kendall, Lake, La Salle, Lee, McHenry, Ogle, Stephenson, Whiteside, Will, and Winne- bago. Southern Division. — Fulton, Henderson, Henry, Iro- quois, Knox, Livingston, Marshall, McDonough, Mercer, Peoria, Putnam, Rock Island, Stark, Tazewell, Warren, and Woodford. The SOUTHERN DISTRICT includes the residue of the state.^ 1 Rev. Stat., ? 535, Act of Jan. 29, i Supp. R. S. 767. Act of July 5, 1892, 1880, 21 Stat. L. 63 ; I Supp. R. S. 27 Stat. L. 72 ; 2 Supp. R. S. 28. 276. Act of Feb. 15, 1889, 25 Stat. L. ^ Rev. Stat. I 536, Act of Mch. 2, 671 ; I Supp. R. S. 643. 1887, 24 Stat. L. 442; i Supp. R. S. 2 Act of July 3, 1890, 26 Stat. L. 215 ; 552. FEDERAI. COURTS. 17 Indian Territory. — The Territory is divided into three districts, known as northern, central, and southern districts. The NORTHERN DISTRICT consists of all the Creek country, all of the Seminole country, all of the Cherokee country, all of the country occupied by the Indian tribes in the Quapaw Indian Agency, and the town site of the Miami Townsite Company. The CENTRAL DISTRICT consists of all the Choctaw country. The SOUTHERN DISTRICT consists of all the Chickasaw country.^ Iowa. — The state is divided into two districts, the northern and the southern. The NORTHERN DISTRICT cousists of fouf divisions, as follows : Eastern Division. — Allamakee, Dubuque, Buchanan, Clayton, Delaware, Fayette, Winneshiek, Howard, Chickasaw, Bremer, Black Hawk, Floyd, and Mitchell. Cedar Rapids Division. — Jones, Cedar, Linn, Johnson, Iowa, Benton, Tama, Grundy, Hardin, and Clinton. Central Division. — Emmet, Palo Alto, Pocahontas, Calhoun, Kossuth, Humboldt, Webster, Winne- bago, Hancock, Wright, Hamilton, Worth, Cerro Gordo, Franklin, and Butler. Western Division. — Dickinson, Clay, Buena Vista, Sac, Osceola, O'Brien, Cherokee, Ida, Lyon, Sioux, Plymouth, Woodbury, and Monona. The SOUTHERN DISTRICT cousists of three divisions: Eastern Division, — Scott, Cedar, Muscatine, Washing- ton, Louisa, Keokuk, Appanoose, Davis, Wapello, Jefferson, Van Buren, Henry, Des Moines, and Lee. Central Division. — Johnson, Iowa, Poweshiek, Mahaska, Jasper, Tama, Marshall, Story, Boone, Greene, Guthrie, Adair, Dallas, Polk, Madison, Warren, Marion, Clark, Lucas, Decatur, Wayne, and Mon- roe. 1 Act of Mch. I, 1895, 28 Stat. L. L. 783 ; i Supp. R. S. 670. Okla- 693 ; 2 Supp. R. S. 392. The Indian homa Territory was created out of Territory was made a separate dis- Indian Territory by Act of May 2, trict by Act of Mch. i, 1889, 25 Stat. 1890 ; 26 Stat. L. 81 ; i Supp. R. S. 720. 2 18 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Western Division. — Carroll, Crawford, Harrison, Shelby, Audubon, Cass, Pottawatomie, Mills, Montgomery, Adams, Union, Ringgold, Taylor, Page, and Fre- mont.^ Kansas. — The state constitutes one district, divided into three divisions, as follows : First Division. — Entire state, except counties in second and third divisions. Second Division. — Cowley, Butler, Harvey, Rice, McPherson, Ellsworth, Barton, Rush, Ness, Lane, Scott, Wichita, Greeley, Hamilton, Kearney, Fin- ney, Garfield, Hodgman, Pawnee, Stafford, Reno, Kingman, Pratt, Kiowa, Edwards, Ford, Gray, Haskell, Grant, Stanton, Morton, Sedgwick, Ste- vens, Seward, Meade, Clark, Comanche, Harper, Barber, and Sumner. Third Division. — Miami, Linn, Bourbon, Crawford, Cherokee, Labette, Neosho, Allen, Anderson, Coffey, Woodson, Wilson, Montgomery, Chau- tauqua, Elk, and Greenwood. ^ Louisiana. — The state is divided into two districts, eastern and western. The WESTERN DISTRICT includes the parishes of Caddo, Bossier, Webster, Claiborne, . Union, Morehouse, West Carroll, East Carroll, Madison, Richland, Ouachita, Lincoln, Bienville, Red River, De Soto, Sabine, Winn, Natchitoches, Jackson, Caldwell, Franklin, Tensas, Concordia, Catahoula, Grant, Ver- non, Rapides, Avoyelles, Saint Landry, Lafayette, Saint Martin's, Vermillion, Cameron, and Calcasieu. All process from the circuit and district courts of the western district against defendants residing in the parishes of Saint Landry, Saint Martin's, Came- ron, Calcasieu, Lafayette, and Vermillion, are re- turnable to Opelousas. All process from said 1 Act of July 20, 1882, 22 Stat. L. "^ Act of June 9, 1890, 26 Stat. L. 172 ; I Supp. R. S. 358. Act of Feb. 129; i Supp. R. S. 744. Act of May 24, 1891, 26 Stat. L. 767 ; I Supp. R. 3, 1892, 27 Stat. L. 24; 2 Supp. R. S. S. 895. 12. FEDERAL COURTS. 19 courts against defendants residing in the parishes of Rapides, Vernon, Avoyelles, Catahoula, Grant, and Winn, are returnable to Alexandria. All pro- cess from said courts against defendants residing in the parishes of Caddo, De Soto, Bossier, Webster, Claiborne, Bienville, Natchitoches, Red River, and Sabine, are returnable at Shreveport. All process from said courts against defendants residing in the parishes of Ouachita, Franklin, Richland, Morehouse, East Carroll, West Carroll, Madison, Tensas, Con- cordia, Union, Caldwell, Jackson, and Lincoln are returnable at Monroe. The EASTERN DISTRICT includes the remaining parishes in the state. All process from the circuit and district courts for the eastern district against defendants residing in the parishes of Pointe Coupee, West Baton Rouge, Iberville, Ascension, East Feliciana, West Feliciana, East Baton Rouge, Saint Helena, and Livingston are returnable at Baton Rouge. All process against defendants residing in the other parishes of the eastern district are returnable at New Orleans.^ Michigan, — The state is divided into two districts, the east- ern and western. The WESTERN DISTRICT includes the territory and waters within the following boundaries, as they existed February 24, 1863, namely: commencing at the southwest corner of Branch County, in said state, and running thence north, on the west line of Branch and Calhoun Counties, to the south line of Barry County ; thence east, on the north line of Calhoun and Jackson Counties, to the southeast corner of Eaton County ; thence north, on the east boundary of Eaton County, to the south line of Clin- ton County ; thence west, on the south boundary of said county, to the southwest corner thereof; thence 1 Act of Mch. 3, 1881, 21 Stat. L. 606. Act of Aug. 13, 1888, 25 Stat. L. 507 ; 1 Supp. R. S. 325. Act of Aug. 438 ; i Supp. R. S. 615. 8, 1888, 25 Stat. L. 388 ; i Supp. R. S. 20 FEDERAL PLEADING, PRACTICE AND PROCEDURE. north, on the west boundary of Clinton and Gratiot Counties, to the south boundary of Isabella County; thence west, on its south boundary, to the southwest corner of said last-named county ; thence north, on the west line of Isabella and Clare Counties, to the south boundary of Missaukee County ; thence east, on its south boundary, to the southeast corner of Missau- kee County ; thence north, on the east line of Mis- saukee, Kalcasca and Antrim Counties, to the south . boundary of Emmett County; thence east, to the southeast corner of Emmett County ; thence north, on the east boundar}' of Emmett County, to the Straits of Mackinac ; thence north, to midway across said straits ; thence westerly, in a direct line, to a point on the shore of Lake Michigan where the north boundary of Delta County reaches Lake Michigan ; thence west, on the north line of Delta County, to the northwest corner of said Delta County ; thence south, on the west boundary of said county, to the dividing-line between the states of Michigan and Wisconsin, in Green Bay; thence northeasterly, on said dividing-line, into Lake Michi- gan; and thence southerly, through Lake Michigan, to the southwest corner of the state of Michigan, on a line that will include within said boundaries the waters of Lake Michigan within the admiralty juris- diction of the state of Michigan ; thence east, on the south boundary of the state of Michigan, to the in- tersection of the west line of Hillsdale County.^ The counties of Chippewa, Schoolcraft, Mar- quette, Houghton, Keweenaw, Ontonagon, Isle Royale, Baraga, and Mackinaw, being and including all that portion of the territory and waters of the eastern district lying in the upper peninsula of Michigan, were detached from the eastern and at- tached to the western district.^ The western district consists of two divisions, the Rev. Stat. ? 538. ^ Act of June 19, 1878, 20 Stat. L. 175 ; I Supp. R. S. 198. FEDERAI. COURTS. 21 southern and northern. The southern division com- prises all that portion of the district lying and being in the lower peninsula of the state, and the northern division comprises all the territory and waters of the entire upper peninsula of the state.^ The EASTERN DISTRICT includes all the remaining territory and waters of the state. It is divided into two divisions : Southern Division. — Branch, Calhoun, Clinton, Hills- dale, Ingham, Jackson, Lapeer, Lenawee, Living- ston, Macomb, Monroe, Oakland, St. Clair, Sani- lac, Washtenaw, and Wayne. Northern Division. — Alcona, Alpena, Arenac, Bay, Cheboygan, Clare, Crawford, Genesee, Gladwin, Gratiot, Huron, Iosco, Isabella, Midland, Mont- morency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Shiawassee, and Tuscola.^ Minnesota. — The state constitutes one district, divided into six divisions, as follows : First Division. — Winona, Wabasha, Olmsted, Dodge, Steele, Mower, Fillmore, and Houston. Second Division. — Freeborn, Faribault, Martin, Jack- son, Nobles, Rock, Pipestone, Murray, Cotton- wood, Watonwan, Blue Earth, Waseca, Le Sueur, Nicollet, Brown, Redwood, Lyon, Lincoln, Yellow Medicine, Sibley, and Lacqui-parle. Third Division. — Chisago, Washington, Ramsey, Da- kota, Goodhue, Rice, and Scott. Fourth Division. — Hennepin, Wright, Meeker, Kandi- yohi, Swift, Chippewa, Renville, McLeod, Carver, Anoka, Sherburne, and Isanti. Fifth Division. — Cook, Lake, St. Louis, Itasca, Cass, Crow, Wing, Aitkin, Carlton, Pine, Kanabec, Mille Lacs, Morrison, and Benton. Sixth Division. — Stearns, Pope, Stevens, Big Stone, Traverse, Grant, Douglas, Todd, Otter Tail, Wil- kins, Clay, Berker, Wadena, Norman, Polk, Mar- shall, Kittson, Beltrami, and Hubbard.^ 1 Act of June 19, 1878, 20 Stat. L. 67 ; i Supp. R. S. 181. 175; I Supp. R. S. 198. ' Act of April 26, 1890, 26 Stat. L. * Act of April 30, 1894, 28 Stat. L. 72 ; i Supp. R. S. 718. 22 FEDERAI. PLEADING, PRACTICE AND PROCEDURE. Missiasippi. — The State is divided into two districts, the north- ern and southern. The NORTHERN DISTRICT is divided into two divisions : Eastern Division. — Counties of Tishamintro, Alcorn, Prentiss, Itawamba, Lee, Pontotoc, Monroe, Chick- asaw, Clay, Oktibbeha, Lowndes, Winston, Choc- taw, and Attala, as they existed June 15, 1882. Western Division. — Counties of Carroll, Coahoma, Tu- nica, De Soto, Tate, Marshall, Panola, Benton, Tippah, Montgomery, Grenada, Tallahatchee, La Fayette, Union, Webster, Calhoun, Quitman, and Yalabusha, as they existed June 15, 1882. The SOUTHERN DISTRICT is divided into three divisions : Western Division. — Counties of Washington, Sharkey, Inaquena, Warren, Bolivar, and Sunflower. Southern Division. — Counties of Hancock, Harrison, Jackson, Marion, Perry, and Green. Eastern Division. — Counties of Lauderdale, Kemper, Noxubee, Leake, Neshoba, Newton, Jasper, Clarke, Wayne, and Jones.^ Missouri. — The state is divided into two districts, eastern and western. The EASTERN DISTRICT Is divided into two divisions, as follows : Eastern Division. — Audrain, Bollinger, Butler, Cape Girardeau, Carter, Crawford, Dent, Dunklin, Franklin, Gasconade, Iron, Jefferson, Lincoln, Madison, Mississippi, Montgomery, New Madrid, Oregon, Pemiscot, Perry, Reynolds, Ripley, St. Charles, St. Francois, Ste. Genevieve, St. Louis, Scott, Shannon, Stoddard, Warren, Washington, Wayne. Northern Division. — Marion, Macon, Randolph, Mon- roe, Lewis, Schuyler, Scotland, Adair, Pike, Ralls, Knox, Shelby, Clark. 1 Rev. Stat. \ 539. Act of June 15, S. 547. Act of April 4, 1888, 25 Stat. 1882, 22 Stat. L. loi ; i Supp. R. S. 344. L- 78 ; i Supp. R. S. 583. Act of Act of July 8, 1886, 24 Stat. L. 127; I April 11, 1888,25 Stat. L. 84; i Supp. R. S. 500. Act of February Supp. R. S. 584- Act of July 18, 1894, 28, 1887, 24 Stat. L. 430 ; I Supp. R. 28 Stat. L. 114 ; 2 Supp. R. S. 202. FEDERAL COURTS. 23 The WESTERN DISTRICT is divided into four divisions as follows : Western Division. — Barton, Bates, Caldwell, Carroll, Cass, Chariton, Clay, Grundy, Henry, Jackson, Jasper, Johnson, Lafayette, Linn, Livingston, Mercer, Putnam, Ray, St. Clair, Saline, Sullivan, and Vernon. St. Joseph Division. — Andrew, Atchison, Buchanan, Clinton, Daviess, Dekalb, Gentry, Harrison, Holt, Nodaway, Platte, and Worth. Central Division. — Benton, Boone, Calloway, Camden, Cole, Cooper, Hickory, Howard, Maries, Miller, Moniteau, Morgan, Osage, Pettis, and Phelps. Southern Division. — Barry, Christian, Cedar, Dade, Dallas, Douglas, Greene, Howell, Laclede, Law- rence, McDonald, Newton, Ozark, Polk, Pulaski, Stone, Taney, Texas, Webster, and Wright.^ Montana. — The state constitutes one judicial district. It con- sists of two divisions: Northern Division. — Cascade, Choteau, Custer, Daw- son, Deerlodge, Flathead, Fergus, Granite, Galla- tin, Jefferson, Lewis and Clarke, Meagher, Missoula, Park, Ravalli, Teton, Yellowstone, and Valley. Southern Division. — Beaverhead, Madison, and Silver- bow.^ New Mexico. — The territory is divided into five districts : First district. — Santa Fe, Taos, Rio Arriba, and San Juan. Second district. — Bernalillo and Valencia. Third district. — Donna Ana, Grant, and Sierra. Fourth district. — San Miguel, Mora, Colfax, Union, and Guadaloupe. Fifth district. — Socorro, Lincoln, Chaves, and Eddy.' 1 Rev. Stat. \ 540, Act of April 8, "^ Act of Feb. 22, 1889, 25 Stat. L. 1878, 20 Stat. L. 35; Act of Jan. 21, 676; i Siipp. R. S. 645. Act of July 1879, id. 263 ; Act of Feb. 28, 1887. 20, 1892, 27 Stat. L. 252 ; 2 Supp. R. I Supp. R. S. 543; Act of Oct. I, S. 40. 1888, 25 Stat. L. 49S : I Supp. R. S. ^ Act of July 10, 1890, 26 Stat. L. 622. Act of Jan. 28, 1S97, 29 Stat L. 226; i Supp. R. S. ^^\. 502 ; 2 Supp. R. S. 544- 3 24 FEDERAL PLEADING, PRACTICE AND PROCEDURE- New York. — The state is divided into three districts, the north- ern, eastern and southern. The NORTHERN DISTRICT includes the counties of Rensselaer, Albany, Schoharie and Delaware, with all the coun- ties north and west of them. The EASTERN DISTRICT includcs the counties of Richmond, Kings, Queens and Suffolk, with the waters thereof. The SOUTHERN DISTRICT includes the residue of the state, with the waters thereof.^ The district courts of the southern and eastern districts of New York have concurrent jurisdic- tion over the waters within the 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 thereof, run and may be executed in any part of the said waters.^ North Carolina. — The state is divided into two districts, the eastern and western. The WESTERN DISTRICT includes the counties of Mecklen- burg, Cabarras, Stanly, Montgomery, Richmond, Davie, Davidson, Randolph, Guilford, Rockingham, Stokes, Forsyth, Union, Anson, Caswell, Person, Alamance, Orange, Chatham, Moore, Clay, Chero- kee, Swain, Macon, Jackson, Graham, Haywood, Transylvania, Henderson, Buncombe, Madison, Yan- cey, Mitchell, Watauga, Ashe, Alleghany, Caldwell, Burke, McDowell, Rutherford, Polk, Cleveland, Gaston, Lincoln, Catawba, Alexander, Wilkes, Surry, Iredell, Yadkin and Rowan, and all territory em- braced therein which may hereafter be erected into new counties. The EASTERN DISTRICT includes the residue of the state.^ North Dakota. — The state constitutes one district and is divided into four divisions, as follows: Southwestern. — Counties of Burleigh, Stutsman, Logan, 1 Rev. Stat. \ 541; Act of Feb. 18, * Rev. Stat. \ 542. 1875, 18 Stat. L. 316. » Rev. Stat. I 543. FEDERAL COURTS. 25 Mcintosh, Emmons, Kidder, Foster, Wells, McLean, and all the territory lying south and west of the Missouri River. Southeastern. — Counties of Cass, Richland, Barnes, Dickey, Sargent, La Moure, Ransom, Griggs and Steele. Northeasterti. — Grand Forks, Traill, Walsh, Pembina, Cavalier and Nelson. Northwestern. — Ramsey, Eddy, Benson, Towner, Ro- lette, Bottineau, Pierce, McHenry, Ward and all the territTDry lying north of the southwestern division.^ Ohio. — The state is divided into two districts, the northern and southern. The SOUTHERN DISTRICT includes the counties of Belmont, Guernsey, Muskingum, Licking, Franklin, Madi- son, Champaign, Shelby and Mercer, Union, Delaware, Morrow, Knox, Coshocton, Harrison and Jefferson, as they existed February lO, 1855, with all the counties south of them. It is divided into two divisions, the eastern and western. Eastern Division. — Counties of Union, Delaware, Mor- row, Knox, Coshocton, Harrison, Jefferson, Madi- son, Fayette, Franklin, Pickaway, Ross, Pike, Gallia, Jackson, Meigs, Vinton, Athens, Hocking, Fairfield, Licking, Perry, Muskingum, Morgan, Washington, Noble, Monroe, Belmont and Guern- sey. Western Division. — The remaining counties in the dis- trict.^ The NORTHERN DISTRICT includes the residue of the state.^ It is divided into two divisions, the eastern and western. Western Division. — Counties of Williams, Defiance, Paulding, Van Wert, Mercer, Auglaize, Allen, Putnam, Henry, Fulton, Lucas, Wood, Hancock, 1 Act of April 26, 1890, 26 Stat L. 64 ; i Supp. R. S. 277. 67 ; I Supp. R. S. 716. ^ Rev. Stat. § 544, Act of Feb. 4, 2 Act of Feb. 4, 1880, 21 Stat. L. 1880, 21 Stat. L. 63. 26 FEDERAL PLEADING, PRACTICE AND PROCEDURE- Hardin, Logan, Union, Delaware, Marion, Wyan- dot, Seneca, Sandusky, Ottawa, Erie and Huron. Eastern Division. — The remaining counties in the dis- trict.^ Oklahoma. — The territory is divided into five judicial districts •? First district. — Logan, Lincoln and Payne. Second district. — Blaine, " D," Day, Roger Mills, " G," Washita, and Canadian. Third district. — Pottawatomie, Oklahoma, and Cleveland. Fourth district. — " K," Beaver, " Q," and " P." Fifth district.—" O," Kingfisher, " L," " M," and " N." Pennsylvania. — The state is divided into two districts, the east- ern and western. The WESTERN district includes the counties of Allegheny, Armstrong, Beaver, Bedford, Blair, Bradford, Butler, Cambria, Cameron, Center, Clarion, Clearfield, Clin- ton, Columbia, Crawford, Elk, Erie, Fayette, Forest, Fulton, Greene, Huntingdon, Indiana, Jefferson, Juni- ata, Lackawanna, Lawrence, Luzerne, Lycoming, McKean, Mercer, Mifflin, Montour, Northumber- land, Potter, Snyder, Somerset, Sullivan, Susque- hanna, Tioga, Union, Venango, Warren, Washing- ton, Westmoreland, and Wyoming. The EASTERN district includes the counties of Adams, Berks, Bucks, Carbon, Chester, Cumberland, Dau- phin, Delaware, Franklin, Lancaster, Lebanon, Le- high, Monroe, Montgomery, Northampton, Perry, Philadelphia, Pike, Schuylkill, Wayne, and York.^ South Carolina. — The state is divided into two districts, the eastern and western. The WESTERN district includes the counties of Lancaster, Chester, York, Union, Spartansburgh, Greenville, Pendleton, Abbeville, Edgefield, Newberry, Laur- ens and Fairfield, as they existed Feb. 21, 1823. The EASTERN district includes the residue of the state.* 1 Act of June 8, 1878, 20 Stat. L. 4, 1896 ; 29 Stat. L. 113; 2 Supp. R. 102 ; I Supp. R. S. 172. S. 462. 2 Greer County, Texas, is trans- » Rev. Stat. \ 545. ferred to Oklahoma by Act of May * Rev. Stat. I 546. FEDERAL COURTS. 27 South Dakota. — The state constitutes one judicial district di- vided into four divisions : Southern Division. — Counties of Clay, Union, Yank- ton, Turner, Lincoln, Bonhomme, Charles Mix, Douglas, Hutchinson, Brule, Aurora, Davison, Hanson, McCook, Minnehaha, Moody Lake, Sanborn, Lyman, Miner, Gregory, Todd, Beadle and Kingsbury, Crow Creek and Lower Brule and the Yankton Indian reservation. Northern Division. — Brookings, Hamlin, Deuel, Grant, Roberts, Codington, Clark, Day. Marshall, Spink, Brown, McPherson, Edmunds, Campbell, Wol- worth and the Sisseton and Wahpton reserva- tion. Central Division. — Potter, Sully. Faulk, Hand, Hyde, Hughes, Buffalo, Jerauld, Stanley, Nowlin, and that portion of the counties of Pratt, Jackson and Ster- ling, not included in any Indian reservation, and the Standing Rock and Cheyenne Indian reservation. Western Division. — All that portion of the state lying west of the central and southern divisions, and in addition thereto the Rosebud and Red Cloud Indian reservations.^ Tennessee. — The state is divided into three districts, the eastern western and middle : The EASTERN DISTRICT includes the counties of Anderson, Bledsoe, Blount, Bradley, Campbell, Carter, Clai- borne, Cocke, Cumberland, Grainger, Greene, Hamilton, Hancock, Hawkins, Jefferson, Johnson, Knox, McMinn, Marion, Meigs, Monroe, Morgan, Polk, Rhea, Roane, Scott, Sevier, Sullivan, Union, and Washington, as they existed February 19, 1856. It is divided into two divisions, the north- ern and southern. Southern Division. — Counties of Hamilton, James, Polk, McMinn, Bradley, Meigs, Rhea, Marion, Sequatchie, Bledsoe, Grundy and Cumberland. 1 Act of Nov. 3, 1893, 28 Stat. L. 5 ; 2 Supp. R. S. 151. 28 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Northern Division. — The remaining counties in the district.' The WESTERN DISTRICT includes the counties of Benton, Carroll, Henry, Obion, Perry, Dyer, Gibson, Lauderdale, Haywood, Tipton, Shelby, Fayette, Hardeman, McNairy, Hardin, Madison, Hender- son and Weakley, as they existed June 18, 1838.^ It is divided into two divisions, the eastern and western. Eastern Division. — Counties of Benton, Carroll, De- catur, Gibson, Hardeman,^ Henderson, Henry, Madison, McNairy, Hardin, Dyer, Lake, Crockett, Weakley and Obion. Western Division. — The remaining counties in the district.'* The MIDDLE DISTRICT includcs the residue of the state." Texas. — The state is divided into three districts, northern, eastern and western.® Northern district : Returnable to Waco. — Brazos, Robertson, Leon, Lime- stone, Freestone, McLennan, Falls, Bell, Coryell, Hamilton, Bosque, Somervell, and Hill. Returnable to Dallas. — Navarro, Johnson, Ellis, Kauf- man, Dallas, Rockwall, Hunt, Collin, Denton, Cooke, and Montague. Returnable to Fort Worth. — Comanche, Hood, Erath, Tarrant, Parker, Palo Pinto, Wise, Clay, Jack, 1 Act of June 11, 1880, 21 Stat. L. * Act of June '20, 1878, 20 Stat. L. 175; I Supp. R. S. 295. 235; I Supp. R. S. 201-2. 2 Rev. Stat. \ 547. Act of June 11, ' Grundy was attached to middle 1880, 21 Stat. L. 175; I Supp. R. S. district by Act of Dec. 27, 1884, 23 295. Act of March 3, 1875, 18 Stat. Stat. L. 280; i Supp. R S. 471- L. 480; I Supp. R. S. 90, repeated « Rev. Stat. \ 548, Act of Feb. 24, by Act of April 14, 1896; 29 Stat. L. 1879, 20 Stat L. 318; i Supp. R. S. 91 ; 2 Supp. R. S. 457, and Perry at- 217. Act of June 11, 1879, 21 Stat, tached to western district. L. 10 ; i Supp. R. S. 265. Act of 3 Act of Jan. 15, 1883, 22 Stat. L. June 14, 1880, 21 Stat. L. 198 ; i 402; I Supp. R. S. ^92. Supp. R. S. 297. Act of Jan. 6, 1883, I Supp. R. S. 389- FEDERAL COURTS. 29 Young, Archer, Wichita, Wilbarger, Baylor, Hardeman, Cottle, Motley, Briscoe, Hall, Child- ress, Collingsworth, Donley, Armstrong, Randall, Deaf Smith, Oldham, Potter, Carson, Gray, Wheeler, Hemphill, Lipscomb, Ochiltree, Rob- erts, Hutchinson, Hansford, Sherman, Moore, Hartley, and Dallam. Returnable to Abilene. — Eastland, Stephens, Throck- morton, Shackelford, Callahan, Taylor, Jones, Haskell, Knox, Nolan, Fisher, Stonewall, Kent, Dickens, King, Crosby, Garza, Lubbock, Gaines, Andrews, Mitchell, Scurry, Borden, Howard, Martin, and Midland. Returnable to San Angela. — Glasscock, Sterling, Coke, Tom Green, Crockett, Schleicher, Sutton, Irion, Mills, Runnels, Coleman, and Brown.^ Eastern district: Returnable to Galveston. — Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Madison, Matagorda, Montgomery, Tyler, Wal- ker, Waller, Wharton, and Jackson.^ Returnable to Tyler. — Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Panola, Rains, Rusk, Shelby, Sm.ith, Trinity, Van Zandt, and Wood. Returnable to Beaumont. — Jefferson, Orange, Newton, Jasper, Hardin, Liberty, Tyler, San Augustine, Sabine, Polk and San Jacinto.^ Returnable to Jefferson, — Bowie, Camp, Cass, Franklin, Harrison, Hopkins, Marion, Morris, Titus, and Upshur. ^ Act of June ii, 1896, 29 Stat. L. within the district. Logan v. U. S. 456 ; 2 Supp. R. S. 527. Greer County 144, U. S. 263. was transferred to Oklahoma by ^ Jackson transferred from western Act of May 4, 1896, 29 Stat. L. 113 ; to eastern district by Act of June 11, 2 Supp. R. S. 462. The grand jury 1879, i Supp. R S. 265. sitting at any of the places for hold- 'Act of Feb. 8, 1897, 29 Stat. L. ing court, may present indictments 516 ; 2 Supp. R. S. 547. for crimes committed at any place 30 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Returnable to Paris. — Lamar, Fannin, Red River, Delta, and Grayson,^ and all that part of the In- dian Territory attached to the eastern judicial dis- trict of the State of Texas by the provisions of the act entitled " An act to establish a United States court in the Indian Territory, and for other pur- poses," approved March i, 1889.^ Western district : Returnable to San Antonio. — Aransas, Atascosa, Ban- dera, Bexar, Bee, Comal, Calhoun, Dewitt, Dim- mit, Duval, Edwards, Encinal, Frio, Guadalupe, Gonzales, Goliad, Kerr, Kendall, Kinney, Karnes, Lasalle, Lavaca, Live Oak, Medina, Maverick, McMuUen, Nueces, Refugio, San Patricio, Uvalde, Valverde, Victoria, Webb, Wilson, Zapata, and Zavalla. Returnable to El Paso. — Andrews, Brewster, Buchel, Borden, Bailey, Crockett, Crane, Cochran, Crosby, Castro, Dawson, El Paso, Ector, Foley, Floyd, Glasscock, Gaines, Garza, Howard, Hockley, Hale, Jeff Davis, Loving, Lynn, Lubbock, Lamb, Midland, Martin, Mitchell, Presidio, Pecos, Pal- mer, Reeves, Sutton, Schleicher, Scurry, Swisher, Schumacher, Coke, and Brown. Returnable to Brownsville. — Cameron, Hidalgo, and Starr. Returiiable to Austin. — Blanco, Bastrop, Burleson, Burnet, Caldwell, Concho, Fayette, Gillespie, Hays, Kimble, Lee, Llano, Mason, Menard, McCulloch, Milan, San Saba, Travis, Washington, and Williamson. Utah, — The state constitutes one judicial district, divided into two divisions. 1 Grayson transferred from north- courts over Oklahoma is taken away em to eastern district by Act of Dec. and their jurisdiction over certain II, 1890, I Supp. R. S. 885. offences in the Indian Territory is 2 By Act of Mar. 2, 1890, i Supp. modified by grant of jurisdiction to R. S. 724, the jurisdiction of Texas U. S. courts therein. FEDERAL COURTS. 31 Northern Division. — Weber, Davis, Morgan, Rich, Cache, and Boxelder. Central Division. — Remaining counties of the state.* Virginia. — The state is divided into two districts, the eastern and western. The WESTERN DISTRICT includes the counties of Albemarle, Alleghany, Amhurst, Appomattox, Augusta, Bath, Bedford, Bland, Botetourt, Buchanan, Buckingham, Campbell, Carroll, Charlotte, Clarke, Craig, Cumber- land, Floyd, Franklin, Frederick Fluvanna, Giles, Grayson, Greene, Halifax, Henry, Highland, Lee, Madison, Montgomery, Nelson, Patrick, Page, Pulaski, Pittsylvania, Rappahannock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Smyth, Shenandoah, Tazewell, Washington, Wise, Wythe and War- ren. The EASTERN DISTRICT includes the residue of the state.^ Washington. — The state constitutes one judicial district divided into four divisions : Northern Division. — King, Kitsap, Island, Whatcom, Skagit, Jefferson, Clallam, San Juan, and Sno- homish. Southern Division. — Wallawalla, Columbia, Garfield, Asotin, Whitman, Franklin, Yakima, and Klickitat. Eastern Division. — Spokane, Stevens, Douglas, Oka- nogan, Kittitass, Lincoln, and Adams. Western Division. — Pierce, Thurston, Mason, Chehalis, 1 Act of March 2, 1897, 29 Stat. L. different divisions, such suit may be 620. All civil suits not of a local brought in either division. All pro- character which shall be brought in cess issued in either division may be the district or circuit courts of the served and executed in either or both United States for the district of Utah, divisions. All issues of fact in civil in either of said divisions, against a causes triable in any of the said courts single defendant, or where all the de- shall be tried in the division where fendants reside in the same division the defendant or one of the defend- of said district shall be brought in ants reside, unless by consent of both the division in which the defendant parties the case shall be removed to or defendants reside, or if there are some other division. Ibid, two or more defendants residing in ^ Rev. Stat. \ 549. 32 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Lewis, Pacific, Wahkiakum, Cowlitz, Clarke, and Skamania.^ "Wisconsin. — The State is divided into two districts, the eastern and western. The WESTERN DISTRICT includes the counties of Rock, Jefferson, Dane, Green, Grant, Columbia, Iowa, La Fayette, Sauk, Richland, Crawford, Vernon, La Crosse, Monroe, Adams, Juneau, Buffalo, Chip- pewa, Dunn, Clarke, Jackson, Eau Claire, Pepin, Marathon, Wood, Pierce, Polk, Portage, Saint Croix, Trempealeau, Douglas, Barron, Burnett, Ashland and Bayfield. The EASTERN DISTRICT includes the residue of the state.^ ^ Act of April 5, 1890, i Supp. R. S. 711. 2 Rev. Stat. | 550. ORGANIZATION OF DISTRICT COURTS. 33 CHAPTER III. ORGANIZATION OF DISTRICT COURTS. District Judges, Appointment and Residence. § 10. A district judge is appointed for each district,^ with the following exceptions: In Alabama, there is one judge for the northern and middle districts and one for the southern district. In Mississippi there is but one district judge, and but one in South Carolina.^ In Tennessee there is one judge for the middle and eastern districts and one for the western district.^ Every judge of the district court must reside in the district for which he is appointed, or in cases where he is appointed for more than one district, in one of such districts,* Salaries of District Judges. — The salaries of the several judges of the District Courts are at the rateof ;$5000 per annum.^ Salary of Judges. § II. The Constitution provides that the judges shall hold their offices during good behavior, and that they shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.^ And the statutes provide that 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 1 Rev. Stat. ? 551. The Actof April ^ ^ct of June 14, 187S, 20 Stat L. 25, 1882, 22 Stat. L., 47; I Supp. R. 132; I Supp. R. S. 181. S. 336, amends Rev. Stat. § 552, and * Rev. Stat. ^ 551, 552. The judge provides that there shall be one judge for the southern district of Florida was for each district in Georgia. The Act required by Rev. Stat. § 553, to reside of June 26, 1876, 19 Stat. L. 61 : i at Key West, but this was repealed by Supp. R. S. 106, authorizes the ap- Act of March 13, 1896, 29 Stat. L. 55. pointment of a district judge for Col- ' Act of Feb. 24, 1891, 26 Stat. L. orado. 783; i Supp. R. S. 896. ' Rev. Stat. ? 552. * Const., art. 3, §1. 3 34 FEDERAL PLEADING, PRACTICE AND PROCEDURE. same salary which was by law payable to him at the time of his resignation.^ Judges Prohibited from Practising Law. § 12. Another wise provision of the statutes prohibits any federal judge from exercising the profession or employment of counsel or attorney, or engaging in the practice of the law, making the offender guilty of a high misdemeanor.'^ Clerks: Appointment of ; Official Bonds. § 13. The judges of the several districts have the power, and it is their duty, to appoint a clerk in each district, except where otherwise provided by statute ; ^ and the statute provides that in some districts they may appoint more than one.* No person may be appointed a clerk by any judge to whom he is related by affinity or consanguinity within the degree of first cousin, nor be employed in any office or duty in any court of which such judge is a member.^ The clerk is required to take an oath for the faithful performance of his duty/ and also to give an official bond, in a sum to be fixed by the judge who appoints him, for the faithful discharge of the duties of the office ; and a new bond may be required whenever the court deems it proper for a new one to be given. It is further required that such bonds be entered upon the journal of the court for which he is appointed, and deposited for safe keeping in such place as the court may direct; and a certified copy of such entry on the journal is made prima facie proof of the execution of such bond and of the con- tents thereof ^ Clerks are required to permanently reside within ^ Rev. Stat. ? 714. and supplements. In the next chap- 'Kev. Stat. | 713. ter the times and places of holding ' Rev. Stat. \ 555. the district and circuit courts are set * Rev. Stat. ^.^ 556, 557. The power forth ; usually a clerk of the court is to appoint clerks and remove them, required to have an office at each and their tenure of office, are fully place where the court is held, discussed in Ex p. Hennen, 13 * Act of August 13, 1888, 25 Stat L. Peters 230. In some districts, con- 433 ; i Supp. R. S. 614. This does sisting of several divisions, clerks are not invalidate appointments made be- to be appointed to reside at each fore the statute was passed. North- place designated for holding the western Mut. Life Ins. Co. v. Sea- court. The acts relating to the ap- man, 80 Fed. Rep. 357. pointment of clerks at special places ' Rev. Stat. \ 794. jnay befound in the Revised Statutes ' Rev. Stat. \ 795. ORGANIZATION OF DISTRICT COURTS. 35 their districts, except in the Southern District of New York they may reside within twenty miles of their district.^ Duties of Clerks. § 14. Besides various minor and special duties required to be performed by the clerk, his general duties more particularly de- mand that he faithfully enter and record all the orders, decrees, judgments and proceedings of the court; and the official oath required of him provides that he will faithfully perform this duty as well as impartially discharge and perform all the duties of his office according to the best of his ability and understand- ing.^ No clerk or deputy may be appointed receiver or master in any case except where the judge of the court shall determine that special reasons exist therefor, to be assigned in the order of appointment.^ Where no special reason was assigned, but the order was made in open court with the assent of the solicitors of both parties, the court amended the order nunc pro tunc, setting out the assent of counsel as a special reason.* Compensation of Clerks.^ § 15. Section 828 of the Revised Statutes provides in detail for fees to be charged by the clerk for the various services he is required to perform f and section 833 requires him semi-an- nually to make a written return to the Attorney-General, for the preceding half year, of all the fees and emoluments of his office, and of all the expenses of the office, including necessary clerk- hire, together with the vouchers for the payment of the same for such last half year, which return must be verified by oath/ No ^ Act of June 20, 1874, 18 Stat. L. district courts ; and he shall report on 85 ; I Supp. R. S. 16. the first day of the next session of the ^ Rev. Stat. \ 794. present Congress a plan for fixing ^ Act of March 3, 1879, 20 Stat. L. such compensation for the clerks of 410; I Supp. R. S. 254. the several courts of the United States * Fischer v. Hayes, 22 Fed. Rep. as he may deem just, and he shall 92 ; s. c. 22 Blatch. 505. also recommend with his report such 5 Sec. 22 of the Act of May 28, provisions as may to him seem proper 1896, provides " That it shall be the touching their appointment and the duty of the Attorney-General of the performance of their duties." 29 Stat. United States to make an investiga- L. 140 ; 2 Supp. R. S. 4S7. tion as respects the compensation to ® Rev. Stat. \ S34. be paid, by salary' or otherwise, to ' Rev. Stat. \ 839. clerks of United States circuit and 36 FEDERAL, PLEADING, PRACTICE AND PROCEDURE. clerk shall include in his emolument account any fee not actually earned and due at the time such account is required by law to be made, and no fees not actually earned shall be allowed in any such account.^ But no clerk of a district or circuit court shall be allowed by the Attorney- General to retain of the fees and emoluments of his office, for his personal compensation, a sum exceeding three thousand five hundred dollars a year, or at that rate for a shorter length of time, unless both clerkships are held by the same person f except in California, Oregon and Nevada, where they are allowed to charge double the ordinary fees allowed clerks, and they are allowed to retain of the fees re- ceived by them for their personal services an amount not ex- ceeding seven thousand dollars a year, or at that rate for a shorter time ;^ and the allowance for personal compensation of clerks for each year must be made from the fees and emolu- ments of that year;^ but in prize causes they may retain for official services an additional compensation not exceeding in amount one-half of the maximum compensation allowed them as aforesaid.^ It is made the duty of the clerk, at the time of making his semi-annual return, to pay into the treasury of the United States, or deposit to the credit of the Treasurer, as may be directed by the Attorney-General, any surplus of the fees and emoluments of his office which the return shows to exist over and above the compensation allowed as aforesaid, except for the necessary expenses of his office, including necessary clerk-hire, to be audited and allowed by the proper accounting officers of the treasury.^ Before any account shall be allowed by any of- ^ Act of March 2, 1895,28 Stat. L. the clerks' fee bill in some import- 910 ; 2 Supp. R. S. 432. ant particulars, holding that clerks * Rev. Stat. I 839. are entitled to fee for filing each ' Rev. Stat. § 840. paper as it is sent up by a commis- * Rev. Stat. | 843. sioner in a criminal case ; also to fee * Rev. Stat. § 842. for filing oaths, bonds and appoint- * Rev. Stat. H 833, 839,844. This ments of deputy marshals, jury com- is not a revenue law within Rev. Stat, missioners, bailiffs, district attorneys I 699, which gives jurisdiction to the and their assistants, and for record- Supreme Court of the United States ing them if required by the court or witliout regard to the amount in dis- by custom to do so ; but not for ad- pute. U. S. V. Hill, 123 U. S. 681. In ministering the oaths of office to \].S.v. Van Duzee, 140 U.S. 169, themor preparing their official bonds. 199, the Supreme Court construed Also to legal charge for approving ORGANIZATION OF DISTRICT COURTS. 37 ficer of the Treasury in favor of a clerk he must render it with the vouchers and items thereof to a United States circuit or dis- trict court, and, in the presence of the district attorney or his sworn assistant, whose presence shall be noted on the records, prove in open court, to the satisfaction of the court by his own oath or that of other persons having knowledge of the facts, to be attached 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 law- ful money, and the court shall thereupon cause to be entered of record an order approving or disapproving the account.^ Commissions for Receiving and Paying Out Money. § i6. The clerk, under the provisions of the statutes, is entitled to a commission for receiving, keeping and paying out moneys obtained by fines, penalties or forfeitures under the revenue laws.'"' But he is not entitled to a commission on money received by a commissioner and paid out by him in proceedings in bank- ruptcy.^ Money must actually or constructively pass through the clerk's hands to entitle him to commissions.^ A clerk who receives, keeps and pays out money under a judgment is entitled to a commission of one per cent, on the amount so received, to be paid by the defendant as part of the costs.^ the accounts of such officers under of the court to require records to be the Act of February 22, 1875 (18 Stat, made up in criminal cases ; to charge L. 333; I Supp. R. S. 65), for furn- for copies of subpoenas furnished to ishing a copy of indictment to the de- the marshal to be left with witnesses, fendant when ordered by the court when in a district there is a rule of to do so, but not otherwise ; for fil- court requiring the clerk to make ing criminal cases sent up by a com- such copies. missioner, but not for docketing the ' Act of Feb. 22, 1875, 18 Stat. L. same unless indictment is found ; for 333 ; i Supp. R. S. 65. authenticated copies of orders for ^ In re Goodrich, 4 Dill. 230 ; Up- payment by the marshal of sums due ton v. Triblecock, 4 Dill. 232. witnesses and jurors, when required ^ United States v. One Horse, 7 Ben. by the Treasury Department; for 405. See also The Avery, 2 Gallis. entering an order for trial and re- 308. cording a verdict in a criminal case ; * Ex parte Prescott, 2. Gall. 146; to charge for filing precipes for bench- Leach v- Kay, 4 Fed. Rep. 72 ; Thomas warrants, but no such precipe is re- v. Chicago & C. G. R. Co. 37 id. quired after sentence ; to charge for 548. incorporating the transcript from the ^ Blake v. Hawkins, 19 Fed. Rep. commissioner when it is the practice 204, and cases cited. 38 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Deputy Clerks. § 17. One or more deputies of any clerk of a district court may be appointed by the court, on the application of the clerk, and may be removed at the pleasure of judges authorized to make the appointment. A deputy thus appointed may sign a warrant, citation or monition, and do every act which the clerk is authorized bylaw to do.^ 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 life-time 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 adminis- trator shall have such remedy for any such default or misfeas- ances committed after his death as the clerk would be entitled to if the same had occurred in his life-time.^ Compensation of deputy clerks. — The compensation of deputies of the clerks of the district courts shall be paid by the clerks, respectively, and allowed in the same manner that other expenses of the clerks' offices are paid and allowed.-* Official Bond of Deputy Clerks. § 18. Any circuit or district court may require any deputy clerk thereof to give a bond to the United States for the faithful discharge of his duty as such deputy, in the same penalty, and with surety in the same manner, as is required by law of clerks; and it is required that such bond be recorded and preserved in like manner. The taking of this bond, however, does not affect the legal responsibility of the clerk also for the official acts of the deputy.'* Records, Where Kept. § 19. The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district, and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge.^ ^ The Confiscation Cases, 20 Wall. ^ Rev. Stat. ? 561. 92 ; Bragg v. Loris, i Woods 209. * Rev. Stat. I 796. 2 Rev. Stat. I 558. * Rev. Stat. I 562. ORGANIZATION OF DISTRICT COURTS. 39 Marshals and their Deputies. § 20. It is essential to the proper discharge of the functions of courts that they have some executive officer for the service of process and the execution of their judgments. For this purpose it is provided by statute that a marshal shall be appointed in each district, except in the western district of South CaroHna ; and that he shall hold his office for the term of four years.^ The marshal of the eastern district of South Carolina is required to perform the duties of marshal in the western district of that state ;^ marshals are required to reside permanently within their districts, except in the southern district of New York, where they may reside within twenty miles of their district.^ Deputy marshals. — It is further provided that every marshal may appoint one or more deputies, who shall be removable from office by the judge of the district court, or by the circuit court of the district, at the pleasure of either.* The appointment of deputies is regulated by the Act of May 28, 1896, which provides: Sec. 10. That when, in the opinion of the Attorney-General, the public interest requires it, he may, on the recommendation of the marshal, which recommendation shall state the facts as distinguished from conclusions, showing necessity for the same, allow the marshals to employ necessary office deputies and cleri- cal assistance, upon salaries to be fixed by the Attorney-General from time to time and paid as hereinafter provided. When any of such office deputies is engaged in the service or attempted service of any writ, process, subpoena, or other order of the court, or when necessarily absent from the place of his regular employment on official business, he shall be allowed his actual traveling expenses only, and his necessary and actual expenses for lodging and subsistence, not to exceed two dollars per day, and the necessary actual expenses in transporting prisoners, ' Rev. Stat. ?? 776, 779. An excep- their deputies do not extend beyond tion was made in the States of Ala- the districts for which they are ap- bama, Georgia and South CaroHna. pointed. Walker v. Lea, 47 Fed. Alabama is given a marshal for each Rep. 645. district by Act of March 3, 1893, 27 "^ Rev. Stat. ?? 776, 777. Stat. L. 745; 2 Supp. R. S. 134; and ^^ct of June 20, 1874, 18 Stat L. Georgia by Act of April 25, 1882, 22 85 ; i Supp. R. S. 16. Stat. L. 47 ; I Supp. R. S. 336. The * Rev Stat. I 780. authority and powers of marshals and 40 FEDERAL PLEADING, PRACTICE AND PROCEDURE. including necessary guard hire; and he shall make and render accounts thereof as hereinafter provided. Sec. II. That at anytime when, in the opinion of the marshal of any district, the public interest will thereby be promoted, he may appoint one or more deputy marshals for such district, who shall be known as field deputies, and who, unless sooner removed by the district court as now provided by law, shall hold office during the pleasure of the marshal, except as hereinafter pro- vided, 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 thousand five hundred dollars per fiscal year, or at that rate for any part of a fiscal year ; and in addition shall be allowed his actual necessary 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 in his judgment justice requires, the Attorney-General may make an additional allowance not, however, in any case to make the aggregate annual compensation of any field deputy in excess of twenty-five hundred dollars nor more than three-fourths of the gross fees earned by such field deputy. The marshal, imme- diately after making any appointment or appointments under this section, shall report the same to . the Attorney-General, stating the facts as distinguished from conclusions constituting the reason for such appointment, and the Attorney-General may at any time cancel any such appointment as the public interest may require. The field deputies herein provided for of the districts of California, Colorado, Washington, Montana, North Dakota, South Dakota, Nevada, Oregon, Wyoming, and Idaho shall for the services they may perform during the fiscal year eighteen hundred and ninety-seven, receive double the fees allowed by law to like officers in other States for performing similar duties, but neither of them shall be allowed to receive of such fees any sum exceeding the aggregate compensation of such officer as provided herein. Sec. 12. That the marshal, when attending court at any place other than his official residence, and when engaged in the service or attempted service of any process, writ, or subpoena, and when ORGANIZATION OF DISTRICT COURTS. 41 otherwise necessarily absent from his official residence on offi- cial business, shall be allowed his necessary expenses for lodging and subsistence, not exceeding four dollars per day, and his actual necessary traveling expenses. He shall also be allowed the actual necessary expenses in transporting prisoners, includ- ing necessary guard hire. An account of such expenses shall be made out and paid as hereinafter provided. 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 residence. Sec. 13. The expense accounts of the marshals and their office deputies and the accounts of the field deputies shall be paid by the marshals ; said accounts when made out in accordance with this act shall 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 by law. Each marshal shall make such returns of the earnings and expenses of his office as shall be required under rules and regu- lations prescribed by the Attorney-General : Provided^ That no office or field deputy shall receive compensation as bailiff, and no field deputy shall receive fees for representing the marshal in court. Sec. 14. The necessary office expenses of the marshal shall be allowed when authorized by the Attorney-General.^ Official Oaths of Marshals and their Deputies. § 21. It is the duty of every marshal and deputy marshal, before he enters upon the duties of the office, to take an oath to faithfully execute the duties of the office, the form of which, and ^ These sections do not apply to Fed. Rep. 497, it was held that an Alaska. Ibid. \ 24. They were made office deputy has no vested right of applicable to Indian Territory by Act property in his office: his tenure of February 19, 1897, ch. 265, 29 Stat, thereof terminates with the expira- L. 538; 2 Supp. R S. 556. An office tion of the marshal's official term deputy has been held to be protected and a court of equity has no jurisdic- by the civil service laws and not tion to restrain the marshal from re- subject to removal by the marshal, moving him nor to enforce the Pres- Priddie v. Thompson, 82 Fed. Rep. ident's rule placing such deputies on 1S6. But in Taylor v. Kercheval, 82 the civil service list. 42 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the parties before whom it may be taken, being particularly pointed out in section 782 of the Revised Statutes.' Marshals' Fees and Salaries. § 22. Section 6 of the Act of May 28, 1896,^ provides that on and after July i, 1896, all fees and emoluments authorized by law to be paid to a United States marshal shall be charged as heretofore, 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.^ By section 9 of the same Act the marshal for each district shall be paid, in lieu of the salaries, fees, per centums and other compensations now allowed by law, annual salaries as follows : Alabama, northern and middle districts, $4,000; southern district, ;$3,ooo. Arizona, ^4,000. Arkansas, eastern district, M.ooo ; western district, ;$5,ooo. California, northern district, $4,000; southern dis- trict, $3,000. Colorado, $4-000. Connecticut, $2,000. Dela- ware, $2,000. District OF Columbia, $5,500. Florida, northern and southern districts, $3,000 each. Georgia, northern district, iSee post, ch. Fees of Officers. The oath may be administered by any officer of the United States or of any state authorized by law to ad- minister oaths. Act of Dec. 22, 1896, 29 Stat. L. 479 ; 2 Supp. R. S. 536. 2 29 Stat. L. 140 ; 2 Supp. R. S. 479- » This act does not apply to Alaska. Ibid. \ 24. It was made applicable to Indian Territory by Act of Feb. 19, 1897. ch. 265, 29 Stat. L. 538; 2 Supp. R. S. 556. In United States v. Fletcher, 147 U. S. 664, the following rulings upon an offender who has committed a crime in another district comes, may deputize tlie marshal of the district in which the offence was committed, or his deputy, to execute the warrant of removal, and relinquish to him the fees therefor. "The treasury officers have a right to require of a marshal items of ex- penses incurred in endeavoring to arrest persons charged with the com- mission of crime. When claims against the United States are pre- sented to the proper department for the subject of marshals' fees were allowance, and the department sus made : " When, for convenience in pends action until proper vouchers making up accounts, an outgoing are furnished, or other reasonable marshal relinquishes to his successor requirements are complied with, the his right to expenses incurred in courts should not assume jurisdiction endeavoring to arrest persons for offences against the United States, the incoming marshal may charge these fees in his accounts, and they should be allowed. "A marshal of a district into which until final action is taken. "A marshal may charge mileage upon as many writs as he may have in his hands, where the writs are against different persons." ORGANIZATION OF DISTRICT COURTS. 43 $S,ooo; southern district, ;^3,5oo. Idaho, $3,000. Illinois, northern district, 55,000; southern district, $4,500. Indian Territory, northern, central and southern districts, $4,000 each.^ Indiana, $4,500. Iowa, northern and southern districts, $4,000 each. Kansas, $4,000. Kentucky. $5,000. Louisiana, eastern district, $3,000 ; western district, $2,500. Maine, $3,000. Maryland, $3,500. Massachusetts, $5,000. Michigan, eastern district, $4,000; western district, $3,000. Minnesota, $4,000. Mississippi, northern and southern districts, $3,000 each. Mis- souri, eastern and western districts, $4,000 each. Montana, $3,500. Nebraska, $3,500. Nevada, $2,500. New Hamp- shire, $2,000, New Jersey, $3,000. New Mexico, $4,000. New York, northern district, $5,000; eastern district, $4,000; southern district, $5,000. North Carolina, eastern district, $4,000; western district, $4,500. North Dakota, $4,000. Ohio, northern and southern districts, $4,000 each. Oklahoma, $5,000. Oregon, $4,000. Pennsylvania, eastern and western districts, $4,000 each. Rhode Island, $2,000. South Caro- lina, eastern and western districts, $4,500; $2,500 of which shall be for the performance of the duties of marshal of the western district. South Dakota, $4,000. Tennessee, eastern, middle and western districts, $4,000 each. Texas, northern dis- trict, $3,000; eastern district, $5,000; western district, $4,000. Utah, $3,500. Vermont, $2,500. Virginia, eastern district, $3,500; western district, $4,000. Washington, $4,000. West Virginia, $4,000. Wisconsin, eastern and western districts, $4,000 each. Wyoming, $3,500. These salaries are paid monthly by the Department of Justice.^ Marshal's Bond. § 23. Before any person can enter upon the duties of the office of marshal, he is required to give a bond in the sum of twenty thousand dollars, before the district judge of the district, with sufficient sureties, who must be inhabitants and freeholders of the district, and the bond must be approved by said judge, for the faithful performance of the duties of himself and his deputies. The bond is required to be filed in the office of the 1 Act of Feb. 19, 1S97, 29 Stat. L. 538 ; 2 Supp. R. S. 557- Udid. I 16. 44 FEDERAL PLEADING, PRACTICE AND PROCEDURE. clerk of the district or circuit court sitting within the district, and copies thereof, certified by the clerk, are made competent evidence in any court of justice.^ Clerks and marshals can be required to give greater security in a bond not to exceed forty thousand dollars, when in the opinion of the Attorney General the business of the courts shall make it necessary, the amount to be fixed by the Attorney General.^ If the bond is not approved by the district judge, it cannot be considered as accepted by the United States, as he alone has authority to accept it; and a bond with one surety is not such a bond as the law requires;^ Suits on Marshals' Bonds ; Costs. § 24. Any person injured by a breach of the condition of a marshal's bond may maintain an action thereon in his own name, and recover such damages as he may have sustained, and as shall be legally assessed, with costs ; but if he fails to recover, execu- tion may issue against him for costs in favor of the defendant. In no case, however, can the United States be made liable for costs.* The proceedings against the marshal and his sureties must be by action in the usual way, and they cannot be proceeded against in a summary manner, as provided by state laws.^ Bond to Remain after Judgment ; Limitation of Action on. § 25. The bond remains as a surety for any person injured by a breach of its conditions, after any judgment rendered thereon, until the whole penalty has been recovered, and the proceedings thereon should always be in the name of the party injured." But no suit can be maintained on such bond unless 1 Rev. Stat. § 783. the state touching sheriffs as to the 2 Act of Feb. 22, 1875, 1 8 Stat. L. marshal alone, but not as against him 333 ; I Supp. R. S. 65. and his sureties jointly. It may be in 3 Jackson v. Simonton, 4 Cr. C. C. the name of the United States for the 255. benefit of the party injured : U. S. v. * Rev. Stat. \ 784. For construe- Davidson, i Biss- 433. tion of marshal's bond and liability of « Rev. Stat. \ 785. The wrong sureties see U. S. v. Giles, 9 Cr. 212 ; must be alleged and proved to be a U. S. V. Adams, 54 Fed. Rep. 1 14. violation of the marshal's official duty. 5 Gwin V. Breedlove, 2 How. 29 ; Hawkins v. Thomas, 29 N. E. Rep. Gwin V. Barton, 6 How. 7. These two 157. cases sustain the summary process of ORGANIZATION OF DISTRICT COURTS. 45 it is commenced within six years after the right of action accrues, except in cases of infants, married women and insane persons, who may sue within three years after their disabihties are removed/ Duties and Powers of Marshals. § 26. It is the duty of the marshal of each district to attend the district and circuit courts and the circuit court of appeals when sitting therein, and to execute, in the district, all lawful precepts directed to him and issued under the authority of the United States; and he has authority to command all necessary assistance in the execution of his duty. He and his deputies have the same powers in each state in executing the laws of the United States as sheriffs and their deputies have by law in exe- cuting the laws thereof.- It is the further duty of the marshal, within thirty days before the commencement of each term of the circuit or district court of his district, to 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;^ and if an execution upon a judgment in any suit for moneys due on account of the Post-Office Department shall be directed to him, he is required to make returns to the Sixth Auditor, of the proceedings which have taken place upon such process at such times as said auditor may direct.* Original process must be served by a marshal, and cannot be properly served by a private person.^ But a subpoena may be served by a private person, for its mandate is to the witness and not to the marshal.*^ 1 Rev. Stat, g 786. For a construe- in the state courts. Re Neagle, 135 tion of this section see United States U. S. i. Marslials have same power V. Rand, 4 Saw. 272 ; Same v. God- to arrest without warrant as sheriffs in bold, 3 Woods, 550 ; Montgomery v. the states where they act. Carico v. Hernandez, 18 Wheat. 120. Wilmore, 51 Fed. Rep. 196. Re Ack- '^ Rev. Stat. \\ 787, 7S8. Marshals er, 66 id. 290. and their deputies when especially ^ Rev. Stat. \ 791. charged to protect a federal judge •* Rev. Stat. \ 792. while in the discharge of his duties, ^ Schwabackert/. Reilly, 2 Dill. 127. must keep the peace even to the tak- ^ Scott v. Allen, 6 Phila. 4S4 ; Rus- ing of human life : and the marshal sell v. Ashley, Hemp. 546 ; Scott v. is acting under the laws of the United Schwabacker v. Reilly, 2 Dill. 127. States, and is not liable to prosecution 46 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Duty of the Deputy in Case of the Death of the Marshal. § 27. Section 789 of the Revised Statutes provides : "In case of the death of any marshal, his deputy or deputies shall con- tinue in office unless otherwise specially removed, and shall execute the same in the name of the deceased, until another marshal is appointed, as provided in this chapter, and duly quali- fied. 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 execu- tor or administrator of the deceased marshal shall have like remedy for defaults 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."^ District and Assistant District Attorneys ; Appointment. § 28. One of the most important officers of the court is the district attorney, who acts as the attorney for the government within the district for which he is appointed. It is provided by statute that there shall be appointed in each district, except in the western district of South Carolina,^ a per- son learned in the law, to act as attorney in such district; and that the district attorney of the eastern district of South Carolina shall perform the duties of the office for the western district of that state.^ By section 8 of the Act of May 28, 1896,* whenever, in the opinion of the district judge of any district, or the chief justice of any territory, and the district attorney, evidenced by writing, the public interest requires it, one or more assistant dis- trict attorneys may be appointed by the Attorney-General ; but such opinion shall state to the Attorney-General the facts as dis- 1 See also Rev. Stat. 790. For fur- Act of Feb. 24, 1S79, ch. 97, ^ 8, 20 ther information on the subject refer- Stat. L. 320. ence may be had to ch. 14, Rev. Stat. * This section does not apply to the ' Alabama is given a district attor- ofiBce of United States attorney and nay for each district by Act of March his assistants for the southern district 3, 1893, 27 Stat. L. 745 ; 2 Supp. R. S. of New York, or the District of 134 ; and Georgia by Act of April 25, Columbia, nor to Alaska. Ibid. \ 24. 1882, 22 Stat. L. 47 ; I Supp. R. S. It is made applicable to Indian Terri- 336. tory by Act of Feb. 19, 1897, 29 Stat. "Rev. Stat. \ 767: amended by L. 538; 2 Supp. R. S. 556. ORGANIZATION OF DISTRICT COURTS. 47 tinguished from conclusions, showing the necessity therefor. Such assistant district attorneys shall be paid such salary as the Attorney-General may from time to time determine as to each, which shall in no case exceed two thousand five hundred dollars per annum. Provided, That the necessary expenses for lodging and subsistence actually paid, not exceeding four dollars per day, and actual and necessary traveling expenses of the district attorney and his assistants while absent from their respective official residences and necessarily employed in going to, return- ing from, and attending before any United States court, commis- sioner or other committing magistrate, and while otherwise necessarily absent from their respective official residences on official business, shall be allowed and paid in the manner here- inafter provided. 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 districts for which they are appointed. 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- General, and no longer than such approval lasts, employ neces- sary clerical assistance at such salary or salaries as shall be from time to time fixed by the Attorney-General.^ The expense accounts of district attorneys and their assistants when made out in accordance with the terms of this act shall 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 by law.^ The necessary office expenses of the district attorneys shall be allowed when authorized by the Attorney-General.^ District Attorneys' Fees and Compensation. § 29. Chapter xvi. of the Revised Statutes provides for the fees and compensation of district attorneys, clerks, marshals, 1 Act of May 28,1896, I 15, 29 Stat, is made applicable to hidian Terri- L. 140 ; 2 Supp. R. S. 485. This Act tory by Act of Feb. 19, 1897, 29 Stat, does not apply to the southern dis- L. 538 ; 2 Supp. R. S. 556. trict of New York, the District of * Ibid. § 13. Columbia or Alaska. Ibid. I 24. It ^ Ibid. I 14. 48 FEDERAL PLEADING, PRACTICE AND PROCEDURE. commissioners and other officers ; and sections 823 and 824 of said chapter, what costs may be taxed and allowed to at- torneys, solicitors and proctors in the courts of the United States, which embraces district attorneys. By section 6 of the Act of May 28, 1896,^ it is provided that on and after July i, 1896, all fees and emoluments authorized by law to be paid to United States district attorneys shall be charged as theretofore, 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 : said officers shall be paid for their official services, which shall include services in the cir- cuit courts of appeals of their respective circuits.^ Section 7 of the same act provides that district attorneys shall be paid in lieu of the salaries, fees, per centums, and other com- pensations now allowed by law, an annual salary as follows: Alabama, northern and middle districts, each ^4,000; southern district, $3,000; Arizona, $4,000; Arkansas, eastern district, $4,000; western district, $5,000; California, northern district, $4,500; southern district, $3,500; Colorado, $4,000; Connect- icut, $2,500; Delaware, $2,000; Florida, northern and south- ern districts, each $3,500; Georgia, northern district, $5,000; southern district, 3,500; Idaho, $3,000; Illinois, northern and southern districts, each ^5,000; Indian Territory, northern, central and southern districts, each $4,oco;^ Indiana, $5,000; Iowa, northern and southern districts, each $4,500; Kansas, $4,500; Kentucky, $5,000; Louisiana, eastern district, $3,500; western district, S2,5oo; Maine, $3,000; Maryland, $4000; Massachusetts, $5,000; Michigan, eastern district, $4,000; western district, 3,500; Minnesota, $4,000; Mississippi, northern and southern districts, each $3,500; Missouri, eastern and west- ern districts, each $4,500; Montana, $4,000; Nebraska, $4,000; Nevada, $3,000; New Hampshire, $2,000; New Jersey, $3,000; New Mexico, $4,000; New York, northern and eastern districts, each $4,500; North Carolina, eastern district, $4,000; western 1 Act of May 28, 1896, 29 Stat. L. the District of Columbia, nor to 140 ; 2 Supp. R. S. 479. Alaska ; ibid. § 24. 2 This does not apply to the office ^ Act Feb. 19, 1897, 29 Stat. L. of United States Attorney for the 538 ; 2 Supp. R. S. 557 southern district of New York, or ORGANIZATION OF DISTRICT COURTS. 49 district, 1^4,500; North Dakota, ;^4,ooo; Ohio, northern and southern districts, each ;^4,500; Oklahoma, $5,000; Oregon, ;^4,500; Pennsylvania, eastern and western districts, $4,500; Rhode Island, $2,500; South Carolina, eastern and western districts, $4,500 ; $2,500 of which shall be for the performance of the duties of district attorney for the western district : South Dakota, $4,000 ; Tennessee, eastern, middle and western dis- tricts, each $4,500; Texas, northern district, $3,500; eastern district, $5,000; western district, $4,000; Utah, $4,000; Ver- mont, $3,000; Virginia, eastern district, $4,000; western dis- trict, $4,500; Washington, $4,500; West Virginia, $4,500; Wisconsin, eastern and western districts, each $4,000 ; Wyoming, $4,000. All salaries provided by this act are payable by the Depart- ment of Justice monthly.^ The district attorney for the southern district of New York is entitled to receive quarterly a salary at the rate of six thousand dollars a year ; and in addition to the salary he is entitled to such additional sum as may 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 office. But the restrictions above referred to do not prevent the allowance of additional compensation for services in prize cases.^ In such cases the district attorney is allowed just and reasonable compensation, to be adjusted and determined by the court.^ Section 18 provides, That any officer whose compensation is fixed by sections 6 to 15 inclusive of this act who shall directly or indirectly demand, receive 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 im- prisonment, at the discretion of the court, not exceeding five years, or by both such fine and imprisonment. Various sections of Chapter xvi. of the Revised Statutes pro- vide for extra compensation for special and extraordinary services; 1 Act of May 28, 1896, ? 16. ^ Rev. Stat. § 4646. For fees of ^ Rev. Stat. U 77°, 836. officers seeposf, ch. xiii. 4 50 FEDERAL PLEADING, PRACTICE AND PROCEDURE. but the district attorney is required semi-annually in each year, to wit, "on the first days of January and July, or within thirty days thereafter, to 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 fees and emoluments 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." Said returns are required to be verified by the oath of the dis- trict attorney making the same.^ The return is required to embrace all fees, charges and emol- uments to which he may be entitled by reason of the discharge of the duties of his office,^ except fees he may have received in suits or proceedings arising under the revenue laws of the United States, conducted by him, and in which the United States were a party, in which he is allowed two per centum upon the moneys collected,^ and except such compensation as he may have re- ceived for official duty performed by direction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the reve- nue in any suit against such officer, or for the recovery of any money received by him and paid into the treasury of the United States, in the performance of his official duty; in which case he is allowed such compensation as may be certified to be proper by the court in which the suit is brought, and approved by the Secretary of the Treasury.* Duties of District Attorney. § 30. It is the duty of this officer to prosecute in his district all delinquents, for crimes and offences cognizable under the laws and authority of the United States, and all civil actions in which the United States are concerned, and to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors or other officers of the revenue of the United States, 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 of the United States, unless otherwise instructed by the Secretary of the Treasury.^ He is further required, on 1 Rev. Stat. ? 833. ■* Rev. Stat. § 827. 2 Rev. Stat, g 834. ^ Rev. Stat. § 771. » Rev. Stat, g 825. ORGANIZATION OF DISTRICT COURTS. 51 instituting any suit for the recovery of any fine, penalty or for- feiture, to transmit, immediately, a statement thereof to the Solicitor of the Treasury ; ^ and, immediately after the end of every term of the circuit and district courts for his district, to forward to the Solicitor of the Treasury a full and particular statement of all causes pending in said courts respectively, and of all causes decided therein during said term in which the United States are a party, which statement must be accompanied by the certificate of the clerks of said courts respectively ; ^ provided, however, that if any suit or proceeding is commenced, under the internal revenue laws, to which the United States are a party, or any suit or proceeding is instituted against a collector or other officer of the internal revenue, wherein a district attorney appears, it is made the duty of the attorney of the district in which it is brought to report to the Commissioner of Internal Revenue the full particulars relating to the same, and, immediately after the end of each term of the said courts where such suit is pending, forward to said commissioner a full and particular statement of its condition.^ He is further required, on the first day of October in each year, to make a return to the Solicitor of the Treasury of the number of suits and proceedings commenced, pending and de- termined within his district within the fiscal year next preceding the date of such return, showing the date of the commencement of such suit or proceeding; and if the determination of the same has been delayed beyond the usual or a reasonable period, he must state the reasons therefor, and the measures taken by him to press such suits or proceedings to a close.* He is also required, immediately after the end of a term in which any suit for moneys due on account of the Post-Ofifice De- partment has been pending in his district, to forward to the De- partment of Justice a statement of any judgment or order made or steps taken in the same during such term, accompanied by a certificate of the clerk showing the parties to and the amount of every such judgment, with such other information as the Depart- ment of Justice may require. It is also his duty to direct speedy and effectual execution upon any judgment, and the marshal to 1 Rev. Stat. § 772. ^ Rev. Stat, g 774. * Rev. Stat. § 773- * Rev. Stat. § 773. 52 FEDERAL PLEADING, PRACTICE AND PROCEDURE. whom it is directed must make return of his proceedings thereon to the same department at such times as it may direct.^ When any collector of customs or of internal revenue shall report to him, according to law, any case in which any fine, pen- alty or forfeiture has been incurred in his district lor the violation of any law of the United States relating to the revenue, it is his duty to cause the proper proceedings to be commenced and prosecuted without delay for the fines, penalties and forfeitures in such cases provided, unless he shall determine, upon an ex- amination and inquiry, that the proceedings could not be sus- tained or that the ends of justice do not require it; in which case it is his duty to report the facts in customs cases to the Secretary of the Treasury, and in internal revenue cases to the Commissioner of Internal Revenue, for their direction.^ Duty to Prosecute for Crimes. § 31. As it is made the duty of the prosecuting attorney "to prosecute in his district all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States are concerned," it has been held that the federal courts could not properly take cognizance of a cause in the name of the United States unless it is prose- cuted by the district attorney of the district ; ^ and where the prosecution was for a contempt of court in which the United States was interested as plaintiff, it was held that the district attorney should appear as prosecutor.^ But he has no power to dismiss a criminal charge under examination before a commis- sioner, although after indictment found and before the trial is commenced, it seems he has absolute power to enter a nolle prosequi.^ He is the Recognized Officer of the Government. § 32. The federal courts will not recognize a suit, civil or criminal, as legally before them in the name of the United States, unless it be instituted and prosecuted by a district attorney duly 1 Rev. Stat. ? 775. Ben. 132. ^ Rev. Stat. I 838. * Durant v. Washington Co., i 3 United States v. McAvoy, 4 Blatch. Woolw. 377. 418; United States z/. Doughty, 7 zV. ^United States v. Schumann, 2 424; United States v. Blaisdell, 3 Abb. U. S. 523. ORGANIZATION OF DISTRICT COURTS. 53 appointed and commissioned for that purpose.' He is the officer of the government who has the proper charge of its legal pro- ceedings within the district, subject only to the supervision of the Attorney-General. If other attorneys or counsel are em- ployed by the government it is to aid him, and not as official representatives of the government.^ And if the bill, declaration or other pleading on the part of the government does not show that the suit was instituted by the proper district attorney, it would be demurrable,^ The court can only have communication with the executive officers of the government through the dis- trict attorney. It is made, as we have seen, the duty of the district attorney to prosecute in his district all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States are concerned ; and it is his further duty to provide the marshal with the necessary process to carry into execution the judgments of the courts. He should attend the sessions of the grand jury, to advise that body on questions of law that may be presented, to examine witnesses, and, when required by them, to draw indictments. But he has no right to control the action of a grand jury or prevent its con- sideration of any particular case before it, by representing or declaring that the government will not prosecute it. Nor can he enter a nolle prosequi \xi a criminal case without the consent of the court.^ Term and Oath of Office of District Attorney ; Vacancy. § 33. District attorneys are appointed for the term of four years, and their commissions expire at the end of four years from the date of the same ; and every district attorney is re- quired, before entering upon the duties of his office, to be sworn to a faithful execution of the duties of his office.^ But no official bond seems to be required of him. The president may remove a district attorney, before his term ^ United States z/. McAvoy, 4 Blatch. * United States v. Corrie, 23 L. R. 418 ; United States v. Doughty, 7 Id 145. But see United States v. Wat- 424. son, 7 Blatch. 60; United States v. "^ The Pueblo Case, 4 Saw. 553. Schumann, 2 Abb. C. C. 523. ^ United States z/. Doughty, 7 Blatch. ° Rev. Stat. \ 769. 424. 54 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of four years has expired, and appoint his successor, who must be confirmed by the Senate.' In case of a vacancy in the office of the district attorney within any circuit, the circuit judge of such circuit may fill the same and the person so appointed shall serve until an appointment is made by the President and the appointee is duly qualified, and no longer.^ Where the vacancy is in the office of United States attorney for the District of Columbia, the Supreme Court of the District is to make the temporary appointment.^ ^ Parsons v. U. S., 167 U. S. 324. In move an officer when in his judgment this case the court held that Congress it is for the pubHc good, notwithstand- in repealing the tenure of office sec- ing that tlie statute creating the office tions of the Revised Statutes intended may have limited its term, to give again to the President the ^ Rev. Stat. § 793. power of removal (if it had been taken ^ Act of February 27, 1897, ch. 341, from him by the original tenure of 29 Stat. L. 600; 2 Supp. R. S. 564. office act), and to enable him to re- CIRCUIT AND DISTRICT COURTS. 55 CHAPTER IV. TERMS AND SESSIONS OF THE CIRCUIT AND DISTRICT COURTS. Regular Terms of the Circuit and District Courts. § 34. The Revised Statutes provide for the regular terms of the circuit and district courts, and other matters relating to them, which with various subsequent amendments are as follows: Terms of circuit and district courts. — The regular terms of the circuit and district courts shall be held at the times and places following; but when any of said dates shall fall on Sun- day, the terms shall commence on the following day •} Alabama. — NORTHERN DISTRICT: NortJiem Division. — Circuit and districts courts : First Monday in April and second Monday in October, at Huntsville.^ Southern Division. — Circuit and district courts : First Mon- days in March and September, at Birmingham.^ Middle District : Circuit court : First Mondays in May and November, at Montgomery. District court: First Mondays in May and November, at Montgomery. A session of this court is also held on the first Mondays in each month under rules adopted.* Southern District: Circuit and district courts: Fourth Monday in November and first Monday in May, at Mobile.* Alaska. — District court: First Monday in May, at Sitka. First Monday in November, at Juneau.® 1 Rev. Stat. l\ 572, 658. * Act of June 22, 1874, i Supp. R. ^ Act of June 22, 1874, i Supp. R. S. 38. S. 38. * Act of June 26, 1890, i Supp. R. ^ Act of May 2, 1884, i Supp, R. S. S. 760. 427, « Act of May 17, 1884, i Supp. R. S. 430. iJQ FEDERAL PLEADING, PRACTICE AND PROCEDURE. Arizona. — Supreme court: Second Monday in January of each year, at Phoenix. First District: Second Mondays in March and Septem- ber, at Tucson. Second District : First Mondays in May and November, at Florence. Third District : First Mondays in May and November, at Phoenix. Fourth District: First Mondays in June and November, at Prescott ; second Monday in March and first Mon- day in August, at Flagstaff; first Mondays in April and September, at Kingman ; third Monday in April and first Monday in October, at Saint Johns.^ Arkansas." — EASTERN DISTRICT : Easterji Division. — Circuit and district courts : Second Mondays in March and Octo- ber, at Helena. Northern Division. — Circuit and district courts: Second Mondays in June and December, at Batesville. Western Division. — Circuit court: Second Monday in April and fourth Monday in October, at Little Rock. District court: First Mondays in April and October, at Little Rock. Western District: Texarkana Division. — Circuit and dis- trict courts : Second Mondays in May and November, at Texarkana. ^ Act of Feb. II, 1891, I Supp. R. causes, both civil and criminal, now S. 893. pending at Little Rock against per- ^ Act of Feb. 20, 1897, 29 Stat. L. sons residing in the counties of Cal- 590 ; 2 Supp. R. S. 558. All causes, houn and Union shall be disposed of civil and criminal, now pending in in said courts. All causes, process, the courts respectively at Little Rock bonds, recognizances and other things against persons residing in any of pending in, returnable or having ra- the counties made returnable to the lation to, the terms of said courts at courts to be held at Batesville, shall Texarkana and Fort Smith now pro- be determined and disposed of by vided by law shall be proceeded with said courts, and all causes, civil and in the terms provided by this act criminal, now pending against per- with the same force and eflfect that sons residing in the county of Marion would have been lawful had the in the courts respectively at Fort times for holding said courts at said Smith shall be determined and dis- places not been changed. Ibid. posed of by said courts. And all CIRCUIT AND DISTRICT COURTS. 57 Fort Smith Division. — Circuit and district courts: Second Mondays in January and June, at Fort Smith. California. — NORTHERN DISTRICT: Circuit and district courts: First Monday in March, second Monday in July, and first Monday in November, at San Francisco.^ Southern District: Circuit and district courts: Second Monday in January and second Monday in August, at Los Angeles.^ Colorado. — Circuit and district courts : First Tuesdays in May and November, at Denver ; first Tuesday in April, at Pueblo ; first Tuesday in August, at Del Norte.^ Connecticut. — Circuit court: Fourth Tuesday in April, at New Haven ; Second Tuesday in October, at Hartford.* District court: Fourth Tuesday in February, fourth Tuesday in August, at New Haven; fourth Tuesday in May, first Tuesday in December, at Hartford.^ Delaware. — Circuit court: Third Tuesdays in June and October, at Wilmington. District court: Second Tuesdays in January, April, June, and September, at Wilmington. District of Columbia. — Court of appeals : First Mondays in Janu- ary, April, and October. Supreme court, general term: First Mondays in January April, and October. Circuit court: First Tuesdays in January, April, and October. Equity court: First Tuesday in every month. District court: First Mondays in January and July. Criminal court: First Tuesdays in January, April, and October. Each term to continue until the commencement of the next succeeding term. Florida. — NORTHERN DISTRICT: Circuit and district courts: First Monday in February, at Tallahassee ; first Mon- day in March, at Pensacola.^ 1 Act of May 25, 1896, 29 Stat. L. * Act of June 10, 1896, 29 Stat. L. 136; 2 Supp. R. S. 474. 317 ; 2 Supp. R. S. 511. 2 Ibid. * Act of June 30, 1879, i Supp. R. 3 Act of Aug. 3, 1886, I Supp. R. S. 270. S. 510. « Rev. Stat. l\ 572, 658. 58 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Southern District: Circuit and district courts: Second Monday in February, at Tampa ;' first Mondays in May and November, at Key West f first Monday in Decem- ber, at Jacksonville.^ District court also open at all times in admiralty. Georgia. — NORTHERN DISTRICT : Eastern Division. — Circuit and district courts : Second Monday in March* and first Monday in October, at Atlanta.^ Western Division. — Circuit and district courts : First Mon- days in May and December, at Columbus.^ Southern District : Circuit court : First Mondays in May and October, at Macon ;^ second Monday in April and Thursday after first Monday in November, at Savan- nah ; ^ first Monday in April and third Monday in No- vember, at Augusta.^ District court : First Mondays in May and October, at Macon ; ^^ second Tuesdays in February, May, August, and November, at Savannah ; ^* first Monday in April and third Monday in November, at Augusta.^^ Idaho. — Northern Division. — Circuit and district courts : Second Mondays in May and October, at Moscow. Central Division. — First Mondays in April and December, at Boise City. Southern Division.— First Monday in March and second Monday in September, at Blackfoot.^^ Illinois. — Northern District : Northern Division. — Circuit and district courts : First Mondays in March, May, July, and October, and third Monday in December, at Chicago." 1 Act of June 30, 18S6, i Supp. R. » Rev. Stat. \ 658. S. 500. ^ Act of Feb. 15, 1889, i Supp. R. 2 Rev. Stat. ? 572. S. 643. 3 Act of July 23, 1894, 2 Supp. R. i" Act of Jan. 29, 1880, i Supp. R. S. 203. S. 277. * Act of Feb. 23, 1889, I Supp. R. 11 Rev. Stat. \ 572. S. 650. '^ N. E. Div. Act of Feb. 15, 1889, * Act of June 20, 1884, ibid., 439. i Supp. R. S. 643. 6 Act of Aug. 27, 1894, 2 Supp. R. 1^ Act of Nov. 3, 1893, 2 Supp. R. S. 265. S. 150. 7 Act of June 29, 1880, i Supp. R. " Rev. Stat. \\ 572, 65S. S. 276. CIRCUIT AND DISTRICT COURTS. 59 Southern Division. — Circuit and district courts : Third Mon- days in April and October, at Peoria/ Southern District : Circuit and district courts : First Mondays in January and June, at Springfield ; first Monday in May, at Danville/ and first Monday in September, at Quincy.^ District court : First Mondays in March and October, at Cairo.* Indiana. — Circuit and district courts : First Mondays in Janu- ary and July, at New Albany;^ first Mondays in April and October, at Evansville f first Tuesdays in May and November, at Indianapolis ;^ second Tuesdays in June and December, at Fort Wayne.^ Indian Territory. — The United States district courts are held as follows : Northern District: Vinita, Miami, Tahlequah, Mus- cogee. Central District : South McAlester, Atoka, Antlers, and Cameron. Southern District : Ardmore, Purcell, Pauls Valley, Ryan, and Chickasha. At least two terms of court must be held each year at each place of holding court in each district at such regular times as the judge for such district shall fix and determine.^ Iowa. — Northern District : Cedar Rapids Division. — Circuit and district courts : First Tuesday in April and second Tuesday in September, at Cedar Rapids. Eastern Division. — Fourth Tuesday in April and first Tues- day in December, at Dubuque. Western Division. — Fourth Tuesday in May and first Tues- day in October, at Sioux City. 1 Act of March 3, 1S87, i Supp. R. « Act of June 23, 1874, i Supp. R. S. 352. S. 46. 2 Act of July 2, 1890, I Supp. R. S. ' Rev. Stat. ?§ 572, 65S. 764- * Act of March 3, 1881, i Supp. R. ^ Act of Aug. 8, 1888, I Supp. R. S. 327. S. 606. 9 Act of March i, 1895, 2 Supp. R. * Rev. Stat. § 572. S. 392. 6 Rev. Stat. \\ 572, 658. 60 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Central Division — Second Tuesday in June and second Tuesday in November, at Fort Dodgc.^ Southern District: Western Division. — Circuit and district courts : Second Tuesday in March and third Tuesday in September, at Council Bluffs. Eastern Division. — Second Tuesday in April and third Tues- day in October, at Keokuk. Central Division. — Second Tuesday in May and third Tues- day in November, at Des Moines.^ Kansas. — First Division. — Circuit court : First Monday in June, at Leavenworth ; fourth Monday in November, at Topeka. District court: Second Monday in April, at Topeka; second Monday in October, at Leavenworth.^ Second Division. — Circuit and district courts : Second Mon- day in March and second Monday in September, at Wichita.* Third Division. — Circuit and district courts: First Monday in May and second Monday in November, at Fort Scott/ Kentucky. — Circuit and district courts : Third Monday in Feb- ruary and first Monday in October, at Louisville; second Monday in May and first Monday in December, at Covington ; first Monday in January and second Mon- day in June, at Frankfort ; first Monday in April and third Monday in November, at iPaducah f fourth Mon- day in January and first Monday in June, at Owensboro/ Louisiana. — EASTERN DISTRICT : Circuit court: Fourth Monday in April and first Monday in November, at New Or- leans;* second Monday in April and second Monday in November, at Baton Rouge.^ 1 The district court may name time 12 ; Act of March 2, 1895, 2 Supp. R. and place for trial of criminal cases; S. 418. U. S. V. Kessel, 63 Fed. Rep. 433. « Act of July i, 1879, i Supp. R. S. ^ Act of Jan. 4, 1896, 29 Stat. L. 2 ; 271. 2 Supp. R. S. 443. ' Act of Aug. 8, 1888, i Supp. R. 3 Rev. Stat. \l 572, 658. S. 607. * Act of June 9, 1890, i Supp. R. S. « Rev. Stat. I 658. 744 ; Act of March 2, 1895, 2 Supp. » Act of Aug. 13, 1S88, i Supp. R. R. S. 417. S. 615. 5 Act of May 3, 1892, 2 Supp. R. S. CIRCUIT AND DISTRICT COURTS. 61 District court : Third Mondays in February, May, and November, at New Orleans ;^ second Mondays in April and November, at Baton Rouge.^ Western District : Circuit and district courts : First Mon- days in January and June, at Opelousas ; fourth Mon- days in January and June, at Alexandria ; third Mondays in February and July, at Shreveport; first Mondays in April and October, at Monroe.^ Maine. — Circuit court : Twenty-third of April and September, or if the twenty-third falls on Sunday, the twenty-fourth, at Portland.* District court: First Tuesdays in February and December, at Portland; first Tuesday in June, at Bangor;^ first Tuesday in September, at Bath.^ Maryland. — Circuit court : First Mondays in April and Novem- ber, at Baltimore;'' second Monday in May and last Monday in September, at Cumberland.^ District court : First Tuesdays in March, June, Septem- ber, and December, at Baltimore;^ second Monday in May and last Monday in September, at Cumberland.^*' Massachusetts. — Circuit court : Fifteenth of May and fifteenth of October, at Boston.^^ District court : Third Tuesday in March, fourth Tuesday in June, second Tuesday in September, and first Tues- day in December, at Boston.^^ Michigan. — EASTERN DISTRICT : Soiitlicvu Division. — Circuit and district courts : First Tuesdays in March, June, and November, at Detroit;'^ district court only, fourth Mondays in January and June, at Port Huron. ^* Northern Division. — Circuit and district courts : First Tues- ^ Rev. Stat. \ 572. ^ Act of March 21, 1892, 2 Supp. R. 2 Act of Aug. 13, 1888, I Supp. R. S. 5. S. 615. 9 Rev. Stat. I 572. * Act of March 3, 1881, i Supp. R. J" Act of March 21, 1892, 2 Supp. R. S. 325- S. 5- * Rev. Stat. \ 658. " Rev. Stat. \ 658. ^ Act of Jan. 18, 1884, i Supp. R. ''' Rev. Stat. \ 572. S. 423. J3 Rev. Stat. \ 572. « Rev. Stat. \ 572. " Act of June 19, 1878, i Supp. R. ' Rev. Stat. \ 658. S, 198. 62 FEDERAL PLEADING, PRACTICE AND PROCEDURE. days in May and October, at Bay City.^ District court special admiralty session in February." Western District: Sotithern Division. — Circuit and district courts : First Tuesdays in March and October, at Grand Rapids. Northern Division. — Circuit and district courts : First Tues- days in May and September, at Marquette.^ Minnesota. — First Division. — Circuit and district courts : First Tuesday in June and first Tuesday in December, at Winona. Second Division. — Circuit and district courts : Third Tuesday in April and first Tuesday in November, at Mankato. TJiird Division. — Circuit and district courts: Fourth Tuesday in June and second Tuesday in January, at St. Paul. Fourth Divisioji. — Circuit and district courts : First Tuesday in March and first Tuesday in September, at Minne- apolis. Fifth Division. — Circuit and district courts : Second Tuesday in May and second Tuesday in October, at Duluth. Sixth Division. — Circuit and district courts : Fourth Tues- day in March and fourth Tuesday in September at Fergus Falls.* Mississippi. — NORTHERN DISTRICT: Eastcm Division. — Circuit and district courts : First Mondays in April and Octo- ber, at Aberdeen, Westeini Division. — Circuit and district courts: First Mondays in June and December, at Oxford.^ Southern District : Circuit court, first Mondays in May and November; district court, fourth Mondays in Jan- uary and June, at Jackson. Western Division. — Circuit and district courts : First Mon- days in January and July, at Vicksburg.® ^ Act of April 30, 1894, 28 Stat. L. be brought and prosecuted in the 67; 2 Supp. R. S. 181. division in which the offence was ^ Act of Feb. 28, 1887, I Supp. R. committed. Act of July 12, 1S94, 2 S. 543- Supp. R. S. 195. » Act of June 19, 1878, i Supp. R. ^ Act of June 15, 1882, i Supp. R. S. 198. S. 344. * Act of April 26, 1890, I Supp. R. « Act of Feb. 28, 1887, i Supp. R. S. 719, All criminal ofTences must S. 547. CIRCUIT AND DISTRICT COURTS. 63 Southerti Divisioji. — Circuit and district courts : Third Mon- days in February and August, at Mississippi City.^ Eastern Division. — Circuit and district courts: Second Mon- days in March and September, to continue for three weeks, or so long as business may require, at Meridian.^ Missouri. — EASTERN DISTRICT I Eastern Division. — Circuit court : Third Mondays in March and September, at St. Louis.^ District court: First Mondays in May and November, at St. Louis.* Northern Divisiofi. — Circuit and district courts : Fourth Mon- day in May and first Monday in November, at Han- nibal.^ Western District: Circuit and district courts: Fourth Monday in April and first Monday in November, at Kansas City; first Monday in March and third Monday in September, at St. Joseph ; first Mondays in April and October, at Springfield ; third Mondays in March and October, at Jefferson City.^ Montana. — Circuit and district courts : First Mondays in April and November, at Helena.^ Southern Division. — First Tuesdays in February and Sep- tember, at Butte.^ Nebraska. — Circuit and district courts : First Monday in May and second Monday in November, at Omaha; third Monday in January and first Monday in October, at Lincoln; third Monday in April, at Hastings; fourth Monday in April, at Norfolk.^ Nevada. — Circuit court : Third Monday in March and first Mon- day in November, at Carson City.^" District court : First Mondays in February, May and October, at Carson City." 1 Act of April 4, i888, i Supp. R. ' Act of Feb. 22, 1889, i Supp. R. S. 583. S. 649. 2 Act of July 18, 1894, 28 Stat. L. » Act of July 20, 1892, 2 Supp. R. 114; 2 Supp. R. S. 202. S. 40. 3 Rev. Stat. I 658. » Act of Aug. 3, 1894, 2 Supp. R. * Rev. Stat. \ 572. S. 222. ^ Act of May 14, 1890, i Supp. R. S. ^0 Act of Feb. 18, 1876, i Supp. R. 738. S. 98. « Act of April 19, 1892, 2 Supp. R. Rev. Stat. \ 658. S. 10. 64 FEDERAL PLEADING, PRACTICE AND PROCEDURE. New Hampshire. — Circuit court : Eighth day of May, at Ports- mouth ; last Tuesday in August, at Littleton ; ' eighth day of October, at Concord,^ District court : Third Tuesdays in March and September, at Portsmouth;'^ third Tuesdays in June and December, at Concord;^ last Tuesday in August, at Littleton.* New Jersey.^ — Circuit court: Fourth Tuesdays in March and September, at Trenton/ District court: Third Tuesdays in January, April, June and September, at Trenton.^ New Mexico. — Supreme court: Last Monday in July, at Santa Fe. First District : District court : First Monday in January and last Monday in May, at Santa Fe, Second District : District court: First Mondays in March and October, at Albuquerque. Third District : District court : First Mondays in Feb- ruary and September, at Las Cruces. Fourth District: District court: First Mondays in April and November, at Las Vegas. Fifth District : District court : First Mondays in May and December, at Socorro.^ New York. — NORTHERN DISTRICT: Circuit court: Third Tues- day in June, at Canandaigua ; third Tuesday in Novem- ber, at Syracuse ; third Tuesday in January, at Albany ; adjourned term for civil business only on the third Tuesday in March, at Utica. Also special sessions for motions Tuesday of each week (July and August ex- cepted), at Utica. District court: Third Tuesday in January, at Albany; third Tuesday in March, at Utica ; second Tuesday in May, at Rochester ; third Tuesday in September, at . ^ Rev. Stat. § 658. may order cause to be lieard or tried " Act of Feb. 23, 18S1, I Supp. R. at Newark, upon a day set for that S. 317. purpose. Act of Aug. 8, 1888, i ^ Rev. Stat. ? 572. Supp. R. S. 607. * Act of Feb. 23, 1881, I Supp. R. ' Rev. Stat. I 658. S. 317. * Rev. Stat. § 572. ^ Act of March 10, 1892, 2 Supp. R. "Act of July 10, 1890, i Supp. R. S. 4- S. 771- "Judge upon consent of parties CIRCUIT AND DISTRICT COURTS. 65 Buffalo ; third Tuesday in November, at Auburn ; and in the discretion of the judge, one term annually at such time and place within the counties of Onondaga, St. Lawrence, Clinton, Jefferson, Oswego, and Franklin as he may from time to time appoint. Special sessions in admiralty, at Utica, Tuesdays.^ Southern District : Circuit court : Last Monday in Feb- ruary, first Monday in April, and third Monday in October; and (criminal only) second Wednesdays in January, March, May, October, and December, and third Wednesday in June, at New York City.^ District court : First Tuesday in each month, at New York City .3 Eastern District : Circuit and district courts : First Wednesday in every month, at Brooklyn.* North Carolina, — EASTERN DISTRICT: Circuit court: Fourth Mon- day in May and first Monday in December, at Raleigh ; first Monday after the fourth Mondays in April and October, at Wilmington.^ District court: Fourth Monday in May and first Monday in December, at Raleigh ; first Monday after the fourth Mondays in April and October, at Wilmington ; fourth Mondays in April and October, at Newbern ; third Mondays in April and October, at Elizabeth City. Western District : Circuit and district courts : First Mon- days in April and October, at Greensboro ; third Mon- days in April and October, at Statesville ; first Mondays in May and November, at Asheville,^ and second Mon- days in June and December, at Charlotte.'^ North Dakota, — Circuit and district courts : First Tuesday in March, at Bismarck ; Third Tuesday in May, at Fargo ; Second Tuesday in November, at Grand Forks ; first Tuesday in July, at Devil's Lake.^ ^ Act of March 23, 1882, i Supp. R. S. 234. S. 334. « Rev. Stat. § 572. 2 Rev. Stat. ? 65S. ^ Act of June 19, 1878, i Supp. R. ^ Rev. Stat. § 572. S. 196. * Rev. Stat. U 572, 658. « Act of Feb. 4, 1895, 2 Supp. R. 5 Act of Aug. 9, 1894, 2 Supp. R. S. 368. 5 66 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Ohio. — Northern District: Eastern Division: Circuit and dis- trict courts : First Tuesdays in January, April, and October, at Cleveland.^ Western Division : First Tuesdays in June and December, at Toledo.^ Southern District : Western Division : Circuit and district courts : First Tuesdays in February, April, and Octo- ber, at Cincinnati.^ Eastern Division : First Tuesdays in June and December, at Columbus.* Oklahoma, — Supreme court : First of January and first of June of each year, at Guthrie. First district court : Second Monday in September, third Monday in February, Logan County ; First Wednesday in November, third Tuesday in April, Lincoln County; fourth Tuesday in November, second Tuesday in May of each year, Payne County. Second district court: Second Monday in September, Blaine County; third Thursday in September, "D" County ; first Monday in October, Day County ; second Monday in October, Roger Mills County; third Wednes- day in October, " G" County; fifth Tuesday in October, Washita County; third Monday in November, Canadian County. Third district court : Second Tuesday in September, first Tuesday in May, Pattawatomie County; second Tues- day in October, third Tuesday in February, Oklahoma County ; third Tuesday in November, first Tuesday in April, Cleveland County.^ Oregon. — Circuit court: Second Monday in April and first Mon- day in October, at Portland.® District court : First Mondays in March, July and Novem- ber, at Portland.^ 1 Rev. Stat. I 572. ^ Act of Dec. 21, 1893, 2 Supp. R. 2 Act of June 8, 1878, i Supp. R. S. S. 164. 172. ® Act of Feb. 18, 1876, I Supp. R. " Rev. Stat. l\ 572, 658. S. 98. * Act of Feb. 4, 1880, I Supp. R. ' Rev. Stat. \ 572. S. 277. CIRCUIT AND DISTRICT COURTS. 67 Pennsylvania.^ — EASTERN DISTRICT: Circuit court : First Mon- days in April and October, at Philadelphia. District court : Third Mondays in February, May, August and November, at Philadelphia. Western District : District court : First Monday in May and third Monday in October, at Pittsburg. Circuit court : Second Mondays in May and November, at Pittsburg. District court: Third Monday in June and first Monday in October, at Williamsport. Circuit court: Third Mondays in June and September, at Williamsport. District court : First Mondays in March and September, at Scranton. Circuit court : First Mondays in March and September, at Scranton.^ District court : Third Monday in July and second Mon- day in January, at Erie. Circuit court : Third Monday in July and second Mon- day in January, at Erie.^ Rhode Island.* — Circuit court: June 15 and November 15, at Providence. District court : First Tuesday in February and first Tues- day in August, at Providence ; second Tuesday in May and third Tuesday in October, at Newport. South Carolina. — Circuit court: First Monday in April, at Charleston ; first Mondays in February and August, at Greenville; fourth Monday in November, at Columbia.^ District court: First Mondays in January, May, July and October, at Charleston ; first Mondays in February and August, at Greenville; and fourth Monday in Novem- ber, at Columbia.^ South Dakota. — Circuit and district courts : First Tuesday in April and third Tuesday in October, at Sioux Falls ; 1 Rev. Stat. U 572, 658. * Rev. Stat. ? 658, Act of Feb'y 6, 2 Act of Aug. 5, 1886, I Supp. R. 1889, I Supp. R. S. 638. S. 515. ^ Act of April 26, 1890, i Supp. R. 3 Rev. Stat. U 572, 65S. S. 718 ; Act of July 23, 1892, 2 /did. 46. * Rev. Stat. ? 572, 658. 68 FEDERAL PLEADING, PRACTICE AND PROCEDURE. first Tuesdays in March and October, at Pierre ; first Tuesdays in February and September, at Deadwood;^ first Tuesday in May and third Tuesday in November, at Aberdeen.^ Tennessee. — Eastern District : Northern Division. — Circuit and district courts : First Mondays in March and Septem- ber, at Knoxville.^ Southern Division. — Circuit and district courts : First Mon- days in April and October, at Chattanooga.* Middle District : Circuit and district courts : Third Mon- days in April and October, at Nashville. Western District : Eastern Division. — Circuit and district courts : First Mondays in April and October, at Jackson. Western Division. — Circuit and district courts : Fourth Mondays in May and November, at Memphis.^ Texas. — EASTERN DISTRICT : Circuit and district courts : — First Mondays in January and September, at Tyler; fourth Mondays in January and September, at Jefferson ; third Mondays in February and October, at Galveston ; first Monday in April and third Monday in November, at Paris ;^ first Mondays in June and December, at Beau- mont.*^ Northern District. — Circuit and district courts: Second Monday in April and third Monday in November, at Waco; second Monday in January and third Mon- day in May, at Dallas ; first Monday in March and third Monday in September, at Fort Worth ; third Monday in March and third Monday in October, at Abilene ; fourth Monday in March and first Monday in Novem- ber, at San Angelo.^ 1 Act of Aug. 5, 1892, 2 Supp. R. ^ Act of June 20, 187S, i Supp. R. S. 70. S. 203. ''Act of Nov. 6, 1893, 2 Supp. R. « Act of April 7, 1892, 2 Supp. R. S. 8. S. 151. ' Act of Feb. 8, 1897, 2 Supp. R. 3 Act of Feb. 27, 1896, 29 Stat. L. S. 547. 39; 2 Supp. R. S. 449. ' Act of June 11, 1896, 29 Stat. L. * Act of June 11, 1880, i Supp. R. 456 ; 2 Supp. R. S. 527 ; by this act S 295. the terms at Graham were abolished. CIRCUIT AND DISTRICT COURTS. 69 Western District. — Circuit and district courts: First Mondays in May and November, at San Antonio ; first Mondays in April and October, at El Paso ; second Monday in June and first Monday in January, at Brownsville ; first Mondays in February and July, at Austin.^ Utah. — Central Division. — Circuit and district courts : first Mon- days in May and December, at Salt Lake.^ Northern Division. — Circuit and district courts : First Mon- days in March and September, at Ogden. Vermont. — Circuit and district courts ; Fourth Tuesday in Feb- ruary, at Burlington ; third Tuesday in May, at Wind- sor; first Tuesday in October, at Rutland.^ In each year one of the stated terms of the circuit and district court, may, when adjourned, be adjourned to meet at Montpelier.'' Virginia. — EASTERN DISTRICT : Circuit and district courts : First Mondays in April and October, at Richmond; first Mondays in May and November, at Norfolk; first Mondays in July and January, at Alexandria.^ Western District. — Circuit and district courts : Tuesdays after the second Mondays in April and November, at Danville; Tuesdays after the second Mondays in March and September, at Lynchburg ; Tuesdays after the first Mondays in May and October, at Abingdon ; Tuesdays after the first Mondays in June and Decem- ber, at Harrisonburg.^ "Washington. — Northern Division. — Circuit and district courts : First Tuesdays in June and December, at Seattle. Southern Division. — Circuit and district courts : First Tues- days in May and November, at Wallawalla. Eastern Division. — Circuit and district courts : First Tues- days in April and September, at Spokane Falls. 1 Act of Feb. 4, 1890, i Supp. R. < Act of July 3, 1S94, 2 Supp. R. S. S. 703. 193- 2 Act of March 2, 1897, 29 Stat. L. = Rev. Stat. ?? 572, 658. 620 ; 2 Supp. R. S. 576. « Act of Sept. 25, 1890, i Supp. R. sRev. Stat. U 572, 658; Act of S. 806. June 5, 1874, I Supp. R. S. 10. 70 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Westerji Division. — Circuit and district courts : First Tues- days in July and F"ebruary, at Tacoma.^ "West Virginia — Circuit court : January lo and June lo, at Park- ersburg; April i and September 20, at Wheeling; April 15 and October i, at Clarksburg; May i and November 10, at Charleston; October 15, at Martins- burg. District court : April i and September 20, at Wheeling ; April 15 and October i, at Clarksburg; May i and November 10, at Charleston; October 15, at Martins- burg.2 "Wisconsin. — EASTERN District: Circuit and district courts: First Mondays in January and October, at Milwaukee; second Tuesday in June, at Oshkosh.^ Western District: Circuit and district courts : First Tues- day in December, at Madison; first Tuesday in June, at Eau Claire; third Tuesday in September, at La Crosse.* "Wyoming. — Circuit and district courts : Second Mondays in May and November, at Cheyenne ; ^ first Monday in July, at Evanston.'^ The circuit and districts courts are required to hold one session annually at Sheridan, and may also hold other sessions at any other place in the State of Wyoming, or in the Yellowstone National Park, which is part of the district of Wyoming, at such dates as the courts may order.'' Effect of changing time of holding district courts. — ^^^' 573- No action, suit, proceeding or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court; but the same shall be deemed to be returnable to, pending and triable in the terms established next after the return day thereof. ^ Act of April 5, 1S90, I Supp. R. at Eau Claire as clerk thereof. Act S. 712. of Aug. 5, 1886, I Supp. R. S. 515. ^ Act of July 22, 1892, 2 Supp. R. ° Act of July 5, 1892, 2 Supp. R. S. S. 42. 29. ^ Act of March 31, 1892,2 Supp. R. ^ Act of May 23, 1892, 2 Supp. R. S. 5- S. 22. * The clerk residing at Madison ' Act of May 7, 1894, 2 Supp. R. S. shall attend all terms of said courts 186. circuit and district courts. 71 Court always open as a court of admiralty for certain PURPOSES. — Sect^y^. The district courts, as courts of admiralty, and as courts of equity so far as equity jurisdiction has been con- ferred upon them, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. And any dis- trict judge 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 such process, commissions, orders, rules and other proceedings, whenever the same are not grant- able of course, according to the rules and practice of the court. District court in the southern district of Florida. — Sec. 575. The district court for the southern district of Florida shall at all times be open, for the purpose of hearing and decid- ing causes of admiralty and maritime jurisdiction. District courts in Wisconsin. — Sec. 576. The district courts of the districts of Wisconsin shall at all times be open, for the purpose of hearing and deciding causes of admiralty and mari- time jurisdiction, so far as the same can be done without a jury. District courts in Kentucky and Indiana. — Sec. 577. In the districts of Kentucky and Indiana the terms of the district courts shall not be limited to any particular number of days, nor shall it be necessary to adjourn by reason of the intervention of a term of the court elsewhere ; but the court intervening may be adjourned over till the business of the court in session is con- cluded.^ Adjournment in criminal cases. — Sec. 578. District courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. Adjourned terms. — Sec. 579. The judge of any district court in Indiana, Kentucky, Louisiana, Michigan, Ohio, Penn- sylvania and Texas may adjourn the same from time to time, to meet the necessities or convenience of the business. Adjourned terms in Kentucky and Indiana. — Sec. 580. In 1 Act of July I, 1879, I Supp. R. S. 271. 72 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the districts of Kentucky and Indiana the intervention of a term of the district court at another place, or of a circuit court, shall not preclude the power to adjourn over to a future day. Special terms. — Sec. 581. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. And any business may be transacted at such special term which might be transacted at a regular term.^ Tennessee ; when circuit judges may act as district JUDGES. — Sec. 582. In the case of the non-attendance of the district judge of Tennessee at any term of the district court in either of the districts thereof, the circuit justice or circuit judge of the circuit to which such district belongs may hold such term, and shall have and exercise the jurisdiction and powers given by law to a district judge. Adjournment in case of non-attendance of a judge. — Sec. 583. If the judge of any district court is unable to attend at the commencement of any regular, adjourned or special term, the court may be adjourned by the marshal, by virtue of a writ- ten order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. The same in certain states. — Sec. 584. If any judge of any district court in Alabama, California, Georgia, Indiana, Iowa, Kentucky, North Carolina, Tennessee or West Virginia is not present at the time for opening the court, the clerk may open and adjourn the court from day to day for four days ; and if the judge does not appear by two o'clock after noon of the fourth day, the clerk shall adjourn the court to the next regular term But this section is subject to the provisions of the preceding and next sections. Adjournment in Indiana and Kentucky. — Sec. 585. In the districts of Indiana and Kentucky, the district judge, in the case provided in the preceding section, may, by a written order to the clerk within the first three days of his term, adjourn the district court to a future day within thirty days of the first day. The ^ This is a consolidation of powers other acts relating to particular dis- given by § 3 of the judiciary act and tricts. CIRCUIT AND DISTRICT COURTS. 73 clerk shall give notice of such adjournment by posting a copy of said order on the front door of the court house where the court is to be held. Intermediate terms in California, Iowa and Tennessee. — Sec. 586. Whenever the judge of any district court in the dis- tricts 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 court requires it, to hold an intermediate term. Such in- termediate term shall be appointed by an order under his hand and seal, addressed to the clerk and marshal at least thirty days previous to the time fixed therein for holding it, and the order shall be published the same length of time in the several newspapers published within such districts respectively. And at such inter- mediate term the business of the court shall have reference to and be proceeded with in the same manner as if it were a regular term. Business certified to circuit court in case of disability OF district judge. — Sec. 587, When satisfactory evidence is shown to the circuit judge of any circuit, or, in his absence, to the circuit justice allotted to the circuit, that the judge of any district therein is disabled to hold a district court, and to perform the duties of his office, and an application 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, may issue his order in the nature o^ 2i certiorari, directed to the clerk of such district court, requiring him forthwith to certify 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 im- mediately published in one or more newspapers printed in said di.strict, at least thirty days before the session of such circuit court, and shall be sufficient notification to all concerned; and thereupon the circuit court shall proceed to hear and determine the suits and processes so certified. And all bonds and recog- nizances 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.^ VSee also I 637. 74 FEDERAIv PLEADING, PRACTICE AND PROCEDURE. Suits brought in district court after order to certify to CIRCUIT COURT. — Sec. 588. When an order has been made as provided in the preceding section, the clerk of the district court shall continue, during the 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 determine 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 cogni- zance, 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 proceedings shall then be had in the district court as would have been had if such suits had originated or been continued therein. Construction of the foregoing section. — The language of the statute evidently supposes a district judge in existence to whom the causes may be remanded. It does not direct a cer- tiorari on his death, but on his disability. It does not suppose a vacancy, but an incumbency, in the office. The meaning of the statute must be that while there is a judge in office who is disabled to hold a court, his duties shall be performed by the circuit court during the disability. With his death the disability ceases, a vacancy ensues in the office, and a new appointment awakens in full vigor the powers of the district court.^ Powers of district judge vested during disability in CIRCUIT JUDGE. — Scc. 589. In the case provided in the two pre- ceding 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.^ ^ Story, J., in Ex parte U. S., i why an injunction should not be Gallis. 338. granted and a receiver appointed in 2 Rev. Stat. \ 589. A circuit judge proceedings in involuntary bank- may issue an order to show cause ruptcy; and in the absence of proof CIRCUIT AND DISTRICT COURTS. 75 Preparatory examinations and orders by the clerk in ADMIRALTY CASES. — Scc. 590. When the business of a district court is certified into the circuit court on account of the dis- abihty of the district judge, the district clerk shall be authorized by order of the circuit judge, or, in his absence, of the circuit justice within whose circuit such district is included, to take, during such disability, all examinations and depositions of wit- nesses, and make all necessary rules and orders, preparatory to the final hearing of all causes of admiralty and maritime juris- diction.^ District judge designated to perform duties of disabled JUDGE. — Sec. 591. 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 the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the cir- cuit 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 disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the district clerk to the judge so designated and appointed.^ Designation of another judge in case of accumulation of BUSINESS. — Sec. 592. When, from the accumulation or urgency of business in any district court, the public interests require the designation and appointment hereinafter provided, and the fact is made to appear, by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the cir- cuit justice of the circuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any the circuit judge is presumed to have 1875, ch. So, 18 Stat. L. 317. acted according to law in issuing the '^ This section does not authorize order: Wallace v. Loomis, 97 U.S. the designation of a judge to hold 146. court in a district in which the office 1 As amended by Act of Feb 18., of judge is vacant; 9 A. G. Op. 131. 76 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 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 cir- cuit 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. When designation of another judge by the chief justice OF THE United States. — Sec. 593. If the circuit judge and cir- cuit justice are absent from the circuit, or are unable to execute the provisions of either of the two preceding sections, or if the district judge so designated is disabled or neglects to hold the 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 appoint, in the manner aforesaid, the judge of any district within such circuit or within any circuit next contiguous; and said appointment shall be transmitted to the district clerk, and be acted upon by him as directed in the preceding section. Revocation and new appointments. — Sec. 594. 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 any 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. Duty of district judge to comply with the designation AND appointment. — Scc. 595. 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, daring the continuance 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 proceeding 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. Designation of judge when public interest requires it. — Sec. 596. It shall be the duty of every circuit judge, whenever in his judgment the public interest so requires, to designate and CIRCUIT AND DISTRICT COURTS. 77 appoint/ ill the manner and with the powers provided in section five hundred and ninety-one, the district judge of any judicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same cir- cuit; and it shall be the duty of the district judge so designated and appointed, to hold the district or circuit ^ as aforesaid, with- out any other compensation than his regular salary as estab- lished by law, except in the case provided in the next section.^ Expenses of judge designated to southern district of New York. — Sec. 597. Whenever a district judge from another district holds a district or circuit court in the southern district of New York, in pursuance 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. Disability of judges in Florida. — Sec. 598. When a certifi- cate 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 author- ized to hold such courts, and to exercise all the powers of dis- trict judge, in the district of the judge so certifying. Disability of judges in New York. — Sec. 599. Whenever the judge of the northern district of New York is disabled to perform the duties of his office, it shall be the duty of the judge of the southern district, upon receiving from him notice thereof, to hold the district court, and to perform all the duties of dis- trict 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 a like notice, to hold the district court, and to perform all the duties of district judge for the southern district. In such cases the said judges, respectively, shall have the same powers as are vested in the judge so disabled. ^ The appointment should be filed ' Rev. Stat. § 596 ; so much of this in the ofiice of the clerk of the dis- section as forbids the payment of ex- trict court: National Home v. Butler, penses of district judges while hold- 33 Fed. Rep. 374 ; The Alaska, 35 ing court outside of their districts is id- 555. repealed by Act of March 3, iSSi, i "^ The word court omitted. Supp. R. S. 321. 78 FEDERAL PLEADING, PRACTICE AND PROCEDURE. When JUDGE of eastern district of new york may act in SOUTHERN. — Sec. 6oo. Whenever the judge of the southern dis- trict of New York deems it desirable, on account of the pressure of public business or other cause, that the judge of the eastern district shall perform the duties of a district judge in the southern district, an order to that effect may be entered upon the records of the district court thereof; and thereupon the judge of the east- ern district shall have power to hold the district court, and to perform all the duties of district judge for the southern district. When a judge is interested in a suit pending before him. — Sec. 6oi. Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel 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 appli- cation 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 next circuit court in the state; and if there be no circuit court in the state, to the next conve- nient circuit court in an adjoining state; and the circuit court shall, upon the filing of such record with its clerk, take cogni- zance of and proceed to hear the case, in like manner as if it had originally and rightfully been commenced therein.^ Continuances by vacancy in office of the judge. — Sec. 602. When the office of judge of any district court is vacant, all process, pleadings and proceedings pending before such court shall be continued 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. Vacancy in office of district judge. — Sec. 603. When the office of district judge is vacant in any district in a state contain- ing two or more districts, the judge of the other or of either of 1 See also ^ 637 ; the fact that the The Riclimoiid, 9 Fed. Rep. 863 ; in district judge has been counsel for Spencer v. Lapsley, 20 How. 264, an one of the parties in a different suit interested judge of the district court is no ground for challenge, at least in was held to have power to make an the absence of a motion to remove : order of removal to the circuit court. CIRCUIT AND DISTRICT COURTS. 79 the Other districts may hold the district court, or the circuit 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 va- cancy; and all the acts and proceedings in said courts, by or before such judge of an adjoining district, shall have the same effect and validity as if done by or before a judge appointed for such district/ 1 The Act of 1789 related only to a death ; the act of 1861 provided for vacancy caused by the death of a vacancies, by death or resignation, judge ; and the exception at the end only in states containing two dis- of § 602 is here added, being made tricts, and provided no means of in- necessary by the act of 1861, which formation upon which the judge of forms the basis of ^ 603; the judic- one district in a state should proceed iary act provided only for vacancy by to hold a court in the other. 80 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER V. JURISDICTION OF THE DISTRICT COURTS. Jurisdiction, Special and Limited. § 35. Having treated of the organization and constitution of the district courts and of the terms and sessions thereof, we will now proceed to consider their jurisdiction and point out some of the general rules of practice and procedure therein. The juris- diction of these courts is less varied and extensive than that of the circuit courts, and it has remained substantially the same ever since their original institution; whereas the jurisdiction of the circuit courts has been much enlarged within the last few years, and especially by the liberal provisions of statutes for the removal of causes thereto from the state courts. The business of the district courts is mainly limited to the cognizance of cer- tain crimes and offences under the laws of the United States, to proceedings for the recovery of penalties and forfeitures, and to matters of admiralty and maritime jurisdiction. The criminal jurisdiction of these courts is limited to offences which are ex- pressly made such by the statutes of the United States; and they have, in a strict sense, no common law jurisdiction of crimes, or jurisdiction of the crimes known to the common law, unless such jurisdiction is conferred by some act of Congress.^ They 1 United States v. Barney, 5 Blatch. define or recognize it as such, affix a 294; Wilson's Case, 3/0^.435; God- punishment to it, and confer jurisdic- frey's Case, 17 Johns. 225 ; the rule tion upon some court to try the of- is applicable to all United States fender. U. S. v. Hall, 98 U. S. 345 ; Courts. If Congress has not declared U. S. v. Britten, 108 id. 206 ; U. S. an act done to be a crime against the v. Eaton, 144 id. 677. United States the courts have no So strict have the courts been in power to treat it as such. U. S. v. adhering to this rule that they would Reese, 92 U. S. 216: Before an of- not take jurisdiction of oflfences not fence can become cognizable in the defined by statutes that were virtually Circuit Court, Congress must first or consequentially included in others JURISDICTION OF THE DISTRICT COURTS. 81 have power to punish, by fine or imprisonment, contempts ot their authority, in cases of the misbehavior of any person in their presence, or so near thereto as to obstruct the administra- tion of justice, the misbehavior of any of the officers of the courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree or com- mand of the court.^ They have general admiralty and maritime jurisdiction, and in the exercise thereof they are only subject to, and controlled by, the general principles of admiralty and mari- time jurisprudence, unless otherwise provided by statute law, which we shall hereafter consider.^ that were defined. In United States v. Ramsey, Hemp. C. C, 481, the court quashed an indictment against Ram- sey for being accessory to the killing of a man in the Indian country, hold- ing that there was no law to punish him for this, although there was for the punishment of the crime of mur- der. See also U. S. v. Terrell, Hemp. C. C, 411 and 422, and U. S. v. Al- buty, Hemp. C. C, 444. See also Kent Com. 332 seq. ; Spear Fed. Jud. 223, 667 seq. ; Whart. Comm. Am. Law, 524; Whart. Cr. Law (8th ed.), 254; Cooley, Const. Lim., 19, 20; United States v. Hudson, 7 Cr. 32 ; United States v. Cooledge, i Wh. 415 ; United States v. Bevans, 3 Wh. 336. ^ Rev. Stat. \ 725. As to the power of punishing for contempt in the presence of the court, see Exp.Tftrry, 12S U. S. 289; Eilenbecker v. Dis- trict Court, 134 id. 31. Misbehavior in any place set apart for use of court, as jury and witness rooms, hallways, etc., is in the presence of the court: Ex p. Savin, 131 id. 207. The exer- cise of this power by courts of gen- eral jurisdiction is not subject to re- view by writ of error or. appeal to the Supreme Court, yet when a court 6 of the United States undertakes by its process of contempt to punish a man for refusing to comply with an order which that court had no author- ity to make, the order itself being without jurisdiction is void; and the order punishing for contempt is equally void. When the proceeding for contempt in such case results in imprisonment, the Supreme Court will, by its writ oi habeas corpus, dis- charge the prisoner. Ex p. Fisk, 113 U. S. 713 ; Ex p. Ayers, 123 id. 443; Ex p. Sawyer, 124 id. 200: Interfer- ence with receivers may constitute contempt. Am. Const. Co. v. Jack- sonville, etc., Co., 52 Fed. Rep. 937; Re. Acker, 66 id. 290 ; Re. Phelan, 62 id. 803; U. S. V. Jose, 63 id. 951 : Al- though the act may constitute a crime, yet if it be also a contempt the court may punish it as such : U. S. V. Debs, 64 id. 724. '^ The jurisdiction of District Courts in civil cases as conferred by the 18 clauses of Rev. Stat. \ 563, and sev- eral subsequent acts of Congress, is discussed in the ensuing pages. It is- summarized as follows in Foster's Fed. Pr. I 25 : Suits for penalties and forfeitures incurred under any law of the United States ; suits at common law brought 82 FEDERAL PLEADING, TRACTICE AND PROCEDURE. Jurisdiction of Crimes and Offences. § 36. In relation to the jurisdiction of the district courts of crimes and offences, the statute provides that they shall have jurisdiction "of all crimes and offences 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, except in the cases mentioned in section 5412, title Crimes."^ In cases where the punishment is capital, and in those cases by the United States or any officer thereof, authorized by law to sue ; suits in equity to enforce the lien of the United States upon any real estate for any internal revenue tax, or to subject to the payment of any such tax any real estate owned by the delinquent, or in which he has any right, title, or interest; suits for the recovery of any forfeiture or damages under Section 3490 of the Revised Statutes ; causes of action arising under the postal laws of the United States ; civil causes of admi- ralty and maritime jurisdiction, and all seizures on land and water, not within admiralty and maritime juris- diction; prizes on land and water; suits brought by the assignees of de- bentures for drawback of duties to en- force such debentures ; all suits under the civil rights law; suits to recover suits against consuls or vice consuls ; and all matters and proceedings in bankruptcy; suits against the United States to collect claims not exceed- ing one thousand dollars for money only, founded upon the Constitution of the United States or of any law of Congress, except for pensions, upon any contract expressed or implied with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tori, in respect of which claims the plaintiff would be entitled to re- dress against the United States in a court of law, equity or admiralty, if the United States were suable, ex- cept war claims which, before March 3, 1S87, were rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same; and pro- possession of any office except that of ceedings to condemn for national presidential elector or a legislative office, wherein the sole question touch- ing the title to such office arises out of the denial of the right of a citizen to vote on account of race, color, or previous condition of servitude ; pro- ceedings by quo warranto, prose- cuted by a district attorney of the United States, for the removal from office of a person disqualified by the Fourteenth Amendment to the Con- stitution ; suits by aliens for torts only in violation of the law of nations or of a treaty of the United States ; public purposes land situated within their respective districts. Foster's Fed. Pr., (ist ed.) g 25. ^ The great lakes are "high seas:" U. S. V. Rodgers, 150 U. S. 249. *Rev. Stat. ^ 563, sub. i. The dis- trict court of Alaska has jurisdiction to declare forfeiture of vessel for taking fur seal in violation of Rev. Stat. I 1956: E.v p.Coo^QV, 143 U. S. 472. The federal courts have no jurisdic- tion of crimes committed by one In- dian against another in Indian Terri- tory: Smith V. U. S., 151 U. S. 50. JURISDICTION OF THE DISTRICT COURTS. 83 embraced in section 5412 of the Revised Statutes, the circuit courts have exclusive jurisdiction, and in all other cases of crimes and offences the district courts have jurisdiction concur- rent with the circuit courts.^ The jurisdiction thus conferred on the federal courts in crimi- nal cases is exclusive of any jurisdiction of the courts of the several states. The state courts cannot, consistently with the Constitution of the United States, exercise jurisdiction of offences against the laws of the United States; nor can such jurisdiction be delegated to them.^ Nor can the state tribunals or its judges in any manner interfere with the exercise of the jurisdiction of the district courts in criminal cases, by habeas corpus or other- wise ; nor can the validity of the proceedings of such courts be in any manner reviewed or called in question by any state court or judge thereof.^ In Cases of Piracy, Penalties and Forfeitures. § 37. The district courts have jurisdiction of all cases arising under any statute of the United States for the punishment of piracy, when there is no circuit court held in the district of such court;* and of all suits for penalties and forfeitures incurred under any law of the United States.^ But we have already noticed that the circuit courts have concurrent jurisdiction of all crimes and offences cognizable in the district courts, which we shall hereafter more particularly consider.*' Suits by the United States or Officers; Limitation of Suits. § 38.- It is a familiar doctrine of the law that a sovereign can- not be sued in his own court without his consent. This doctrine is applicable to the United States as a sovereign authority, and not until the creation of a court by an act of Congress, known 1 Rev. Stat. \ 629, sub. 20. Kim v. Voorhies, 7 Cr. 279 ; U. S. v. '^ United States v. HoUiday, 3 Wall. Peters, 5 id. 115. 407 ; Stearns v. United States, 2 Paine * Rev. Stat. \ 563, sub. 2 ; The Pal- (C. C.) 300. myra, 12 Wheat, i. »Ableman v. Booth, 21 How. 507. *Rev. Stat. I 563, sub. 3 ; Hall v. State courts cannot, nor can State Warren, 2 McLean, 332 ; Ketland v. legislatures, interfere with proceed- The Cassius, 2 Dall. 365 ; In re Les- ings or judgments in federal courts: zynsky, 16 Blatch. 14; Lees v. U. S., Hyde v. Stone, 20 How. 170; Wal- 150 U. S. 476. lace z/. M'Comiell, 13 Pet. 136; Mc- ^Rev. Stat. \ 629, sub. 20. 84 FEDERAL PLEADING, PRACTICE AND PROCEDURE. as the Court of Claims, and the giving to it cognizance of cer- tain causes of action against the United States, of which we shall treat hereafter, could the government be sued in the federal courts.^ But the statute gives the district courts jurisdiction *' of suits at common law brought by the United States, or by any officer thereof authorized by law to sue." ^ The jurisdiction thus conferred upon the district courts is, however, not exclusive; but the United States, as a body cor- porate and sovereign authority, may institute suits, like other corporate bodies, in any court of any state in the Union; and in this respect she has the same rights and is entitled to the same remedies as natural persons.^ She may maintain a suit at com- mon law in assumpsit or trespass; and if the suit is to recover on negotiable paper, she possesses the same rights and incurs the same liabilities as natural persons under similar circum- stances.* The United States may bring suit to vacate patents for inventions,^ It may bring a bill to enjoin and restrain ob- structions to highways used in inter-state commerce and in the transportation of the mail.^ Suits in Equity to Enforce Internal Revenue Taxes. § 39. The district courts have, also, jurisdiction "of all suits in equity to enforce the lien of the United States upon any real estate for any internal revenue tax, or to subject to the payment of any such tax any real estate owned by the delinquent, or in ^The district courts have concur- Duncan v. U. S., 7 id. 435. The same rent jurisdiction with Court of Claims jurisdiction is also conferred by stat- in all claims founded upon the Con- ute upon the circuit courts: Rev. stitution or any law of Congress, ex- Stat. § 629, sub. 3. cept for pensions, or upon any regu- ^ Dugan v. United States, 3 Wh. lation of an executive department, or 172 ; Cotton v. United States, 11 upon any contract, express or im- How. 229. And is bound by the plied, with the government, or for principles which govern individuals; damages, liquidated or unliquidated, U. S. v. Ingate, 48 Fed. Rep. 251. in cases not sounding in tort, where * United States v. Bank, 15 Pet. the amount of the claim does not ex- 377 ; United States v. Gear, 3 How. ceed one thousand dollars: Act of 120; United States z'. Dunn, 6 Pet. 51 ; March 3, 1887, i Supp. R. S. 559. The Floyd Acceptances, 7 Wall. 666. 2 Rev. Stat, g 563, sub. 4. As to ^U. S. v. Bell Telephone Co., 128 "common law," used in this clause, U. S. 315. see Parsons v. Bedford, 3 Pet. 443; ^ J^c Debs, 158 U. S. 564. JURISDICTION OF THE DISTRICT COURTS. 85 which he has any right, title or interest;"^ and "of all suits for the recovery of any forfeiture or damages under section thirty- four hundred and ninety" of the Revised Statutes, and all such suits may be tried and determined by any district court within whose jurisdictional limits the defendant may be found. ^ And in all cases where a cause of action arises under the postal laws of the United States, they have concurrent jurisdiction with the circuit courts.^ Admiralty and Prize Causes. § 40. The most important function of the district courts, how- ever, is that which relates to their admiralty and maritime juris- diction. The great extent of our sea-coast, and the magnitude of our shipping interests both coast-wise and foreign, naturally cause frequent and important controversies of an admiralty and maritime character, and the jurisdiction of these courts is fre- quently invoked in such cases. Their original admiralty and maritime jurisdiction is, with few exceptions, exclusive of all other federal courts, and in all cases exclusive of the state tri- bunals.* On this subject the statute provides that these courts shall have jurisdiction "of all civil causes of admiralty and mari- time jurisdiction, saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it; and of all seizures on land and on waters not within admiralty and maritime jurisdiction. And such jurisdiction shall be exclusive, except in the particular cases where jurisdic- tion of such causes and seizures is given to the circuit courts."^ Exclusive cognizance is also given to the district courts of all prizes brought into the United States, except prizes taken in pursuance of the provisions of the statute authorizing the con- fiscation of property employed in aid of any insurrection against the government of the United States, in which cases the circuit iRev. Stat. § 563, sub. 5. v. The Magdalena, Bee 11. They '^Rev. Stat. \ 563, sub. 6. are governed solely by the legislation 3 Rev. Stat. ? 563, sub. '] \ Ibid.\^2<^. of Congress and the general princi- *The Moses Taylor, 4 Wall. 411 ; pies of the maritime law, and are not The Hine, 4 Wall. 555; The Steam- bound by State statutes : New Zealand boat Co. V. Chase, 16 Wall. 529 ; The Insurance Co. v. Earnmoor S. S. St. Lawrence, i Black 526 ; The Isa- Co., 79 Fed. Rep. 36S. bella, I Brown's Ad. 96 ; Railroad * Rev. Stat. § 563, sub. 8. Co. V. Whitton, 13 "Wall. 270 ; Jansen 8G FEDERAI. PLEADING, PRACTICE AND PROCEDURE. courts have also concurrent jurisdiction.^ The jurisdiction of the federal courts in prize causes is necessarily exclusive of any authority or cognizance by the state courts, as all such contro- versies must arise under the Constitution and laws of the United States.^ General Principles relating to Admiralty. § 41. It does not come within the scope of this treatise to treat fully of the doctrines and principles of admiralty and mari- time law,^ It will be mainly our purpose to notice those changes and modifications of the general doctrines and principles, by statutes and rules of the federal courts and the practice therein. The jurdisdiction of courts in admiralty rests upon two broad grounds, one the subject-matter of contracts, the other locality, in torts. To give jurisdiction in case of contract, it is necessary that the contract be of a maritime character, as understood and interpreted in the admiralty; such as a contract to carry mer- chandise or passengers on the high seas or navigable waters ; * or for seamen's wages ; ^ or for the pilot's services ; ^ or for material or supplies furnished in a foreign port, and the like/ But contracts for material or supplies furnished in the original construction of a vessel are not maritime contracts.* And where iRev. Stat, f 563, sub. 8, 9, and Phoenix Ins. Co. 129,2^.397; Butler amendment, Februar)'^ 18, 1875 ; Rev. v Boston Steamship Co., 130 id. Stat. § 629, sub. 6, Rev. Stat. §§ 527 ; The Eclipse, 135 id. 599. The 5308, 5309. law of limited liability is part of the *Rev. Stat. § 711, sub. 2, 4; United maritime law of the United States: States V. Lathrop, 17 Johns. 4 ; Jack- Re Garnett, 141 U. S. i. son V. Rose, 2 Va. Cas. 34; Ordway *The Moses Taylor, 4 Wall. 411 ; V. Central National Bank, 47 Md. 217 ; Moorewood v. Enequist, 23 How. 491. Blitz V. Columbia National Bank, 87 ^sheppard v. Taylor, 5 Pet. 675 ; Pa. 87. See contra in state courts, The Gazelle, i Sprague 378. Ely z'. Peck, 7 Conn. 239 ; M.R.Tel- ^jjobart v. Drogan, 10 Pet. loS; egraph Co. v. First Kational Bank, Ex parte McNiel, 13 Wall. 236. 74 111. 217. "The Robert Fulton, i Paine 620; 3 For the doctrines and principles The St. Lawrence, i Black 522 ; The of admiralty and maritime law General Smith, 4 Wh. 433 ; Zane v. as understood and enforced in the The President, 4 Wash. 453. United States, and the jurisdiction of ** People's Ferry Company v. Beers, the courts as to the same, see The 20 How. 393 ; Roach v. Chapman, Hine v. Trevor, 4 Wall. 555; The 22 id. 129; Edwards v. Elliott, 21 Lottawanna, 21 id. 55S; The Scot- Wall. 532; The Revenue Cutter, 4 land 105, U. S. 24 ; Liverpool v. Saw. 143. JURISDICTION OF THE DISTRICT COURTS. 87 two parties joined in an adventure, in which one was to contri- bute his skill, labor and experience, and the other was to furnish a vessel, and each was to have a certain portion of the profits, this was held not to be a maritime contract that could confer admiralty jurisdiction upon the court.^ And it may be observed, generally, that the admiralty has no jurisdiction at all in mere matters of account between the part owners of vessels, although they may relate purely to maritime affairs.^ Maritime Liens, § 42. The jurisdiction of the district courts in admiralty is frequently exercised for the purpose of enforcing liens created by virtue of maritime contracts. These courts have jurisdiction " of all causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it." But the common law courts and remedies afford no means of enforcing maritime liens. The Constitution of the United States and acts of Congress have vested the admiralty and maritime powers exclusively in the federal courts of the United States, and hence no state has authority to constitute courts with these powers ; and the common law remedies are not applicable to the enforcement of liens by proceedings in rem} The provision, therefore, "saving to suitors in all cases the right of a common law remedy, where the com- mon law is competent to give it," can give state or federal courts, as courts of law, jurisdiction only of suits on maritime contracts, where the proceedings for the non-fulfillment of such contracts are in personam, and where the libellant is willing to waive the lien.'* But in such proceedings the party is entitled to the benefit of the laws of the state relating to attachments to secure his claim, under the same circumstances as other suitors in the courts.^ A contract to build a ship, or to furnish materials for ^ Ward zv. Thompson, 22 How. 330; H. E. Willard, 52 id. 387; s. c. 53 Steamboat Orleans, 11 Pet. 175. z^. 599. ^ Ibid. See also Davis v. Child, 2 ^ Brown v. Gray, 24 N. Y. S. 61. Ware 78 ; Atk5'ns v. Burrows, i Pet. * McCaffrey v. The J. G. Chapman, Ad. 244 ; Kellum v. Emerson, 2 Curt. 62 Fed. Rep 939. 79; Hazard v. Howland, 2 Sprague ^The Belfast, 7 Wall. 624: The 68 ; Grant v. Poillon, 20 How. 163 ; Lottawanna, 21 id. 558 ; The Hine Daily v. Doe, 3 Fed. Rep. 903 ; The v. Trevor, 4 id. 555 ; s. c, 17 id. 349. 88 FEDERAL PLEADING, PRACTICE AND PROCEDURE. this purpose, is not a maritime contract;^ but the legislatures of the state may create liens on sucli contracts and provide means for their enforcement, as this would not be inconsistent with the admiralty jurisdiction of the district courts of the United States or amount to a regulation of commerce.^ What Liens by Contract will be Enforced. § 43. Among the Jiens growing out of contracts, which may be enforced on the admiralty side of the court, we may mention the liens which exist in favor of shippers, upon the vessels cm- ployed in the transportation of their goods and merchandise. The lien exists as security for the proper fulfillment of the con- tract of affreightment, which usually binds the carrier to duly transport, safely keep and properly deliver the goods and mer- chandise described in the contract.^ A lien also exists in favor of material-men, in certain cases, as security for the price ©rvalue of material furnished.'* By the general principles of admiralty law, jurisdiction did not attach to contracts in favor of material- men for materials furnished in the original construction of vessels, or for materials or supplies furnished thereafter in a home port.^ ^Johnson, etc., Company v. The Pa- s. c, 34 N. J. 96 ; The St. Lawrence, radox, 61 Fed. Rep. 860. A contract i Black 522 ; The Chusan, 2 Storj', to finish a vessel which has been 456. A most interesting and satis- launched and named, but left uncom- factory discussion of this subject will pleted by her builders, is a maritime be found in the opinion of Chief contract : Lake v. The Manhattan, Justice Watkins in Merrick v. etc, 46 Fed. Rep. 797. So a con- Avery, 14 Ark. 370. See also The tract to launch a vessel : Frame v. Victorian, 32 Pac. Rep. 1040 ; Atlan- The Ella, 48 id. 569. Premiums for tic Works v. Tug Glide, 34 N. E. marine insurance have no lien : Sun Rep. 258; Portland Butchering Co. v. Ins. Co. V. The Hope, 49 id. 279. A The Willapa, 34 Pac. Rep. 6S9. contract to procure insurance is not ^The Queen of the Pacific, 61 Fed. a maritime contract: Marquardt v. Rep. 213. French, 53 /rf. 603 ; Williams ^'. Provi- "The Belfast, 7 Wall. 624; The dence, etc.,Co.,56 2^. 159. A contract Maggie Hammond, ^id. 435; The to advertise steamboat excursions is Bird of Paradise, 5 id. 545 ; The not a maritime contract: Turner v. Eddy, 4 id. i. There is no mari- The Havana 54 id. 201. Money time lien for repairs, where they are loaned to owners is not a lien : U.S. furnished without any emergency: V. The Haytian Republic, 65 id. 120; Hoffman v. The Nebraska, 61 Fed. Hard v. The Advance, 63 id. 142. Rep. 514. 2 Edwards v. Elliott, 21 Wall. 532; ^Ammon z/. The Vigilancia, 58 Fed. JURISDICTION OF THE DISTRICT COURTS. 89 But it is generally conceded that Congress has power to extend the jurisdiction of the federal courts to such cases, although it has not, nor has any state, power to limit the jurisdiction of the federal courts in admiralty.^ The question was presented to the Supreme Court, whether the liens of material-men, created by the laws of a state, can be enforced in admiralty in the district courts of the United States. The court determined that Con- gress might, under the power to regulate commerce, authorize liens in such cases, and that such legislation would supersede any state legislation on the subject, and that in the absence of such action on the part of Congress the states might make valid laws on the subject, which would be enforced by the federal courts in the exercise of their admiralty jurisdiction, although authority could not be conferred upon the state courts for this purpose.^ Suits by Material-men. § 44. The general doctrine in admiralty is that a party furnish- ing necessary supplies or repairs to a ship in a foreign port may enforce a lien therefor on the ship in a court of admiralty juris- diction by a proceeding in rem, or that he may waive his right to a lien and proceed, as we have seen, against the master or owner in personam? Under a rule in admiralty in this country the doctrine has been Rep. 698. As to what is the home furnished on the credit of the vessel : portof a chartered vessel, see Pittman Harmon Lumber Co. v. Lighters V. The Samuel Marshall, 4 C. C. Ap. Nos. 27 and 28, 57 id. 664 ; s. c. 385 ; s. c. 6 U. S. App. 389. Cf. 6 C. C. Ap. 493 ; Empire Warehouse DeLano v. The Alvira, 63 Fed. Rep. Co. v. The Advance, 60 Fed. Rep. 144- 766. iThe Lottavvanna, 21 Wall. 558. ^The Aurora, i Wh. 96 ; The Gen- ^The Lottawanna, 21 Wall. 558; eral Smith, 4 id. 438; The Robert Edwards v. Elliott, 21 Wall. 532. See Fulton, i Paine 620; The Ship Vir- also The St. Lawrence, i Black 522 ; gin, 8 Pet. 538 ; The Patapsco, 13 The Richard Busteed, i Sprague Wall. 329 ; The Brig Nestor, i Sum. 441 ; Weaver v. The Owens, i Wall. 73 ; Andrews v. Wall, 3 How. 568 ; Jf-, 359; The Samuel Strong, 6 INIc- Davis v. Child, 2 Ware 78; Young Lean 587 ; The General Smith, 4 Wh. v. The Kendal, 56 Fed. Rep. 237. If 438 ; The Maggie Hammond, 9 Wall, the work be done by order of owner 435 ; Haritwen v. The Louis Olsen, a lien by agreement must be shown : 52 Fed. Rep. 652. The lien will not Herreshoflf v. The Now Then, 55 be enforced unless the supplies were Fed. Rep. 523. 90 FEDERAL PLEADING, PRACTICE AND PROCEDURE. extended so as to allow the enforcement of a lien " in all suits by material-men for supplies or repairs or other necessaries ; and in such cases the libellant may proceed against the ship and freight ill rem, or against the master or owner in personam!'^ But under this rule it has been held that in every case of a contract for supplies to a vessel, whether domestic or foreign, being a maritime contract, process in rem against the vessel, or in personam against the master or owner, may, at the option of the libellant, be resorted to where it is necessary to enforce the contract.' In the admiralty and maritime law of the United States the following propositions are established by the decisions of the Supreme Court: For necessary repair or supplies furnished to a vessel in a foreign port, a lien is given by the general maritime law, follow- ing the civil law, and may be enforced in admiralty. For repairs or supplies in the home port of the vessel no lien exists or can be enforced in admiralty, under the general law independently of local statute. Whenever the statute of a state gives a lien, to be enforced by process in rem against the vessel, for repairs or supplies in her home port, this lien, being similar to the lien arising in a foreign port under the general law, is in the nature of a maritime lien, apd therefore may be enforced in admiralty in the courts of the United States. This lien, in the nature of a maritime lien, and to be enforced by process in the nature of admiralty process, is within the exclusive jurisdiction of the courts of the United States, sitting in admiralty. In the admiralty courts of the United States, a lien upon a vessel for necessary supplies and repairs in her home port, given by the statute of a state, and to be enforced by proceedings in rem in the nature of admiralty process, takes precedence of a prior mortgage, recorded under section 4192 of the Revised Statutes.^ The party thus entitled to a lien may, as we have seen, waive it, and this may be done expressly or it may be presumed from acts and circumstances. If it is manifest from the facts of the ^ Adm. Rule 12, adopted May 6, Blatch. 473; 12 Am. Law Reg. 291. 1872. 'The J. E. Rumbell, 148 U. S. I. ^The Steamship Circassian, 11 JURISDICTION OF THE DISTRICT COURTS. 91 case that the material-man waived the hen and depended upon the personal responsibility of the master or owner of the ship, the lien would, at least as to the intervening rights of innocent third parties, be treated as waived.^ Where a promissory note was given for the debt incurred for supplies, it was held that a suit to enforce a lien for them could not be maintained if the note was not tendered or given up and surrendered to the defendant at or before the hearing.^ This right, however, to enforce the lien has been held to exist where a bottomry bond in part void was executed therefor in the foreign port where the supplies and material were furnished.^ The giving of credit for necessary supplies does not ordinarily extinguish the lien therefor, nor does the permission of the ship to depart on her voyage without payment/ The material-man generally has, by the maritime law, a threefold remedy, even where a lien exists: first, against the vessel i7i rem; second, against the owners ; third, against the master ; and neither remedy will be con- sidered as waived or displaced except where it is shov/n that the credit was given exclusively to or on account of one of the others. The district courts of the United States can also properly take cognizance of a lien which exists by the maritime law of other nations, and enforce it here as a matter of comity, although all the parties to the suit be foreigners.^ In all cases, however, of a claim of a lien for supplies or mater- ial furnished to a ship in a foreign port, it seems necessary to show that the supplies or material were necessary to enable the ship to complete her voyage/ And if it can be reasonably presumed 1 Jones V. The Half Moon, 46 Fed. furnished prior to the cause of for- Rep. 812. feiture : U. S. v. Haytian RepubHc, 65 2 Ramsey v. Allege, 12 Wh. 611. Fed. Rep. 120. A note does not discharge the lien, ^ The INIarion, i Story 6S; The Nes- unless the parties so agree at the tor, i Sum. 73. time: The John C Fisher, 50 Fed. * The Maggie Hammond, 9 Wall. Rep. 703 ; The D. B. Steelman, 48 id. 435 ; The Schooner IMarion, i Story 580; Edicott t/. The James T. Easton, 68. 49 id. 656 ; Am. Towing, etc , Co. " Claims for wharfage are cogniz- V. The Alfred J. Murray, 60 id. 926. able in admiralty : Ex p. Easton, 95 The Ship Virgin, 8 Pet. 538. U. S. 68 ; Morgan Iron Works v. The * Moore v. The Lime Rock, 49 Fed. Alliance, 56 Fed. Rep. 609 ; Empire Rep. 383. Forfeiture of a vessel for Warehouse Co. v. The Advance, 60 smuggling cuts off a lien for supplies id. 766. 92 FEDERAL PLEADING, PRACTICE AND PROCEDURE. that the master had funds or that the owner had credit, this has been held to be sufficient to displace the lien. But when the lien is reasonably established, it would evidently require strong cir- cumstances of confederation on the part of the material-man with the master, amounting to a fraud, in order to displace the lien on that ground and defeat a suit for its enforcement.^ But the lien should be enforced within a reasonable time after the debt becomes due, or it will not avail against a bo7i6j fide purchaser without notice.^ Maritime Hypothecation. § 45. According to the doctrines of admiralty and maritime jurisprudence, the master or owner may hypothecate the ship in a foreign port to procure funds for necessary repairs so as to enable her to proceed and complete the contemplated voyage. This is usually effected by what is denominated a bottomry bond, as the advancement is made on the faith or security of the bottom of the ship.^ But such bond, if made by the master, is void unless the advances are necessary to effectuate the objects of the voyage or the safety of the ship, and also where the sup- plies or repairs could have been procured on the owner's credit or with his funds at the place where they were furnished. And in order to recover on such bond it is usually necessary for the libellant to furnish satisfactory evidence that the money was advanced after due inquiry and reasonable grounds of belief that the repairs or supplies were necessary and that the owner was without credit or funds in the foreign port.* The master has the power to hypothecate his ship, even after the original voyage has been broken up by capture and the com- pulsory sale of her cargo, if she is in a foreign port and repairs or supplies are necessary to enable her to return to the home port.^ ^ The Patapsco, 13 Wall. 329 ; id. 329 ; The Neversink, 5 Blatch. Pritchard & Co. v. The Lady Hora- 539; The John and Alice, i Wash, tio. Bee's Adm. 167. 293; The Aurora, i Wh. 96; The "^ The Barque Chusan, 2 Sum. 456. Fortitude, 3 Sum. 234; The Virgin, 8 ^ Seldon z/. Hendrickson, i Brock. Pet. 554; Dixon v. The Bellevue, 47 C. C. 396; Carrington v. Pratt, 18 Fed. Rep. 86. How. 67. See also/o^/, I 46. * Crawford v. The William Penn, 3 * The Grapeshot, 9 Wall. 129 ; The Wash. 484. Lulee, 10 id. 192 ; The Patapsco, 13 JURISDICTION OF THE DISTRICT COURTS. 93 The general doctrine in admiralty is that the court has juris- diction in cases of actions for supplies or material furnished, only where they are furnished to a foreign vessel.^ But supplies or materials furnished in one state to a vessel belonging to another state are considered as .furnished to a foreign vessel lying in a foreign jurisdiction, the different states being for this purpose regarded as foreign to each other.^ Suits on Bottomry Bonds. § 46, Suits on bottomry bonds, properly so called must be i7i rem only, against the property hypothecated, or the proceeds of such property in whosoever hands they may be found, unless the bond was given without authority by the master, or by his fraud or misconduct he has avoided the same or has subtracted the property, or unless the owner has by his own misconduct or v/rong lost or subtracted the property, in which latter cases the suits may be in personam against the wrong-doer.^ And an assignee of the bond may either sue in his own name on the bond or he may sue in the name of the assignor ; * and the court will entertain jurisdiction of a suit on such a bond executed in a foreign country, and between subjects of a foreign country, where the ship is within the territory of the United States.* Suits for Salvage. § 47. In suits for salvage the proceedings may be in rem against the property saved or the proceeds thereof, or in per- sojtam against the party at whose request and for whose benefit the salvage service was performed.** The libel may be filed in ^ The Jerusalem, 2 Gall. 349; ^ The Jerusalem, 2 Gall. 190; The Burk V. The Brig M. P. Rich, i Cliff. Packet, 3 Mas. 255. 308 ; The Nestor, i Sum. 73 ; The " Adm. Rule 19 ; McGinnis v. Pon- Sandwich, i Pet. Ad. 233. And also tiac, 5 McLean 359 ; The Centurion, as to services rendered : Norton v. Ware 447. Suit by one salvor against Switzer, 93 U. S. 365. a fund already awarded to another ^ The Chusan, 2 Story 455 ; Magee salvor cannot be maintained ; Shel- V. Lyndhurst, 48 Fed. Rep. 839 ; drake v. The Chatfield, 52 Fed. Rep. Whitlock V. The Thales, 20 How. Pr. 495 ; salvor may sue co-salvor in ad- 447 ; The Charles Mears, Newb. 197 ; mirality to recover his share of sal- The Nestor, i Sum. 73. vage : McMuUin v. Blackburn, 59 Fed. 3 Adm. Rule 18. Rep. 177. * Burk V. The M. P. Rich, i Cliff. 30S. 94 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the name of the master and owners of the salving vessel, al- though the master may make no claim on his own behalf.^ It matters not what are the methods or means pursued to save a vessel or cargo from destruction or loss, the salvors may claim a lien therefor on the property saved or its proceeds. Thus, where a vessel took fire in a harbor, and a tug towed fire engines, commonly used on land, and lay alongside the burning vessel while the engines threw water upon her and extinguished the fire, the owners of the tug were held to be entitled to salvage, although the representatives of the fire department directed the towing to be done, and made no claim for salvage.^ A corpora- tion maybe entitled to salvage as well as a natural person ;^ and the property of the United States may be subject to a lien for salvage/ The lien exists upon the property saved, and it re- quires the most unequivocal acts on the part of the salvors to indicate an abandonment of the lien, so as to defeat the enforce- ment of the same, and compel them to resort to a suit in per- sonam against the owners for payment ;^ but salvors cannot in the same libel proceed in rem against the vessel and in personam against the consignees of the cargo." Petitory and Possessory Suits. § 48. It is provided by rule that " in all petitory and posses- sory suits between part owners or adverse proprietors ; or by the owners of a ship, or the majority thereof, against the master of a ship for the ascertainment of the title and delivery of the possession, or for the possession only ; or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent ; or by one or more part owners against the others to obtain possession of the ship for any voyage, upon giving security for the safe re- turn thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit."^ ^TheBlackwall, loWall. I. » Eads v. The H. D. Bacon, i * The Blackwall, 10 Wall. i. See Newb. Ad. 274; Howard Towing Millard v. The Lighter No. 14, 53 Assn. v. The J. E. Potts, 54 Fed. Fed. Rep. 143. Rep. 539. 3 The Camanche, 8 Wall. 44S. « The Sabine, loi U. S. 3S4. * The Davis, 10 Wall. 15. ' Adni. Rule 20. JURISDICTION OF THE DISTRICT COURTS. 95 Where two persons were equal joint owners of a vessel, but one of them was in possession as ship's husband, who left her in an unsafe condition with no person on board, and the other half- owner took possession of her, on an application by the former for her possession, the court refused to interfere.^ Under the provisions of the rule last cited, where the owner of a one-fourth part of a whale-ship gave notice to the owners of other parts of her that he would not pay anything for the outfits of a whaling voyage contemplated by the latter, but did not in distinct terms dissent from the voyage or apply for security for a return of his share in the ship until she was nearly ready to sail, on a libel filed by him it was held that he was entitled to security by stipulation for the return thereof, and that the return should be to the port of New Bedford, to which she belonged, as it did not appear that the other owners had been misled or subjected to any loss by the delay in making application for security .- The question of title and ownership, as well as the right of possession of vessels, may be determined by a petitory action ; ^ but a mere equitable title is not sufficient to justify an interfer- ence of a court of admiralty to give possession of a vessel against the legal title, as possession must follow the legal title/ Suits for Mariners' Wages. § 49. A contract for mariners' services is a maritime contract, and in suits thereon in admiralty the libellant may proceed against the ship, freight and master, or against the ship and freight ; or against the owner alone, or the master alone, in persofiam." Where a ship is engaged in an unlawful trade, or sails on an illegal voyage, and she is seized and a forfeiture claimed therefor by the government, if the seamen or material-men are innocent of all knowledge thereof or of participation therein, their claims 1 The Ocean, i Sprague 535. A Friendship, 2 Curt. 426. stipuhition filed to secure the release * The Amelia, 6 Ben. 475 ; Kynoch of a vessel is not a waiver of the v. Ives, Newb. 205 ; The William D. rights of the principal to question Rice, 3 Ware 134; The Perseverance, the original liability of the vessel : i Bl. & H. 3S5. The Fidelity, 16 Blatch. 569. ^ Adm. Rule 13. A claim for wages ^ The Marengo, i Sprague 506. may be assigned and the lien passes ^ Ward V. Peck, 18 How. 267 ; The to the assignee: Mark v. The New Tilton, 5 Mas. 465 ; Gregg v. The Idea, 60 Fed, Rep. 294. Clarissa Ann, 2 Hughes 89 ; The 96 FEDERAL PLEADING, PRACTICE AND PROCEDURE. for wages or material will be preferred to the claims of forfeiture by the government ; ' but a master has no lien on the ship for his wages by the general maritime law, although he may maintain a suit in admiralty, in personam, for wages, or for compensation in the nature of wages.^ The lien for seamen's wages attaches not only to the ship, but to the freight, and they have a priority of all other claims ; and in case of loss the ship owners are liable therefor.^ The lien of seamen for wages takes precedence even over bottomry bonds and all other claims or liens, whether the entirety of the fund out of which they should be paid remains or a part of it is lost ;* and this right extends to the last fragment of the freight, and is " nailed to the last plank of the ship ; " and it cannot be affected by any private contract between the owner of the ship and the shippers,^ If a portion of a wrecked vessel is saved by the exertions of the seamen and brought into port and sold, they have a lien on the proceeds for their wages.^ They, like material-men, have a triple security for their wages, namely, the vessel, the owner and the master. The owner is liable, although his name does not appear in the shipping articles; and if a sale of the vessel is made subsequent to the making of the shipping articles, this will not discharge the liability of the ov/ner, even though the voyage was not terminated, and even though the ship be lost ; in which latter case they are entitled to wages until discharged/ If, however, in case of a wreck they abandon the ship, they lose their lien upon it, and are not restored by the jus postliminii on ^The St. Jago De Cuba, 9 Wh. C. C. Ap. 379; Western Transit Co. 409 ; The United States v. Robert- v. The Nettie Woodward, 50 Fed. son, 5 Pet .675 ; The Langdon Cheves, Rep. 224. 2 Mas. 58. ^ Pitman v. Hooper, 3 Sum. 50. =« The Steamboat Orleans, 11 Pet. *= Brackett et al. v. The Hercules, 175 ; Hammond v. The Essex Fire Gilp. 184. Insurance Co., 4 Mas. 196 ; Willard "' Bronde v. Haven, Gilpin 592. See V. Dorr, 3 Mas. 91. also The Brig Blohm, i Ben. 228, ^ Brown et al. v. Lull, 2 Sum. 443. where under a contract made in * A lien for damages caused by Hamburg seamen were allowed, out negligence has precedence over lien of a fund produced by a sale of the for wages earned before collision ; ship in New York, the voyage not but not over lien for wages earned being completed, but they being dis- af ter collision : Cooper v. The F. H. charged, two months extra pay. Stanwood, 49 Fed. Rep. 577 ; s. c. i JURISDICTION OF THE DISTRICT COURTS. 97 the salvage of the property by other persons.^ But they would not lose their claim for a lien by taking an order on the char- terer for their wages.^ They are entitled to the lien from the time the contract is entered into, and while the ship is getting ready to sail, though she may never leave the port.^ Suits for Pilots' Wages. § 50. The right of a pilot is more limited than that of a sea- man, by a rule of admiralty, if not by the general principles of admiralty practice. In the case of a seaman, he may enforce his lien for wages even against the frieght ; but in suits for pilotage, the libellant can only proceed against the ship and master, or against the ship or against the owner alone, or the master alone, in personam^ Jurisdiction in Case of Torts. § 51. In respect to jurisdiction in admiralty depending upon locality in case of tort, by the general principles of the admiralty law the tort must have been committed upon the high seas, or at least within the ebb and flow of the tides.^ But Congress, by the Judiciary Act of 1789, gave the district courts jurisdiction in admiralty, in certain cases, over fresh waters navigable from the sea with vessels often tons burden and upwards ;" and an act of February 20, 1845, gave them "the same jurisdiction in matters of contract and tort arising in, upon or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and employed in commerce and navigation upon the lakes and navigable waters connecting them, as is possessed by those courts in cases of the like vessels employed upon the high seas or tide waters, within admiralty or maritime jurisdiction." '' 1 Lewis V. The Elizabeth and Jane, * Adm. Rule 14 ; The Anne, i Mas. I Ware 41 ; The Aguan, 48 Fed. Rep. 507; The Wave, 7 Leg. Obs. 97; 320. A person hired by a captain of Logan v. The Eolian, i Bond 267. a vessel to act as nominal captain is ^ Waring v. Clark, 5 How. 441 ; entitled to the wages agreed upon, The Genesee Chief, 12 How. 443. and the vessel and owner are liable ^ New Jersey Steam Nav. Co. v. therefor: L'Arina f. Brig Exchange, Merchants' Bank, 6 How. 344 ; The Bee's Adm. 198 ; Same v. Manwar- Almeida, 10 Wh. 473 ; The Belfast, ing, Ibid. 199. 7 Wall. 624 ; Peyroux v. Howard, 7 2 The Eastern Star, i Ware 185. Pet. 324. 3 The Island City, Low. Dec. 375. 'Stat. L., c. 20, v. 5, p. 726. 7 98 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The provisions of these acts do not appear to be incorporated into the Revised Statutes, by any positive declaration of juris- diction of the district courts in such cases ; but such jurisdiction may well be inferred from a provision of section 566 of said stat- utes, which is as follows : "In causes of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons burden or upward, enrolled and licensed for the coasting trade, and at the time em- ployed in the business of commerce and navigation between places in different states and territories, upon the lakes and navi- gable waters connecting the lakes, the trial of issues of fact shall be by jury when either party requires it." In the absence of any positive statutory provision conferring jurisdiction on these courts, or extending their jurisdiction in admiralty over waters not within admiralty jurisdiction as limited by the English law, it has been maintained by very cogent argu- ments that they may exercise admiralty jurisdiction over the lakes and rivers of the country navigable for the purposes of trade and commerce between states, or between one of the states and a foreign state. The admiralty jurisdiction of the English courts is limited locally to the sea or to waters therewith connected where the tides ebb and flow. The ebb and flow of the tides there is the test of navigability for the purposes of carrying on trade and commerce with foreign states. But it is different in this country. The ebb and flow of the tides here is not the test of navigability of our lakes and rivers to aid commerce between states or with foreign states. Hence it has been held that this limitation and doctrine in the English admiralty law has no proper application in this country, and that the admiralty juris- diction of the district courts properly extends "wherever vessels float and navigation successfully aids commerce, whether inter- nal or external." ^ In view of these broad and enlightened views of the highest federal tribunal, and taking into consideration the provision of the Revised Statutes above referred to, giving a right of trial by jury in such cases, it may well be inferred that Congress assumed that these courts possessed adequate powers 1 The Hine, 4 Wall. 555 ; The Gen- 8 id. 15; The Steamboat Co., 16 esee Chief, 12 How. 443; The Moses id. 522. See cases cited in note to Taylor, 4 Wall. 411 ; The Eagle, \ 41 ante. JURISDICTION OF THE DISTRICT COURTS. 99 in such cases, without a direct legislative declaration to that effect. The question in such a case as to the navigability of rivers and lakes for the purposes aforesaid would be one of fact, and the jurisdiction would be limited to vessels engaged in for- eig-n commerce, or commerce between states, and would not ordinarily extend to the internal commerce of a state, or to the enforcement of state laws relating to internal commerce.^ Suits for Collisions. § 52. By a rule of court, in a suit for damage caused by a col- lision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or owner in per- sonam? If a libel is filed for damage caused by a collision in a foreign port, the rights of the parties would be governed by the law of the country where the collision occurred; and if doubts exist as to the true construction of the law, resort may be had to the construction made by the courts in the foreign country. This doctrine is consonant with the general principles of the law, and was followed in this country in a case of libel for damages oc- curring in an English port.^ Libel against the Vessel and Master. § 53. By the provisions of the rule last cited, the proceeding in admiralty for a collision may be in rem against the vessel, and in personam against the master, and these remedies may be joined in one proceeding;* or it may be against the ship alone ; or it may be against the master or owner alone in personam. But the rule does not authorize a proceeding against the ship in rem and personally against the owner at the same time.^ 1 Maguire v. Card, 21 How. 248. lower court as to interest, where it An exception to this doctrine may differs from the conclusions of the however arise in cases of claims for lower court as to the degree of fault salvage: Allen v. Newberry, 21 How. in the respective vessels : The North 244. Star, 22 U. S. App. 242. ^^ Adm. Rule 15. See also Adm. ^ Smith v. Condry, i How. 28. Rule 59 for the practice in cases * Newell v. Norton and Ship, 3 where there are allegations showing Wall. 257. fault or negligence in any other ves- * The Atlantic and Ogdensburg, i sel contributing to the same collision. Newb. Adm. 139; Ward v. The Og- In a collision case a circuit court of densburg, 5 McLean 622 ; The Cor- appeals will modify the decree of the sair, 145 U. S. 335. 100 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Where the loss from collision arises from the negligence of the master and crew, the master is liable as well as the ship.^ Under the present rule the remedy might be against both jointly, and they would not be exempted from liability if, even after a wreck caused by a collision, a portion of the cargo is injured or lost through efforts of another vessel to save it.^ In the absence of an act of Congress or a state statute giving a right of action therefor, a suit in admiralty cannot be main- tained to recover damages for the death of a human being, caused by negligence.^ The district court has no power to entertain a libel in rem for damages incurred by loss of life where by the local law a right of action survives to the administrator or relatives of the deceased, but no lien is ex- pressly created by the act.* The statutory right may be en- forced by an action m personam in admiralty.^ Assault and Battery. § 54. In suits for assault and battery committed upon the high seas, or elsewhere within the admiralty and maritime jurisdiction of the district courts, the proceeding can be only in personam.^ There is a different rule, usually applicable to the deportment of persons to each other on land, from that which obtains on board a ship. The authority of officers must be respected on the latter, and they are authorized to punish for disobedience. But a seaman may recover damages for an assault and battery inflicted wantonly and without cause by an officer;^ or where, although a punishment is inflicted for a provocation and just cause, it is done in a cruel or excessive manner, or where it is inflicted with a dangerous or deadly weapon.^ So the master is liable for an unjustifiable assault and battery by one of his officers upon one of the crew, where it is done by his direc- tion or command, connivance or consent; and these will 1 Hale V. Wash. Ins. Co., 2 Story " Adm. Rule 16 ; Thomas v. Lane, 176. 2 Sum. I. The jurisdiction of the - The Narragansett, Olc. 246. court depending upon locality should ^ The Harrisburg, 119 U. S. 199. appear from the libel: Ibid. *The Corsair, 145 U. S. 335. ' The owners are not liable for such ^ The City of Norwalk, 55 Fed. an act of the officer : Gabrielson v. Rep. 98 ; The Car Float No. 16, 61 id. Waydell, 135 N. Y. i. 364; s. c. 9 C. C. Ap. 521 ; Nelson v ^ Forbes v. Parsons, Crabbe 288. The Premier, 59 Fed. Rep. 797. JURISDICTION OF THE DISTRICT COURTS. 101 be presumed where he had knowledge of it and did not inter- fere to prevent it.^ The authority of the master or captain of a vessel to punish seamen for disobedience ends, it seems, with the voyage ; and if an offending seaman is afterwards taken again on board, the officer cannot thereafter punish or assault and beat him for an offence committed before he discharged him.^ Injury to Passengers. § 55. The admiralty jurisdiction of the district courts extends to assault and battery of passengers as well as to seamen, and they may recover damages for willful and wanton injuries, whether they are the result of direct force or merely conse- quential and indirect, as where a passenger has been subjected to gross ignominy and mental suffering by the brutal maltreat- ment and insults of the master of the vessel. It extends to every species of torts and wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at com- mon law would be an action on the case.^ Suits on Debentures. § 56. Whenever an importer of merchandise enters it for ex- portation and pays the duties thereon, he is usually entitled to a certain amount of the sum thus paid on the exportation thereof, called a drawback.* And if the importer makes a request there- for in writing, it is the duty of the collector of the port of entry to issue a certificate of drawback in writing showing that the importer is entitled to a certain sum from the government on the exportation of the identical goods on which the import duties have been paid, which certificates are called debentures. These debentures are assignable by delivery and indorsement, and in case of the refusal of the collector of the district where it was granted, for a longer period than three years after the same be- comes due and payable, to pay the same, as provided by the ninth chapter of the Revised Statutes, the assignee may bring 1 Hanson v. Fowle, i Saw. (C. C.) boat Co., 23 How. 209; The Ply- 539. mouth, 3 Wall. 20; The New World 2 Roberts v. Dallas, Bee's Adm. v. King, 16 How. 469 ; The Eagle, 8 239. Wall. 15. ^ Chamberlain v. Chandler, 3 Mas. * See Rev. Stat. ch. ix. 242 ; Phila., W. & B. R. Co. v. Tow- 102 FEDERAL PLEADING, PRACTICE AND PROCEDURE. suit thereon against the person to whom it was originally granted, or against any indorser thereof, either in the district or circuit courts of the United States.^ Suits for Damages against Conspirators ; Equal Rights of all Persons.^ § 57, Chapter xxiv. of the Revised Statutes provides for the recovery of damages sustained by any person on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States by any act done in furtherance of any conspiracy mentioned in said chap- ter; and the district courts have jurisdiction of all such suits.^ So these courts have jurisdiction of suits at law or in equity to redress the deprivation, under the color of law, ordinance, regu- lation, custom or usage of any state, of any right, privilege or immunity secured by the Constitution of the United States, or by any law of the United States, to persons within the jurisdic- tion thereof.* Suits to Recover Offices, Remove Officers and against Na- tional Banks. § 58. The district court has also jurisdiction of suits to recover the possession of any office except that of elector of President or Vice-President, or delegate in Congress, or member of a state legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of a denial of the right to vote, to any citizen offering to vote, on account of race, color or previous condition of servitude. But such jurisdiction only extends so far as to determine the rights of the parties to such office by reason of the denial of the right, guaranteed by the Constitution and secured by any law, to enforce the right of citizens of the United States to vote in all the states.^ So it has jurisdiction of proceedings by quo tvar- rafito prosecuted by any district attorney for the removal from ^ Rev. Stat. § 563, sub. 10, I 629, Judah, by Wm. L. Murfree, 35 Cent, sub. 8, ^ 3039, § 3040. Suit may be Law J. 269. maintained in the Court of Claims 'Rev. Stat. ^ 563, sub. 11. See for drawbacks under the Act of August U. S. v. Sauges, 48 Fed. Rep. 78. 5, 1861, c. 45 ? 4: Campbell v. U. S., *Rev. Stat. sub. 12; Ibid. §§ 1977, 107 U. S. 407. 1979- 2 Statutes and authorities cited and ^ Rev. Stat. ? 563, sub. 13 ; see also examined in note to Younger v. § 2610. JURISDICTION OF THE DISTRICT COURTS. 103 ofifice of any person holding the same, except as a member of Congress or of a state legislature, contrary to the provisions of the third section of the fourteenth article of the amendment to the Constitution of the United States.^ So it has jurisdiction of all suits by or against any association established under any law providing for national banking associations within the district for which the court is held,^ and of all suits brought by any alien for a tort only, in violation of the law of nations, or of a treaty of the United States.^ Suits against Consuls and Vice-Consuls. § 59. The district court has also jurisdiction of suits against consuls and vice-consuls, except for offences above that of a tort in violation of the law of nations, or of a treaty of the United States.* International law does not exempt consuls from the jurisdiction of the circuit courts, and they may sue and be sued in them within the district of their residence, if the value of the amount in dispute exceeds five hundred dollars,^ The jurisdic- tion of the district court in such cases is exclusive of state courts ; and it has been held that if a consul is sued in a state court and he neglects to plead his exemption from its jurisdic- tion, it is not a waiver of his privilege, as it is the privilege of the country which he represents and not merely a personal privilege, and the fact may be shown at any time.^ In Bankruptcy. § 60. The district courts are courts of bankruptcy, and have in their respective districts original jurisdiction in all matters and proceedings in bankruptcy/ As we have at present no national bankrupt law (the Bankrupt Act of 1867 having been repealed in 1879), it is hardly necessary to give this subject that consider- ation which its importance would demand if there were a bank- rupt law in force. ^ Rev. Stat. § 563, sub. 14. Stat. | 629, par. i. Act of March 3, 2 Rev. Stat. § 563, sub. 15. 1875, § i- ^ Rev. Stat. § 563, sub. 16. « Davis v. Packard, 6 Pet. 414, s. c. *Rev. Stat. § 563, sub. 17. 7 Pet. 276. See also St. Luke's Hos- * Lorway v. Lousada, i Am. Law pital v. Barkley,3 Blatch. (C. C.) 259. Rev. 92 ; I Low. (C. C.) 77 ; Getlings ^ 2 Rev. Stat. I 563, sub. 18. V. Crawford, Taney (C. C.) i ; Rev. 104 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER VI. PLEADING AND PRACTICE IN ADMIRALTY. General Principles. § 6i. The general rules, principles and modes of procedure which obtained in the English courts of admiralty and maritime jurisdiction at the inception of our government are substantially applicable to our federal courts of admiralty and maritime juris- diction. These have in some cases been changed or modified by acts of Congress, and regulated by rules prescribed by the Supreme Court, and by local rules of the courts in the various districts.^ But the exercise of powers and usages by the district courts, generally recognized as belonging to courts of admiralty and maritime jurisdiction, cannot be restrained by mere rules of court.^ The Libel. § 62. The first pleading on the part of the libellant or party instituting proceedings on the admiralty side of the court is the libel, which should contain a clear statement of the material facts of the case in distinct articles or paragraphs, consecutively num- bered, of the wrongs done for which he claims damages, and the grounds on which he bases his claims to property, with such sufficient fullness and precision as to enable the defendant to answer distinctly each material averment; and it should especially contain averments which bring the case within the admiralty jurisdiction of the court.^ The pleadings in admiralty are simple ' Manro v. Almeida, 10 Wh. 473 ; ^ The Boston, i Sum. 328 ; Talbot United States z/. The Little Charles, z/. Wakeman, 19 How. Pr. 36; Du- I Brock. 380; Jennings «». Carson, 4 pent v. Vance, 19 How. 162; The Cr. 2 ; Adm. Rule 46 ; Beers v. Haugh- Adaline, 9 Cr. 244 ; Thomas v. Lane, ton, 9 Pet. 329. 2 Sum. i ; Orne v Townsend, 4 Mas. 2 Gates V. Johnson, 11 L. Rep. N. 541 ; Treadwell v. Joseph, i Sum. S. 279. 390 ; The Washington, 4 Blatch. loi ; PLEADING AND PRACTICE IN ADMIRALTY. 105 and untechnical, and in this respect they correspond more closely with pleadings in equity than with those of the common law. Process cannot Issue until the Libel is Filed. § 63. No mesne process can issue in any civil cause of admir- alty or maritime jurisdiction until the libel or libel of information is filed in the office of the clerk of the court from which relief is sought. And all process must be served by the marshal or his deputy, or, where they are interested, by some discreet and dis- interested person appointed by the court. ^ The process must be directed to the marshal or his deputy, or, where he or they are interested, to some discreet and disinterested person appointed by the court ; and it cannot be served by a private person, although by the laws of the state original process may be so served.^ The Mesne Process. § 64. In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant in the nature of a capias, or warrant of arrest of the person of the defendant, with a clause therein that, if he cannot be found, his goods and chattels be attached to the amount sued for; and if such property cannot be found, his credits and effects be attached to the amount sued for in the hands of garnishees named therein, or by a simple monition in the nature of a summons to appear and answer to the suit, as the libellant shall in his libel or infor- mation pray for or elect.^ Several Claims for Damages. § 65. If several claims for damages are united in one libel, it would seem advisable to state the facts of each separately in a distinct article or paragraph, as otherwise the defendant might not be able to make a proper answer and it would be subject to exception.* If the libel is for damages for an assault and battery, "The Oscoda, 66 Fed. Rep. 347. A The United States v. The Little \\):)q\. in personam against the owners Charles, i Brock. 380. for damages caused by collision must ^ Adm. Rule 2. aver that respondent was the owner * Treadwell v. Joseph, i Sum. 390. of the vessel when the collision A number of claims may be joined: occurred: The Corsair, 145 U. S. The Queen of the Pacific, 61 Fed. 335. Rep. 213. Proceedings on separate 1 Adm. Rule i. libels may be consolidated and tried ^ Schwabacker v. Reilly, 2 Dill. 127 ; together : The Eliza Lines, Ibid. 30S. 106 FEDERAL PLEADING, PRACTICE AND PROCEDURE- it is sufficient to set forth the facts constituting the offence; but if it is designed to recover for several distinct and separate torts of this kind, it is desirable, if not necessary, to set them out distinctly in separate and distinct articles, in order that proper evidence may be offered in support of them, as it is a general rule in admiralty as well as at law and in equity, that the proofs must be confined to and follow the allegations of the pleadings.^ Under a rule, however, prescribed by the Supreme Court, amend- ments in pleadings in admiralty may be made in matters of form, on a mere motion to the court, as of course, in matters of sub- stance, upon motion at any time before a decree, upon such terms as the court shall impose. But evidence variant from the plead- ings will not furnish grounds for excluding it, unless it is calcu- lated to mislead.^ Suits against the Ship's Tackle, etc. § 66. In case of proceedings against a ship, her tackle, sails apparel, furniture, boats or other appurtenances, if such tackle, sails, apparel, furniture, boats or other appurtenances are in the possession of any third person, the court may, after the filing of the libel, issue a monition to such person to show cause, if any, why the same should not be delivered to the marshal, and the court may upon the hearing, if any, award and decree that the same be delivered into the custody of the marshal if it appears to be required by law and justice.^ Order for Process to Issue ; Stipulation for Costs. § (ij. There does not appear to be any positive statutory pro- vision or rule prescribed by the Supreme Court requiring the libellant to give security for costs ; but this is perhaps generally required by rules adopted by the various district courts. Nor is there any statute or rule requiring the issuance of process, but the practice is to obtain an order of the judge for the proper process to issue; and this is especially required where the suit ^ McKinlay v. Morrish, 21 How. William Penn, 3 Wash. 484; The 343 ; Kramme v. The New England, Clement, 2 Curt. 363. Newb. 481 ; Campbell v. The Uncle ^Adm. RuleS. See also as to attach- Sam, I McAU. 77. ments or replevin of property, Cer- 2 Adm. Rule 24 ; Crawford v. The tain Logs of Mahogany, 2 Sum. 589. PLEADING AND PRACTICE IN ADMIRALTY. 107 is in personavi^ and a warrant of arrest either of the person or property is asked, for a sum exceeding five hundred dollars/ It is further provided by rule that bonds and stipulations in admiralty suits may be given and taken in open court or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits of bail or depositions in cases pending before the court or any commissioner of the United States authorized to take bail and affidavits in civil cases.^ The stipulation should be signed by the libellant and the sureties, and be acknowledged before the proper officer, who should require a justification by affidavit on the part of the surety. If, however, there is a defective stipulation filed with the clerk, the defect will be deemed waived unless excepted to by the party interested therein before the close of the term of court next subsequent to its becoming known to him.^ New Sureties, when Required ; Bail Reduced. § 68. It is further provided by rule that in all suits in personam, where bail is taken, the court may on motion therefor reduce the amount of the bail ; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as provided by the rules, if either of the sureties shall become insolvent pending the suit, new sureties may be required by the order of the court, to be given upon due proof thereof.* In Case of Contracts or Torts, may Attach. § 69. The district courts have, as we have observed, jurisdic- tion of maritime contracts and torts, and of suits in personam as well as in rejn. If the suit is in personam^ the court may issue a process of arrest which may contain an attachment clause, and if the defendant has absconded or cannot be found within the jurisdiction of the court, the property of the defend- ant may be attached ; and in case of default, the attached prop- erty may be condemned to answer the claim of the libellant. If property of the defendant cannot be found, the credits and effects of the defendant in the hands of the third parties may be garnisheed.^ The primary object in all such cases is to secure 1 Adm. Rule 7. * Adm. Rule 6. 2 Adm. Rule 5. ^ Adm. Rule 2 ; Manro v. The Al- » Abb. Adm. 327 ; Sawyer v. Oak- meida, 10 Wh. 473 ; McGrath v. The ham, II Blatch. C. C. 65. Candalero, Bee's Adm. 64; Bouysson .108 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the appearance of the defendant in the suit, and not the arrest of the property. When Attachments may be Dissolved. § 70. When property is attached in a suit in personam, under a warrant authorizing the same, the attachment may be dissolved by order of the court to which the warrant is returnable, by the giving of a bond or stipulation by the defendant, with sufficient sureties, to abide by all orders of the court, interlocutory or final, and to pay the amount awarded by the final decree ren- dered by said court or any appellate court ; and execution may issue against said principal and sureties from either of said courts, to enforce a final decree rendered therein.^ The bond in such a case becomes a substitute for the property seized, and the question as to the right to subject the property to the claim of the libellant must be determined before a final decree can be rendered on the bond, either by the district court or the circuit court of appeals on appeal, and the Supreme Court cannot review this question. And if such a bond or stipulation is given by a member of a firm, at their request and for their benefit, this bars a suit against the other partners.^ When the Marshal may take Bail; Summary Process. § 71. It is further provided by rule, that " in all suits in per- sonam where a simple warrant of arrest issues and is executed, the marshal may take bail with sufficient sureties from the parties arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, inter- locutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in any appellate court. And upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable to enforce the final decree so rendered, or upon appeal by the appellate court." ^ V. Miller, id. 186; Reed v. Hussey, i bond is conditioned for payment of Blatch. & H. 525; Mankin 5y. Chan- value of property released: Pope z/. dler, 2 Brock. 125. Seckworth, 46 Fed. Rep. 858. 1 Adm. Rule 4. The property will '^ United States v. Ames, 99 U. S. not be released where it is of less 35. value than the debt sued for and the ^ Adm. Rule 3. PLEADING AND PRACTICE IN ADMIRALTY. 109 It is not sufficient under this rule, in order to release the party in custody, that he give a stipulation for costs on the return day of the process, but he is required to give a bond or stipulation to satisfy any decree which may be rendered against him in the suit, and until this is done he cannot be discharged from arrest.^ Where the condition of the bond provided that the parties would perform the decree of the court, etc., it was held that this meant the court that should ultimately decide the case.^ But the court will not suffer a party to be held to bail in two places at the same time, for the same cause of action.^ When a decree is rendered against the principal in the bond or stipulation, execution may properly issue against the stipulators, upon the decree rendered, as well as against the principal.* "When a "Warrant of Arrest Cannot Issue. § 72. It has already been incidentally observed that no war- rant of arrest, either of the person or property of the defendant, in suits in personam, can issue for a sum exceeding five hundred dollars, unless by special order of the court, upon affidavit or other proper proof, showing the propriety thereof.^ The Claim ; Pleading of a Claimant in Proceedings in rem. § 73. A person who claims the property involved in a proceed- ing in rem may, by a sort of pleading called a claim, intervene in the suit and have his right to the same adjudicated in the same suit. He may obtain the property, in the first instance by depositing in court so much money as the court shall order, or by giving a stipulation with sureties, after an appraisement of the property, in such sum and on such conditions as the court may direct. The court on the hearing may adjudge the property to him, or that he receive the balance of its proceeds after satisfying any decree in favor of the libellant, as the case may require.'' 1 Gardner z'. Isaacson, Abb. Adm. ^Adm. Rule 7; Marshal v. Bazin, 141. 7 N. Y. Leg. Obs. 342. '^The U. S. V. Little Charles, i ''Conk. Adm. 203, and notes; Brock. C. C. 3S0. Adm. Rule 10, it. But a stipulation ^ Bingham v. Wilkins, Crabbe 50. filed to release a vessel is not a * Gaines v. Travers, Abb. Adm. waiver of the question of original lia- 422. bility: The Fidelity, 16 Blatch. 569. 110 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Where the Property Arrested is owned by Several or Jointly. § 74. It frequently occurs that property arrested by proceed- ings in admiralty is owned by several parties, as, for instance, a vessel or its cargo, in which latter case there might, and usually would, be several owners of it. In such a case it seems to be the practice to allow one of them to make a claim on behalf of himself and the other owner or owners ; but, where the property interests are distinct, it is required by the general principles of admiralty practice that the claims be set up by each of the several owners. Between such parties there is no priority of interest, and their interests are, therefore, independent matters of adjudi- cation. Several parties owning distinct parts of a cargo, sepa- rately may interpose in case of a libel for salvage, although the libel is against the whole, and the claims of the several parties would be adjusted in the one proceeding, as if it had been a dis- tinct proceeding against the particular property of each owner. And in case any particular part of the property arrested is not claimed, it is the practice of the court to retain possession of it for at least a year and a day from the time the proceedings are instituted, unless some claimant sooner appears. As a general rule the claimant is required to intervene on the return day of the process, and then be ready to file his claim in court ; and in case of failure so to do, or of the defendant to appear and answer by that time, the libel may be taken pro con- fesso; but it is usual to allow a reasonable time thereafter to the defendant to prepare an answer, where he applies for further lime.^ Sometimes the claim of proprietory right is joined with an answer, and called a claim and answer ; but as the right of a claimant in court rests upon his right of property or that of his principal, and this alone gives him a right to interpose a claim, it has been considered the better practice to put in the claim separately.^ The Claim Must be Verified ; Stipulation for Costs. § 75. It is required by a rule of practice in admiralty pre- scribed by the Supreme Court that, " in suits in rem, the party ^ Conk. U. S. Adm. 303 et seq. ; Adm. Rule 29. ^ Ibid. PLEADING AND PRACTICE IN ADMIRALTY. Ill claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner." The claimant in such a case is required to file a stipulation with sureties in such sum as the court may direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the court, or upon an appeal by the appellate court/ When the Ship will be Delivered to a Claimant. § y^. If any ship shall be arrested, it may, upon the applica- tion of a claimant, be delivered to him upon an appraisement had under the direction of the court, and upon his depositing in the court so much money as the court shall order ; or upon his giving a stipulation, with sureties in such sum as the court shall direct, to abide by and pay the money that may be awarded by the final decree rendered by the court, or the appellate court if an appeal intervenes, as the one or the other course shall be ordered by the court ; and if the claimant shall fail to make such application, then the court m.ay, on the application of either party, upon due cause shown, order a sale of the ship which has been arrested, and the proceeds thereof to be brought into court, or otherwise disposed of as it may deem most beneficial for all concerned.^ Stipulation by One of the Owners of a Vessel. § y"]. The appraisement provided for by the rules of court on an application for the delivery of a ship to a claimant as aforesaid is conclusive upon the party to whom it is delivered upon such an application. He cannot afterwards insist that the ship was of less value than that at which it was appraised ; nor can he be held beyond this appraised value, or show that he had discharged other liens, diminishing the amount for which he was personally liable in the first instance.^ ^Adm. Rule 26. ^'The Virgin, 8 Pet. 538. But the '^Adm. Rule 11. giving of a stipulation waives no 112 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Perishable Goods Sold. § 78. If the goods or other things arrested are perishable or liable to deterioration, decay or injury by detention in the cus- tody of the marshal pending the suit, the court will, upon the application of either party, in its discretion, order the same or so much thereof as shall be perishable or liable to depreciation, decay or injury by detention, to be sold, and the proceeds, or so much thereof as shall be sufficient to satisfy any decree which may be rendered in the case, to be brought into court to abide the event of the suit ; or the court may, upon the application of a claimant, order a delivery thereof to him, upon due appraise- ment to be had under its direction, either upon the claimant de- positing in court so much money as the court shall order, or upon his giving a stipulation with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree which may be rendered by the court, or the appellate court if an appeal is taken, as the one or the other course is ordered by the court. ^ It is not a matter of absolute right in such cases for either party to have a delivery of property on bail ; but if a ship is liable to be injured by a delay during a suit for salvage or the cargo to deteriorate, it is proper to apply to the court for a sale thereof; and if, on a proper showing of facts, it would appear to be for the interest of all parties concerned, the court should order the sale.^ In case of appeal the tJiing does not follow the appeal to the higher court, but remains in the court below, which may thereafter order a sale of the property on a proper application and showing as aforesaid.^ Where a State Court has Acquired Jurisdiction. § 79. The district courts will not interfere in a proceeding in rem with property properly in the custody of a state court. The tribunal having jurisdiction, and first exercising it in such a case, may proceed without the interference of the other. Thus, if a party attaches a vessel by a process issued from a state court, and under the statutes of a state providing for such a proceeding, rights of the stipulator in reference to See also the Cheshire, Blatch. Pr. original liability : 16 Blatch. 569. Cas. 165 ; The Elly Warley, Ibid. 213. ^ Adm. Rule 10. ^Jennings v. Carson, 4 Cr. i. * The Nathaniel Hooper, 3 Sum. 543. PI^EADING AND PRACTICE IN ADMIRALTY. 113 to secure a claim for material furnished, and a libel is subse- quently filed by another person in a district court to enforce a lien for material furnished to repair the same vessel, the attach- ment issued from the state court would have priority over that of the federal court, and the plaintiff in the former suit could not be prejudiced by the latter.^ Information and Libel on Seizures. § 80, It is required that " all informations and libels of infor- mation upon seizures for any breach of the revenue or navigation, or other laws of the United States, shall state the place of seizure, whether it be on the land or the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought, and where it then is." ^ It is further required that the information or hbel of information " propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such cases provided as the case may require;" and it must "conclude with a prayer of due process to enforce the forfeiture, and to give notice to all per- sons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed."^ It is necessary that the information or libel of information should aver specially all the facts constituting the offence charged ; and a general reference to the provisions of the statutes claimed to have been violated is not sufficient.* But liberal provisions are made for amendments,^ and an informal libel or information may be amended by leave of the court. And where a suit was ^The Fulton, i Paine 520. See certainty, in case several illegal acts also Hine v. Trevor, 4 Wall. 55 ; s. c, are charged, as to which constitutes 17 id. 349; Leon v. Galcerean, 11 the offence: The Caroline, i Brock. id. 185 ; Donnell v. The Starlight, 384 ; The Gazette, 128 U. S. 474- 103 Mass. 227. Technical rules of common law 2 Adm. Rule 22. pleading do not exist in admiralty : ^ Ibid. Dupont v. Vance, 19 How. 162; as *The Caroline z^. United States, 7 to essentials of the libel, and the Cr. 496 ; The Happet and Cargo v. right to amend, see 2 Parsons, Sh. United States, Ibid. 389 ; The Mar- and Adm. 370-1 ; 379-87 ; 429-32. garet, 9 Wh. 421. There must be ° Adm. Rule 24. 8 114 FEDERAL PLEADING, PRACTICE AND PROCEDURE. brought against a vessel and master jointly, to recover a penalty for importing goods which were not included in the manifest, it was held proper to dismiss the suit as to the master, as he would be entitled under the statute to a jury trial, and proceed against the vessel m rem} It is manifest from the provisions of this rule that the owner of the libelled property may be represented by another in the presentation of the claim. Thus, while the ship against which the proceedings are instituted is at the time of the arrest in the possession of the master of the ship, he may put in the claim as bailee for the owner, and verify it.^ Such claim and verification is by no means conclusive of the right of property, but only enables the claimant to controvert the claims of the libellant and allows him by proofs to establish his right thereto. If it should, however, appear on the trial that his claim was not well founded, whether the claims of the libel- lant were established or not, and that some other party not represented by the claimant was the owner, or had an adverse interest in it, the court would retain the property, and allow him an opportunity to claim it.^ How Decrees may be Enforced. § 8i. The final decree of the district court in admiralty for the payment of money may be enforced by a writ of execution, to which the libellant is entitled, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tene- ments, or other estate of the defendant or his stipulators.^ The execution issues summarily against stipulators, upon a decree being rendered against the principals, the execution of the stipulation by them being regarded as an agreement to sub- mit to such decrees as may be entered against those for whom they have become thereby bound.^ Prize Causes*. § 82. The district courts have exclusive cognizance of all prize causes, except as provided by paragraph six of section 629 ^The United States v. The Steam- * A dm. Rule 21. ship Queen, II Blatch. 416. ^Gaines v. Travis, i Abb. Adm. ^ Adm. Rule 26, see post. 422 ; The Blanche Page, 16 Blatch. i. ^Conk. Adm. PLEADING AND PRACTICE IN ADMIRALTY. 115 of the Revised Statutes/ which also confers concurrent jurisdic- tion upon the circuit courts, in proceedings to condemn property- taken as prize which is used or intended to be used to aid any insurrection." In the adjudication of these cases they may decree a restitu- tion of the whole or a part of the captured property, and they may decree damages against the captors, where the capture was wrongful and without probable cause ;^ and if the seizure was not only illegal, but a gross and wanton outrage, the court is not limited, in its decree of damages against the captors, to the actual pecuniary loss sustained by the seizure, but may, in analogy to the doctrine of the common law relating to damages for will- ful outrage and oppression, give such damages to the injured party as will compensate for the mental suffering and humilia- tion which may have been sustained thereby, or damages of a punitive or exemplary character.* By the general principles of the admiralty law, seizures must be made upon the high seas, or on contiguous waters where the tide ebbs and flows ; ^ but the section under consideration confers exclusive jurisdiction on the district courts in all cases where the seizure is made on land, or on waters not within admiralty jurisdiction, except in cases of proceedings for the condemnation of property captured under a claiin that it was used or intended to be used in aid of an insurrection against the government of the United States, in which latter case the circuit courts have also jurisdiction.^ In Cases of Seizure : Process. § 83. In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, must be by warrant of arrest of the ship, goods or other things 1 Rev. Stat. \ 629, pars. 6 and 9. * The Amiable Nancy, 3 Wh. 546; 2 Rev. Stat. \ 629, sub. 6; Ibid \ The Siren, 7 WalL 152; The Brig 5308. Alerta v. Moran, 9 Cr. 359; The =* Glass V. Sloop Betsey, 3 Dall. 6 Estella, 4 Wh. 307 ; Keene v. The (1793); Penhallow v. Doan, 3 Dall. United States, 5 Cr. 304; United 54 ; Talbot v. Janson, 3 Dall. 133 ; States v. Schooner Sally, 2 id. 406. Bingham v. Cabot, 3 Dall. 19 ; Jen- ^The Sarah, 8 Wh. 391. nings V. Carson, 4 Cr. 2 ; Bowen v. ^ Rev. Stat. \ 563, sub. 8 ; Ibid \ United States, 8 Cr. no ; The Estella, 629, sub. 6 ; Ibid. 5308. 4 Wh. 298 ; The Siren, 7 Wall. 152. 116 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to be arrested; and the marshal is thereupon required to arrest and take the ship, goods or other thing into his possession for safe custody; and it is his duty to givepubhc notice thereof, and of the time assigned for the return of such process and the hear- ing of the cause, in such newspaper within the district as the court shall order; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct.^ Condemnation of Property Employed in Aid of Insurrec- tion. § 84. The statutes provide for the seizure and condemnation as prize of any property used or intended to be used in aid of any insurrection against the government of the United States;^ and, as we have seen, both the circuit and district courts have cognizance of such causes.^ This provision of the Revised Stat- utes is a substantial re-enactment of the provisions of the Act of Congress of August 6, 1861, under which it was determined that it covered all descriptions of property both real and personal, whether on land or water; that the proceedings under the act for condemnation of real estate or other property on land should be shaped in conformity with the general practice in admiralty cases ; and that the issues of fact in such cases should, on the request of either party, be submitted to a jury.* Authority of the Court over Funds derived from Confis- cated Property. § 85. The proceeds of confiscated property paid into courtare under its control until they are distributed pursuant to a final decree in the cause; and if they are withdrawn without authority ^ Adm. Rule 9. v. Winchester, 99 U. S. 372 ; Wal- * Rev. Stat. § 5308. lack v. Van Risvvick, 92 id. 202 ; ^ Rev. Stat, \ 563, par. 9, and ? 629, Pike v. Wassell, 94 id. 711 ; Avegno par 6. V. Schmidt, 113 id. 293 ; Shields v. * Union Ins. Co. z'. United States, 6 SchifF, 124 id. 351; Sabariego v. Wall. 759. See also The Vengeance, Maverick, Ibid. 261 ; 111. Cent. R. R. 3 Dall. 297 ; The Sarah, 8 Wh. 394. Co. v. Bosworth, 133 id. 92 ; Jenkins For other matters touching pro- v. Collard, 145 id. 546; Briggs v. ceedings under confiscation, practice U. S., 143 id. 346 ; U. S. v. Dunning- and pleadings, and effect of confisca- ton, 146 id. 338 ; Duvall v. U. S., tion, etc., see The Confiscation cases, 154 id. 54S; U. S. v. Hallock, Ibid. 20 Wall. 92, 114, 115: United States 537. PLEADING AND PRACTICE IN ADMIRALTY. 117 of the court, it can by summary proceedings compel their resti- tution.^ Distinction between Instance and Prize Causes. § 86. The distinction between the instance and prize side of the court, in the exercise of admiralty jurisdiction, is clear and important to be observed. In the former case the power of the court rests upon the statutes, in the latter upon the general principles of the common law, relating to admiralty practice and procedure. Hence, if the records show that the case is on the instance side of the court for a forfeiture under a statute, the property sought to be condemned cannot be condemned as prize ; and if it shows a proceeding for the condemnation of property as prize, it cannot be condemned under the statutes for a forfeiture on the instance side of the court.^ Seizures Cognizable in the District Court of the District into which the Property may be Taken. § 87. In case of the seizure for forfeiture of any vessel or cargo entering any port or harbor which has been closed by the Presi- dent of the United States in pursuance of law, or of goods or chattels coming from a state or section of the country declared by the President to be in insurrection, into other parts of the United States, or of any vessel or vehicles conveying such prop- erty, or conveying persons to or from such state or section, or of any vessel belonging in whole or in part to any inhabitant of such state or section, the proceeding may be prosecuted in any district court into which the property so seized may be taken and proceedings instituted ; and the district courts have in such cases as full and complete jurisdiction over such proceedings as if the seizure had been made in that district.^ By the general practice in such cases, where there is a seizure upon the high seas, any 1 Osborne z'. United States, 91 U.S. 49S ; The Brig Caroline, 7 Cr. 496 ; 474. See also Morris' Cotton, 8 The Samuel, i Wh. 9; Tlie Mary Wall. 507 ; Mrs. Alexander's Cotton, Anne, 8 id. 380 ; The Venice, 2 2 Wall. 404 ; Union Ins. Co. v. United Wall. 258 ; Cappell v. Hall, Ibid. 542 ; States, 6 Wall. 759; Armstrong's Mrs. Alexander's Cotton, Ibid. 404. Foundry, Ibid. 766 ; United States v. The question is more fully discussed Shares of Capital Stock, 5 Blatch. 231. in 2 Parsons' Sh. and Adm. 429, 431, ^2 United States v. Weed, 5 Wall, title " Amendments. " 62 ; Jecker v. Montgomery, 13 How. ^ Rev. Stat. I 564. 118 FEDERAL PLEADING, PRACTICE AND PROCEDURE. district court may take cognizance of proceedings for the for- feiture, in any district into which the property is brought.^ Trial by Jury, when. § 88. Section 566 of the Revised Statutes provides that " the trial of issues of fact in the district courts, in all causes except cases in equity and cases of admiralty and maritime jurisdiction, shall be by jury." And in certain admiralty cases which relate " to any matter of contract or tort, upon or concerning any vessel of twenty tons burden or upward enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation between places in different states and territories upon the lakes and navigable waters con- necting the lakes, the trial of issues of fact shall be by jury when either party requires it." Although the statute provides for a trial of issues of fact in certain cases by a jury, still this right may be waived, and the parties may stipulate for a trial of these issues by the court, even upon an agreed statement of facts, and the parties have this right independent of any legislative provision.^ Libels in Instance Causes. § 89. What is required to be stated in libels in instance causes is provided by rule as follows: "All libels in instance causes, civil or maritime, shall state the nature of the cause; as, for example, that it is a cause civil and maritime of contract, or of tort or damage, or of salvage, or of possession, or otherwise as the case may be ; and if the libel be in rem, that the property is within the district; and, if in personam, the names and occupa- tions and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may require), and for such relief and redress as the court is competent to give in the pre- 1 The Abby, i Mason 360. See "^ Henderson's Distilled Spirits, 14 also The Maggie Hammond, 9 Wall. Wall. 44. 435; The Merino, 9 Wh. 391. PLEADING AND PRACTICE IN ADMIRALTY. 119 mises. And the libellant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or con- clusion thereof."^ It is not necessary to state any facts which constitute a defence of the claimant of the vessel, or a ground of exception to the operation of the law on which the libel is founded;^ but the libel should show facts conferring jurisdiction on the court; and no evidence is admissible except to sustain its allegations;'' And it should state in distinct allegations the matters relied upon as grounds of forfeiture.* Amendments. § 90. Liberal provisions, as we have noticed, are made by rule for amendments of pleadings in causes of admiralty and mari- time jurisdiction ; and in matters of form, they may be made at any time on motion to the court, as of course.^ But if it is desired to add new counts to the information or libel, or amend upon matters of substance, this may be done upon motion, at any time before a final decree, only on such terms as the court may impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant.'^ Under this rule, where a libellant proceeded originally against a vessel, master, owners and pilot, he could by leave of court amend his libel so as to apply to the vessel and master only.'^ Defendant to Give Security. § 91. Upon the appearance of the defendant in a suit in per- sonain, where no bail has been taken of him, and no attachment of property has been made to answer the exigency of the suit, the court, in its discretion, may require the defendant to give a ^ Adm. Rule 23 ; About 18,000 Rep. 508. Where it is admitted in Gallons of Distilled Spirits, 5 Ben. 4. argument that the facts are substan- ^ The Aurora v. The United States, tially as pleaded no amendment will 7 Cr. 382 ; Thomas v. Lane, 2 Sum. i. be allowed: Burrili v. Grossman, 65 ^ The Boston and Cargo, i Sum. id. 104. 328; The Havre, i Ben. 295; Bom ^ Adm. Rule 24; Town z'. Steam- V. The Hornet, Crabbe 426. ship Western Metropolis, 28 How. * Distilled Spirits, etc., 5 Ben. 4; Pr. R. 283; The J. E. Trudeau, 54 Treadwell v. Joseph, i Sum. 390. Fed. Rep. 907. ^ U. S. V. Haytian Republic, 57 Fed. ' Newell v. Norton, 3 Wall. 257. 120 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Stipulation with sureties, to pay all costs and expenses which may be awarded against him, upon a final adjudication of the suit, or by any interlocutory order made during the progress of it.^ But if the defendants are guilty of no irregularity or wrong in tendering their appearance and pleading to the action, the libellants may waive the right to claim security, and this will not impair the validity of any proceedings in the cause there- after.2 Answer : Verification. § 92. In all causes of civil and maritime jurisdiction, whether m rem or in personam, the defendant, if he desires to make a defence to the suit, should make a proper answer to the libel upon the return day of the process, or such other day as the court may upon a proper application assign. The answer should be full, explicit and distinct to each separate article and each separate allegation of the libel, and in the same order as num- bered in the libel, and in like manner to each interrogatory pro- pounded at the close of the libel ;^ and it must be on oath or solemn affirmation,^ except in cases where the matter in dispute does not exceed the sum or value of fifty dollars, exclusive of costs, unless the court shall be of the opinion that for the pur- poses of justice the general rule should be observed.^ This rule is applicable to cases on the instance side of the court.'' If a plea to the jurisdiction is interposed, it must be by the defend- ant himself in propria persona, and on oath, and no third person is permitted to file such a plea/ Exceptions to Libel and Answer. § 93. Although there would appear to be no reason why a demurrer to a libel might not be appropriate where it is insufifi- cient in substance, the common mode of testing its sufficiency, ^ Adm. Rule 25. ^ Gammell v. Skinner, 2 Gall. 45 ; 2 Pharo V. Smith, 18 How. Pr. R. Dunlap's Adm. Pr. 209. 47. ' The Rambler, Bee's Adm. 9. ^ Virginia Home Ins. Co. v. Sund- The district courts may, perhaps, berg, 54 Fed. Rep. 389. provide by rule for the verification of * Adm. Rule 27 ; Coffin v. Jenkins, pleadings by other parties : Adm. 3 Story 108. Rule 46. 5 Adm. Rule 48. PLEADING AND PRACTICE IN ADMIRALTY. 121 as well as that of an answer, is by exceptions taken thereto.^ The exceptions in such a case take the place of a demurrer in common law and equity proceedings. The want of sufficiency, fullness, distinctness or relevancy of an answer to the articles and interrogatories in the libel may be excepted to, and if the court shall consider the exceptions well taken it may order the defendant forthwith, or within such time as it may direct, to answer over and pay such costs as may be deemed reasonable.^ One of the rules prescribed by the Supreme Court provides : " The libellant may except to the sufficiency or fullness or dis- tinctness or relevancy of the answer to the articles and inter- rogatories in the libel ; and if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the defendant forthwith, or within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reason- able."^ Under this rule an exception for impertinence in an allegation of an answer was allowed, where it served no legal purpose and was a mere slur on the libellant.* Exceptions may also be taken to any libel, allegation or answer for surplusage, irrelevancy, impertinence or scandal, which may be referred to a master, and if he shall report the matter so excepted to as objectionable, and this is sustained and allowed by the court, the matter will be expunged at the cost and expense of the party in whose pleading the objectionable matter is found. ^ Default on Failure to Answer. § 94. If the defendant omits or refuses to answer the libel at the time above indicated, the court will adjudge him to be in contumacy and default, and that the libel be taken pro coiifesso against him, and the court will proceed to hear the cause ex ' After argument of exceptions, the Sweeney, 55 Fed. Rep. 540. point cannot be raised, that the facts ' 2 Conk. Aclm. 238 ; Adm. Rules set out in the exceptions are available 24, 28, 36 ; Town v. Steamship West- only by answer : U. S. v. Haytian ern Metropolis, 28 How. Pr. 283. Republic, 57 Fed. Rep. 508. A mo- ^ Adm. Rule 28. tion to dismiss a libel in rent may be * The Pioneer, Deady 58. made after full hearing on merits, ^ Adm. Rule 36 ; United States v. with testimony and argument : Char- Barrels of Alcohol, 10 Int. Rev. Rec. leston Bridge Co. v. The John C. 17. 122 FEDERAL PLEADING, PRACTICE AND PROCEDURE. parte and to make such a decree as law and justice may require. But the court may at any time before a final decree, upon the application of the defendant, set aside the default and permit him to answer the libel, upon his paying all the costs of the suit up to the time of granting leave therefor. If the defendant refuses to answer any particular interrogatory, the charge in the libel to which it refers will be taken pro confcsso} But state- ments in a libel which contain no claim for damages, and for which no remedy is prayed, need not be answered specifically.^ "When a Further Answer will be Required; what Defend- ant May Object to Answer. § 95. If the defendant answers, but does not answer fully, ex- plicitly and distinctly to all matters in any article of the libel, the libellant may file exception thereto, and if it is allowed the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro coiifesso against the defendant to the full purport and effect of the article to which it purports to answer, and as if no answer had been put in thereto.^ And in all cases where a de- fault is entered, and where an order is entered that the pleadings be taken /ri? confesso, if the court has jurisdiction of the subject- matter and of the parties, and a final decree is entered, the pre- sumption is that all the facts necessary to warrant the decree or judgment were found, if they are sufficiently averred in the pleadings.* But " the defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel which will ex- pose him to any prosecution or punishment for crime, or for any penalty, or any forfeiture of his property for any penal offence."^ In a proceeding in admiralty by information for a forfeiture, it was held that the claimants should not be required to produce an invoice called for by the United States as libellant, as it might expose them to prosecution and punishment." ^Adm. Rule 29; The David Pratt, * Miller v. The United States, 11 Ware 509; Miller v. The United Wall. 268. States, II Wall. 268. '" Adm. Rule 31. " The Brig Aldebaran, 01c. Adm. « The United States v. Tvventy- R. 130. eight Packages of Pins, Gilpin 306. ^ Adm. Rule 30. PLEADING AND PRACTICE IN ADMIRALTY. 123 The Defendant May Require the Libellant to Answer In- terrogatories. § 96. The defendant may also, at the close of his answer, pro- pound to the libellant any interrogatories touching any matters charged in the libel, or any matter of defence set up in his answer, and require the libellant to answer the same upon oath or solemn affirmation, subject to the like exception as to matters which shall expose the libellant to any prosecution, or punish- ment or forfeiture, as is set forth in the foregoing section. And if the libellant fails to make proper answers to such interroga- tories, the court may adjudge him to be in default and dismiss the libel, or may compel proper answers by attachment, or take the subject-matter of the interrogatories pro confesso in favor of the defendant, in the same manner and to the same extent as where the defendant refuses to answer interrogatories of the hbellant, as the court in its discretion shall deem most fit to pro- mote justice.^ When the Verification of an Answer to Interrogatories May be Dispensed with. § 97. We have noticed that the general rule is that the answer must be verified, but this may be dispensed with in certain cases. Thus " where either the libellant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable."^ New Facts in the Answer; Practice in Case of. § 98. If a defendant in his answer alleges new facts, these are to be treated as denied by the libellant, and no replication, gen- eral or special, may be filed, unless allowed or directed by the court on proper cause shown. But the libellant may, within such time after the answer is filed as may be fixed by the court, either by a general rule or by a special order, amend his libel, so as to confess and avoid, or explain, or add to the new matters 1 Adm. Rule 32 ; The David Pratt, Gall. 45. I Ware 509 ; Gammell v. Skinner, 2 ^ Adm. Rule 33. 12-i FEDERAL PLEADING, TRACTICE AND PROCEDURE. set forth in the answer, and the defendant may in hke manner, within such time as may be fixed by the court, amend his answer.^ Cross-bill, when Filed : Security for Costs. § 99. Whenever the defendant has a counter-claim arising out of the same cause of action for which the original libel was filed, he may file a cross-bill therefor;^ and in such a case the re- spondents thereto are required to give security in the usual form to respond in damages as claimed in said cross libel, unless the court on cause shown shall otherwise direct ; and proceedings upon the original libel will be stayed until such security be given, ^ Attachment Proceedings: Garnishee. § 100. The libellant is entitled to a process of foreign attach- ment whenever the defendant has concealed himself or absconded from the country, and the goods to be attached are within the admiralty jurisdiction of the court; and it may issue against his goods and chattels, and against his credits and effects in the hands of third persons.* And in such cases, if a creditor is garnisheed, he is required to answer on oath or solemn affirma- tion as to the debts and credits and effects of the defendant in his hands, and to all such interrogatories touching the same as may be propounded to him by the libellant; and if he refuses or neglects so to do, the court may award compulsory process against him. If he admits any debts, credits or effects in his hands, the same shall be held by him liable to answer the result of the suit.^ It is the duty of the garnishee to put in an answer as required by the garnishment notice. But if he makes default, and judgment is entered against the defendant, execution will issue in the first instance only against the debts, effects and credits of the principal in his hands. If the libellant can satisfy the court, by affidavits or otherwise, that the garnishee has 1 Adm. Rule 51. matters touched upon in the preced- "^ See The Giles Loring, 48 Fed. ing sections, from 89 to 99 inclusive, Rep. 463. see 2 Parsons' Sh. and Adm. 361- ^ Adm. Rule 53. Electro-Dynamic 387. Co. V. The Electron, 48 Fed. Rep. * Manro v. Almeida, 10 Wh. 473. 689 ; Franklin Sugar Ref. Co. v. ^ Adm. Rule 37. Funch, 66 id. 342. As to the several PLEADING AND PRACTICE IN ADMIRALTY. 125 sufificient debts, effects or credits of the principal defendant in his hands to satisfy the judgment, he is entitled to an execution against him ; or if necessary to have an answer, he may have compulsory process in personam to compel the same.^ Attached Property in the Hands of a Third Party, when Brought into Court. § lOi. It is provided by rule that "in cases of mariners' wages, or bottomry, or salvage, or other proceedings in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit; and if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit; and upon failure of the party to comply with the order, may award an attachment or other compulsive process, to compel obedience thereto." ^ In some cases where the court has parted with the possession of the property, on the giving of a stipulation, and justice requires the court to retake the same, and it is in the actual or constructive possession of a person not a party to the stipulation, it can only be done by a monition and not by an execution in the first instance.^ This is the rule of practice in prize, bottomry and salvage cases as well as in libels for wages.* Where the Libellant does not Appear : Dismissal. § 1 02. We have noticed the practice and the rights of the libellant in case the defendant fails to appear, and it is here appro- priate to notice the practice and the rights of the defendant in case the libellant fails to appear. Where the latter does not appear and prosecute his suit according to the course and orders of the court, he will be considered in default and contumacy, and the court will upon the application of the defendants pro- nounce the suit deserted, and dismiss the same with costs.^ 1 Story V. Rennell, 1 Sprague 418 ; Adm. Rule 38. The question whether Adm. Rule 37. On these points, see a case is made for recall of the prop- also 2 Parsons' Ship, and Adm. 391-3. erty must be determined before final * Adm. Rule 38. decree on the bond; U. S. v. Ames, * The Gran Para, 10 Wh. 497. 99 U. S. 35. *Shepard v. Taylor, 5 Pet. 675; » Adm. Rule 39. 126 FEDKRAI. PLEADING, PRACTICE AND PROCEDURE. A Decree on Default May be Rescinded. § 103. Wliere the matter of a libel shall have been decreed against a defendant, on account of his contumacy and default, the court may, on motion by him and the payment of costs, at any time within ten days after the decree has been entered, rescind the decree and grant a rehearing of the cause. The court may, however, make the rehearing conditional upon the defendant's submitting to such further orders and terms in the premises as it may direct.^ But a rehearing cannot be had after the term of the court has passed at which the decree was rendered,^ In this case it is expressly provided that the rehearing may be had only on motion. This should be in writing. And in all cases where a party is entitled to any order or judgment of the court, for a neglect of duty, or a disregard of the rules of pleading or the orders of the court by the adverse party, as where the libellant is entitled to a default on the neglect of the defendant to answer in due time, the proper practice is to file a motion in writing set- ting forth the facts, and asking the court to take such action as the party may be entitled to. Proceeds of Property; Deposit of Money. § 104. All sales of property under any decree in admiralty must be made by the marshal or his deputy, or other proper officer designated by the court where the marshal is a party in interest, in pursuance of the orders of the court, and it is the duty of the officer making the sale to forthwith pay the same into the registry of the court, to be disposed of according to law; and such moneys must be deposited in some bank desig- nated by the court, and in the name of the court, and can only be drawn out on checks signed by the judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit, and out of what fund in particular it is paid. And it is the duty of the clerk to keep a regular book containing a memorandum and copy of all checks so drawn and the date thereof.^ The same rule prevails in cases of interlocutory sales as in those ^The New England, 3 Sum. 495 ; 'The New England, 3 Sum. 495- Adm. Rule 40. =* Adm. Rules 41 and 42, PLEADING AND PRACTICE IN ADMIRALTY. 127 made under a final decree ;^ also, where the sale is made by the order of the court on a partial credit If, in the latter case, pay- ments are to be made in instalments, and notes, bonds or other securities are taken therefor, the creditor has a right to insist that they be brought into court, but for convenience they are sometimes permitted to remain in the hands of the officer.^ Party Interested may Intervene for Proceeds. § 105. If a party has an interest in any proceeds in the regis- try, he may intervene by petition and summary proceedings /r^? intcresse siio for a delivery thereof to him ; and upon due notice thereof to the adverse party, if any, the court will proceed sum- marily to hear and decide upon the same and decree therein ac- cording to law and justice. But if such petition or claim shall be deserted, or if, upon a hearing, it shall be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party .^ Where a person held a mortgage upon the moiety of a vessel which was afterwards libelled, condemned and sold by process in admiralty, and the proceeds brought into the registry of the court, it was held that he could not file a libel against a moiety of those proceeds, but that his proper course was to appeal as a claimant by a petition for a distributive share of the proceeds.* A party having an interest in the proceeds may intervene, though this involves the settlement of partnership accounts.^ And the surplus remaining in the registry after the satisfaction of a prior lien creditor may be appropriated to the payment of other liens, on the proper intervention of the holders, but not for the satisfaction of debts arising on contracts of a merely per- sonal character.^ The owner and mortgagee may both appear, and by answer or petition claim the proceeds of the ship, after the satisfaction of the claims of a libellant who sues on a bottomry bond.'' ^The Avery and Cargo, 2 Gall. The Medora, 2 Woodb. & M. 92. 308. ^ The Goldsmith, i Newb. 123. nValls 7/. Thornton, 2 Brock. 422. « Brackett v. The Hercules, Gilp. *Adm. Rule 43. 1S4; Harper v. The New Brig, Ibid. *Schuchardt t-. The Angelique, 19 536. See also The Lottawanna, 21 How. 239. But see, in case of mort- Wall. 558. gage for advances made, Leland v. 'The Panama, 01c. 343. 128 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Matters may be Referred to Commissioners. § io6. The court has authority to refer any matters arising during the progress of a suit to one or more commissioners, where it shall deem it expedient or necessary for the purposes of justice; and such commissioners possess all the powers which are usually given to or exercised by masters in chancery in refer- ence to them, and may administer oaths and examine the parties and witnesses touching the premises.^ And it may thus refer the question of the validity of a bottomry lien and direct the commissioner to ascertain and report the actual constituents of the lien." So, where it appears to the court that the main ques- tions in controversy are in reference to accounts between the parties as master and owner of a vessel, it has been held proper to refer the case to a commissioner.^ Bail on Arrest: Imprisonment for Debt. § 107. Where a simple warrant of arrest is issued and executed in suits in personam, bail is required to be taken by the marshal and the court only in those cases in which it is required by the laws of the state where the arrest is made, upon similar or anal- ogous process issuing from the state courts. And imprisonment for debt is abolished on process issuing out of the admiralty court, in all cases where, by the laws of the state in which the court is held, imprisonment for debt is abolished, upon similar or analogous proceedings issuing from a state court* Extension of Admiralty Jurisdiction. § 108. We have considered those matters essential to confer admiralty jurisdiction on the district courts, from which it will appear that they have jurisdiction of all proceedings in admiralty on maritime contracts and for maritime torts, and that their juris- diction depending upon locality is not limited, by the rules of admiralty in England, to the high seas and to waters where the tide ebbs and flows, but extends, at least in certain cases, over the inland lakes and navigable rivers. The general practice and mode of procedure in these courts, as courts of admiralty and ^ Adm. Rule 44. bail the court will not permit a party ■■^Shavv V. Collier, 18 How. Pr. R. to be held to bail in two places at the 238. same time for the same cause of ac- ^ Shaw V. Collier, 28 How. Pr. 238. tion : Bingham v. Wilkins, Crabbe 50. *Adm. Rule 47. In the case of PLEADING AND PRACTICE IN ADMIRALTY. 129 maritime jurisdiction, is substantially the same as that which obtained in England at the time of the organization of our gov- ernment. The term high seas, in English admiralty law, embraced not only the seas proper, but all arms, estuaries, harbors, havens and rivers wherever the tides ebbed and flowed, but not any part of said waters that lay within the body of a county. The ebb and flow of the tides in England was the test of the naviga- bility of inland waters, and on this account it was made the limit of admiralty jurisdiction over such waters ; and the common law courts, ever jealous of the encroachments of the admiralty, which was a branch of the civil law, succeeded in excluding its jurisdiction from any part of the waters of the sea, even where the tide ebbed and flowed, if it lay within the body of any county, on the ground that in such cases the common law courts and remedies would be ample for the administration of justice, either in suits on contracts or for torts of a maritime character, and that, by the spirit of the English constitution, they came within the powers and jurisdiction of those courts, which secured a trial of issues of fact by a jury, whereas the admiralty practice ex- cluded a trial by jury, the court deciding both questions of law and of fact, which was distasteful to the common law courts and generally to the people. This limitation does not, as we have observed, apply to the jurisdiction of the district courts of this country sitting in admir- alty. It has been expressly held that they could take cognizance of a proceeding in admiralty for a tort committed on a river navi- gable from the sea, although it occurred above tide water and within the boundary of a county.^ The general principles of admiralty law we inherited from the mother country, so far as they were adapted to our circumstances and wants ; but the rule limiting the jurisdiction of courts of admiralty to the high seas and to tide waters was not particu- larly applicable to this country, where we have a chain of large inland lakes and large rivers navigable from the sea for thou- 1 United States v. The Betsey, i Cr. Nelson v. Leland, 22 id. 48 ; Sturgis 443; Jackson z^. Steamboat Magnolia, v. Boyer, 24 id. no; Propeller Com- 20 How. 296; Walsh V. Rogers, 13 merce, i Black 580; Norwich v. id. 283 ; Ure v. Coflfman, 19 id. 56 ; Wright, 13 Wall. 104. 9 130 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sands of miles, and whose navigation, in many cases far above tide water, contributes largely to increase the commerce and general business prosperity of the country. Under such circum- stances there is no reason for the limitation of admiralty jurisdic- tion of our national courts to tide waters, and where the reason for the rule ceases the rule itself should cease. We have noticed that Congress has at different times passed acts to confer jurisdiction in admiralty upon these courts, in such cases, under certain limitations; but it may be questionable whether any such legislation was required in the light of the broad and comprehensive views on this subject expressed by the justices of our Supreme Court.^ Embezzlement by the Master of a Vessel; Liability of the Owner Limited. § 109. It is provided by section 4283 of the Revised Statutes that " the liability of the owner of any vessel for any embezzle- ment, loss or destruction by any person of any property, goods or merchandise shipped or put on board of such vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount of the interest of such owner in such vessel and her freight then pending." ^ In such a case, if there are several freighters or owners of goods, wares and merchandise on the same voyage, and the whole value of the vessel and her freight on the voyage is not sufficient to make compensation to each of them, they can only receive compensation in proportion to their respective losses ; and if said owner or owners desire to claim the benefit of such limitation of liability, they may file a libel or petition in any dis- trict court of the United States where the ship or vessel may be libelled to answer for such embezzlement, loss, destruction, damage or injury; or if the ship or vessel be not libelled, then in the district court of any district in which the said owner or ^ The Hine, 4 Wall. 555 ; The Gen- 522. See cases cited in note to ? 41 ante. esee Chief, 12 How. 443 ; The INIoses ^ Norwich Company v. Wright, 13 Taylor, 4 Wall. 411 ; The Eagle, 8 id. Wall. 104 ; Allen v. McKay, i Sprague i5;TiieSteamboatCo. z'. Cliase, 16 zV/. 219. PLEADING AND PRACTICE IN ADMIRALTY. 131 owners may be sued in that behalf/ in which libel or petition they should set forth the facts and circumstances on which such limitation of liability is claimed, and pray proper relief in that behalf; and it is the duty of the court thereupon to cause due appraisement to be made of such ship or vessel and her freight for the voyage, and to make an order for the sale of the same and payment of the proceeds into court, or for the giving of a stipulation, with sureties, for the payment of the amount of the appraised value into court whenever the same shall be so ordered ; unless the said owner or owners shall elect to transfer his or their interest in such ship or vessel and freight to a trustee, to be appointed by the court, as provided by section 4285 of the Revised Statutes, in which case the court is required to make an order to that effect; and upon compliance with such order, the court is required to issue a monition against all per- sons claiming damages for the aforesaid causes, or either of them, citing them to appear before the court and make due proof of their respective claims on or before a certain time to be named in said writ, not less than three months from the issuing of the same. Public notice of such monition is required to be given as in other cases, and such further notice served through the post-office, or otherwise, as the court in its discretion may direct; and the court is further required, on the application of such owner or owners, to make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect to any such claim or claims.^ Proof Made Before a Commissioner. § 1 10. The proof of all claims made in pursuance of the monition aforesaid must be made before a commissioner to be designated by the court, subject to the right of any person inter- ested to question or controvert the same. It is the duty of such commissioner, on the completion of said proofs, to make a report of the claims so proven, and after hearing any exceptions thereto, and a confirmation of such report, the moneys paid or ^ Adm. Rule 57 ; Rev. Stat. I 4284. ralty rules above referred to, see Ex '^Adm. Rule 54; The Bristol, 4 par^e Slayton, 105 U. S. 451; The Ben. 55; The City of Norwich, i /i/. North Star, 106 id. 17; Providence 89. As to proceedings and rights un- and N. Y. S. S. Co. v. Hill Manfg. der §2 4284 and 4285, and the admi- Co., 109 id. 578. 132 FEDERAL PLEADING, PRACTICE AND PROCEDURE. secured to be paid into court as aforesaid, or the proceeds of the vessel, and of the freight (after the payment of the costs and expenses), must be divided pro rata amongst the several claim- ants in proportion to the amount of their respective claims, duly- proved and confirmed as aforesaid, saving, however, to all par- ties any priority to which they may be legally entitled.^ Who May Defend in Such Cases. § III. "In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their liability, or the liability of said ship or vessel, for said embezzlement, loss, destruction, damage or injury (independently of the limitation of liability claimed under said act); provided, that in his or their libel or petition he or they shall state the facts and circumstances by reason of which exemption from liability is claimed; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to limitation of liability under the said act of Congress, or both."^ The provisions of the statute above referred to do not affect any remedy which a party may be entitled to against the masters, officers or seamen, for or on account of the damages aforesaid,^ Further Proof Taken on Appeal in the Circuit Court of Appeals. § 112. In case of an admiralty appeal, further proof might have been taken in the circuit court, by deposition, before some commissioner appointed by that court,* pursuant to sections 863, ^ Adm. Rule 55; Providence and with questions of costs as if they were N. Y. S. S. Co., 15 Int. Rev. Rec. original questions: Pettie v. Boston J 03, Tovvboat Co., 49 Fed. Rep. 464 ; s. c. 2 Adm. Rule 56. i U. S. App. 57 ; s. c. 1 C. C. Ap. 314. 3 Rev. Stat. \ 4287. The decree appealed from is vacated * Adm. Rule 49 ; Singlehurst v. and cause heard de novo : The Louis- La Compagnie Generale Transat- ville, 154 U. S. 657. Findings of fact lantique, 50 Fed. Rep. 104; s. c. i U. by the circuit court are conclusive on S. App. 126; s. c. I C C. Ap. 487. appeal. Ibid. New evidence should On an appeal the circuit court of ap- not be admitted where witness testi- peals tries the case de novo, and deals fied to same matters in trial below, PLEADING AND PRACTICE IN ADMIRALTY. 133 864 and 865 of the Revised Statutes, or before the officers therein mentioned. The rule was that the deposition in such cases must be upon oral examination and cross-examination, unless the court in which such appeal was pending, or one of the judges thereof, should, upon motion, allow a commissioner to take the same upon written interrogatories and cross- interrogatories. If taken by oral examination, the adverse party must have been notified by the magistrate before whom it was to be taken, or by the clerk of the court in which the appeal was pending, of the time and place of the taking of the same, and before whom, and that he might appear and put interrogatories if he thought fit ; and this notice must have been served on the adverse party or his attorney, allowing time for their attendance after being notified, not less than twenty-four hours, and in addition thereto one day, Sun- days exclusive, for every twenty miles travel ; but the court where the appeal was pending, or either of the judges thereof, might, upon motion, increase or diminish the length of notice above set forth.^ If the evidence was so contradictory in a reve- nue or instance cause as to make a decision difficult, the court might order further proof.^ It was held in the Fifth Circuit that under Rule 8, of the Cir- cuit Court of Appeals, providing that " the practice shall be the same as in the Supreme Court of the United States, as far as the same shall be applicable," the practice in admiralty appeals is not like that formerly existing in the circuit courts under Admir- alty Rule 49, but hke the Supreme Court practice: and that new evidence may not be taken by deposition de bene esse, but only by commission under Supreme Court Rule 12.^ In other cases, however, it has been held that new evidence may be taken by such depositions.* when no special ground is shown : ^ See also Adm. Rule 49. Oliver v. Sirius, 54 Fed. Rep. 188; '^The Samuel, i Wh. 9. See also see also The Glide, 68 id. 719: The Georgia, 7 Wall. 32 ; The Ocean see as to new evidence under cir- Queen, 6 Blatch. 24. cuit court of appeals rules : Ins. Co. * The Beeche Dene, 55 Fed. Rep. of Nth. Am. V. The Venezuela, 52 526. id- 873; 3 C. C. Ap. 319; I U. S. *The Havilah, 48 Fed. Rep. 6S4 ; App. 314. The Philadelphian, 60 id. 423. 134 FEDERAL PLEADING, PRACTICE AND PROCEDURE. When District and Circuit Courts May Regulate Practice. § 113. It is provided by a rule in admiralty that, in all cases not provided for by the rules prescribed by the Supreme Court of the United States regulating the practice in admiralty, the district and circuit courts may regulate the same in said courts respectively, in such manner as they shall deem most expedient for the proper administration of justice.^ Appeals to the Circuit Court of Appeals and Supreme Court. § 114. Provision is made for appeals from the decisions of a district court to the circuit court of appeals, except in prize causes where the appeal is direct to the Supreme Court of the United States.^ Copies of the proof in such a case, and of such entries and papers on file as may be necessary on the hearing of the appeal, must be certified up to the appellate court.^ Time of Taking Appeals to the Circuit Courts of Appeals. § 115. It is provided by statute that no judgment, decree or order of the district court can be reviewed by a circuit court of appeals on writ of error or appeal, unless the writ of error is sued out or the appeal taken within six months after the entry of such judgment, decree or order, except that in all cases in which a lesser time is now by law limited for appeals or writs of error such limit of time shall apply to appeals or writs of error in such cases taken to or sent out from the circuit court of appeals.^ An appeal to the circuit court of appeals carries up the whole fund, and mere technical errors in the decree not preju- dicial to the substantial rights of the parties will be disregarded.' ^Adm. Rule 46; Beers z'. Haugh- by a general rule, or by a special ton, 9 Pet. 329. order of the court, or in case there ^ I Supp. R. S. 903. was no such rule or order, then within ^ Rev. Stat. | 632. thirty days from the rendering of the * Act of March 3, 1891, i Supp. decree. For a construction of this rule, R. S.901, establishing circuit courts of see The Neustra Senora de Regla, 17 appeals; seeposi Chapter XI. on cir- Wall. 29; Norton v. Rich, 3 Mas. 443. cuitcourts of appeals. Rev. Stat. ^635. ^ The Wanata, 95 U. S. 600. The This provision would appear to super- circuit court of appeals will not re- sede Admiralty Rule 45, which was verse where the question depends on amended May 6, 1872, and required conflicting testimony unless it clearly appeals in admiraltycauses to betaken appears that the decision was against while the court was sitting, or vvitliin the weight of the evidence : The such period as might be designated Parthian, 48 Fed. Rep. 564. PLEADING AND PRACTICE IN ADMIRALTY. 135 "What Must be Certified by the Clerk on Appeals. § II 6. It is provided by a rule of practice in admiralty as follows : The clerks of the district courts shall make up the records to be transmitted on appeals, so that the same shall contain the following : 1. The style of the court. 2. The names of the parties, setting foith the original parties, and those who have become parties before the appeal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and service thereof, all bail and stipulations, and if any sale has been made, the orders, war- rants and reports relating thereto. 4. The libel, with the exhibits annexed thereto. 5. The pleadings of the defendants, with the exhibits annexed thereto. 6. The testimony on the part of the Hbellant, and any exhibits not annexed to the libel. 7. The testimony on the part of the defendant, and any exhibits not annexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated. 10. The final decree. 11. The prayer for an appeal, and the action of the district court thereon ; and no reasons for appeals shall be filed or inserted in the transcript. The following shall be omitted : 1. The continuances. 2. All motions, rules and orders not excepted to which are merely preparatory for trial. 3. The commissioners to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to a deposition in the district court was founded on some one or more of these; in which case so much of either of 136 FEDERAL PLEADING, PRACTICE AND PROCEDURE. them as may be involved in the exception shall be set out. In all other cases it shall be enough to give the name of the wit- nesses, and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to ; and in copying all depositions taken on interrogatories, the answer shall be inserted immediately following the question. 4. Any of the pleading, testimony or exhibits which the par- ties by their proctors shall by written stipulation agree may be omitted ; which stipulation shall be certified up with the record.^ The clerk is also required to page the copy of the record, and make an index of the same, and certify at the end thereof, under the seal of the court, that it is a transcript of the record of the district court in the cause named at the beginning of the copy made up as above directed.^ Appeals to the Supreme Court. § 117. Appeals from the district courts to the Supreme Court in prize causes are required to be taken within thirty days after the rendering of the decree, unless the court previously extends the time for cause shown in the particular case;^ and they are governed by the same rules, regulations and restrictions as are prescribed by law in cases of writs of error. Where an appeal is taken by both parties, a transcript of the record filed by either in the Supreme Court may be used on both appeals, and both appeals may be heard thereon in the same manner as if the records had been filed by the two appellants in both cases.* * Adm. Rule 52. ^ Rev. Stat. ? 1009. See also The "^ Adm. Rule 52. See also the Neustra, 17 Wall. 29. Grace Girdler, 6 Wall. 441 ; The * Rev. Stat. \\ 1012, 1013. Vaughan, 14 Wall. 258. JUDICIAL CIRCUITS. 137 CHAPTER VII. JUDICIAL CIRCUITS AND ORGANIZATION OF THE CIRCUIT COURTS. Judicial Circuits. § II 8. Sec. 604, as amended by later statutes. The judicial districts of the United States are divided into nine circuits, as follows : First. The first circuit includes the districts of Rhode Island, Massachusetts, New Hampshire and Maine. Second. The second circuit includes the districts of Vermont, Connecticut, and the northern, southern and eastern districts of New York. Third. The third circuit includes the eastern and western dis- tricts of Pennsylvania, and the districts of New Jersey and Dela- ware. Fourth. The fourth circuit includes the districts of Maryland and West Virginia, and the eastern and western districts of Vir- ginia, North Carolina and South Carolina. Fifth. The fifth circuit includes the northern and southern districts of Georgia, Florida and Mississippi, the eastern and western districts of Louisiana, the northern, middle and southern districts of Alabama, and the northern, eastern and western dis- tricts of Texas. Sixth. The sixth circuit includes the district of Kentucky, the northern and southern districts of Ohio, the eastern and western districts of Michigan and the eastern, middle and west- ern districts of Tennessee. Seventh. The seventh circuit includes the district of Indiana, the northern and southern districts of Illinois and the eastern and western districts of Wisconsin. Eighth. The eighth circuit includes the districts of Colorado, Nebraska, Minnesota, Kansas, North Dakota, South Dakota, 138 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Wyoming and Utah, the northern and southern districts of Iowa and the eastern and western districts of Missouri and Arkansas. Ninth. The ninth circuit includes the districts of Oregon, Nevada, Idaho, Montana and Washington, and the northern and southern districts of Cahfornia. By an order of the Supreme Court of May ii, 1891, under section 15 of the Circuit Courts of Appeals act of March 3, 189 1, the territories of Alaska and Arizona were assigned to the ninth circuit and New Mexico and Oklahoma to the eighth circuit.^ Appeals from decrees of the court of appeals of Indian Territory must be taken to the circuit court of appeals for the eighth circuit. "^ Justices allotted to circuits, how designated. — Sec. 605. The words "circuit justice" and "justice of a circuit," when used in this title, shall be understood to designate the justice of the Supreme Court who is allotted to any circuit ; but the word "judge," when applied generally to any circuit, shall be under- stood to include such justice. Allotment of the justices to the circuits. — Sec. 606. The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made whenever it becomes necessary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or other- wise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. Circuit judges. — Sec. 607. For each circuit there shall be appointed a circuit judge, who shall have the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit, and shall be entitled to receive a salary at the rate of six thousand dollars a year, payable monthly.^ Every circuit judge shall reside within his circuit. An act of March 3, 1887,* provides: That there shall be ap- pointed for the second circuit by the President of the United 1 See 139 U. S. 707. ^ Act of July 31, 1894, ch. 174, § 13, 2 Act of March i, 1895, ch. 145, 28 Stat. L. 162, 2 Supp. R. S. 218. I II, 28 Stat. L. 693, etc. * Act of March 3, 1887, ch. 347, 24 Stat. L. 492. JUDICIAL CIRCUITS. 139 States, by and with the advice and consent of the Senate, in addition to the present circuit judge, another circuit judge, who shall have the same qualifications and shall have the same power and jurisdiction therein that the present circuit judge has under existing laws, and who shall be entitled to the same compensa- tion as the present circuit judge: Provided, That the applications and proceedings therein provided for by sections 2011-2014 of the Revised Statutes, shall be made and taken before the senior circuit judge of the second circuit ; but in his absence or inability to act under said sections, or any of them, such applications and proceedings may be made and had before the junior circuit judge in said circuit. An act of March 3, 1891,^ provides : That there shall be appointed by the President of the United States, by and with the advice and consent of the Senate, in each circuit an additional circuit judge, who shall have the same qualifications, and shall have the same power and jurisdiction therein that the circuit judges of the United States, within their respective circuits, now have under existing laws, and who shall be entitled to the same compensation as the circuit judges of the United States in their respective circuits now have. An act of July 23, 1894,^ provides: That there shall be in the eighth judicial circuit an additional circuit judge, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall possess the same qualifications and shall have the same powers and jurisdiction now prescribed by law in respect to the present circuit judges. An act of February 8, 1895,^ provides : That there shall be in the seventh judicial circuit an additional circuit judge, who shall be appointed by the President, by and with the advice and con- sent of the Senate, and shall possess the same qualifications and have the same power and jurisdiction now prescribed by law in respect to the present circuit judges therein. An act of February 18, 1895,* provides : That there shall be in the ninth judicial circuit an additional circuit judge, who shall ^ Act of March 3, 1891, ch. 517, ? I, ^Act of Feb. 8, 1895, ch. 59, 28 26 Stat. L. S26. Stat. L. 643. ^Act of July 23, 1894, ch. 147, 28 *Act of Feb. 18, 1895, ch. 94, 28 Stat. L. 115. Stat. L. 665. 140 FEDERAL PLEADING, PRACTICE AND PROCEDURE. be appointed by the President, by and with the advice and con- sent of tlie Senate, and shall possess the same quaHfications and have the same power and jurisdiction now prescribed by law in respect to the present circuit judges therein. Circuit courts, where established. — Sec. 608. Circuit courts are established as follows : One for the three districts of Alabama, one for the eastern district of Arkansas, one for the southern district of Mississippi, and one for each district in the states not herein named ; and shall be called the circuit courts for the dis- tricts for which they are established. An act of June 22, 1874,^ provides: That there shall be and is hereby established a circuit court of the United States for the middle district of Alabama, as said district is now constituted by law, to be held in the city of Montgomery, and a like court for the northern district of Alabama, as said district is now consti- tuted by law, to be held in the city of Huntsville. An act of June 22, 1874," provides : That said circuit courts shall have and exercise, within their respective districts, the same original powers and jurisdiction as are or may be conferred by law upon the circuit court of the United States for the southern district of Alabama at Mobile. An act of June 22, 1874;'* provides : That the circuit court of the United States held at Mobile, Alabama, shall be designated and known as the circuit court of the United States for the southern district of Alabama; and that the fourth section of the act approved March 3, 1873, entitled "An act relating to the cir- cuit and district courts of the United States for the middle and northern districts of Alabama," be and the same is hereby repealed. Circuit courts, by whom to be held. — Sec. 609. 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. Justices of the Supreme Court to attend once in two YEARS. — Sec. 610. It shall be the duty of the Chief Justice, and of each justice of the Supreme Court, to attend at least one term ^ Act of June 22, 1S74, ch. 401, | i ; 18 Stat. L 195. 18 Stat. L. 195. ^ Act of June 22, 1874, ch. 401, 2 5, 2 Act of June 22, 1874, ch. 401, I 2, 18 Stat. L 195. JUDICIAL CIRCUITS. 141 of the circuit court in each district of the circuit to which he is allotted during every period of two years. Judges may sit apart and try cases. — Sec. 6ii. Cases 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. Courts held at the same time in different districts. — Sec. 6x2. Circuit courts may be held at the same time in the different districts of the same circuit. Criminal terms in the southern district of New York. — Sec. 6x1. The terms of the circuit court for the southern district of New York, appointed exclusively for the trial and disposal of criminal business, may be held by the circuit judge of the second judicial circuit and the district judges for the southern and eastern districts of New York, or any one of said three judges; and at every such term held by said judge of said eastern district he shall receive the sum of three hundred dollars, the same to be paid in the manner now prescribed by law for the payment of the expenses of another district judge while holding court in said district. When district judges may sit to review their own opin- ions. — Sec. 614. A district judge sitting in a circuit court shall not give a vote in any case of appeal or error from his own decision, but may assign the reasons for such decision; provided, that such a cause may, by consent of parties, be heard and dis- posed of by him when holding a circuit court sitting alone. When he holds a circuit court with either of the other judges, the judgment or decree in such cases shall be rendered in con- formity with the opinion of the presiding justice or judge.^ When suits are transferred from one circuit to another. — Sec. 615. 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 party 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 1 Appeals to the circuit court were appeals act of March 3, 1S91. abolished by the circuit courts of 142 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 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 cer- tified 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 removed. Cause certified back. — Sec. 6i6. The circuit justice, or the circuit judge of any circuit, may order any civil cause, which is certified in to 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. Justices may hold courts of other circuits on request. — Sec. 617. Whenever a circuit justice deems it advisable, on account 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. When no justice is allotted to a circuit. — Sec. 618. Whenever, by reason of death or resignation, no justice is allotted to a circuit, the Chief Justice of the Supreme Court may JUDICIAI. CIRCUITS. 143 make a request as provided in the preceding section, which shall have the effect in like manner until a justice is allotted to such circuit. Clerks. — Sec. 6\g, as amended by act of February 6, 1889.^ All appointments of clerks of circuit courts of the United States shall be made by the circuit judges of the respective circuits in which such circuit courts are or may be hereafter established ; and all provisions of law inconsistent herewith are hereby repealed. An act of August 13, 1888,^ provides : That 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 hereafter 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. An act of March 3, 1893,^ provides : That in the Ninth Circuit of the United States, a circuit judge may appoint 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. An act of June 22, 1874,* provides : That there shall be ap- pointed for each of said circuit courts for said middle and north- ern districts (of Alabama), by the circuit judge of the circuit, a clerk who shall take the oath and give the bond required by law of clerks of circuit courts, and who shall discharge all the duties and be entitled to all the fees and emoluments prescribed by law for clerks of circuit courts ; and the United States marshals for said middle and northern districts shall, respectively, act as mar- shals for said circuit courts, and the United States district attor- ney for said districts shall discharge the duties of district attor- ney in said circuit courts for said middle and northern districts. An act of February 6, 1889,^ provides : That there shall be appointed for each of said circuit courts in this act mentioned (in Arkansas, Mississippi, South Carolina and West Virginia), 1 Act of Feb. 6, 1889, ch. 113, ? 3, 8 ; 27 Stat. L. 675. 25 Stat. L. 655, * Act of June 22, 1874, ch. 401, ? 3, 2 Act of Aug. 13, 1888, ch. 866, § 7, 18 Stat. L. 195. 25 Stat. L. 433, etc. * Act of Feb 6, 18S9, ch. 113, § 3, ^ Act of March 3, 1893, ch. 211, par. 25 Stat. L. 655. 144 FEDERAL PLEADING, PRACTICE AND PROCEDURE- by the circuit court judge of the circuit in which said districts are respectively embraced, a clerk, who shall take the oath and give the bond required by law for clerks of circuit courts, who shall discharge all the duties and be entitled to all the fees and emoluments prescribed by general law. And the marshals of the United States in and for said respective districts shall act as marshals of said circuit courts, and the district attorneys of the United States in and for said respective districts shall discharge the duties of district attorneys in said circuit courts. An act of April i , 1 892,' provides : That there shall be appointed in the eastern district of Arkansas one additional clerk of the district court and one of the circuit court, who shall reside and keep their offices in Texarkana. Clerks in California. — By the act of August 5, 1886,'' the circuit and district judges of the southern district of California shall each, respectively, appoint a clerk for their respective courts who shall reside and keep their office at Los Angeles, in said district, and shall receive such fees and compensation for services performed by them, respectively, as are now fixed and limited by law. IN Georgia. — By the act of April 25, 1882,^ hereafter there shall be for each of the two judicial districts of Georgia a judge, district attorney, marshal and clerk to be appointed, com- missioned and removed as provided by law for other such officers IN Idaho. — By the Act of July 3, 1890,* there shall be appointed clerks of the circuit and district courts of Idaho who shall keep their offices at the capital of the state. IN Iowa. — An act of June 4, 1880,^ provides: That the clerk of the district court of Iowa shall be the clerk of the cir- cuit court at all the places where the same is held in said district, except at Des Moines. By the act of July 20, 1882," there shall be appointed by the judge of the northern district of Iowa, with the approval of the 1 Act of April I, 1892, oh. 31, 27 * Act of July 3, 1890, ch. 656, ? 16, Stat. L. 13. 26 Stat. L. 215, etc. 2 Act of Aug. 5, 1886, ch. 928, I 8, ^Act of June 4, 18S0, ch. 120, § 4, 24 Stat. L. 308. 21 Stat. L. 155. 3 Act of April 25, 1SS2, ch. 87, ? i, ^ Act of July 20, 1S82, ch. 312, § 24, 22 Stat. L. 47. 22 Stat. L. 172. JUDICIAL CIRCUITS. 145 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 clerks for the northern district of Iowa. IN Kentucky. — Sec. 620. In the district of Kentucky, a clerk of the circuit court shall be appointed at each place of holding the court, in the same manner and subject to the same duties and responsibilities which are or may be provided for clerks in independent districts. IN Louisiana.— By the act of March 3, 1881,^ the judge for the western district of Louisiana shall appoint a clerk of the district court in the western district, and a clerk of the circuit court for said district shall be appointed in the same manner as other such clerks are appointed, who shall receive for the ser- vices performed by them the same fees and compensation that are allowed to the clerks of such courts holding their sessions in New Orleans, and shall be subject in every respect to the same restrictions and responsibilities. IN Missouri.— By the act of February 28, 1887,^ there shall be appointed in Missouri a clerk for each of the United States courts at Hannibal, Saint Joseph, City of Kansas, and Springfield, and each clerk shall be a resident of the division in which the court of which he is clerk is held; he shall keep an office, and the records, files and documents pertaining to the court of his division, and he shall discharge all the duties and receive the fees required or allowed by law. IN North Carolina. — Sec. 621. In the western district of North 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 office at Statesville, one shall reside and keep his office at Asheville, and the third shall reside and keep his office at Greensborough. IN Texas.— By the act of March I, 1889,^ the judge of the eastern judicial district of Texas shall appoint a clerk of the court, who shall reside at the city of Paris, in the county of Lamar. 1 Act of March 3, 1881, ch. 144, ? 6, 24 Stat. L. 424. 21 Stat. L. 507. =* Act of March i, 1889, ch. 333, § 2 Act of Feb. 28, 1887, ch. 271, I 5, 19, 25 Stat. L. 783, etc. 10 146 FEDERAL PLEADING, PRACTICE AND PROCEDURE. IN Utah.— By the act of July i6, 1894/ there shall be appointed clerks of the circuit and district courts of Utah, who shall keep their offices at the capital of said state.^ IN Virginia. — Sec. 622. 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 dis- trict courts for 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 Harrisonburg, in said district. IN Wisconsin. — Sec. 623. 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 district 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. Deputy clerks. — Sec. 624. One or more deputies of any clerk of a circuit court may be appointed by such court, on the appli- cation of the clerk, and may be removed at the pleasure of judges authorized to make the appointment. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults or mis- feasances 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. Deputy Clerks in Arkansas. — By the act of February 28, 1887,' the clerk of the circuit and district courts for the eastern district of Arkansas, shall appoint a deputy for the Texarkana 1 Act of July 16, 1894, ch. 13S, ? 14, Court in Indian Territory, see Act of 28 Stat. L. 107, etc. March i, 1889, ch. 333, I 3, 25 Stat. 2 There is a similar provision as to L. 783 ; and Act of March i, 1895, ch. Wyoming, by Act of July 10, 1890, ch. 145, § 3, 28 Stat. L. 693. 664, I 16, 26 Stat. L. 222, etc. ^ Act of Feb. 28, 1887, ch. 273, ? 3, For provisions as to clerks and 24 Stat. L. 428. deputy clerks in the United States JUDICIAL CIRCUITS. 147 division, who shall keep an office open at all times in the city of Texarkana, and shall there keep the records, files and docu- ments pertaining to the courts. IN Georgia. — By the act of February 15, 1889/ in the northeastern division of the southern judicial district of Georgia, no additional clerk or marshal is to be appointed. If in the opinion of the court it shall become necessary, a deputy clerk may be appointed. By the act of March 3, 1891,^ the clerks of the district and circuit courts of the western division of the northern judicial dis- trict of Georgia shall appoint respectively deputy clerks for the courts for said division. IN Idaho. — By the act of July 25, 1892,^ the clerks of the circuit and district courts of Idaho shall each appoint a deputy clerk at the place where their respective courts are re- quired 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 within the division for which he shall be appointed. 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 all such deputies. IN Illinois. — By the act of March 2, 1887,'' each of the clerks of the circuit and district courts in the northern district of Illinois, in addition to his powers to appoint deputies, as now prescribed by law, shall be required to appoint a chief deputy for the court of that division in which hehimself may not reside, who shall have all the powers of the clerk in his absence. By § 6, the marshal and clerk for that district shall respectively appoint at least one deputy residing in the southern division, unless he shall reside there himself, and also maintain an office at that place of holding court. 1 Act of Feb. 15, 1889, ch. 168, § 2, ^ Act of July 25, 1892, ch. 145, | 5, 25 Stat. L. 671. 27 Stat. L. 72. 2 Act of March 3, 1S91, ch. 566, 2 4, * Act of March 2, 1887, ch. 315, § 5, 26 Stat. L. mo. 24 Stat. L. 442. 148 FEDERAL PLEADING, PRACTICE AND PROCEDURE. By the act of August 8, 1888/ the marshal and clerk of the southern district of Illinois shall each, respectively, appoint at least one deputy to reside in the city of Quincy, unless he shall reside there himself, and also maintain an office at that place of holding court. They shall also appoint deputies to reside in the city of Dan- ville, under the act of July 2, 1890.^ IN Indiana. — Sec. 625. In the district of Indiana a deputy clerk of the circuit court must be appointed for said court held at New Albany, and a deputy clerk for said court held at Evans- ville, who shall reside and keep their offices at said places re- spectively. 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. By the act of March 3, 1881,' the clerk of the district and cir- cuit courts for the district of Indiana, and marshal and district attorney for said district, shall perform the duties appertaining to their offices respectively for said courts, and said clerk and mar- shal shall appoint deputies, who shall reside and keep their offices at Fort Wayne, Indiana. The deputies shall keep in their offices such records as appertain to their offices, and the deputy clerk shall keep in his office full records of all actions, proceedings and judgments in said courts. IN Kansas. — By the act of May 3, 1892,^ the clerks of the circuit and district courts of Kansas, and also the marshal, shall each appoint a deputy, who shall reside and maintain an office at the city of Fort Scott, each of whom shall, in the absence of the clerks or marshal, exercise 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 appointed, and they may be removed by such court at pleasure, and the clerk and marshal shall be ^ Act of Aug. 8, 1888, ch. 788, I 2, ^ Act of March 3, 1881, ch. 154, I 2, 25 Stat. L. 387. 21 Stat. L. 511. "^ Act of July 2, 1890, ch. 651, I 2, * Act of May 3, 1892, ch. 59, I 4, 27 26 Stat. L. 212. Stat. L. 24. JUDICIAL CIRCUITS. 149 responsible for the official acts and neglects of all their depu- ties/ IN Maryland. — By the act of March 21, 1892,^ the mar- shal and the clerk of the district of Maryland shall each respec- tively appoint at least one deputy to reside in the city of Cum- berland, unless he shall reside there himself, and also maintain an office at that place of holding court. IN Michigan. — By the act of April 30, 1894,' the clerks of the circuit and district courts for the eastern district of Michi- gan, shall each keep his office at the city of Detroit, and shall each appoint a deputy clerk for said courts held at Bay City, 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. IN Minnesota. — The provision as to deputies in Minne- sota in the act of April 26, 1890,* is similar to that with refer- ence to Idaho in the act of July 25, 1892, supra. IN Mississippi. — By the act of February 28, 1887,^ the marshal and clerks of the southern district of Mississippi shall appoint deputies, who shall reside at Vicksburg, and act as mar- shal and clerk of the courts in place of their principals. By the act of July 18, 1894," the marshal and clerk of that district are to appoint deputies, who shall reside at Meridian. IN North Dakota.— In the act of April 26, 1890," there is a provision as to deputies in North Dakota similar to that with regard to Idaho in the act of July 25, 1892, sitpra. ^ There had been a similar pro- * Act of April 26, 1S90, ch. 167, \ 5, vision in the Act of June 9, 1890, ch. 26 Stat. L. 72. 403, \ 3, 26 Stat. L. 129, as to the ap- ^ Act of Feb. 28, 1S87, ch. 279, I 4, pointment by the clerks of deputies 24 Stat. L. 430. at the city of Wichita. ^ Act of July 18, 1894, ch. 144, \ 7, 2 Act of March 21, 1892, ch. 20, 27 28 Stat, L. 114. Stat. L. II ^ Act of April 26, 1S90, ch. 161, \ 6, 2 Act of April 30, 1894, ch. 66, I 4, 26 Stat. L. 67. 28 Stat. L. 67. 150 FEDERAL PLEADING, PRACTICE AND PROCEDURE. IN South Dakota. — By the act of February 27, 1890/ the clerks of the circuit and district courts of South Dakota shall reside and have their principal office at Sioux Falls, and each of them may appoint a deputy to reside and have an office at Pierre and Deadvvood. IN Tennessee. — By the act of June 20, 1878,^ the clerks of the circuit and district courts of the western district of Ten- nessee shall appoint deputy clerks for the eastern division of the district, subject to the approval of and annulment by the court. in Texas. — By the act of June 3, 1884,^ there shall be appointed in Texas, in the manner provided by law, a deputy clerk, who shall keep his office at the city of El Paso. By the act of June 11, 1896,* there shall be appointed in the Texas northern judicial district, in the manner required by law, a deputy clerk who shall keep his office at the city of Fort Worth, and also one who shall keep his office at the city of Abilene, and also one who shall keep his office at the city of San Angelo. IN Washington. — There is a provision as to deputies in Washington in the act of April 5, 1890,^ similar to that in the act of July 25, 1892, supra, with reference to Idaho. ]N Wyoming. — By the act of May 23, 1892,^ the marshal and clerk of Wyoming shall each, respectively, appoint at least one deputy to reside in the town of Evanston, unless he himself shall reside there, and he shall also maintain an office at that place. Compensation of deputy clerks. — Sec. 626. The compensa- tion of deputies of clerks of the circuit courts shall be paid by the clerks respectively, and allowed in the same manner that other expenses of the clerks' offices are paid and allowed. Commissioners. — Sec. 627. Each circuit court may appoint, in different parts of the district for which it is held, so many dis- creet persons as it may deem necessary, who shall be called 1 Act of Feb. 27, 1890, ch. 21, \ 6, * Act of June 11, 1896, ch. 422, \ 4, 26 Stat. L. 14. 29 Stat. L. 457. ■^ Act of June 20, 1878, ch. 359, par. '" Act of April 5, 1890, ch. 65, \ 5, 9, 20 Stat. L. 206. 26 Stat. L. 45. ^ Act of June 3, 1884, ch. 64, § 3, 23 " Act of May 23, 1892, ch. 77, 27 Stat. L. 35. Stat. L. 39. JUDICIAL CIRCUITS. 151 " commissioners of the circuit courts," and shall exercise the powers which are or may be expressly conferred by law upon commissioners of circuit courts.^ Marshals not to be commissioners. — Sec. 628. No marshal or deputy marshal of any of the courts of the United States shall hold or exercise the duties of commissioner of any of the said courts. ^ See Rev. Stat. H 2025, 2026. This " United States Commissioners " section has been superseded by the infra. act of May 28, 1896. See chapter on 152 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER VIII. JURISDICTION OF THE CIRCUIT COURTS. Jurisdiction, Original and Appellate. § 119. The act of Congress of March 3, 1875, prescribed the original jurisdiction of circuit courts as follows: "The circuit courts of the United States shall have original cognizance, con- current with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority, or in which the United States are plaintiffs or peti- tioners, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects; and shall have exclusive cognizance of all crimes and offences cognizable under theauthority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. But no person shall be arrested in one dis- trict for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or pro- ceeding in any other district than that whereof he is an inhabit- ant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided; nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless suit might have been prosecuted in such court, to recover thereon, if no assignment had been made, except in cases of JURISDICTION OF THE CIRCUIT COURTS. 153 promissory notes negotiable by the law merchant and bills of exchange. And the circuit courts shall also have appellate, jurisdiction from the district courts under the regulations and restrictions prescribed by law."^ This was amended by the act of March 3, 1887, as corrected by the act of August 13, 1888, to read as follows: "The circuit courts of the United States shall have original cognizance, con- current with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, 'or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, and shall have ex- clusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable by them. But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court ; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promis- sory note or other chose in action, in favor of any assignee, or of any subsequent holder, if such instrument be payable to bearer 1 Act of March 3, 1875, ch. 137, I 1, tS Stat. L. 470. 154 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 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. And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions prescribed by law."^ The act of 1789^ provided as follows: " The circuit court shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners; or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state; and shall have exclusive cognizance of all crimes and offences cognizable, under the authority of the laws of the United States, except where it is otherwise provided, or the laws of the United States shall otherwise direct, and con- current jurisdiction with the district courts of the crimes and offences cognizable therein. But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ; nor shall any circuit or district court have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in case of foreign bills of exchange. And the circuit courts shall also have appellate jurisdiction from the district court under the regulations and restrictions hereinafter provided." As the provisions of this act were in operation nearly a cen- tury, there were many decisions of the federal courts construing their meaning, and these decisions will guide us in the interpre- tation of the later statutes. ^ Act of August 13, 1888, ch. 866, dants in local actions : Greeley v, \ I, I Supp. R. S. 611, 25 Stat. L. Lowe, 155 U. S. 58; Dick z/. Foraker, 433. id. 404. See \ 146 infra. This Act does not apply to defen- ^ i Stat. L. 78. JURISDICTION OF THE CIRCUIT COURTS. 155 By the act of March 3, 1887, the circuit courts have concur- rent jurisdiction with the Court of Claims in certain cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars.^ By the act of March 3. 1 891, establishing Circuit Courts of Appeals, the appellate jurisdiction of the circuit courts is abol- ished.- But this extends only to final judgments and does not affect the supervisory jurisdiction of the circuit courts in bank- ruptcy proceedings.^ Suits of a Civil Nature at Common Law or in Equity. § 120. The language of the statutes, "all suits of a civil nature at common law or in equity," has been held to embrace all suits at law on contracts and for torts.* Under the fifth section of the act of March 3, 1875, prohibiting feigned or collusive suits, for the purpose of creating a case cognizable under that act, the Supreme Court is always apt to look closely into the record to ascertain whether the suit is brought in good faith or not, where there is any room at all to question it.^ It gives discountenance to friendly suits, especially as a means, by an agreed and general statement, without the fullest disclosure of all the material facts, of testing the constitutionality of a legislative act;" nor will it determine a controversy in which the plaintiff in error has become the owner of the suit on both sides.^ The phraseology of the statute relating to the removal of causes from the state to the circuit courts is similar to that under consideration, and hence any decision construing the statute in either case is applicable to the other. This provision has been 1 Act of March 3, 18S7, cli. 359, ? 2, 449; Fouvergne v. New Orleans, 18 24 Stat. L. 505, I Supp. R. S. 559- How. 470. See II 5, 6 and 10 for procedure in the ^ Hayden v. Manning, 106 U. S. district and circuit courts. See U 198, 586, and cases cited. And see Cross 376 infra. v. Allen, 141 id. 528, where jurisdic- ^Actof March 3, 1891, ch. 517, ? 4, tion was held good, although the I Supp. R. S. 901, 26 Stat. L. 826. transfer was made to make a case for And see U. S. v. Fowkes, 3 U. S. a federal court. App. 247. 6 Chic. & G. T. R. Co. z'.Wellman, '^ In re Starr, 56 Fed. Rep. 142; 143 U. S. 339. Hutchins v. Briggs, 61 id. 498, con- ' South Spring Hill Gold Mining struing Rev. Stat. \ 4986. Co. v. Amador M. G. M. Co., 145 *Kohl V. United States, 91 U.S. U. S. 300. 367; Weston V. Charleston, 2 Pet. 156 FEDERAL PLEADING, PRACTICE AND PROCEDURE. held to cover suits by attachment/ and suits in replevin and in ejectment.^ And it embraces a suit in equity, to reform an insur- ance policy;^ to annul a will;* and special statutory proceedings to confirm a tax title.* Also suits involving a construction of a bankrupt act,® and to restrain or stay execution of a judgment of a state court/ In Wheeler v. Bates* it was held that the circuit court of the United States had jurisdiction of an action of forcible entry and detainer under the statutes of Illinois, as a " suit of a civil nature " within the meaning of the act of Congress providing for the origi- nal jurisdiction of the circuit courts in "all suits of a civil nature at common law or in equity." ** So it has cognizance of an action under a statute of a state authorizing the recovery of money lost at gaming or horse-racing;^'' and of a suit between different states for a partition of lands under the statutes of a state ;'^ and of a suit against a sheriff for an escape, as well as for other neglects and misdemeanors.^^ But mandamus is not a suit of a civil nature ; ^'^ nor is a proceeding to establish and probate a will ; ^* 1 Barney v. Globe Bank, 5 Blatch, "See also Clark v. Smith, 13 Pet. 107. 195 ; Lorman v. Clark, 2 McLean ^Beecher v. Gillett, i Dill. 308; (C. C.) 568. Dennistoun v. Draper, 5 Blatch. 336 ; '° Grant v. Hamilton, 3 McLean (C. Gibbs V. Usher, i Holmes 348; hire C.) 100. See also Fritch v. Creighton, Turner, 3 Wall. Jr. 260; Torry v. 24 How. 159; Gibbs v. Usher, i Beardsley, 4 Wash. 242 ; Allin v. Holmes 348. Robinson, i Dill. 119. So of sci.fa. " Ex parte Biddle, 2 Mason 472. sur mortgage under state procedure : ^^ Mewster v. Spaulding, 6 McLean Black V. Black, 74 Fed. Rep. 978. 24. Ejectment cannot be maintained in a ^* Riggs v. Johnson Co., 6 Wall, federal court on a purely equitable 166 ; Greene Co. v. Daniel, 102 U. S. title: Carter z/. Ruddy, 166 U. S. 493. 187, 195; Davenport v. Dodge Co., ^Charter Oak Co. v. Star Ins. Co.,' 105 id. 237. 6 Blatch. 208. " In re Cilley, 58 Fed. Rep. 977 ; * Gaines w. Fuentes, 92 U. S. 10. Copeland t'. Bruning, 72 zV/. 5 ; In re See Oakley v. Taylor, 64 Fed. Rep. Foley, 76 id. 390. Otherwise, of a 245, where an action to cancel a will proceeding to determine the interpre- was held not to come within the tation of a will already established : provision. Wood v. Paine, 66 id. 807 ; Toms v. ^Parker v. Overman, 18 How. 137. Owen, 52 id. 417. And no state has ** Connor v. Scott, 3 Cent. L. J. power to pass a statute impairing the 305. general equity jurisdiction of a cir- ' Watson V. Bondurant, 2 Woods, cuit court to administer, as between (C. C.) 166. citizens of diflferent states, assets of **6 Biss. 88. deceased persons within its jurisdic- JURISDICTION OF THE CIRCUIT COURTS. 157 nor an assessment proceeding for a city improvement ; ^ nor an information in equity to restrain the violation of a state statute forbidding trusts.^ A statute abolishing the writ of quo war- ranto and substituting a civil action, relieves the old civil remedy of its criminal form and the action becomes a suit of a civil nature,^ The term " at common law or in equity," as used in the statute, does not limit the jurisdiction merely to suits which the old com- mon law recognizes as among its fixed and settled proceedings, but it embraces all suits in which legal rights are to be ascer- tained and determined, as well as rights in equity/ The pleading, practice and mode of procedure in suits at law is governed by the requirements of the statutes of the states, and by the local laws, as expounded by the decisions of the state courts, as we shall hereafter notice more fully ; and if the statutes author- ize the commencement of a suit to determine a legal right, a circuit court can take jurisdiction of it as a suit at common law, although it may not be strictly a procedure known or authorized by the common law.^ If a right to sue exists at common law or by statute, the statutes of a state cannot limit the right of recovery to a state court, but it may in such cases be enforced in the proper federal court having jurisdiction under the provisions of the foregoing section.® In equity suits, the jurisdiction, practice and procedure is co- extensive with and governed by the principles, rules and usages of courts of equity in England, and cannot be regulated or con- trolled by the jurisprudence of the state within which the suit is brought;^ and although circuit courts, as courts of equity, may tion: Hayes v. Pratt, 147 U. S. 557, * United States v. Block, 3 Biss. 570. 208; Railway Company v. Whitton, 1 In re Chicago, 64 Fed. Rep. 897. 13 Wall. 270. ^Maloney v. Amer. Tobacco Co., " Parsons v. Lyman, 5 Blatchf. 170; 72 Fed. Rep. 801. Livingston v. Jefferson, i Brock. 203. ^Ames. z'. Kansas, iiiU. S. 449. A non-resident who has elected to *KohU. U. S.,9iU. S. 367; U. S. f. bring suit in a state court cannot Block, 3 Bliss. 208. The former suits thereafter bring one on the same include all cases involving "legal" cause of action in a federal court: rights, hence a non-resident defend- Hughes v. Green, 75 Fed. Rep. 691. ant may remove a suit under a statute '' Rev. Stat. \ 913, Equity Rule 90; giving a right of action for death by State of Pennsylvania v. Wheeling, wrongful act: Brisenden v. Cham- etc., Br. Co., iS How. 421 ; Robinson berlain, 53 Fed. Rep. 307. v. Campbell, 3 Wh. 212; Dodge v. 158 FEDERAI. PLRADING, PRACTICE AND PROCEDURE. make rules and regulations for the practice, proceedings and process, mesne and final, in their respective circuits they cannot be inconsistent with the general principles or usages of the High Court of Chancery in England, or with the rules prescribed by the Supreme Court of the United States.^ It has therefore been held that the circuit courts as courts of equity have no jurisdic- tion of creditors' bills by simple contract creditors ; ^ nor of an action of trespass to try an equitable title.^ On the other hand they have been held to have jurisdiction of trusts for the benefit of creditors;^ of suits for the partition of land;"' and of a bill to set aside an award on the ground of misconduct of the arbi- trators/' The fact that there may be no state courts of equity, or statu- tory provisions providing for them, does not affect the right of Wolsey, i8 How. 331 ; Barber v. Bar- U. S. 215 ; Byers v. McAuley, 149 id. ber, 21 id. 582; Livingston v. Sto- 608. ry, 9 Pet. 632 ; Payne v. Hook, 7 » Bank of U. S. v. White, 8 Pet. Wall. 425 ; Fletcher v. Morey, 2 262 ; £.v parte Poultney v. City of Story 555; Morrow Shoe Manufg. Lafayette, 12 id. XJi; The Philadel- Co. V. New England Shoe Co., 60 phia, etc., R. Co. v. Stimpson, \^id. Fed. Rep. 341 ; Amer. Assn. w. East- 448. But this rule affects practice em Ky. Land Co., 68 id. 721 ; Eng- only, and does not apply in deter- land V. Russell, 71 id. 818; Ray v. mining questions of jurisdiction: Tatum, 72 id. 112; North. Pac. R. Lewis f.Shainwald, 48 Fed. Rep. 492. Co. V. Paine, 119 U. S. 561 ; McConi- ^ Hollins v. Brierfield Coal & Iron hay V. Wright, 121 id. 201; White- Co., 150 U. S. 371; Atlanta and F. head v. Shattuck, 138 za^. 146; Scott R. Co. v. West. R. Co., 2 U. S. V. Neely, 140 id. 106 ; Cowley v. App. 227 ; U. S. v. Ingate, 48 Fed. North. Pac. R. Co., 159 id. 569 ; Miss. Rep. 251 ; Morrow Shoe Manufg. Co. Mills V. Cohn, 150 id. 202. In Cates v. v. New England Shoe Co., 60 id. 341; Allen, 149 id. 451, it is held that the England v. Russell, 71 id. 818. See fact that a court of chancery may sum- Merchants' Nat. Bk. v, Chattanooga mon a jury cannot be regarded as the Constru. Co., 53 id. 314; Buckeye equivalentoftherightof atrialbyjury. Engine Co. ■y. Donau Brewing Co., secured by the seventh amendment 47 id. 6. to the Constitution. But an equit- ^ Kircher v. Murray, 54 Fed. Rep. able remedy that does not infringe on 617. trial by jury may be adopted by the * Thompson v. Rainwater, 4 U. S. federal court : Grether v. Wright, App. 217. 75 Fed. Rep, 742. As to the admin- ^ Daniels v. Benedict, 50 Fed. Rep. istering of estates, see Yonley v. Lav- 347. But not where the plaintiff's ender, 21 Wall. 276; Tate v. Norton, title is denied: Amer. Assn. v. East- 94 U. S. 746; Chewett v. Moran, 17 ern Ky. Land Co., 68 id. 721. Fed. Rep. 820; Hartman v. Fishbeck, « Mo., K. and T. R. Co. v. Elliott, 18 id. 291 ; Lawrence v. Nelson, 143 56 Fed. Rep. 772. JURISDICTION OF THE CIRCUIT COURTS. 159 the proper federal courts to take cognizance of equity suits ; and they are bound to proceed in such cases according to the prin- ciples and usages of courts of equity as distinguished from courts of law.^ But we will hereafter more particularly point out the practice and procedure in this court, in suits at law and in equity. Injunctions of State Courts Prohibited. § 121. It may here be observed that writs of injunction by the courts of the United States, to stay proceedings in the state courts, are expressly prohibited by the Revised Statutes, except in cases authorized by any law relating to proceedings in bank- ruptcy.^ As the bankrupt law, then in existence, has since been repealed, the exception has no virtue, but the general provision remains in full force and effect.^ A state court cannot enjoin a United States court, nor can a United States court enjoin a state court.* But where the federal courts have jurisdiction of the parties, they may issue proper process to protect one of them from fraudulent judgments obtained in state courts, the process operating upon parties and not directly upon the state courts.* The Value of the Matter in Dispute. § 122. In construing the provisions of the statute relating to the value of the matter in dispute, it has been held that, in an action upon a money demand, the value of the matter in con- troversy is the debt claimed, as stated in the body of the declara- tion, and not merely the damages alleged in the statement, or ^ Gaines v. Relf, 15 Pet. 9; Living- R. Co. v. Gay, 86 Tex. 571. ston V. Story, 9 id. 632 ; Ex parte ^ Rev. Stat. \ 720. Whitney, 13 id. 404. By § 3 of the ^ The Bankrupt Act of 1867 was re- act of August 13, 188S, receivers or pealed by an act of June 7, 1878, managers of property appointed by which took effect September, 1878, federal courts may be sued without except as to matters then pending previous leave of court, but such in court : Acts of 45th Cong., 19 suits are subject to the general equity Stat. L. jurisdiction of the courts appointing * Riggs z'. Johnson Co., 6 Wall. 166; them. See Tex. and Pac. R. Co. v. Amy v. Supervisors, 11 id. 136; Cox, 145 U. S. 593 ; Centr. Trust Co. Dial v. Reynolds, 96 U. S. 340. V. Chattanooga R. and C. R. Co., 68 ^ Marshall v. Holmes, 141 U. S. Fed. Rep. 685. A circuit court can- 589. And this is in accord with the not appoint a receiver for a corpora- general doctrine. 2 Kent Com. (13th tion in another state : Tex. and Pac. ed.. Holmes) 463, note. 160 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the amount claimed in the prayer for judgment at its conclu- sion.^ The court will look to the amount claimed in the body of the complaint, and will not be governed by the amount for which judgment is prayed; and the amount of all that is claimed in all the counts of the declaration upon all the causes of action which are properly joined will be considered in determining the amount in controversy.^ But if the court sees from the whole record that under no aspect of the case could the whole amount of the claim be recovered, jurisdiction cannot be taken.' But where a bill was filed jointly by several complainants for an injunction to restrain the collection of taxes on the property of the several complainants, levied for the purpose of constructing a railroad, and the amount severally levied upon their property was less than five hundred dollars, but collectively it exceeded that sum, the court held that as to each of the complainants it was necessary that the amount in dispute should exceed five hundred dollars ; and that although they might join in the pro- ceeding to enjoin the collection of the tax, the interest of each was several ; and that when it became necessary to aggregate the tax the several complainants were required to pay, to make the amount of five hundred dollars, it was insufficient to confer jurisdiction.* And a circuit court has no jurisdiction over a bill in equity to enjoin the collection of taxes from a railroad com- ^ Lee V. Watson, i Wall, 337. That good defence apparent on the plain- the amount of the bojia fide claim is tiff's pleadings, and that the residue the jurisdictional amount, see Peeler is less than ^2000 does not oust juris- V. Lathrop, 2 U. S. App. 40; diction: Schunk v. Moline, M. & S. Riggs V. Clark, 71 Fed. Rep. 560; Co., 147 U. S. 500. And see Ins. Co. Wheeler, etc., Co. v. Pickham, 69 id. of N. Amer. v. Svendsen, 74 Fed. 419. In a suit for an injunction, the Rep. 346. So the objection of multi- value of the object to be gained is fariousness may be waived by a fail- the test and not the damages sus- lire to make it in the pleadings : tained : Miss. & Mo. R. Co. v. Ward, Fitchett v. Blows, 74 Fed. Rep. 47. 2 Black (U. S.) 485; Reynolds v. See also Barry z/. Edmunds, 116 U. S. Burns, 141 U. S. 117 ; Rainey z'. Her- 550, as to the legal certainty required bert, 3 U. S. App. 592. But the to be shown by the facts of the amount of a tax is the jurisdictional record. amount, not the value of the property ' Gorman v. Havird, 141 U. S. 206. taxed : Linchen Ry. Transfer Co. v. * King v. Wilson, i Dill. 555 ; Pendergrass, 70 Fed. Rep. i. Adams v. Board of Commissioners, ''Judson V. Macon County, 2 Dill. McMahon 235; Bank of U. S. v. 213. And the fact that there is a Moss, 6 How. 31. JURISDICTION OF THE CIRCUIT COURTS. IGl pany when distinct assessments in separate counties, no one of which amounts to two thousand dollars and for which separate suits must be brought, are joined in the bill and aggregate over two thousand dollars.^ The matter in dispute must exceed two thousand dollars, and it is not sufficient that it equal that amount. Plence it is necessary to aver, in the body of the declaration, facts showing that it exceeds that sum.^ It was formerly sufficient, however, if the amount in dispute exceeded five hundred dollars with interest due on the obligation sued on.^ The subject-matter of the suit must be something of a pecu- niary value, and susceptible of a pecuniary estimate ; and this necessarily excludes all controversies of a civil character relating to the custody of children, and those involving the right of personal freedom, as these matters are not susceptible of a pecu- niary valuation.* ^Walter v. Northeastern R. Co., 147 U. S. 370 ; Northern Pac. R. Co. v. Walker, 148 zV. 391; Fisliback v. West. Un. Telegr. Co., 161 id. 96. See also Auer V. Lombard, 72 Fed. Rep. 209 ; Citizens' Bank v. Carmon, 164 U. S. 319. But in a suit to restrain the State Board of Appraisers from asses- sing an illegal tax against a telegraph company in several counties, it was held that the court had jurisdiction, though the assessment did not amount to $2000 in any single county, as, the action being against the Board, the whole amount to be certified was the amount in controversy: West. Un. Tel, Co. V. Poe, 61 Fed. Rep. 449. And see Hartford Fire Ins. Co. v. Bonner Mercantile Co. , 56 id. 378. ^ Lee V, Watson, i Wall. 337 ; Gor- don V. Longest, 16 Pet. 97 ; Kanouse V. Martin, 15 How. 198 ; Bennett v. Buttervvorth, 8 id. 124; Payton v. Robertson, 9 Wh. 527 ; United States V. McDowell, 4 Cr. 316; Postmaster General v. Cross, 4 Wash. (C. C. ) 326; Hartshorn v. Wright, i Pet. II (C. C.) 64; King V. Wilson, i Dill. (C. C.) 555 ; Walker v. The United States, 4 Wall. 163; Cabot v. Mc- Master, 61 Fed. Rep. 129. That the amount need not always be due when suit is brought, see Schunk v. Moline M. & S. Co., 147 U. S. 500, ^ Bank v. Daniel, 12 Pet. 32. The same doctrine was held in cases of the removal of causes from the state courts : see McGinnity v. White, 3 Dill. 350 ; Merrill v. Petty, 16 Wall. 338. But interest is excluded under the Act of 1888. As to what is "in- terest" under this act, see Edwards V. Bates County, 163 U. S. 269 ; Home and For. Ins. Co. v. Ray, 69 Fed. Rep. 657. See also Coolidge v. Ray, 75 id. 39. ■• Lee V. Lee, 8 Pet. 44 ; Barry v. Mercien, 5 How. 103 ; Sparrow v. Strong, 3 Wall. 97 ; Gaines v. Fu- entes, 92 U. S. 10 ; Pratt v. Fitzhugh, I Black. 271 ; DeKraft v. Barney, 2 id 704; Green v. U. S., 9 Wall. 655; Rison V. Cribbs, i Dill. 181 ; Elgin v. Marshall, 106 U. S. 578. 162 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The requisite value of the matter in controversy is a jurisdic- tional fact, and it must, necessarily, be averred in the declaration or bill. There are no presumptions in favor of the jurisdiction of the federal courts, as they are specially constituted with jur- isdiction in certain cases ; and the facts upon which it rests must appear in some form in the record of all suits prosecuted before them. They have no jurisdiction except such as the statute confers;^ and as the jurisdiction of the court depends upon a statute, if the statute is repealed, this takes away the jurisdiction of the court from the time of the repeal, even though there may be suits pending, unless there is a reservation of such suits.^ Under the act of 1888, the provision that the jurisdictional amount must exceed two thousand dollars does not apply to cases in v.'hich the United States are plaintiffs, nor to contro- versies between citizens of the same state claiming lands under grants of different states.^ And the act of 1888 does not repeal the act of March 3, 1881,* giving the right to commence suit in trade-mark cases without alleging the amount in controversy.^ Suits Arising Under the Constitution or Lraws of the United States. § 123. One of the grounds of jurisdiction of the circuit courts is that the matter in dispute arises " under the Constitution or laws of the United States, or treaties made . . . under their au- thority." If the question presented to the court is whether a state law is in conflict with any provision of the federal Consti- tution, this would evidently be within the provisions of the act, and give the circuit courts original jurisdiction. In such a case 1 Sheldon v. Sill, 8 How. 441 ; United Schunk v. Moline M. & S. Co., 147 U. States V. Eckford, 6 Wall. 4S4 ; Carey S. 500 ; Wyman v. Mathews, 53 Fed. V. Curtis, 3 How. 236 ; Wisconsin v. Rep. 678 ; Single v. Scott Paper Man- Duluth, 2 Dill. 206; Hubbard v. uf g Co., 55 zfif. 553. Northern R. Co., 3 Blatch. 84 ; Dred ' Insurance Co. v. Ritchie, 5 Wall. Scott V. Sanford, 19 How. 393. That 541 ; Norris v. Crocker, 13 How. 429. there is no common law jurisdiction 'U. Sv. Sayward, 160 U. S. 493; in the federal courts and that they U. S. v. Flournoy Live Stock & Real must look to the state laws when Est. Co., 71 Fed. Rep. 576. common-law rights are asserted, see * Act of March 3, 1881, ch. 138, i Wheaton v. Peters, 8 Pet. 591 ; Man- Supp. R. S. 322, 21 Stat. L. 502. Chester v. Mass, 139 U. S. 240. See ^ Glotin t'. Oswald, 65 Fed. Rep 151. also, as to rights under state laws. JURISDICTION OF THE CIRCUIT COURTS. 1G3 a correct decision would depend upon a proper construction of the Constitution, and this would give the proper circuit court jurisdiction/ If a state law is in conflict with the Constitution of the United States, and a state officer is about to execute it, this would be a proper case for the exercise of the juris- diction of a circuit court to restrain him. And the court may proceed in such a case to a decree against an officer of the state in all respects as if the state were a party to the record.^ It is not sufficient that in the course of the litigation it may become necessary to construe the federal Constitution or laws, but the decision must depend upon the construction.* The citizenship of the parties is immaterial in these cases.* ^Cohens v. Virginia, 6 Wh. 264; Owings V. Norwood, 5 Cr. 344; Os- borne V. Bank of U. S., 9 Wh. 738. See also Cook v. Moffatt, 5 How. 295 ; Abb. Nat. Dig. title "Const. Law." A suit against the receivers of a corpo- ration incorporated by Act of Con- gress arises under the Constitution and laws of the United States : Tex. & Pac. R. Co. V. Cox, 145 U. S. 593- And see South. Kan. R. Co. v. Bris- coe, 144 id. 133; Bartley v. Hayden, 74 Fed. Rep. 913 ; Walker v. Windsor Nat. Bk., 56 id. 76 ; Grant v. Spokane Nat. Bk., 47 id. 673. The fact that the consul of a foreign nation is a party does not give jurisdiction: Pooley V. Luco, 72 Fed. Rep. 561. 2 Osborne v. Bank of U. S-, 9 Wh. 738 ; Dodge v. Wolsey, 18 How. 331 ; State Bank v. Knoop, 16 id. 369 ; Jefferson Bank v. Skelly, i Black. 436 ; Ohio L. and F. Co. v. Debold, 18 How. 380; Davis v. Grey, 16 Wall. 203. In Bennett v. Boggs, i Bald. 60, the question of the constitutionality of a state law was the matter in con- troversy. It was held that the legis- lature of a state had paramount au- thority to legislate and regulate its fisheries unless restrained by its con- stitution, and that a common law right of fishery may be taken away by legislative prohibition, as it is not a right founded upon contract, or secured by the federal or state consti- tutions. See also Livingstone v. Moore, i Bald. 424. A state legisla- ture has no right to deny to a person or a corporation access to the federal courts, unless he or it comply with certain state laws regulating busi- ness : Barling v. Bk. of Brit. N. Amer., 7 U. S. App. 194. » Gold Washing & W. Co. v. Keyes, 96 U. S. 199; Germania Ins. Co. v. Wisconsin, 119 id. 473. But the pleadings need not show what clause of the Constitution is in question: Cr>'stal Springs L. & W. Co. v. Los Angeles, 76 Fed. Rep. 148, which see also for interpretation of suit " arising under treaties." ■* King V. Cornell, 106 U. S. 393 ; Wilder v. Union Nat. Bk., 9 Biss. 178. 1G4 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Controversy between Citizens of Different States. § 124. If the suit and the amount in dispute is within the pro- visions of the statute, and it appears from the declaration or bill that the " controversy is between citizens of different states," the circuit court has original jurisdiction. Under similar provisions of the Judiciary Act (1789), it was held that the statute meant that each distinct interest should be represented by parties, all of whom might sue and be sued in the federal courts ; and that where the interest of either party was joint, each of the persons interested must have the requisite citi- zenship to sue or be sued in those courts, and that the circuit courts would have no jurisdiction if some of the defendants were citizens of the same state with the plaintiffs.^ And under a subsequent act, which provided " that where, in any suit at law or in equity commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of or found within the district where suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement or other objection to said suit," it was held that the joinder of a defendant, who was a citizen of the same state with the plaintiff, and who was duly served with original process, with others who were not citizens of the same state, would oust the court of juris- diction.^ The inquiry as to citizenship is determined by the con- dition of the parties at the commencement of the suit."* ^ Strawbridge v. Curtis, 3 Cr. 267 ; 321 ; Ketchum v. Farmers', etc., Co., Ward V. Arredondo, i Paine (C C.) 4 McLean i. See also Coal Co. v. 410. See also Commercial Bank z'. Blatchford, 11 Wall. 172; Case of the Slocomb, 14 Pet. 60; Coal Co. v. Sewing Machine Co., 18 id. 553; Blatchford, 11 Wall. 172 ; Mangels v. Doremus v. Bennett, 4 McLean 224. Donau Brewing Co., 53 Fed. Rep. =* Anderson z^. Watt, 138U. S. 694; 513. Brigel v. Tug River Coal and Salt ^ Act of Feb. 28, 1839, 5 Stat. L. Co., 73 Fed. Rep. 13. JURISDICTION OF THE CIRCUIT COURTS. 165 One of the provisions for jurisdiction under the acts of 1875 and 1888 is that there "be a controversy between citizens of dif- ferent states." In construing this language, the Supreme Court has held that, if there is a controversy between citizens of differ- ent states, about which the suit is brought, it is immaterial as to the position of the parties on the record or in the pleadings as plaintiffs or defendants; and that in determining the question of jurisdiction the court might " ascertain the real matter in dispute and arrange the parties on one side or other of that dispute; and that if in such arrangement it appeared that those on one side were all citizens of different states from those on the other, juris- diction might be entertained and the cause proceeded with."^ A collusive arrangement to make parties to the suit citizens of different states does not give jurisdiction.^ "Who are Citizens. § 125. A citizen, in the sense of the statute, is one who resides in, and is an inhabitant of, the state. It is evident that he need not possess the qualfications which would enable him to exercise the elective franchise or hold real estate. Those who have resided in and been inhabitants and citizens of one state, within the meaning of the statute, may remove to another state to remain either temporarily or permanently, and various matters connected therewith may properly be considered in determining the question of citizenship. It has been held that, on the removal of a citizen from one state to another, citizenship may depend upon his intentions. The exercise of the right of suffrage in such a case in the state where he resides would perhaps ordi- narily be conclusive upon the subject ; but even where the right of suffrage has not been exercised, the acquiring of the right so ^The Pacific Railroad v. Ketchum, College Trustees v. Blair, 70 id. 414. loi U. S. 290. The same doctrine And see cases in 2 Danforth U. S. was maintained in Removal Cases, Sup. Ct. Dig., tit. "Jurisdiction," 100 id. 457, the latter construing pp. 283-5. the same language in the second sec- ' Lehigh Min. & Manufg. Co. v. tion of the Act of 1875 relating to Kelly, 64 Fed. Rep. 401 ; Bowdoin the removal of causes. See also College v. Merritt, 63 id. 213. See Kildare Lumber Co. v. Nat. Bank of Crawford v. Neal, 144 U. S. 585 ; Commerce, 69 Fed. Rep. 2 ; Oberlin Cross v. Allen, 141 id. 528. IGC FEDKRAL PLEADING, PRACTICE AND PROCEDURE. to do, accompanied by such acts as indicate a permanent location, would be quite satisfactory on this question. And where an individual who is a citizen of the United States has resided in a state for a considerable length of time, during which he has there been engaged in business, he may well be presumed to be a citizen of such state, unless circumstances appear to the contrary.' Under the Judiciary Act of 1789 it was held that a citizen of the District of Columbia was not a citizen of a state within the meaning of that act, and that he could not maintain an action against a citizen of a state in a circuit court.^ Nor could a citizen of a territory, under that act, sue a citizen of a state in the federal courts, when the jurisdiction depended upon citizenship of the parties ; as a citizen of a territory is not a citizen of a state within the meaning of the statute.'^ The circuit courts have no jurisdic- tion of a case, either at law or in equity, in which the plaintiff and defendant are citizens of the same state, as neither the judiciary acts of Congress nor the Constitution of the United States con- 1 Prentiss t-. Barton, i Brock. 3S9 ; though a competent person be joined Cooper V. Galbraith, 3 Wash. 546; as co-planitiff : Hooez'. Jamieson, 166 Gardner v. Sliarp, 4 id. 609 ; De U. S. 395. Wolf V. Rabaud, i Pet. 476 ; Shelton ' New Orleans v. Winter, i Pet. 91 ; V. Tiffin, 6 How. 163. There was, Snead v. Sellers, 66 Fed. Rep. 371. however, an exception to this rule in Where the plaintiff was a native of case of negroes of the African race. New York, but had resided and done before slavery in this country was business in Canada for thirty years, abolished. In 1856 the Supreme and resided there at the time of bring- Court of the United States deter- ing this suit and had taken an oath mined that a free negro of the Afri- of allegiance to the Queen of Great can race whose ancestors were Britain, and the defendant was a citi- brought to this country and sold as zen of Canada, it was held that the slaves could not be a citizen within circuit court of New York had no the meaning of the federal judiciary jurisdiction of the case, as the plain- acts : Dred Scott z'.Sanford, 19 How. tiff was not a citizen of the state. 393. This suit was, of course, based upon ■•'Hepburn v. Ellzey, 2 Cr. 445 ; Bar- the citizenship of the plaintiff and the ney z'. Baltimore City, 6 Wall. 280. alienage of the defendant : Prentiss f. But see Sere v. Pilot, 6 Cr. 332 ; Rail- Brennan, 2 Blatch. (C. C.) 162. road Co. v. Harris, 12 Wall. 65, even JURISDICTION OF THE CIRCUIT COURTS. 167 fers jurisdiction in such cases.^ A state itself is not a " citizen; "^ nor is an Indian nation.^ Parties, merely Nominal or Formal. § 126. If the real controversy is between citizens of different states, the fact that there are merely formal or nominal parties to it, who have not the requisite citizenship, does not affect the jurisdiction of the court. " Where the real and only controversy is between citizens of different states, or an alien and a citizen, and a plaintiff by some positive rule of law is compelled to use the name of another to perform some ministerial act, who has not and never had any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the real controversy and litiga- tion before them exists."* So where certain parties had only a nominal interest, and they resided beyond the jurisdiction of the 1 North Carolina v. Dewey, i 179, 23 Stat. L. 73, certain courts of Hughes 133; Gale v. Babcock, 4 the United States in Texas, Arkansas Wash. (C. C.) 199; Osborne v. U. S. and Kansas have concurrent jurisdic- Bank, 9 Wh. 738; Cohen v. Virginia, tion, without reference to amount or 6 Wh. 264 ; Martin v. Hunter, i id. to citizenship, over all controversies 237. If property of a state is in the arising between the Southern Kansas hands of an officer or agent as trus- RailwayCompany and the inhabitants tee, and the officer or agent is within of the Indian nations and tribes the jurisdiction of the court, it may through whose territory that railway take jurisdiction of the suit without runs : Southern Kan. R. Co. v. Bris- requiring the state to be a party : coe, 144 U. S. 133. Swasey v. North Carolina R. Co., i And by the Act of August 15, 1S94, Hughes 17; Osborne v. U. S. Bank, ch. 290, § 5, 2 Supp. R. S. 246, 28 9 Wh. 738. Stat. L. 286, all persons of Indian '' Minn. v. Guaranty Trust & Safe blood claiming land under any allot- Dep. Co., 73 Fed. Rep. 914. But a ment Act or grant of Congress may circuit court has jurisdiction of a suit commence or defend any suit in rela- in the name of the state in which the tion to their right in the proper cir- circuit is situated, on relation of a cuit court. citizen of another state, to enforce * Opinion of Mr. Justice Clifford in the obligations of a bond given by Walden v. Skinner, loi U. S. 577. citizens of the former state for faithful See also Mr. Justice Miller in Arapa- performance of his duties by a muni hoe Co. v. Kansas Pacific R. Co., 4 cipal officer of that state : Ind. v. Dill. 277 ; Harvey v. The Illinois Mid. Glover, 155 U. S. 513. R- Co., 7 Biss. 103; Davis v. Gray, 3 Thebo V. Choctaw Tribe, 66 Fed. 16 Wall. 203 ; Weed Sewing Machine Rep. 372. Nor an unnaturalized In- Co. v. Wicks, 3 Dill. 261 ; Cunning- dian : Paul v. Chilsuquie, 70 id. 401. ham v. Macon & B. R. Co., 109 U. S. Under the Act of July 4, 1S84, ch. 446, 455. 1G8 FEDERAL PLEADIXG, PRACTICE AXD PKOCEDURE. court, it was held error to dismiss the bill on the ground that they were not made parties, whore all the parties who had a beneficial interest were in court. The court, in such a case, should pro- ceed to a decree against the defendants if equity requires it.' If the parties are not indispensable, and the court has no jurisdic- tion over them for want of proper citizenship, they may be dis- missed, if a decree can be made without prejudice to their rights, and the court may retain jurisdiction as to the other parties to the bill.- The Proper Citizenship of the Parties Should Appear in the Record. § 127. It is a general if not a universal rule that where juris- diction depends upon citizenship, the proper citizenship of the parties should appear in some manner in the record, as the federal courts are all courts of defined and limited jurisdiction, and no presumptions will be made in favor of them.^ Under the act of 1789, in cases where jurisdiction depended upon citizen- ship, it was necessary for the declaration or bill to show not only that the parties were citizens of different states, but that one of them was a citizen of the state where the suit was brought. And this is also the rule under the act of 1888.^ But under the act of March 3, 1875, it was sufficient, where jurisdiction depended upon citizenship, if it appeared from the record that the contro- 1 Union Bank v. Stafford, 12 How. mond 155 U. S. 393; Cooper v. New- 327; Wood V. Davies, \% id. 467; ell, /(5/a'. 532; Suiartf. Easton, 156 zrf. Ward V. Arredondo, i Paine 410. 46 ; Gordon v. Third Nat. Bk., 144 * Horn V. Lockhart, 16 Wall. 570. id. 97 ; Kellam v. Keith, Ibid. 568. It See also Vattier e'. Hinde,7 Pet. 252; cannot be inferred argumenlatively: Mollan V. Torrance, 9 Wh. 537 ; Cam- Brown v. Keene, 8 Pet. 115. An an- eron v. McRoberts, 3 id. 591 ; Con- swer denying each and every alle- nolly V. Taylor, 2 Pet. 556; Hicklin gation of the petition puts in issue V. Marco, 56 Fed. Rep. 549; Clai- citizenship, and if no proof or finding borne v. Waddell, 50 id. 368. on that point appears of record, the ' McCormic v. SuUivant, 10 Wh. judgment must be reversed: Roberts 192 ; De Wolf v. Rabaud, i Pet. 476; v. Lewis, 144 U. S. 653. Where citi- Ex parte Smith, 94 U. S. 455 ; Horn- zenship appears on the face of the thall V. The Collector, 9 Wall. 560; bill, tlie jurisdiction of the court can- Bingham v. Cabot, 3 Dall. 382; Gas- not be attacked by evidence dehors sies V. Ballon. 6 Pet. 761 ; Eberley v. the record, in a collateral proceeding Moore, 24 How. 157 ; Christmas v. by one not a party to the bill : In re Russell, 5 Wall. 290; Mason v. Rol- Lennon, 166 U. S. 548. lins, 13 id. 602 ; Home v. Ham- * See I 144 infra. JURISDICTION OF THE CIRCUIT COURTS. 169 versy was between citizens of different states. And under that act the courts did not regard the position of the parties on the record, as plaintiffs or defendants, as determining the question whether the controversy was between citizens of different states, but would ascertain the real matter in dispute and arrange the parties on one side or the other of that matter, as circumstances seemed to require ; and if after such arrangement it appeared that those on one side were all citizens of different states from all those on the other side, the court had jurisdiction.^ Circuit and district courts have such powers only as have been conferred upon them by acts of Congress not inconsistent with the Constitution of the United States.^ Nominal and Formal Parties. § 128. It is a doctrine recognized by the federal courts that the jurisdiction of the courts is not affected by merely nominal and formal parties who are without the requisite citi- zenship, if the real matter in controversy is between parties having a proper citizenship.^ And if it appears that the real controversy is between citizens of different states, or an alien and a citizen, and the plaintiff is by some positive rule of law compelled to use the name of another to perform merely a ministerial act who has not, nor ever had, any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the litigation before them exists.^ Evidences of Citizenship; Persons of African Descent. § 129. A person who resides within a state and has carried on 1 The Pacific Railroad v. Ketchum, Wormley v. Wormley, 8 Wh. 421 ; loi U. S. 289. See also § 124 supra. McNuttz^. Bland, 2 How. i ; Coal Co. * United States 7A Eckford, 6 Wall. v. Blatchford, 11 Wall. 172; Arapa- 484; Seldon v. Still, 8 How. 441; hoe County z/. Kansas Pacific R. Co., United States v. Clark, 8 Pet. 444 ; 4 Dill. 277 ; Hervey v. Illinois Mid. Briscoe v. Bank, 1 1 id. 257 ; Harri- R. Co., 7 Biss. 103 ; Wood v. Davis, son V. Hadley, 2 Dill. 229 ; United 18 How. 467 ; Union Bank v. Staf- States V. Hudson, 7 Cr. 52. And ford, 12 id. 327. The jurisdiction of they must of their own motion look a suit brought by a liext friend de- into and determine their jurisdiction : pends on the citizenship of the in- Mansfield, C. and L. M. R. Co. v. fant : Voss v. Neineber, 68 Fed. Rep. Swan, III U. S. 379; Parker v. 947. Ormsby, 141 id. 8r. * See ante, \ 126; Walden v. Skin- ^ Browne v. Strode, 5 Cr. 303; ner, loi U. S. 577. 170 FEDERAL PLEADING, PRACTICE AND PROCEDURE. business within the same for a considerable length of time would be presumed to be a citizen of the same, in the absence of evi- dence to the contrary. In case of a recent removal of a person from one state to another, citizenship may depend upon the cir- cumstances and the intentions of the parties. The exercise of the right of suffrage would ordinarily be quite conclusive of the latter; and if a party acquires the right of suffrage in a state to which he has removed, accompanied by acts and conduct indi- cating a permanent location, this may be quite satisfactory evi- dence of citizenship.' But it was held, during the time that slavery existed in this country, that a free negro of African descent, whose ancestors were brought to this country and sold as slaves, could not become a citizen." Executors and Administrators. § 130. If executors or administrators are personally qualified by their citizenship to bring suit in the circuit courts, the juris- diction will not be defeated by the fact that the parties whom they represent would be disqualified from bringing suit on account of their citizenship."* So the jurisdiction of the circuit court cannot be defeated by the fact that with the principal defendant are joined, as nominal parties, the executors of a deceased trustee who are citizens of the same state as the com- plainant, where the bill only requires of them the ministerial act of conveying title to the lands in controversy, if the power so to do is vested in them by the laws of the state where the suit is brought.* So an administrator who is a resident of one state may sue a citizen of another state in the circuit court of the state where he resides, although letters of administration were granted in the latter state.'^ So if a receiver of a corporation is a citizen of a state other than that of the defendant, he may sue in this * Shelton v. Tiffin, 6 How. 163. 261. An action against a non-resi- * Dred Scott v. Sanford, 19 How. dent administrator is sustainable 393. though the state laws give exclusive 'Coal Co. V. Blatchford, 11 Wall, jurisdiction to the probate court: 172. And see Bangs v. Loveridge, Semmes v. Whitney, 50 Fed. Rep. 60 Fed. Rep. 963. 666. The pendency of administra- *Walden v. Skinner, loi U. S. 577. tion proceedings in the state probate * Rice V. Houston, 13 Wall. 66. See court does not bar proceedings in the also Walker v. Beal, 3 Cliff. 155 ; federal courts involving the same Weed Sew. M. Co. v. Weeks, 3 Dill, issues : Holton v. Guinn, 76 id. 96. JURISDICTION OF THE CIRCUIT COURTS. 171 court in the state where the latter resides, although the corpora- tion is a citizen of the same state with the defendant/ Parties Having Only Equitable Interests. § 131. The circuit court, in determining its jurisdiction, based upon the proper residence of parties, will not, in suits at law, always inquire into the residence of those who may have a mere equitable interest in the matter in controversy.^ But trustees cannot maintain a bill to foreclose a trust deed or mortgage, where one of them is a citizen of the same state with the de- fendant, although the cestui que trusts are citizens of another state ,^ Where Citizenship in Equity not Important. § 132. In proceedings in equity the citizenship of the parties is not always important in determining the jurisdiction of the court. Thus where a bill was filed in the circuit court to stay proceedings at law in the same court, the equity suit was held to be auxiliary to the action at law, and maintainable without regard to the citizenship or alienage of either party to the record. But the complainant in such a case cannot maintain the suit for any other relief or for any other purpose, without show- ing the proper residence of the parties, as required by the statute.* Where a bill was filed in order to procure a construction of orders, decrees and acts done or made by the court in which it was filed, it was held proper, although the parties interested in J Farlow v. Lea, C. L. B. 329. son v. Christian, 125 id. 642, the Su- 2 Bonnafee v. Williams, 3 How. 574 ; preme Court by oversight reversed a Smith V. Kernochen, 7 id. 198. case in equity because the citizenship ^Coal Co. V. Blatchford, 11 Wall, was not shown, but as it was a suit to 172. See also Hotel Co. v. Wade, 97 enjoin a judgment at law between the U.S. 13; Dodge V. Tulleys, 144 id. same parties, a rehearing was granted 451 ; Morris v. Lindauer, 54 Fed. and the case was affirmed on its Rep. 23. But see Browne t^. Browne, merits in 128 U. S. 374. If citizen- I Wash. 429. The appointment of ship of the parties gives the circuit one as a trustee by a court of another court jurisdiction a party having a state does not affect his citizenship : legal right to maintain an action at Shirk V. La Fayette, 52 Fed. Rep. 857. law will not be defeated for the want *St. Luke's Hospital v. Barclay, 3 of proper citizenship of persons who Blatch. 359 ; Simms v. Guthrie, 9 Cr. have mere equitable interests : Bon- 19 ; Dunn v. Clark, 8 Pet. 3 ; Covell nafee v. Williams, 3 How. 574. V. Heyman, iiiU. S. 176. In John- 172 FEDERAL PLEADING, PRACTICE AND PROCEDURE. having the construction made would not, for want of proper citi- zenship, be entitled to proceed by an original bill of any kind in such court.^ So, where a party had obtained judgment at law in the circuit court of the state of Michigan against a citizen of that state, he at the time being a resident of the state of New York, and afterwards, having moved to the state of Michigan, where the defendant still resided, filed a bill of discovery in aid of execution in the same court where the original judgment was obtained, to which there was a demurrer for want of jurisdiction, the court held that the change of residence of the plaintiff to the state of Michigan, after the commencement of the original suit, did not oust the court of jurisdiction in this auxiliary pro- ceeding." But in such a case it should appear from the aver- ments of the bill that the matter has already been litigated in the same court by the same persons, and is in addition and auxiliary or ancillary to such original suit; otherwise the circuit court would have no jurisdiction.^ If the bill is not an original one, but a bill of revivor filed on the death of the original complain- ant, this court has jurisdiction of the suit, if it had original jur- isdiction, even though the complainant in the last proceeding may be a resident of the same state as the defendant/ If a bill be filed to set aside a judgment of the court on the ground of fraud, the court has jurisdiction, although both parties 1 Minnesota Co. v. St. Paul Co., 2 Where the court acquires jurisdiction Wall. 609. of property and retains it for pur- 2 Hatch V. Dorr, 4 McLean 112. poses of foreclosure, it may dispose See also Reilly v. Golding, 10 Wall, of all claims between interveners 56; Clarke v. Mathewson, 12 Pet. without regard to citizenship: Park 164. V. New York, L. E. and W. R. Co., 3 Cliristmas v. Russell, 5 Wall. 290. 70 Fed. Rep. 641. And see Comp- And, in general, where the proceed- ton v. Jesup, 68 id. 263. Otherwise, ing is merely auxiliary to a former where the property is not drawn into suit, the citizenship and amount in the court's possession: United Elec, controversy are immaterial : Lambz'. Securities Co. v. La. Elec. Light Co., Ewing, 54 Fed. Rep. 269 ; Carey v. Ibid. 673. Houston and T. C. R. Co., 161 U. S. * Dunn v. Clarke, 8 Pet. i ; Morgan 115; Megibben 7^. Perin,49Fed.Rep. v. Morgan, 2 Wh. 290; MoUan v. 183; 53 id. 86; Bausman v. Denny, Torrance, 9 id. 537; Jones v. An- 73 id. 69 ; Henderson v. Goode, 49 drews, 10 Wall. 337 ; Logan v. Pat- id. 887; Carpenter v. North. Pac. R. rick, 5 Cr. 288; Simms v. Guthrie, 9 Co., 75 id. 850 ; Pullman's Palace id. 19. Car Co. V. Washburn, 66 id. 790. JURISDICTION OF THE CIRCUIT COURTS. 173 thereto are citizens of the same state.^ And where the interest of parties becomes compHcated by protracted htigation, and it is necessary to prevent a failure of justice, the circuit court will take cognizance of a bill for the purpose of settling the rights and protecting the interests of the parties, without regard to the citizenship of the parties. But the jurisdiction in such cases would rest upon the ground that they were merely auxiliary to former suits.^ When Parties May be Dismissed. § 133. If the court has no jurisdiction over parties to a suit for want of proper citizenship, and they are not indispensable, and a decree can be rendered as to the other parties without prejudice to them, they may be dismissed, and the court proceed to determine the cause between the remaining parties.^ Nor will the court inquire into the residence of those who have a mere equitable interest in the subject in controversy, where the plaintiff has a legal right to sue, and where, so far as the legal right is concerned, the parties to the controversy have the requisite citizenship.* Corporations are Citizens. § 134. In the construction of the Constitution and of acts of Congress conferring jurisdiction on the federal courts on the ground of the citizenship of the parties, corporations have come to be regarded as citizens within the meaning of the law; it being conclusively presumed that the members of the corpora- tions are residents of the state creating them, or under whose 1 O'Brien Co. v. Brown, i Dill. 4 Cliff. 593. 588; Simms v. Guthrie, 9 Cr. 19. See ^ Horn v. Lockhart, 17 Wall. 570; also Osborne v. Mich. Air L. R. Co., Mollan v. Torrance, 9 Wh. 537 ; Con- II C. L. N. 367. A circuit court has noliy v. Taylor, 2 Pet. 556 ; Vattier v. jurisdiction of a proceeding to im- Hinde, 7 id. 252. And see Knapp peach its own former decree though v. Railroad Co., 20 Wall. 117. Resi- the parties are new and aliens : La- dent defendants cannot move to dis- cassagne v. Chapins, 144 U. S. 119. miss as to themselves ; non-residents '^ Cornwell v. White Water, etc., R. can move to dismiss only as to them- Co., 4 Biss. 195 ; Barth v. McKeever, selves, not as to the whole proceed- ^id. 206; Freeman t/. Howe, 24 How. ing: Smith v. Atchison T. & S. F. R. 450; Minnesota R. Co. v. St. Paul R. Co., 64 Fed. Rep. i. Co., 2 Wall. 609. But see also Dunn * Bonnafee v. Williams, 3 How. 574; V. Clarke, 8 Pet. i ; Stone v. Bishop, Smith v. Kernochen, 7 id. 19S. 174 FEDERAL PLEADING, PRACTICE AND PROCEDURE. laws they were organized. And a suit brought by a citizen of one state against a corporation in the circuit court of the state where it was created or organized, other than that of the resi- dence of the plaintiff, is a suit between citizens of different states, notwithstanding members or stockholders of the corporation may reside in the same state with the plaintiff.^ But a corpora- tion created by one state cannot be sued as a citizen of another, on the ground that it has a usual place of business in the latter state.- Under the act of 1888 the courts have jurisdiction of an action against a foreign corporation brought in the district where the plaintiff resides, when such corporation is subjected to the jurisdiction of the state courts.^ If railroad corporations created by or under the laws of differ- ent states are consolidated, and the railroad is operated by virtue of that consolidation as one continuous entire line of road, the corporation thus consolidated may be treated for the purpose of jurisdiction as a citizen of either state; and if a corporation is created under the laws of two states, a citizen of one of these states may, so far as citizenship is concerned, sue it in the other.* 1 Ohio & Miss. R. R. Co. v. Wheeler, Wilson Manufg. Co., 46 id. 882 ; South I Black. 296; Louisville R. R. Co. v. Pac Co. v. Denton, 146 U. S. 202; Letson, i How. 497 ; Marshal v. Bal- cf. Fitzgerald & M. Constru. Co. v. timore, etc., R. R. Co., 16 id. 314; Fitzgerald, 12,7 id. 9S; Social Fon- Covington, etc., Co. v. Shepherd, ci6re v. Milliken, 135 id. 304; E. 21 id. 212; Railroad v. Harris, 12 Tenn., V. & G. R. Co. v. Atlanta & Wall. 65; Railroad Co. v. Whitton, F. R. Co., 49 Fed. Rep. 608 ; U. S. v. 13 id. 270; St. Louis & S. F. R. South Pac. R. Co., 49 id. 297. And a Co. V. James, 161 U. S. 545. But the corporation chartered by one state organization of a corporation in an- and authorized by statute in another other state for the express purpose of to extend its road there is a " non- bringing suit in a federal court will resident" of the latter state and may not confer jurisdiction: Lehigh Min. remove a suit to the circuit court: & Manufg. Co. z'. Kelly, 160 U. S. Martin v. Bait. & O. R. Co., 151 U. 327. A co-partnership is not a cor- S. 673. poration ; the citizenship of the part- ■' Dinzy v. 111. Cent. R. Co., 61 Fed. ners must be averred : Carnegie, Rep. 49. And see Shainwaid v. Phipps & Co. V. Hulbert, 10 U- S. Davids, 69 id. 704; Gilbert v. New App. 454. Zealand Ins. Co., 49 id. 884. 2 Shaw V. Quincy Mining Co., 145 * Railway Co. v. Whitton, 13 Wall. U. S. 444; Empire Coal & Transp'n 270; MuUer v. Dows, 94 U. S. 444; Co. v. Empire Coal & Mining Co., St. Louis, etc., R. R. Co. v. Ind. & St. 150 id. 159; Campbell v. Duluth, 50 Louis R. R. Co., 12 C. L. A. 73; Fed. Rep. 241; Miller v. Wheeler & Phinizy v. Augusta & K. R. Co., 56 JURISDICTION OF THE CIRCUIT COURTS. 175 Burden of Proof of Citizenship of Corporations. § 135. Where a suit was brought against a corporation in a state court which was removed by the corporation to a cir- cuit court of the United States on the ground that it was a controversy between citizens of different states, on motion of plaintiff to remand the cause it was held that the burden of proof was on the corporation to show that it was not a citizen of the same state with the plaintiff, and that it was generally incum- bent upon the suitors who invoke the jurisdiction of the courts of the United States to show that they are within its juris- diction.^ If a corporation has appeared generally in an action, it cannot afterwards deny the jurisdiction of the court on the ground that original process was not duly served upon it in the district of which it was an inhabitant at the time of service.^ Nor can a circuit court be ousted of jurisdiction by a stipulation of a foreign corporation that process issued in any suit brought against said corporation may be served upon any of its agents with like effect as if service had been made on the company within the state.^ When the United States are Plaintiffs. § 136. When the United States are plaintiffs or petitioners, the circuit court has jurisdiction, irrespective of the amount in controversy.* It has been held that an act of Congress was not necessary to enable the United States to sue; that they have an inherent right to sue in their own name, unless a different mode is prescribed by Fed. Rep. 273; Mo. Pac. R. Co. v. Charleston R. Co., 3 Woods. (C. C. ) Meeh, 69 id. 753. In such case the 651. For, in general, the necessary citizen of a state other than either of facts must be shown to authorize re- the states under whose laws the cor- moval. See Ins. Co. v. Pechner, 95 poration was created may sue it in U. S. 183; Amory z/. Amor>-, /e exeat regno, or any other special order pending the suit, is required, it must be specifically asked for.^ The complainant's bill should give a general statement of the facts of the case, and it should contain sufficient matters of fact 1 Equity Rule 20. The failure to & M. R. Co., 64 Fed. Rep. 19. give places of residence of parties ''■ Equity Rule 21 ; Gage v. Kauf- may be corrected by amendment man, 133 U. S. 471. without delay: Harvey v. Richmond ^Equity Rule 21. 266 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to maintain his case. The proofs must sustain the allegations; and a party will not be allowed to state one case in his bill or answer and make out a different one by his proof. The allegata and probata must agree. ^ It is provided by Equity Rule 94 that " every bill brought by one or more stockholders in a corporation against the corpora- tion and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the share- holders, and the causes of his failure to obtain such action."^ Under the general prayer for relief, other relief may be granted than that which is particularly prayed for ; but it must be con- sistent with the case made by the bill.^ A bill in equity praying for a discovery and an account of pro- fits on account of an infringement of a patent is not demurrable on the ground that the complainant has an adequate remedy at law."* ^ Harrison v. Nixon, 9 Pet. 483 ; As to bringing in new claims, and Boon V. Chiles, 10 id. 177; Denham causes of action, and other matters V. Railway Co., i Bond. (C. C.) 442. of difference, etc., see Chicago, etc., ''This rule has no technical force in R. Co. v. Denver, etc., R. Co., 143 cases removed from the state courts : U. S. 596 ; Lacassagne v. Chapuis, Evans v. Un. Pac R. Co., 58 Fed. 144 id. 119, as to suit at law instead Rep. 497. See also Ranger v. Cham- of in equity, purchase pending the pion Cotton Press Co., 52 id. 611. suit, dismissing bill without preju- ^ English V. Foxall, 2 Pet. 595 ; dice, etc. ; and see Coosaw Mining Walden v. Bodley, 14 id. 156 ; Hob- Co. v. South Carolina, Ibid. 550, as to son V. McArthur, 16 id. 182 ; Taylor the right of a state to sue in equity to V. Merchants' Fire Ins. Co., 9 How. prevent illegal interference with its 390 ; Wilson v. Graham, 4 Wash, control, etc., of phosphate rock and 53 ; Boone v. Chiles, 10 Pet. 200 ; phosphate deposits in the bed of a Stevens v. Gladding, 17 How. 455 ; navigable river within its territory Texas v. Hardenberg, 10 Wall. 86 ; and the incompleteness of the rem- Hayward v. National Bank, 96 U. S. edy at law. 615; Williams v. Jackson, 107 id. * Perry z/. Corning, 7 Blatch, 195. 478; Tyler v. Savage, 143 id. 79. CIRCUIT COURTS — SUITS IN EQUITY. 267 Parties Beyond the Jurisdiction of the Court. § 225. If other parties than those named as defendants in the bill appear to be necessary or proper parties thereto, the bill should aver the reason why they are not made parties, by show- ing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to other parties. As to persons who are without the jurisdiction of the court, and m.ay be properly made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction of the court.^ What the Prayer for Process of Subpoena must Contain. § 226. The prayer for process of subpoena must contain the names of all the defendants named in the introductory part of the bill.^ If any of them are infants under age, or otherwise under guardianship, it should state the fact, so that the court may take order thereon as justice may require, upon the return of the pro- cess. If an injunction or writ of 7ie exeat regjio, or any other special order pending the suit, is asked for in the prayer for relief, it is sufficient without repeating the same in the prayer for process.^ Signature of Counsel. § 227. Bills in chancery should have the signature of counsel annexed to them; and this is 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 bill in the manner in which it is framed.* If the bill is not signed by counsel, it is demurrable; but signing on the back of it is sufficient, and if it is demurred to for this defect, it may be amended so as to obviate the objection made by the demurrer.^ ^ Equity Rule 22. * Equity Rule 24. " Where the prayer does not con- ^ Dwight v. Humphrey, 3 McLean tain the names of all the defendants 104; Roach v. Hulings, 5 Cr. (C. C.) the court may dismiss the bill on its 637. If a demurrer to a bill shall be own motion : Carlsbad v. Tibbetts, allowed, an amendment may be al- 51 Fed. Rep. 852 ; Goebel v. Am. lowed in the discretion of the court, Ry. Supply Co., 55 id. 825. on such terms as may be deemed ^ Equity Rule 23. reasonable: Equity Rule 35. 268 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Scandal and Impertinence in Bills. § 228. It is required that every bill should be expressed in as succinct terms as it reasonably can be, and that it contain no unnecessary recitals of deeds, documents, contracts or other instruments in haec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions thereto for this cause, be referred to a master by any judge of the court; and if so found by him to be scandalous or impertinent, the scandalous or impertinent matter may be expunged at the expense of the plaintiff, and he will be required to pay the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. But if the master reports that the bill is not scandalous or imper- tinent, the plaintiff is entitled to all costs occasioned by the reference.^ No general rule can be laid down as to what constitutes mul- tifariousness, scandal or impertinence. Each case must be governed by the circumstances, in regard to which the court or examiner should exercise a sound discretion.^ No Order of Reference to a Master, for Scandal or Im- pertinence, unless Exceptions are taken in Writing. § 229. No order can be made by any judge for referring any bill, answer or pleading, or other matter or proceeding depend- ing before the court, for scandal or impertinence, unless excep- tions are taken thereto in writing and signed by counsel, de- scribing the particular passages that are considered to be scan- dalous or impertinent. Such exceptions must be filed on or before the next rule day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned unless the party obtaining it shall, without any unnecessary delay, pro- cure the master to examine and report the same on or before the ^ Equity Rule 26. If exhibits are v. Lafayette Bank, 3 McLean 415 ; attached, the bill should contain ex- Nourse v. Allen, 4 Blatch. 376. And plicit references to them : Electroli- see Brown v. Guarantee Trust Co., bration Co. v. Jackson, 52 Fed. Rep. 128 U. S. 403 ; U. S. v. Am. Bell Tel. 773, Co., Ibid. 315, as to general rules "^ Gaines v. Chew, 2 How. 619 ; touching multifariousness. Oliver v. Piatt, 3 id. 333 ; McLean CIRCUIT COURTS— SUITS IN EQUITY. 269 next succeeding rule day, or the master shall certify that further time is necessary for him to complete the examination.^ Amendment of Bills, when of Course. § 230. The plaintiff is at liberty, as a matter of course and without payment of costs, to amend his bill in any respect, before any copy has been taken out of the clerk's office, and in any small matters afterwards, 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, which he may do of course, even after a copy has been taken out of the clerk's office, but before any answer or plea or demurrer to the bill, he must pay to the defendant the costs occasioned thereby, and must without delay furnish him a fair copy thereof, free of expense, with suitable references to the places where the amendments are to be inserted. And if the amendments are numerous he must 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 must be furnished to each defendant affected thereby.^ Under the privilege of amending a party is not at liberty to abandon the entire case made by the bill and make a new and different case. Amendments are properly allowable when the bill is found defective in proper parties to it, in its prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case; but not for putting in issue new matter to meet allegations of the answer. Amend- ments which change the character of the bill or answer so as to make substantially a new case should rarely if ever be admitted, especially after a cause has been set for a hearing.^ If an amend- ment is made of course or on leave, as we shall hereafter notice, it should be by a separate bill, and not by interlineation of the original bill.* An amendment of the bill may be made by leave ^Equity Rule 27; Oliver v. Piatt, ment had been filed: Sheffield Fur- 3 How. 333; Nelson v. Hill, 5 id. nace Co. v. Witherow, 149 U. S. 574. 127. ^Shields v. Barrow, 17 How. 130; ^ Equity Rule 28. Where amended Walden v. Bodley, 14 Pet. 156 ; bill was filed, but withdrawn before Holmes v. Trout, i McLean i. compliance with this rule, it was held * Pierce & McDonald z/. West, Ex'r, that the case was left as if no amend- 3 Wash. 354. 270 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of the circuit court, after the removal of a cause from a state court, by inserting new counts for the same cause of action as that alleged in the original bill.' Amendment of Bill may be made after Answer, Plea or Demurrer. § 231. The plaint iff may, even after an answer, plea or demurrer to his bill, but before replication, obtain an order from any judge of the court to amend his bill, upon motion or petition without notice on or before the next succeeding rule day, upon payment of costs or without payment of costs, as the court or a judge thereof in his discretion may direct.^ If, however, a replication has been filed, the plaintiff will not be permitted to withdraw it and amend his bill, except upon a special order of a judge of the court, upon motion or petition after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the pro- posed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiffs submitting to such other terms as may be imposed by the judge for speeding the cause,^ Under the provisions of the rule last cited, a bill may be amended after a hearing and case for relief made out, but not the case made by the bill. Thus, where the original bill was for a specific performance, but did not state the facts and circum- stances on which the relief was based with sufficient fullness, and the amended bill embraced the subject-matter and general purpose of the original one, and stated the contract, consider- ation, promise and acts of part performance with sufficient accuracy and precision, and the proof taken under the original bill entitled the complainants to the relief sought, it was held that the amendment after the hearing should be allowed.^ But an amendment will not be allowed after replication, where the purpose of it is to bring in a new party who was known to the original plaintiff or his agent at the time the bill was filed.^ 1 West V. Smith, loi U. S. 263. ' Equity Rule 29. ^The defendant is entitled to addi- *Neale v. Neale, 9 Wall. i. tional time to answer the amended » Ross v. Carpenter, 6 McLean 382 ; bill ; usually same time as for original Goodyear v. Bourn, 3 Blatch. 266. bill: Nelson v. Eaton, 66 Fed. Rep. After final decision on merits the 376. court will not permit pleadings to be CIRCUIT COURTS— SUITS IN EQUITY. 271 Although the ruling on a demurrer to a bill may be erroneous, yet if the plaintiff amends his bill in conformity with the ruling, and the defendant answers the bill as amended, neither party can take advantage of the erroneous ruling.^ When Amendments must be Filed after Order of Allow- ance. § 232. If the plaintiff obtains an order to amend, as provided by the rule last cited, he should file his amendments or amended bill, as the case may require, in the office of the clerk, on or before the succeeding rule day. If he fails to do so he must be considered to have abandoned the same, and the cause will pro- ceed as if no application for an amendment had been made.- Demurrers and Pleas; Allowance of. § 233. No demurrer or plea is allowed to be filed to any bill unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay; and if it be a plea, that it is true in point of fact.* If the demurrer or plea is not accompanied by the proper cer- tificate of counsel and the required affidavit of the defendant, the proper practice is to move to strike it from the files. If the plaintiff files a demurrer to a plea, and the cause is regu- larly brought to argument on the question of the sufficiency of it, the want of the certificate and affidavit will be regarded as waived.'* amended to meet objections made Co. v. Witherow, 149 U. S. 574. It two months previous to the decision : may, however, be regarded as a Claflin V. Bennett, 51 Fed. Rep. 693; ground of objection to granting a Blair z'. Harrison, 57 /fi^. 257. prehminary injunction prayed for: 1 Marshall v. Vicksburg, 15 Wall. Preston v. Kinley, 72 Fed. Rep. 146. 850. ^Equity Rule 30. As to amend- ^Goodyear's Adm'rs v. Toby, 6 ments generally, see Graffan v. Bur- Blatch. 130. If a plea is filed irreg- gess, 117 U. S. 180; Richmond v. ularly, the complainant cannot treat Irons, 121 id. 27 ; Jones v. Van Doren, it as a nullity and take a decree pro 130 id. 684; Chicago, etc., R. Co., v. confesso. He should, before taking Chicago Third Nat. Bk. 134 id. i-jd. such a decree, obtain an order setting =* Equity Rule 31. A demurrer the plea aside or striking it from the which does not comply with this rule files: Ewing v. Blight, 3 Wall. Jr. is fatally defective : Sheffield Furnace 134. 272 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Demurrer; Plea; Answer. § 234. The defendant may at any time before the bill is taken for confessed, or afterwards with leave of the court, demur or plead to the whole bill, or to a part of it, and he may demur to part and plead to part of it, and answer to the residue. But if a bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying fraud and combination, and the facts on which the charge is founded/ A defendant may meet a plaintiff's bill by several modes of defence. He may demur, plead or answer to the whole or to different parts of the bill. But a demurrer to the whole bill will not be sustained if any part of the bill is good and entitles the plaintiff to relief." Matters in abatement and relating to the jurisdiction of the court are preliminary in their nature, and must be taken advan- tage of by a plea, and cannot be by a general answer which admits the right and capacity of the plaintiff to suc.^ The office of a demurrer to a bill is to present the question of the right to maintain it, admitting all its allegations to be true. The court will not therefore examine, aliunde, what facts might or might not defeat it, for this is the office of an answer or plea.' The office of a plea is to furnish some fact or facts not shown by the bill, but which, if stated therein, would have made the bill demurrable. Argument on Demurrer or Plea. § 235. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea.^ If, upon issue taken, ^ Equity Rule 32. But the confed- Drexel v. Barney, 122 U. S. 241 ; Stew- eracy clause may be omitted : Equity art v. Masterson, 131 id. 151. An ob- Rule 21. When two demurrers vir- jection to a bill for multifariousness tually the same are filed, one within cannot be taken merely at a hearing, the time required by the court, the but must be specifically stated by de- other subsequent to that time, it is murrer or other pleading : Ranger v. within the court's discretion to permit Champion Cotton Press Co., 52 Fed. the filing of the second demurrer: Rep. 611. Harvey v. Richm. & M. R. Co., 64 * Livingstone v. Story, i Pet. 351. Fed. Rep. 19. * Ocean Ins. Co. v. Fields, 2 Story ^ Livingstone v. Story, 9 Pet. 632 ; 59. Heath v. Erie R. Co., 8 Blatch. 347 ; ^ Where a plea in bar is supported CIRCUIT COURTS — SUITS IN EQUITY. 273 the facts stated in a plea be determined for the defendant, they avail him so far as in law they ought to avail him.^ If a bill in chancery avers that the defendant is a citizen of a state other than that of which the plaintiff is a citizen, the issue therein should be raised by a plea to the jurisdiction of the court." The complainant should either demur to a plea and set it down for argument, in which case he admits the facts stated in the plea, but denies their legal sufficiency to prevent the relief claimed in the bill, or he should reply to the plea, denying the truth of the statements of the same, or some of them, in which case he admits that if the controverted facts are true, then they are suffi- cient in law to bar a recovery. And if they are proved to be true, the bill should be dismissed." Costs "Where the Demurrer or Plea is Overruled, § 236, If upon a hearing of a demurrer or plea it is overruled, the plaintiff is entitled to his costs up to that time, unless the court is satisfied that the defendant had good ground to inter- pose the same, and that it was not interposed vexatiously or for delay. Upon the overruling of a demurrer or plea, the defend- ant m.ust be assigned to answer the bill, or so much thereof as is covered by the demurrer, the next succeeding rule day, or at such other period as, in the opinion of the court, it can be done consistently with justice and the rights of the defendant, in de- fault of which the bill will be taken as confessed and the matter proceeded in and decreed accordingly.* If a decree pro confesso by an answer, if the plaintiff excepts ciency of the defendant's plea, the to the answer he admits the valid- plaintiff may ask the Supreme Court ity of the plea : Hatch v. Bancroft- to review the decree : Green v. Boyne, Thompson Co., 67 Fed. Rep. 802. 15S U. S. 478. ^ Equity Rule 33 ; Horn v. Detroit ^ Wickliffe v. Owings, 17 How. 47. Dry Dock Co., 150 U. S. 610, 625. ^ Rhode Island e^. Massachusetts, 14 See Pearce v. Rice, 142 id. 28, 42 ; Pet. 210. In United States v. Dalles Gillette y. Doheny, 65 Fed. Rep. 715. Military Road Co., 140 U. S. 599, See also for construction of equity it was held that a party after demur- rules 38 and 39 Ibid; Holton v. Guinn, ring to a plea and the demurrer being 65 id. 450; Hatch v. Bancroft -Thomp- sustained, should have been permitted son Co., 67 id. 802. The complainant to reply to the plea, and the case was may avoid the allegations of the plea reversed because this was not al- by proof of other facts : Elgin W. P. lowed. See Pearce v. Rice, 142 id. 28. & P. Co. V. Nichols, 65 Fed. Rep. 215. * Equity Rule 34 ; Bank of U. S. v. If the court below sustains the sufli- White, 8 Pet. 262. 18 274 FEDERAL PLEADING, PRACTICE AND PROCEDURE. is taken before the time given for answer, it is, of course, irregu- lar and may be set aside on motion.* If a demurrer to a bill is interposed by one of several defendants and overruled, and there is a failure of all the defendants to answer within the required time, the bill will be taken as confessed as to all of them.^ Amendment of a Bill on Allowance of Demurrer ; Costs. § 237. If the demurrer or plea is sustained, the court may allow the plaintiff to amend the bill upon such terms as it shall deem reasonable ; but the defendant is entitled to his costs. The allowance of an amendment is in the discretion of the court, and an order refusing leave to amend is not subject to review in the Supreme Court.^ A demurrer or plea cannot be held bad and overruled upon argument merely because it does not cover so much of the bill as it might have done.* It may cover a part only of the bill, and the defendant may answer the balance. EfFect of Failure to Reply. § 238. If the plaintiff does 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 rule day, he is deemed to admit the truth and sufficiency thereof, and his bill must be dismissed of course, unless the judge shall allow him further time for that purpose;^ A replication, as we have noticed, is an admission of the sufficiency of the plea, and all the defendant has to do is to prove it true.^ Effect of the Answer as Evidence. § 239, The general rule in chancery practice is that aver- ments of the answer of the defendant uncontradicted on the trial are conclusive evidence in his favor;" and if it admits averments 1 Fellows V. Hull, 3 McLean 487. day when filed or on next rule day is ^Suydam v. Beals, 4 McLean, 12. not ground for dismissing the bill: * Equity Rule 35 ; National Bank f. Electrolibration Co. v. Jackson, 52 Carpenter, loi U. S. 567 ; Hunt v. Fed. Rep. 773. Louis, 2 Mason 342. ^ Equity Rule 38 ; Hughes v. Blake, ^Fergusonz^. O'Harra, I Pet. (C. C.) 6 Wh. 453; Poultney v. La Fayette, 498; Equity Rules 36, 37. 3 How. 81. * Where all days in term time are ' Lenox v. Front, 3 Wh. 520 ; Clark treated as rule days, failure to set de- v. White, 12 Pet. 178 ; Randall v. murrer down for argument on rule Phillips, 3 Mason 378 ; U. S. v. Trans- CIRCUIT COURTS— SUITS IN EQUITY. 275 of the bill, but insists upon matters by way of avoidance of such facts, the plaintiff need not prove the facts admitted, and the burden is on the defendant to prove the matters in avoidance. So the general rule in chancery is that, if the facts charged in a bill as the ground for a decree are positively denied by the answer, the answer in this respect is equivalent to the adverse evidence of at least one witness ; and if the averments of the bill which are thus denied are sustained by only one witness, the court would ordinarily be compelled to dismiss the bill. But if the averments thus contradicted are supported by one witness, corroborated by facts and circumstances established by the proof, it may be sufficient to outweigh the answer, unless the latter is also supported by other proof.^ The matters of the bill not denied by the answer, or admitted, are considered as true ; but, as a general rule, the answer of one defendant cannot be used as evidence against his co-defendant; nor can the admissions in the answer of an agent be evidence against his principal ; nor can the admissions of an agent, in pais, be evidence against his principal unless they were a part of the res gesta? If, however, one defendant claims, as a defence, rights or interests derived from or through his co-defendant, the answer to the latter may be proper evidence against the former.^ The general rule above stated, relating to the answer as evi- dence, has been somewhat limited and modified by a general rule promulgated by the Supreme Court, as we shall hereafter notice.* Interrogating Part of the Bill; Answer to. § 240. It is not essential to interrogate the defendant specially and particularly upon any statement of the bill, unless the com- plainant desires to do so to obtain a discovery. If, however, he inserts interrogatories in the interrogating part of it, they should Missouri Freight Assn., 58 Fed. Rep. ^ Leeds v. Marine Ins. Co., 2 \Vh. 58 ; Lake Erie & W R. Co. v. In. 380 ; Clark's Ex'r v. Van Reimsdyk, dianap. Nat. Bk., 65 id. 690. See 9 Cr. 153. also U. S. V. Ferguson, 54 id. 28. ^ Field v. Holland, 6 Cr. 8 ; Osborne 1 Union Bank v. Geary, 5 Pet. 98 ; v. The President, Directors, etc., 9 Carpenter v. The Providence Ins. Co., id 738. 4 How. 185; Higbee v. Hopkins, i * Amended Equity Rule 41, />t>.j/. Wash. 230. 276 FEDERAL PLEADING, PRACTICE AND PROCEDURE. be divided as conveniently as may be from each other, and num- bered consecutively i, 2, 3, etc.; and those interrogatories which each defendant is required to answer, where there are more than one, must be specified in a note at the foot of the bill to this effect : " The defendant, A. B., is required to answer the inter- rogatories numbered respectively i, 2, 3," etc. "The defend- ant, C. D., is required to answer the interrogatories numbered respectively," etc.* "When the Answer is Not Evidence. § 241. We have noticed the general rule in chancery in refer- ence to the answer as evidence. But this has been restricted in certain cases by the rules of practice in equity prescribed by the Supreme Court. An amendment to Equity Rule No. 41 (De- cember term, 187 1) provides : " If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interroga- tories, the answer of the defendant, though under oath, except such parts thereof as shall be directly responsive to such inter- rogatories, shall not be evidence in his favor, unless the cause is set down for hearing on the bill and answer only ; but may, nevertheless, be used as an affidavit with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in a cause." ^ But this does not prevent the defendant from becoming a witness in his own behalf, under section 858 of the Revised Statutes, which pro- vides that no witness shall be excluded in any civil action because he is a party or interested in the issue tried, except in certain cases. Note at the Foot of the Bill Treated as a Part of the Bill. § 242. By the provisions of the rule last referred to, the com- plainant may only require an answer under oath to certain inter- rogatories to be specified in a note at the foot of the bill. This note is considered and treated as a part of the bill, and any ^ Equity Rule 40, as amended, Dec. waives answer under oath, the an- term, 1850, 10 How. 5; Equity Rule swer under oath is evidence in de- 41. feiidant's favor and conclusive if not ^ U. S. V. Workingmen's, etc., contradicted : Dravo v. Fabel, 132 Council, 54 Fed. Rep. 994- When U. S. 487; Conley z/. Nailor, 118 id. complainant neither demands nor 127. CIRCUIT COURTS— SUITS IN EQUITY. 277 alteration in or addition to such note after the bill is filed will be considered and treated as an amendment of the bill.^ The words preceding the interrogating part of a bill should be in the form or to the effect following : " To the end, therefore, that the de- fendants 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 several and respective knowledge, remembrance, informa- tion and belief, 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 — " I. Whether, etc. " 2. Whether, etc." ^ Interrogatories a Defendant May Decline to Answer. § 243. A defendant may, by answer, decline answering any interrogatory, or part of an interrogatory, from the answering of which he might have protected himself by demurrer ; and he is at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer.^ Replication to Answer. § 244. No special replication to any answer is allowed to be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may obtain leave to amend the same with or without the payment of costs, as the court or a judge thereof may in his discretion direct* Special replications can no longer be used in chancery. If, from the nature of the answer, it becomes necessary to prove other mat- ters than those contained in the bill, the proper practice would be to amend the bill in this respect, and insert the proper and necessary averment therein. Thus if a suit is brought in equity - Equity Rule 42. issue every material allegation of an ^ Equity Rule 43. answer or amended answer, unless ^ Equity Rule 44. the rules of pleading imperatively * Equity Rule 45 ; Duponti v. require an amendment of the bill : " Massy, 4 Wash. 128. This rule Southern Pac. R. Co. v. U. S., 18 "means, at most, that a general re- Sup. Ct. Repr. 18. plication is always sufficient to put in 278 FEDERAL PI.EADING, PRACTICE AND PROCEDURE. to restrain the use of a machine on the ground of an infringe- ment of a patent thereon, and the defendant in his answer sets up a license therefor, the plaintiff cannot prove an abandonment of the license under a special replication, but should amend his bill and allege such abandonment.^ So special facts in excuse for not bringing suit within the period prescribed by the Statute of Limitations should be set forth in the bill, such as coverture, minority or residence abroad. If these matters are omitted, the bill may be amended in this respect after answer, on leave of court, but they cannot be set up by special replication.^ Al- though amendments of bills, after answer, cannot be made with- out leave of the court, objections to amendments without leave cannot be made for the first time in the appellate court.^ In case of an amendment of a bill after an answer filed, the defendant is required to put in a new or supplemental answer on or before the next succeeding rule day, which would be the first Monday of the next succeeding month after that on which the amendment or amended bill is filed, unless the time is extended or it is otherwise ordered by the court. And in case of the de- fault of the defendant so to do, like proceedings may be had as in case of omission of a defendant to put in answer to an original bill.* Parties to Bills ; Absent Parties. § 245. It is provided by Rule 47 in equity that " in all cases where it shall appear to the court that persons who might other- wise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or be- cause their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent party." If the cause can be fully and finally decided between the parties litigant without bringing in others who might also be made parties, and the latter cannot be reached by the process of ^ Wilson V. Stolly, 4 McLean 275. ' Clements v. Moone, 6 Wall. 299. * Taylor v. Benham, 5 How. 233. * Equity Rule 46. CIRCUIT COURTS — SUITS IN EQUITY. 279 the court, as where they cannot be served with process within the district, such parties may be dispensed with, and the cause be determined between the parties before the court.^ Nor will the improper joinder of parties who are citizens of the same state affect the jurisdiction of the court if a decree may be properly entered as between the parties who are properly before the court.^ The general doctrine of chancery practice, however, is that all persons materially interested in the subject-matter of the suit ought to be made parties, either as plaintiffs or defendants ; but this general rule is for the convenient and equitable administra- tion of justice, and its application is more or less in the sound discretion of the court, and will usually be restricted to parties whose interests are in issue, and to be affected by the decree.^ And in all cases the decree will be so framed and modified as not to prejudice the interests of those not made parties to the suit, or properly served with original process/ A court of equity should aim to do complete justice by embracing the whole subject, and deciding upon and settling the rights of all persons interested in the subject of the suit, in order to prevent future litigation;® and if the rights of an absent party must necessarily be affected and prejudiced by a decree, it should not be rendered, and objection to such a decree can be taken not only upon the hearing, but in the appellate court.^ Where real property, after being mortgaged, was conveyed in trust for the benefit of chil- dren, including those in being and those that might be born, and a bill was brought to foreclose the mortgage, it was held that all the children in esse at the time of filing the bill were indis- ^ Mallow V, Hinde, 12 Wh. 193; though not parties, are regarded as Vattier v. Hinde, 7 Pet. 252. No de- quasi parties, and may be heard : cree can be made which involves the FideHty, etc., Co. v. Mobile St. R. rights of a party not before the court: Co. 53 Fed. Rep. 850. Hamilton v. Savannah F. and W. R. * Mechanics' Bank v. Setons, i Pet. Co., 49 Fed. Rep. 412; Collins Mfg. 299. Co. V. Ferguson, 54?^. 721; Califor- ^Caldwell y. Taggart, 4 Pet. 190; nia V. South Pac. Co., 157 U. S. 229, Marshal v. Beverly, 5 Wh. 313 ; Banks 256. V. Carrolton Railroad, 11 Wall. 624; 2 Carneal v. Banks, 10 Wh. 181 ; Consolidated Water Co. v. Babcock, Vattier v. Hinde, 7 Pet. 252. 76 Fed. Rep. 243. 'In a foreclosure suit brought by ^Coiron v. Mellandon, 19 How. trustee of mortgage, bondholders, 113 ; Joy z/. Wirtz, i Wash. 517. 280 FEDHRAL PLEADING, PRACTICE AND PROCEDURE. pensable parties to bar a right of redemption, and that a decree against the trustees would not bind the cestui que trusts} So part owners or tenants in common of real property have an interest in the subject-matter of a suit to partition the same, and each one is so intimately connected with his co-tenant that if they cannot all be subjected to the jurisdiction of the court, the bill should be dismissed.^ But a court of equity of the United States will not suffer its jurisdiction to be ousted because of the non-joinder of merely formal parties who are not entitled to sue or liable to be sued in its courts.^ Where four parties had a dispute about their respec- tive rights and interests in the stock of a railroad company, and entered into a contract of settlement by which the stock was to be divided in certain proportions between them, but one of the parties thereto refused to carry out the agreement, and another party filed a bill to compel him to stand by the agreement and to carry it into execution, to which the former answered, object- ing that the other parties to the contract of settlement should have been made parties to the bill, it was held that, as no relief was asked of the other parties, they were not necessary parties to the bill.* So where a person filed a bill as administrator of a deceased partner, to have an account of the partnership con- cerns, and alleged in his bill that he was the sole heir of the de- ceased partner, it was held that the fact that he was not so could not affect the case, and that the bill was not objectionable for the want of necessary parties, as a decree in the case in his favor would not affect the rights of heirs who might claim a distribution of the money which might be decreed the com- plainant/ 1 Clark V. Reyburn, 8 Wall. 318. "* French v. Shoemaker, 14 Wall. See also Ribon v. Railroad Co., 16 314. id. 446. 'Moore v. Huntington, 17 Wall. 2 Barney !<. The City of Baltimore, 6 417. Parties not necessary: see Wall. 280; Traders' Bank v. Camp- Billings z*. Aspen M. & S. Co., 10 U. bell, 14 id. 87. See also Hoxie v. S. App. i, 322, affd. 150 U. S. 31 ; Carr, i Sum. 173; Marshall v. Beverly, Bellows v. Sowles, 52 Fed. Rep. 528 ; 5 Wh. 313. U. S. V. Hendy, 54 id. 447 ; McGahan ^Wormley v. Wormley, 8 Wh.421 ; v. Bk. of Roundout, 156 U. S. 218. ante, § 126 et seq. CIRCUIT COURTS — SUITS IN EQUITY. 281 When Parties are Numerous. § 246. Although it is a general rule in equity that all persons interested in the subject-matter of the suit should be made parties, to this there is an exception, as where the parties are so numerous as to make it impracticable, in which case a few, representing the interests of the many, are sufficient.^ This exception is also embraced in the forty-eighth rule of practice prescribed by the Supreme Court for the courts of equity of the United States. It provides as follows: "Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making them all parties, and may proceed in the suit, having 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."^ And, as we have seen, proper but not necessary parties to a bill may be omitted or not served with process; as where they cannot be made parties without ousting the court of jurisdiction.^ Trustees Represent Parties Beneficially Interested; Exe- cutors and Administrators. § 247. In all suits concerning real estate which is vested in trustees by devise, if they have, by virtue of the devise, power to sell and give discharges for the proceeds, and charge of the rents and profits of the estate, they may properly represent, as parties to a bill, the persons beneficially interested in the estate or the rents and profits thereof, in the same manner and to the same extent as executors and administrators in suits concerning per- sonal estate represent the persons beneficially interested in such personal estate ; and in such cases it is not necessary to make the persons beneficially interested in such real estate, or the rents and profits thereof, parties to the suit. But the court may, upon ^ Mandeville v. Riggs, 2 Pet. 482. 252 ; ante, \ 126, et seq. On the mat- ^ West V. Randall, 2 Mason 181. ter of parties as considered under the ^ MilHgan v. Millege, 3 Cr. 220 ; two preceding sections, see also Ken- Simms v. Guthrie, 9 id. 20 ; Kerr v. dig v. Dean, 97 U. S. 424 ; Ober v. Watts, 6 Wh. 550; Potter v. Gardner, Gallagher, 93 id. 204. 12 id. 49S ; Hook v. Payne, 14 Wall. 282 FEDERAL PLEADING, PRACTICE AND PROCEDURE. consideration of the matter on the hearing, order such persons or any of them to be made parties.^ When an Heir-at-Lawis not a Necessary Party 3 Joint and Several Debtors. § 248. It is not necessary to make the heirs-at-law parties in suits brought to compel the execution of the trusts of a will, but the plaintiff is at liberty to do so where he desires to have the will established against them.^ • And if the plaintiff has a joint and several demand against several persons either as principals or sureties, it is not necessary to bring before the court all the persons liable on the contract or other demand, but he may proceed against one or more of them severally liable.^ Defect of Parties Suggested in the Answer; Practice. § 249. If the complainant omits to bring before the court per- sons who are necessary parties, and the defect does not appear on the face of the bill, the proper practice would be to set forth the defect by a plea or answer. If it is patent on the face of the bill, however, it could be taken advantage of by demurrer.* If it is suggested in the answer that there is a defect of parties to the bill, the plaintiff is at liberty to set the cause for hearing on that objection only; but it is necessary for him to state, in the entry of the hearing in the clerk's order-book, the purpose for which the same is set down, to the following effect, that is to say: "Set down upon the defendant's objection for want of parties." If he shall not so set down the cause for defect of parties, he will not, as of course, be allowed to amend his bill in this respect on the hearing of the cause.^ But if on a final hearing a bill is dismissed on the ground of a defect of parties, it should be without prejudice, as the com- plainant ought to be permitted to file a bill against all the proper 1 Equity Rule 49; Potter v. Gard- generally, see Carey v. Brown, 92 U. ner, 12 Wh. 498. Corporations are S. 171 ; Kerrison v. Stewart, 93 id. indispensable parties to a bill which 155; Robertson v. Carson, 19 Wall, affects corporate rights or liabilities : 94 ; Williams v. Bankhead, Ibid. 563. Swan Land, etc., Co., v. Frank 148 * Story v. Livingstone, 13 Pet. 359; U. S. 603. Carey v. Brown, 92 U. S. 171. 2 Equity Rule 50. '" Equity Rule 52 . 2 Equity Rule 51. As to parties CIRCUIT COURTS — SUITS IN EQUITY. 283 and necessary parties at any time afterwards.^ If, however, no objection is made to the bill for the want of necessary parties, either by demurrer, plea or answer, the court is at liberty, on the hearing of a cause, and on objection being made by the defendant on this ground, to proceed to a decree saving the rights of the absent parties.^ But, if a decree cannot be rendered without manifest prejudice to the rights of those who should have been made parties, no decree should be entered, although no objection is made on that ground.^ Nominal Parties need not Appear. § 250. The parties served with a subpoena need not appear and answer a bill, where no account, payment, conveyance or other direct relief is sought against them, unless the plaintiff specially requires them to do so by the prayer of his bill. But they may appear and answer at their option. In case, however, they do not appear and answer, they will be bound by all the proceedings in the cause; and if the plaintiff shall require them to appear and answer, they are entitled to all the costs of the proceedings against them, unless the court shall otherwise direct.* The omission, as we have seen, of merely formal parties will not oust the jurisdiction of the court. If complete relief can be given in a cause to those who seek it, without affecting the interests of others not made parties, a decree for relief will be granted.^ Injunctions ; When Granted of Course. § 251. If an injunction is asked for in the bill to stay proceed- ings at law, and the defendant does not enter his appearance and plead, demur or answer to the same within the time prescribed therefor by the rules of practice in equity, the plaintiff is entitled ^ Kendig v. Dean, 97 U. S. 423 ; ^ Wallace v. Holmes, 9 Blatch. 65 ; Barney v. Baltimore City, 6 Wall. Mechanics' Bank v. Setons, i Pet. 280; Home V. Mullen, 22 id. 42. 299; Legee t". Thomas, 3 Blatch. 11 ; The general practice in this country Story v. Livingstone, 13 Pet. 359. and in England, when a bill in equity ■* Equity Rule 54. is dismissed without a consideration ^ Joy v. Wirtz, i Wash. 517 ; Worm- of the merits, is for the court to ex- ley v. Wormley, 8 VVh. 421 ; Me- press in its decree that the dismissal chanics' Bank v. Setons, i Pet. 299. is without prejudice: Swan Land, Se^ also Young z/. Pott, 4 Wash. 521. etc., Co. V. Frank, 148 U. S. 603. See ante \ 246, note. ^ Equity Rule 53. 284 FEDERAL PLEADING, PRACTICE AND PROCEDURE. as of course to such injunction, upon motion and without notice. Special injunctions are grantable only on due notice to the adverse party, by the court in term time or by a judge thereof in vacation, after a hearing. But the hearing may be ex parte, if the adverse party does not appear at the time and place desig- nated in the notice. And in case an injunction is awarded in vacation, it will, unless previously dissolved by the judge grant- ing the same, continue until the next term of the court or until dissolved by some other order of the court.^ Unless other parties than those in the suit at law are made parties to the bill to enjoin, and different interests are involved, a bill to enjoin a judgment at law is not treated as an original bill; but if the bill makes others parties, having different interests, it is considered an original bill.^ Bills of Revivor and Supplemental Bills; Abatement. §252. On general principles a suit is abated on the death of either party, but it is provided by Rule 56 for the equity courts of the United States that " whenever a suit shall become abated by the death of either party, or by any other event, it may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require." The bill should be filed by the proper parties entitled to revive the suit, and may be filed in the office of the clerk at any time ;^ and upon the suggestion of the facts the process, of subpoena should be issued as a matter of course by the clerk, requiring the proper representatives of the other party to appear and show cause, if any, why the cause should not be revived. If at the next rule day occurring after fourteen days from the service of said pro- cess of subpoena, that is to say, the first Monday of the month after fourteen days from the service of the same, no cause shall be shown, the suit will stand revived as of course.* In such a case the practice is to allow on the final hearing, the ^ Equity Rule 55. be stricken from the records where ^ Simms v. Guthrie, 9 Cr. 19; Dunn no proceedings have been taken for V. Clark, 8 Pet. i. See also Marsh v. twelve years : Hubbell v. Lankenau, Bennett, 5 McLean 117 ; Worcester v. 63 Fed. Rep. 881. Truman & Smith, i id. 483. * Equity Rule 56 ; Equity Rule 2. ^ A bill of revivor may on motion CIRCUIT COURTS— SUITS IN EQUITY. 285 use of any testimony taken before the abatement, and which might have been used if no abatement had occurred. The suit, after revival, proceeds in the new form, unaffected by the change.^ But it seems a bill of revivor cannot be entertained where the original jurisdiction depended upon the proper citizenship of the parties, and the controversy which it seeks to revive v/ill be between citizens of the same state, although there was the requisite citizenship of the original parties; as where a bill of revivor is brought by an administrator who is a citizen of the same state with the defendant.^ When Supplementary Bills are Proper. § 253. If a suit in equity becomes defective by some event occurring after the filing of the bill, as, for instance, by the change of interest of parties in the matter in controversy, or for any other reason, a supplemental bill or a bill in the nature of a supplemental bill may be necessary.^ Leave to file the same may be granted by any judge of the court on any rule day, upon any proper cause shown and on due notice to the other party. If leave is granted, the defendant must 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 is assigned by a judge of the court/ But it is not necessary, in any bill of revivor or supplemental bill, to set forth any of the statements of the original bill, unless the special circumstances of the case may require it.^ Answers and Amendments Thereof. § 254. We have remarked that the rules in equity require an appearance of the defendant, in person or by attorney, on the 1 Vattier v. Hinde, 7 Pet. 252. A supplemental bill to modify a de- =* Clark V. Mathews, 2 Sum. 262. cree should be brought in the term at ^ The rule applies to transfers of which the decree is entered : Omaha cause of action whether voluntary, v. Redick, 63 Fed. Rep. i. by contract or deed, or by operation ^ Equity Rule 58. See New York of law : Hazleton Tripod-Boiler Co. v. Security & Trust Co. v. Lincoln Street Citizens' St. R. Co., 72 Fed. Rep. 325. R. Co., 74 Fed. Rep. 67. For ex- * Equity Rule 57 ; Kennedy v. amples of bills not supplemental bills, Georgia State Bank, 8 How. 610; but separate proceedings, see White Jenkins v. Eldredge, 3 Story 299; z^. Joyce, 158 U. S. 128; Great West- Parklmrst v. Kinsman, 2 Blatch. 72. ern Tel. Co. v. Purdy, 162 id. 329. 286 FEDERAL PLEADING, PRACTICE AND PROCEDURE. next rule day, that is, the first Monday of the next succeeding month, if the defendant has been served with process twenty days before that time ; if not, then at the next succeeding rule day. And he is required to file his plea, answer or demurrer to the bill on the next succeeding rule day after entering his ap- pearance, unless the court shall, for cause shown, extend the time. In default of which the defendant may enter an order, as of course, in the order book, that the bill be taken pro con- fesso} And unless there is a waiver of answer under oath, the defendant must verify it. This may be done before any justice or judge of any court of the United States, or before any com- missioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or terri- tory, or before any notary public.^ An answer may be amended of course, in any matter of form, or by filling up a blank, or correcting a date, or by reference to a document or other small matter, at any time before a replica- tion is put in, or the cause is set down for a hearing upon the bill and answer; but the defendant should reverify it unless there is a waiver of the same. After a replication or such setting down for a hearing, it cannot be amended in any material mat- ters, as by adding new facts or defences, or qualifying or altering the original statements, except by special leave of the court or a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported if required by affidavit.^ If granted, the court or judge granting the same may require it to be sepa- rately engrossed as an amendment to the original answer, so as to be distinguishable therefrom.* Leave to amend an answer after replication, or the cause is set down for a hearing, will not ordinarily be granted where the matter set up in the amended answer constitutes a new defence, and especially where it appears that the matters thus set up ^Seefl«/i?, ? 221. Fed. Rep. 615. After the cause has ''■ Equity Rule 59. In case of answer been heard on exceptions to a master's of a defendant beyond the seas : Read report, leave to amend the answer V. Consequa, 4 Wh. 335 ; Herman v. is discretionary with the court: Hud- Herman, 4 Wash. 555. son v. Randolph, 66 Fed. Rep. 216. * Gubbins v. Laughtenschlager, 75 * Equity Rule 60. CIRCUIT COURTS— SUITS IN EQUITY. 287 could with reasonable diligence have been introduced into the original answer.^ Answer ; Exceptions Thereto. § 255. If an answer is filed on any rule day, the plaintiff is allowed until the next succeeding rule day to file exceptions thereto for insufficiency, unless a longer time shall be allowed for that purpose upon cause shown to the court or a judge thereof; and if no exception is filed thereto within that time the answer will be taken to be sufficient.^ If exceptions are taken on the ground that certain allegations of the bill are neither answered, admitted nor denied, it is neces- sary to inquire whether the facts charged in the allegations are material and might contribute to establish the equity of the bill, If they do not, the exceptions should be overruled.^ If an ex- ception to an answer is taken on the ground of insufficiency, it should state the charges in the bill, the interrogatories applicable thereto to which the answer is responsive, and the language of the answer, so that the court may determine whether it is suffi- cient or not ; and any exception is considered as waived by going to trial on the merits.* When Exceptions will be Set down for a Hearing ; Answer after Allowance. § 256. If exceptions are filed to an answer for insufficiency within the time prescribed by the rules of practice in equity, and the defendant does not submit to the same and file an amended answer on the next succeeding rule day, the defendant may forthwith set them down for a hearing on the next succeeding rule day thereafter before the court, and may enter as of course, 1 India Rubber Co. v. Phelps, S the cause remanded for further pro- Blatch. 85 ; Grier v. Gregg & Wald, ceedings not inconsistent with its 4 McLean 202 ; Walden v. Bodley, opinion ; the plaintiff is entitled to 14 Pet. 156. file a replication and may be allowed '^Equity Rule 61. When the cir- by tlie circuit court to amend his bill; cuit court, at a hearing upon excep- In re Sanford Fork & Tool Co., 160 tions to an answer in equity, sustains U. S. 247. the exceptions and (the defendant » Hardeman v. Harris, 7 How. 726. electing to stand by his answer) * Brooks v. Byam, i Story 296; enters a final decree for the plaintiff; Kitridge v. Race, 92 U. S. 116. See and the Supreme Court, upon appeal, as to construction of pleadings, orders that decree to be reversed, and Brown v. Pierce, 7 Wall. 205. 288 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in the order book, an order for that purpose. If he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer must be deemed sufficient ; provided, however, that the court or any judge thereof may, for good cause shown, enlarge the time of filing exceptions or for answering the same upon such terms as may be deemed reasonable.^ If the exceptions are allowed, it is the duty of the defendant to put in a full and complete answer on the next succeeding rule day, otherwise the bill may be taken as confessed so far as the matter referred to in the exceptions is concerned ; or the plaintiff at his election may have a writ of attachment to compel the defendant to make a better answer to the matter of such exceptions, from which he will not be discharged except by putting in such an- swer, and complying with such other terms as the court or a judge may direct.^ And if the exceptions shall be overruled, or the answer shall be adjudged insufficient, the prevailing party is entitled to the costs occasioned thereby, unless otherwise directed by the court or a judge thereof at the time of the hearing of the exceptions.^ Replication and Issue. § 257. If the answer shall not be excepted to, or shall be adjudged sufficient, the plaintiff is required to file the general replication thereto on or before the next succeeding rule day thereafter, when the cause will be deemed at issue without further pleading on either side. But if the plaintiff omits to file a replication within the time prescribed, the defendant is entitled to an order, as of course, for the dismissal of the suit, unless the court or a judge thereof shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, and the plaintiff submit to such other terms as may be directed. If no replica- tion is filed, the answer is taken as true, and no evidence will be allowed to contradict it.^ On failure to put in a general replica- tion to an answer, the order of dismissal may be entered by the clerk of course, without any application to the court or a judge.* ^ Equity Rule 63. ^ Equity Rule 64. Pike, 67 Fed. Rep. 837. =* Equity Rule 65. ^Robinson v. Satterlee, 3 Saw. 134. * Pierce v. West, i Pet. (C. C.) 351 ; It is an irregularity to go to hearing Coleman v. Martin, 6 Blatch. 291; without replication: Washington Rail- Equity Rule 66. See Gregory v. road v. Bradleys, 10 Wall. 299. CIRCUIT COURTS— SUITS IN EQUITY. 289 The rule last cited provides that the court or a judge thereof may upon motion, and for cause shown, allow a replication to be filed. Where a bill was dismissed, but before the final decree was entered the plaintiff by motion asked leave to file a general replication and to take testimony, and offered to pay the accrued costs, but made no suggestion of mistake or inadvertence, it was held that the motion must be denied.^ Depositions ; Commissions and Commissioners. § 258. When the cause is at issue, commissions to take testi- mony upon interrogatories may jointly or severally be taken out by the parties. If either party desires so to do, he is required to file the interrogatories in the clerk's office, and give ten days' notice to the opposite party to file cross interrrogatories, before the issuing of the commission. If no interrogatories are filed at the expiration of the time, the commission may issue ex parte. The commissioner may be designated by the court or a judge thereof, or the presiding judge thereof may vest in the clerk power to name commissioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all wit- nesses to be examined shall be examined orally before one of the examiners of the court, or before an examiner specially ap- pointed by the court. The examiner, if he so request, shall be furnished with a copy of the pleadings, and the parties must have an opportunity to be present on such examination, per- sonally or by their counsel or solicitors, and the witnesses are subject to cross-examination and re-examination. The evidence must be taken down by the examiner, in writing, in the form of question put and answer given, provided that by consent of parties the examiner may take down the testimony of any wit- ness in the form of narrative. At the request of either party the deposition of any witness may be taken down by a skillful sten- ographer or typewriter.^ When completed the depositions must 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. But if the witness shall refuse to sign the deposition, the examiner iBallenger v. Mackey, 14 Blatch. ^ See Ballard ^'. McCluskey, 52 Fed. 355. Rep. 677. 19 290 FEDERAI. PLEADING, PRACTICE AND PROCEDURE. may sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. Any question or questions which may be objected to shall be noted by the ex- aminer upon the deposition, but he cannot decide on the com- petency, materiality or relevancy of such questions. The court has power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. The examiner has the same power to coerce the attendance of wit- nesses as in case of examination on written interrogatories. The examiner in such cases may require reasonable notice to be given of the time and place of examination of witnesses to the opposite party ; and when the same is concluded, the depo- sition, duly authenticated, should be transmitted by him to the clerk of the court, and be filed by him.^ Testimony, however, may be taken by commission on written interrogatories and cross interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satis- factory to the court or judge. If the evidence in a cause is to be taken orally, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of his bill, and a time thereafter within which the defend- ant must take his evidence in defence, and a time thereafter in which the complainant must take his evidence in reply; and no further evidence can be taken in the cause unless by agreement of the parties or by leave of court first obtained on motion for cause shown. The expense of the stenographer or typewriter is to be paid by the party calling the witness and included in the costs as finally imposed. Upon due notice the court may per- mit the whole or any specific part of the evidence to be adduced orally in open court on final hearing.^ ^ Depositions taken by agreement White v. Toledo, St. L. & K. C. R. before an officer qualified to admin- Co., 79 Fed. Rep. 133. Each interro- ister oaths, not appointed examiner gatorj' should be answered fully: by the court, must be filed of record Ketland v. Bissett, i Wash. 144; Bell as required by this rule: J. L. Mott v. Davidson, 3 id. 328. They should Iron Works z/. Standard Mfg. Co., 48 be at least substantially answered: Fed. Rep. 345. Dodge v. Israel, 4 id. 323 ; Richard- =* Equity Rule 67, as promulgated son v. Golden, 3 id. 109; Rhoades v. May 2, 1892 ; amended May 15, 1893, Selin, 4 id. 715. 144 U. S. 6S9; 149 id, 713. See CIRCUIT COURTS — SUITS IN EQUITY. 291 Three Months Allowed after the Cause is at Issue for the Taking of Testimony. § 259, It is provided by a rule in equity that three months and no more shall be allowed for the taking of testimony after the cause is at issue, unless a court or a judge thereof shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period can be read in evidence at the hearing except as aforesaid.^ This rule applies to the testimony of both parties ; and the question whether the time should be enlarged is largely in the sound discretion of the court, and unless there should be a clear abuse of this discretion, the Supreme Court would not interfere ; ^ Testimony de Bene Esse; Notice; Form of the Last Inter- rogatory. § 260. If after any bill is filed, and before the defendant has answered the same, an affidavit is made and filed in the office of the clerk of the court, stating 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 is required to issue, as a matter of course, a commission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon due notice to the adverse party of the time and place of taking his or their testimony. The last interrogatory must be in substance as follows: " 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 material 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." ^ Defendant must Answer the Original Bill before the Plain- • tiff is Required to Answer the Cross-Bill. § 261. If a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, he must answer the ^Equity Rule 69. A deposition ^ Equit}' Rules 70, 71. See also not taken within three months may Richardson v. Golden, 3 Wash. (C. be stricken from the files: Wenham C.) 109; Dodge v. Israel, 4 id. 323; V Switzer, 48 Fed. Rep. 612. Rhoades v. Selin, Ibid. 715. ^ Ingle V. Jones, 9 Wall. 486. 292 FEDIXRAI. PLEADING, PRACTICE AND PROCEDURE. original bill before the plaintiff is required to answer the cross- bill/ The answer in such a case to the cross-bill may be used at the hearing by the party filing the same in the same manner and under the same restrictions as an answer to an original bill may be read and used. A cross-bill depends upon the original one, and may be said to be a mere auxiliary suit. If its purposes are entirely different from those of the original bill, it cannot properly be considered a cross-bill, although the matters therein may have some relation to the same general subject. Nor can new parties be brought into a cause by a cross-bill.^ If a bill is filed to set aside an agreement or conveyance, and the defendant desires to have it established by a decree of the court, he may do so by filing a cross-bill for that purpose.^ But a cross-bill cannot be properly filed without leave of court, and if so filed it will be set aside or dismissed.^ Appointment of Masters and their Compensation. § 262. The circuits courts have power to 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, concur- ring in the appointment, and they may appoint a master pro hac vice, in any particular case. But no clerk of the district or cir- cuit court or his deputy can be appointed either as receiver or master in any case, except where the judge shall determine that special reasons exist therefor, to be assigned in the order of 1 Equity Rule 72 ; Allen v. Allen, Palace Car Co. v. Central Transp. Hemp. 58; Young z/. Pott, 4Wash. 521. Co., 49 id. 261. A complainant is 2 Shields v. Barrow, 17 How. 130 ; not allowed to discontinue where an Cross V. De Valle, i Wall. i. For injunction has been granted and the examples of bills not true cross-bills, defendant seeks by cross-bill to take but original bills, see Chattanooga advantage of testimony and secure Medicine Co. v. Thedford, 58 Fed. his rights: Pullman's Palace Car Co. Rep. 347 ; GoflF v. Kelly, 74 id. 2,2'j. v. Central Transp. Co., supra. If the bill is not a cross-bill, but an ^ Carnocan v. Christie, 11 Wh. 646. original bill, substituted service on * Bronson v. La Crosse and M. R. plaintiff's attorney is not sufficient: Co., 2 Wall. 283. For further dis- Fidelity, etc., Co. v. Mobile St. R. cussion of practice under cross-bills Co., 53 Fed. Rep. 850. If a defend- see The Dove, 91 U. S. 385 ; Veach v. ant seeks affirmative relief he must Rice, 131 id. 293; Kingsbury v. Buck- file a cross-bill: White v. Bower, 48 ner, 134 id. 650. Fed. Rep. 186; see also Pullman's CIRCUIT COURTS — SUITS IN EQUITY. 293 appointment. The compensation to be allowed the master is to be fixed by the court in each particular case, and such compen- sation must be charged upon and borne by such of the parties in the cause as the court shall direct. He cannot, however, retain the report as security for his compensation, but where it is allowed he is entitled to an attachment against the party who is ordered to pay the same, if upon notice thereof he does not pay it within the time prescribed by the court.^ Reference and Proceedings Before Masters. § 263. It is not the practice in all cases for courts of equity to refer causes to a jury or master, to ascertain the facts, but they may do so themselves, or refer them to a jury or a master.^ If, however, the bill calls for an account, and this is complex and intricate, it should be referred to a commissioner or master, to be examined and reported by him,^ This reference can only be made after an interlocutory decree, on the general merits of the plaintiff's bill. The master may take evidence upon written interrogatories, or viva voce, the parties to the suit being present personally or by counsel, or having due notice thereof, and an opportunity to appear before him.^ Exceptions to the report of a master may be taken by either party. The errors should be specifically pointed out, as the parts not excepted to will be considered as correct and admitted.^ It is the duty of the master, upon every reference to him, within a reasonable time to assign a time and place for proceed- ings on the same, and to give due notice thereof to each of the parties or their solicitors ; and if either party fails to appear at ^ Equity Rule 82 ; act of Congress, taken pro confcsso, the account must 1879, cli- 183, p. 415. be referred to a master : Pendleton v. ^ As to rules in matters of reference Evans' Ex'r, 4 Wash. 391; Equity to juries, see Wilson v. Riddle, 123 Rule 77. U. S. 608 ; Idaho, etc. v, Bradbury, * Dubourg v. United States, 7 Pet 132 id. 509. 625 ; Walker v. Kinnare, 76 Fed. *A master to whom an account is Rep. loi. Exceptions may only be referred, cannot pass upon the entire taken to matters heard and deter- case although there is no objection : mined by the master, not to merely Oteri V. Scalzo, 145 U. S. 578, 589. ministerial matters, such as a sale : * Field V. Holland, 6 Cr. 8 ; Story Pewabic Mining Co. t/. Mason, 145 U. V. Livingston, 13 Pet. 359. If the S. 349. bill for the balance of an account is 294 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the time and place appointed, he may proceed ex parte, or in his discretion adjourn the examination and proceedings to a future day, giving the absent party or his solicitor due notice thereof. It is the duty of the master to proceed with all reasonable dili- gence in every reference to him, and with the least practicable delay; and either party may apply to the court, or a judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the rea- sons for any delay.^ It is the duty of the party procuring a reference to cause the same to be presented to the master for a hearing on or before the next rule day succeeding the time when the reference is made ; and if he fail to do so, the adverse party is at liberty forthwith to cause proceedings to be had before the master at the costs of the other party .^ The report should not contain any state of facts, charge, affidavit, deposition, examina- tion or answer, or any part thereof, brought in or used before the master, but they should be referred to and identified so as to enable the court to determine what was brought in or used.^ The court will not investigate the items of an account, nor re- view the whole testimony taken before a master.* Exceptions should be filed pointing out the particular portion of the testi- mony on which the party excepting relies.^ Hearing Before a Master; Evidence. § 264. The master has full authority to examine the parties in a cause upon oath touching all matters contained in the refer- ence ; and he has authority to require the production of all books, papers, writings, vouchers and other documents relating thereto. He may also examine on oath, viva voce, all witnesses produced by the parties before him, and order the examination of other witnesses to be taken, under a commission issued upon his certificate, from the clerk's office, or otherwise as provided by acts of Congress or by the rules in equity ; and may direct the mode in which the matters requiring evidence shall be ^ Equity Rule 75. see Callaghan v. Myers, 128 U. S. 617 ; ^ Equity Rule 74. Kimberly v. Arms, 129 id. 512 ; Tyler ' Equity Rule 76. v. Savage, 143 id. 79 ; Stuart v. Green- * Harding v. Handy, 11 Wh. 103. brier, etc., Co., 144 id. 104 ; Furrer v. *As to exceptions to master's re- Ferris, 145/0'. 132. ports, and what will be considered, CIRCUIT COURTS— SUITS IN EQUITY. 295 proved before him, and do all other acts, and direct all other in- quiries and proceedings in the matters before him, which he may- deem necessary and proper to the justice and merits of the case and the rights of the parties.^ How Witnesses are Procured. § 265, Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before a commisioner appointed to take testimony, or before a master or examiner appointed in any cause, by a subpoena in the usual form, which may be issued by the clerk of the court, in blank, and filled up by the party praying for the same, or the commis- sioner, master or examiner, requiring the attendance of the wit- ness at the time and place specified; and he is allowed for his attendance the same fees as for attendance in court. If he refuses to appear after due service of the subpoena, he is guilty of a con- tempt of court, which being certified to the clerk's office by the commissioner, master or examiner, an attachment may issue for a contempt on the order of the court or a judge thereof, in the same manner as for failure to attend, or for refusing to testify in court.^ When a witness has been once examined, and his de- position used on the hearing, he cannot be re-examined before the master without a special order of the court ; and if leave is thus granted, he can, usually, only be examined in respect to facts not before testified to by him, and not then in issue.^ But the court may in its discretion, if it is deemed advisable, allow the examination of witnesses viva voce, in any case, in open court/ How Accounts Must be Brought in ; Examination of Party. § 266. All parties accounting before a master must bring in their respective accounts in the form of debtor and creditor, and any of the other parties not satisfied therewith may examine the accounting party viva voce, or upon interrogatories in the mas- ter's office, or by deposition, as the master may direct.^ And all affidavits, depositions and documents which have been previously 1 Equity Rule 77 ; Harding v. Han- ^ Gass v. Stinson, 2 Sum. 605 ; Jen- dy, II Wh. 103 ; Story v. Livingston, kins v. Eldridge, 3 Story 299. 13 Pet. 359. * Equity Rule 78. ^ Equity Rule 78. * Equity Rule 79. 296 FEDERAL PLEADING, PRACTICE AND PROCEDURE. made, read or used in the court upon any proceeding in any cause or matter may be used before the master. So the master may examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, and the testimony must be taken down, if either party requires it, for use in court.^ Exceptions to the Report of a Master; when Filed. § 267. Exceptions may be taken to the rulings of a master in chancery, but they should be taken at the time and entered in his minutes.^ When the master's report is completed it is his duty to return the same into the clerk's office, and of the clerk to make an entry of the day of the return in the order book. After that is done the parties have one month in which to file ex- ceptions to the same. If no exceptions are filed by either party within that time, the report will stand confirmed on the next rule day after the month is expired. But if they are filed, they will stand for a hearing before the court if then in session ; if not in session, then at the next sitting which shall be held thereafter.^ In making exceptions a general assignment of errors is insuffi- cient, but they should state article by article the parts of the re- port to which exception is taken.^ An exception to a master's report is not in the nature of a special demurrer, nor is it required to be so full and specific ; but it should distinctly point out the finding and conclusions of the master which it seeks to set aside.^ If a master or referee has ^ Equity Rule 80. the part of the court does not deprive ^ Troy Iron and Nail Factory v. Cor- the parties of the rights secured by ning, 6 Blatch. 328 ; Oliver v. Piatt, Equity Rule 83 ; Wheeler v. Billings, 3 How. 333; Harding v. Handy, 11 36 U. S. App. 419. \Vh. 103. * Dexter v. Arnold, 2 Sum. 108 ; ^ Equity Rule 83 ; Gasquet v. Cres- Story v. Livingston, 13 Pet. 359 ; cent City Brewing Co., 49 Fed. Rep. Green v. Bishop, i CliflF. 186; Shef- 493. \\ here a court of equity has field & B. C. I. & R. Co. v. Gordon, entered a decree establishing the in- 151 U. S. 285. See also Gay Mfg. terests of the different parties to a Co. v. Camp, 68 Fed. Rep. 67 ; Mc- suit on a mining property, and their Elroy 7k Swope, 47 id. 380. rights to respective portions of the * Foster v. Goddard, i Black. 506. profits of the mine, the court may And see Farrer v. Bernheim, 75 Fed. take the testimony returned by the Rep. 136; Sheffield & B. C. L & R. master and state the account itself in- Co. v. Gordon, 151 U. S. 285. See stead of requiring the rriaster to state note, atite, ^ 263. the account; and such action upon CIRCUIT COURTS— SUITS IN EQUITY. 297 followed the order and judgment of the court on the reference, no objection can be taken on appeal from the final judgment of the court on account of error in the original or interlocutory- judgment by which the reference was made and the specific directions given.^ Costs on exceptions are regulated by rule as follows : " The party whose exceptions are overruled must, for the overruled exceptions, pay costs to the other party, and for those sustained or allowed he is entitled to costs, the costs in each case to be fixed by the court, by a standing rule of the circuit court.^ " Decrees ; Clerical Mistakes may be Corrected ; what De- crees Should Contain. § 268. It is provided by rule that any clerical mistakes in de- crees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the enrollment thereof, be corrected by order of the court or a judge thereof upon peti- tion, without the form or expense of a rehearing.^ The practice in England is to recite in the decree the substance of the bill and answer and other pleadings, and the facts on which the court founds its decree. But in this country the pleadings and decree are a part of the record ; and by a rule of court in equity, neither the bill, answer nor other pleadings should be recited or stated in the decree or order.^ They should begin as follows: "This cause came on to be heard (or to be further heard as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.:" 1 New Orleans v. Gaines, 15 Wall. Fed. Rep. 609. It is error to sign a 624. bill of exceptions after the final ad- * Equity Rule 84. journment of the court for the term * Equity Rule 85. A court of without an order extending the time equity has full power to rehear, for its presentation, or the consent of change, modify or vacate its decrees the parties thereto or a standing rule during the term at which they were authorizing it to be done, and when entered, but not after : Bronson v. the errors assigned arise upon the Schulter, 104 U. S. 410 ; Henderson bill so signed the judgment will be V. Carbondale Coal & Coke Co., 140 aflSrmed : U. S. v. Jones, 149 U. S. 262. id. 25 ; Hickman v. Fort Scott, 147 See also Hume v. Bowie, 148 id. 245. id. 415 ; Michigan, etc., Co., v. Eldred, * Whiting v._ Bank of U. S., 13 Pet. 143 id. 293 ; Hicklin v. Marco, 64 6 ; Equity Rule 86. 298 FEDERAL PLEADING, PRACTICE AND PROCEDURE. [Here insert the decree or order.] Guardians and Prochein Amis, Appointment of. § 269. The law supposes infants to be incapable of under- standing and managing their affairs, and the duty of watching their interests devolves to a considerable extent upon courts both of law and equity. They defend by guardian, who is usually the nearest relation not interested in the matter in ques- tion or controversy.^ It is provided by a rule in equity as follows : " Guardians ad litem to defend a suit may be appointed by the court, or any judge thereof, for infants or other persons who are under guardianship or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochem ami, subject, however, to such orders as the court may direct for the protection of infants and other persons."^ Rehearing, 'What the Petition for should Contain. § 270. A rehearing is only allowed where some plain omis- sion or mistake has been made, or where something material to the decree has been brought to the notice of the court, which had been overlooked.^ The rule in equity on this subject pro- vides : " Every petition for a rehearing shall contain special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, and shall be verified by the oath of the party or some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court.^ But if no appeal lies the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court." ^ The petition must usually state some reason for the rehearing which would be good ground for a new trial ^ Bank of U. S. v. Ritchie, 8 Pet. tion is disposed of: Aspen Mining 128. and S. Co. v. Billings, 150 U. S. 31, ^ Equity Rule 87. 36. ' Jenkins v. Eldridge, 3 Story 299. ^ Equity Rule 88. For interpreta- * Where a motion for rehearing is tion of this rule see Moelle v. Sher- pending, the time limited for appeal wood, 148 U. S. 21 ; Hoffman v. does not begin to run until the mo- Knox, 50 Fed. Rep. 484. CIRCUIT COURTS— SUITS IN EQUITY. 299 at common \a.w} If the ground for the rehearing is newly-dis- covered evidence, it should appear that it was unknown at the trial and could not with due diligence have been discovered.^ But a new trial will not be granted on the mere certificate of counsel that there is sufficient cause for it.'* Rules may be made by the Circuit Courts. § 271. We have observed that the Supreme Court has, by virtue of the statute conferring that power, prescribed certain rules for the circuit courts, both at law and in equity; and that court has, by rule, conferred authority upon the circuit courts to make other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective dis- tricts, not inconsistent with the rules prescribed by the Supreme Court, provided a majority of all the judges thereof, including the justice of the Supreme Court, the circuit judges, and the dis- trict judge] for the district, concur therein. They may also alter and amend such rules.* The power thus conferred gives the circuit courts the right to prescribe the time and manner of appearing and answering, the mode of conducting trials, the order of introducing evidence and the times when it must be introduced; but these rules may be waived or modified by the circuit court so as to prevent them from working injustice, and they must not be inconsistent with the general rules of practice prescribed by the Supreme Court.^ Decrees in Cases of Forclosure. § 272. It is further provided by a general rule of the Supreme Court that in suits in equity for the forclosure of mortgages in the circuit courts, or in any court of the territories having juris- diction of the same, a decree may be rendered for any balance that may be found due the complainant over and above the pro- ceeds of the sale or sales, and that execution may issue for the collection of the same, in the same manner as where the decree is solely for the payment of money." ^Hunter v. Marlboro', 2 Woodb. '^ Poultney v. La Fayette, 12 Pet. & M. 168. 472 ; Philadelphia and Trenton R. Co. 2 Bentley v- Phelps, 3 Woodb & M. z'. Stimpson, 14 id. 448 ; Bank of U. S. 403. V. White, 8 id. 262 ; Russell v. Mc- * Emerson v. Davis, i Woodb. & Lellan, 3 Woodb. & M. 157. M. 21 ; Tufts V. Tufts, 3 id. 426. * Equity Rule 92. ^ Equity Rule 89. 300 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XI. CIRCUIT COURTS OF APPEALS. Circuit Courts of Appeals Established. § 273. Under the Revised Statutes and acts amendatory thereof writs of error and appeals from the final judgments and decrees of the circuit courts were heard and determined by the Supreme Court of the United States. To furnish means for the speedy hearing and disposing of the increasing litigation of the country, and to relieve the Supreme Court of much of the great mass of business that had unavoidably accumulated on its docket for years past, and to prevent such an accumulation in the future, Congress, by the act of March 3, 1891,^ established the circuit courts of appeals. Sec. I. This act provided for the appointment of an additional circuit judge in each circuit,^ with the same powers and com- pensation as the other judges of the circuit courts. Sec. 2. In each circuit is created a circuit court of appeals, consisting of three judges, of whom two shall be a quorum, which shall be a court of record with appellate jurisdiction.^ The court is to adopt a seal and prescribe the form of its writs and other process and procedure. The marshal of the district where the court is held performs the duties of marshal of the court.* 'Act of March 3,1891, ch. 517, 2 decisions of circuit courts, though Supp. R. S. 901-5. they will give them careful considera- '^ By act of July 23, 1894, ch. 147, 2 tion: National Cash Reg. Co. v. Supp. R. S. 203, an additional circuit Amer. Cash Reg. Co., 3 U. S. App. judge is to be appointed in the eighth 340 ; Amer. Mort. Co. v. Hopper, circuit. 29 id. 12. 2 The circuit court of appeals will * Act of July 16, 1892, ch. 196, par. 9, not consider themselves bound by 2 Supp. R. S. 40. CIRCUIT COURTS OF APPEALS. 301 The court is to appoint a clerk, who shall have the same duties and powers in regard to matters within its jurisdiction as the clerk of the Supreme Court of the United States.^ The costs and fees in each circuit court of appeals shall be fixed and established by said court in a table of fees. 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. ^ The court shall have power to establish rules. Sec, 3. The Supreme Court justices assigned to each circuit, the circuit judges of each circuit, and the several district judges in each circuit, shall be com.petent to sit as judges of the circuit court of appeals in their respective circuits. If a justice of the Supreme Court is present he shall preside ; if not, the circuit judge, senior in commission, shall preside. The district judges may sit to make up the full court, when the Supreme Court justice and circuit judges are not sufficient. But no justice or judge shall sit on appeal from his own decision. A term shall be held annually in the several circuits at the following places : ist circuit, Boston ; 2d, New York ; 3d, Phila- delphia ; 4th, Richmond ; 5th, New Orleans ; 6th, Cincinnati ; 7th, Chicago ; 8th, St. Louis ; 9th, San Francisco. And in such other places in each circuit as the court may designate. The first terms of the courts shall be held on the third Tues- day in June, 1891, and thereafter at such times as may be fixed by the courts.^ Appellate Jurisdiction of Circuit Courts Abolished. § 274. Sec. 4. The appellate jurisdiction of the existing circuit courts is abolished. All appeals from the district and circuit courts shall be to the Supreme Court or the circuit court of appeals.* 'Where a clerk of the circuit court passage of the act, and submitted to accepts the office of clerk of the cir- and within one year revised by the cuit court of appeals, he may still Supreme Court. retain his former position: U. S. v. ^Originally to have been held on Harsha, 16 U. S. App. 13. and Monday in January, 1891, but 2 As amended by act of Feb. 19, changed by joint resolution of March 1897, 29 Stat. L. 536, 2 Supp. R. S. 3, 1891. See rules, /c^/. 551. This table of fees was to be * The act is not retroactive: an ap- adopted within three months from the peal taken prior to its passage is not 302 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Appeals direct to Supreme Court. § 275. Sec. 5. 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: ^ 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. Where the question of jurisdiction is the only one presented in the record the circuit court of appeals has no jurisdiction; but where other questions are involved the circuit court of appeals may consider the question of jurisdiction and decide whether it is sufficiently important to certify to the Supreme Court." If there are other questions that must be decided, besides the question of jurisdiction, the circuit court of appeals has jurisdiction.^ The circuit court of appeals has jurisdiction over the question of juris- diction of the court below, unless the issue has been made in the court below and certified to the Supreme Court.^ From the final sentences and decrees in prize causes. In cases of conviction of a capital [or otherwise infamous] crime.^ In any case that involves the construction or application of the Constitution of the United States.^ affected by it, although the citation 'Shreve z/. Cheesman, 69 Fed. Rep. was not signed nor served until after- 785 ; Coler v. Grainger County, 74 ward: U. S. v. Nat. Ex. Bk. of Mil- id. 16. waukee, 9 U. S. App. 145; Mattingly * King v. McLean Asylum, 21 U. V. Northwestern Va. R. Co., 158 U. S. App. 407. Seeposi, ch. xiv. S. 53. And the jurisdiction of the * The act was amended by striking Supreme Court over pending cases is out the words in brackets, the amend- preserved : Gulf C. & S. F. R. Co. v. ment not to apply to pending cases ; Shane, 157 U. S. 348. and appeals or writs of error may be ^ Where a circuit court affirms its taken from the district courts or cir- own decree in obedience to a man- cuit courts to the proper circuit court date and declares that the decree of of appeals in cases of conviction of the circuit court of appeals is made an infamous crime not capital: Act its decree, an appeal will not lie to of Jan. 20, 1897, ch. 68, 29 Stat. L. the Supreme Court, as it would be an 492, 2 Supp. R. S. 541. appeal from the decree of the circuit " Where the construction or appli- court and not from the circuit court cation of the Constitution is involved, of appeals: Webster v. Daly, 163 U. the circuit court of appeals has no S. 155. jurisdiction: City of Macon v. Ga. ■•^ B. & O. R. Co. V. Myers, 18 U. S. Tacking Co., 13 U. S. App. 592. App. 569- CIRCUIT COURTS OF APPEALS. 303 In any case in which the constitutionahty 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. Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a state, nor the construction of the statute providing for review of such cases.^ Appellate Jurisdiction of Circuit Courts of Appeals. § 276. Sec. 6. The circuit courts of appeals shall exercise ap- pellate jurisdiction to review by appeal or writ of error ^ final decisions in the district courts and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law. The appellate jurisdiction not vested in the Supreme Court is vested in the circuit courts of appeals, and the entire jurisdiction distributed.^ " The words ' unless otherwise provided by law ' were manifestly inserted out of abundant caution, in order that any qualification of the jurisdiction by contemporaneous or sub- sequent acts should not be construed as taking it away except when expressly so provided. Implied repeals were intended to be thereby guarded against. To hold that the words referred to prior laws would defeat the purpose of the act and be inconsist- ent with its context and its repealing clause." * ^ This section will be considered ^ McLish v. Roff, 141 U. S. 661, more at length in ch. xiv., post. 666. Neither a circuit court of appeals nor ■* Lau Ow Bew v. U. S. 144 U. S. a circuit court has appellate jurisdic- 47. The circuit court of appeals has tion over state courts : Elder v. Rich- jurisdiction by writ of error or ap- mond Gold & Silver Min. Co., 19 U. peal to review a judgment or decree S. App. 118. in a suit brought against the United ^Judgments at law must be re- States under the act of March 3, 1887, viewed by writ of error and not ap- ch. 359, 24 Stat. L. 505 : U. S. v. Mor- peal: Nelson v. Huidekoper, 30 U. gan, 27 U. S. App. 410; U. S. v. S. App. 88; Deland v. Platte County, Madrazo, 38 id. 515; U. S. v. Cou- 155 U. S. 221. The circuit court of dert (ed Circ), 73 Fed. Rep. 505. appeals cannot review proceedings A judgment founded upon an award unless the record shows that a writ of of arbitrators may be reviewed : error has in fact been issued : Jones's Nolan v. Colo. Centr. Consd. Min, Admr. v. Ferst, 30 U. S. App. 87. Co., 27 U. S. App. 427. 304 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Decisions of Circuit Courts of Appeals, when Final. § 277. And the judgments or decrees of the circuit courts of A circuit court of appeals has no jurisdiction to review the decrees of a circuit court in bankruptcy proceed- ings: In re Briggs, 20 U. S. App. 579; Huntington v. Saunders, 72 Fed. Rep. 10; Cf. DuflF v. Carrier, 3 U. S. App. 552. An appeal lies from the final deci- sion of a district judge in chambers in a habeas corpus case : Webb v. York, 74 Fed. Rep. 753 ; see also King v. McLean Asylum, 21 U. S. App. 481. And from the order of a district court refusing an order for a warrant for removal under Rev. Stat. \ 1014 : U. S. V. Fowkes, 3 U. S. App. 247. An appeal cannot be taken from the order of a circuit judge at chambers remanding a prisoner in a habeas corpus proceeding : INIcKnight v. James, 155 U. S. 685; Lambert v. Barrett, 157 id. 697. The circuit court of appeals will not, if it can avoid it, pass upon an averment that a statute and a state constitution are in conflict: Jersey City Gas Lt. Co. v. United Gas Imp. Co., 17 U. S. App. 170. Inquiry in the circuit court of ap- peals must be limited to matters pre- sented to and considered by the court below : St. Louis and S. F. R. Co. V. Bradley, 2 U. S. App. 637. But the question of the jurisdiction of the circuit court, though not raised in argument in the circuit court of appeals, must be noticed in the latter court and the case remanded to the state court if the circuit court never had jurisdiction: Robbins v. Ellen- bogen, 36 U. S. App. 242 ; and a case may be remanded for want of juris- diction although no motion to re- mand was made in the court below: Barth v. Coler, 19 U. S. App. 646. Costs on reversal for want of juris- diction of the circuit court may be ordered as justice and right seem to require: Tug River Coal and Salt Co. V. Brigel, 31 U. S. App. 665; see Southwestern Tel. Co. v. Robinson, 2 id. 148. A circuit court of appeals cannot re- view by writ of error the judgment of a circuit court in execution of a man- date of the Supreme Court when the action of the circuit court conforms to the mandate and there are no subse- quent proceedings not settled by the terms of the mandate itself: Texas and Pac. R. Co. v. Anderson, 149 U. S. 237. When a circuit court of appeals properly takes jurisdiction on appeal from a final decree it may go beyond a mere reversal and enter such de- cree as the court below should have entered on the whole case, and re- view all interlocutory proceedings, with regard to which proper objec- tions have been made, but it has no jurisdiction to direct what course the lower court- should pursue in order to ascertain whether evidence is or is not admissible : Potter v. Beal, 5 U. S. App. 49. In common law actions tried by a jury the circuit court of appeals can- not review or retry the facts : Gulf, Col. and S. F. R. Co. v. Ellis, 10 U. S. App. 640. Where questions of fact are left to a trial court its findings are binding in the appellate court if there be any evidence to support them : Fisher v. U. S. Nat. Bank, 26 id. 448. It is not within the power of a circuit court of appeals to consider tlie question whether a verdict is ex- cessive : St. Louis, I. M. and S. R. Co. V. Spencer, 36 id. 229 : Home- CIRCUIT COURTS OF APPEALS. 305 appeals shall be finaP in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or con- troversy being aliens and citizens of the United States or citizens of different states;^ also in all cases arising under the patent laws/ stake Mining Co. v. Fullerton, Ibid. 32 ; and where there is evidence to sustain a verdict this court has no power to rectify a mistake of the jury in the amount thereof: Crosby Lumber Co. v. Smith, 3 id. 125: nor can the court settle questions of law which may depend upon undisclosed facts, or questions of fact upon ex parte affidavits of a general char- acter : Dooley v. Hadden, 38 id. 651. ^ If the decree of the circuit court of appeals is final, a decree upon an intervention in the same suit will be final : Gregory v. Van Ee, 160 U. S. 643; Rouse V. Letcher, 156 id. 47. Its decision is not final in an action for damages against a railroad com- pany chartered under the laws of the United States : Union Pac. R. Co. v. Harris, 158 U. S. 326. The Supreme Court has jurisdic- tion to pass upon the question whether a decision of the circuit court of appeals is or is not final : Aztec Mining Co., v. Ripley, 151 U. S. 79- ^ When the jurisdiction of the cir- cuit court of appeals is invoked solely on the ground of diverse citizen- ship its decision is final, even though another ground for jurisdiction may appear in the subsequent proceed- ings : Colo. Centr. Cons. Min. Co. v. Turck, 150 U. S. 138; Borgmeyer v. 20 Idler, 159 id. 408; Press Publishing Co. V. Monroe, 164 id, 105 ; Ex p. Jones, Ibid. 691. When a circuit court acquires jurisdiction over an intervener's petition by reason of its relating to an equity suit depending solely upon diverse citizenship, the decision of the court of appeals is final: Rouse v. Hornsby, 161 U. S. 588. ^ The judgment of a circuit court of appeals in a suit brought by the United States to cancel a patent for an invention is not final, but may be appealed to the Supreme Court : U. S. V. Amer. Bell Tel. Co., 159 U. S. 548, in which case the court said : "Where the appellate jurisdiction is described in general terms so as to comprehend the particular case, no presumption can be indulged of an intention to oust or to restrict such jurisdiction ; and any statute claimed to have that effect must be examined in the light of the objects of the en- actment, the purposes it is to serve and the mischiefs it is to remedy, bearing in mind the rule that the operation of such a statute must be restrained within narrower limits than its words import, if the court is satis- fied that the literal meaning of its language would extend to cases which the legislature never intended to include in it." 306 FEDERAL PLEADING, PRACTICE AND PROCEDURE. under the revenue laws, and under the criminal laws/ and in admiralty cases.^ Questions may be Certified to Supreme Court. § 278. Excepting that in every such subject within its appel- late jurisdiction the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.^ And thereupon the Supreme ^ A sci.fa. upon a recognizance of bail in a district court is within the meaning of this section : Hunt v. U. S. 166 U. S. 424. A writ of error does not lie in behalf of the United States in a criminal case : U. S. v. Sanges, 144 id. 310. 2 The act of Feb. 16, 1875, ch. 77, providing that in admiralty causes circuit courts shall make separate findings of fact and conclusions of law thereon, and that the Supreme Court's power of review on appeal shall be limited to the questions of law arising on the record and rulings and properly presented by a bill of exceptions, does not apply to the circuit courts of appeals. Appeals to those courts bring up all the evidence and may be tried de novo : The Havi- lah, I U. S. App. I ; The Portland and the State of California, 7 id. 20 ; The Sirius, Ibid. 660 ; The E. A. Packer, 14 id. 684. The practice of hearing a case de novo is to be used cautiously and only in cases of extreme neces- sity : The Glide, 25 id. 636. The court of appeals will not change a decree in a salvage case unless a strong case of abuse or mistake in the exercise of discretion, is shown : The Florence, 38 id. 32. See also The Philadelphian, 21 id. 90. Pend- ing an appeal the court of appeals will not direct the disposition of funds paid into the district court: McAndrews v. !Mignauo, i U. S. App. 312. When a decree is affirmed the libellant (appellee) is entitled to interest on the whole decree, unless there are special circumstances to induce the court to direct otherwise : The Umbria, 11 U. S. App. 691. ^The circuit court of appeals must certify distinct questions or proposi- tions of law, unmixed with questions of fact, or of mixed law and fact ; and not the whole case : Graver v. Faurot, 162 U. S. 435; Cross V. Evans, 167 id. 60. The certificate should show clearly that instruction is desired upon particular points : Columbus Watch Co. V. Robbins, 148 U. S. 266 ; see also U. S. v. Thomas, 151 U. S. 577. It is irregular if a quorum of the court did not sit : Cine. H. & D. R. Co. V. McKeen, 149 U. S 259. The certification is for the instruction of the court and entirely within its discretion; a party before the argu- ment cannot move to have questions certified to the Supreme Court : Louisville N. A. & C. R. Co. v. Pope (7th Circ), 74 Fed. Rep. i. Where there is a question of the jurisdiction of the court below, and the case is certified, the certificate must be granted during the term at which the decree was entered : Colvin v. Jacksonville, 158 U. S. 456. Rule 37 provides that the certificate shall contain a proper statement of the facts on which the question or proposition of law arises. For ex- CIRCUIT COURTS OF APPEALS. 307 Court may either give its instruction on the questions and propo- sitions certified to it, which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and there- upon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal/ Supreme Court may Review by Certiorari. § 279. And excepting also that in any such case as is here- inbefore made final in the circuit court of appeals, 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 au- thority in the case as if it had been carried by appeal or writ of error to the Supreme Court.^ ample of a certificate held not to comply with this rule, see Cine. H. & D. R. Co. V. McKeen, 149 U. S. 259. Certificates of division in criminal cases under Rev. Stat. §? 651 and 697, are done away with ; certificates by circuit courts of questions of jurisdic- tion, and certificates by circuit courts of appeals of questions upon which they desire instruction, are the only ways by which a case may be re- viewed by certificate. The general rules formerly governing certificates of decision are applicable to certifi- cates under this act : U. S. v. Rider, 163 U. S. 132. iSee Cine. H. & D. R. Co. v. Mc- Keen, 149 U. S. 259; and cases in last note. ^ Only questions of gravity and im- portance should be certified. The Chinese restriction acts were held to involve questions of sufficient im- portance to be certified : Lau Ow Bew, Petitioner, 141 U. S. 583 ; Same V. U. S., 144 id. 47. See also In re Woods, 143 id. 202. So a writ of certiorari was issued in a case involv- ing the construction of the U. S. neu- trality laws, during the insurrection in Cuba: The Three Friends, 166 U. S. I. Where a circuit court of ap- peals in one circuit has given a dif- ferent decision from the circuit court of appeals in another circuit, under the same conditions, it may furnish ground for a certiorari : Columbus Watch Co. V. Robbins, 748 U. S. 266. The Supreme Court may direct any case, the decision of which is made final in the circuit court of appeals, to be brought up on certiorari ; but will not exercise this power except in im- portant cases as before stated : Amer. Const. Co. V. Jacksonville T. & K. W. R. Co., 148 U. S. 372 ; Lau Ow Bew V. U. S., 144 id. 47 ; and cases cited ante. The power may be exer- cised at any time while the case is pending ; or the transcript of the record in the circuit court is in the court of appeals, even though a man- date has gone down : The Conqueror, 166 U. S. no ; Forsyth v. Hammond, 166 id. 506. When a case is brought up on certiorari the entire case is 308 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Appeals from Circuit Courts of Appeals to Supreme Court. § 280. In all cases not hereinbefore, in this section, made final there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs/ But no such appeal shall be taken or writ of error sued out unless within one year after the entry of the order, judgment or decree sought to be reviewed.^ Appeals in Injunction Cases. § 281. Sec. 7. That where, upon a hearing in equity in a dis- trict court or a circuit court an injunction shall be granted, con- tinued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused in a case in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving or refusing to dissolve an injunction to the circuit court of appeals. Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take preced- ence in the appellate court ; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal. And provided further, That the court below may in its discre- tion require as a condition of the appeal, an additional injunc- tion bond.^ before the Supreme Court : Panama peal : Webster v. Daly, 38 U. S. App. R. Co. V. Napier Shipping Co., 166 696. id. 280. When an admiralty case is "^ Sec. 7, as amended by act of Feb. brought to the Supreme Court by 18, 1895, ch. 96, 28 Stat. L. 666, 2 certiorari, the concurring decisions Supp. R. S. 376. This section is of of the district court and the circuit a highly remedial nature, and gives a court of appeals upon a question of party the riglit to appeal in any case fact are to be followed unless clearly of an interlocutory order or decree, shown to be erroneous : Compania granting an injunction at any stage of de Navigacion la Flecha v. Brauer, 18 the proceedings, whether technically. Sup. Ct. Repr. 12. preliminary, interlocutory or final, ^ See chapter xiv., p. 332. which restrains the use of property or '^ After the time has expired the cir- the prosecution of business, in order cuit court of appeals cannot vacate its that errors may be corrected without judgment in order to allow an ap- the delay incident to the final deter- CIRCUIT COURTS OF APPEALS. 309 Traveling Expenses of Judges. § 282. Sec. 8 provides that judges attending the circuit court of appeals at places other than where they reside shall be paid reasonable traveling expenses. mination of the cause: Dudley E. Jones Co. v. Munger I\Ifg. Co., 2 U. S. App. 188; Andrews v. Nat. Foundry & Pipe Works, 18 id. 458 ; s. c. 2i\id. 81 ; Richmond v. Atwood, 5 id. 151, in which the whole case was examined and disposed of on its merits ; this case was distinguished in Gamewell, etc., Co. v. Municipal Signal Co. 21 id. 116. As to dispos- ing of the case on its merits, com- pare Blount V. Soci^t6 Anomyme, 6 id. 335 ; Piedmont Cable Co. v. Pacific Cable R. Co., 15 id. 216. In Lock- wood V. Wickes 36 U. S. App. 321 ; s. c. 75 Fed. Rep. 75, which was a suit to restrain the infringement of letters patent, the court held that while the section as amended was broad enough in its terms to confer a right of appeal in every case where an injunction is granted, refused or dissolved by an order or decree that is in its nature interlocutory, yet it was not probable that Congress in- tended to permit an appeal from an interlocutory decree rendered after a full hearing of a case on the merits in which an injunction was awarded and an order was made for an account- ing, but that it seemed more reason- able to believe that an injunction, granted after a trial upon the merits, by a decree intended to settle the rights of the parties, is governed by the old rule that an appeal from such a decree can be prosecuted only after it becomes final, and that said sec- tion as amended was intended to confer the right of appeal in those cases only where, prior to a hear- ing on the merits, an injunction is granted, continued, refused or dis- solved. For examples of appeals from orders granting or refusing pre- liminary injunctions, see Duplex Printing Press Co. v. Campbell P. P. & Mfg. Co., 37 U. S. App. 250; Thompson v. Nelson, Ibid. 478 ; Chi- cago Dollar Directory Co. v. Chicago Directory Co., 24 id. 525 ; Nat. Hoe- ing Mac. Co. V. Abbott, 77 Fed. Rep. 462. What is not such an interlocu- tory order or decree : see Boston & Albany R. Co. v. Pullman's Pal. Car Co., 5 U. S. App. 94: Robinson v. Wilmington, 8 id. 541 ; Drentzer v. Frankfort Land Co., 31 id. 83. For an order staying all further proceedings until the further order of the court may be appealed from, see Penna. Co. for Ins. on Lives, etc., v. Amer. Constrn. Co., 2 U. S. App. 606. When constitutional questions are involved in the interlocutory order granting an injunction the court of appeals has no jurisdiction : Town of Westerly v. Westerly Water Works, 76 Fed. Rep. 467. The finding of facts in the court below should not be reversed unless it is clearly wrong : Workingm.en's Council v. U. S., 13 U. S. App. 426. A stay of the opera- tion of an injunction pending the ap- peal is discretionary' with the court ; the Supreme Court cannot control it by mandamus : In re Haberman Mfg. Co., 147 U. S. 525. On an appeal from an interlocutory order the court should affirm or reverse the order ap- pealed from, subject to the discretion of the court below, to modify or annul the order as the introduction of other facts may render necessary the application of other rules and principles in the further progress of 310 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Compensation of Marshals, Clerks, etc. § 283. Sec. 9 provides that the marshals of the districts in which the circuit courts of appeals shall be held shall provide suitable rooms, and that the marshals, criers, clerks, bailiffs and messengers shall be allowed the same compensation for their services as are allowed in the circuit courts. Remanding Cases. § 284, Sec. 10 provides that on an appeal from the circuit or district court to the Supreme Court, and on an appeal from the circuit court of appeals to the Supreme Court the cause shall be remanded by the Supreme Court to the proper circuit or district court for further proceedings ; on an appeal to the circuit court of appeals, where its decision is final the cause shall be remanded to the circuit or district court for further proceedings. Time for Appeal Limited ; Allowance of Appeals. § 285. Sec. 1 1 provides that no appeal or writ of error by which any order, judgment or decree may be reviewed in the circuit court of appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment or decree sought to be reviewed.^ Provided, hoiuever, that in all cases in which a lesser time is now by law limited for appeals or writs of error such limits of time shall apply to appeals or writs of error in such cases taken to or sued out from the circuit court of appeals. And all pro- visions of law regulating the methods and systems of review the cause : Andrews z/. Nat. Foundry' dale's Ex'rs., 2 id. 540. A writ of & Pipe Works, 24 U. S. App. 81. error will be dismissed if it is not Where in a patent suit an interlocu- actually issued by the clerk within tory decree adjudges the patent to be six months ; it is not sufficient that it void or not to have been infringed, has been allowed by a judge: U. S. no appeal lies to the circuit court of v. Baxter, 10 id. 241. Where the last appeals : Kilmer Mfg. Co. v. Gris- day falls on Sunday the writ cannot wold, 35 U. S. App. 246. be issued thereafter : Johnson v. iThe issuing of a writ of error Meyers, 12 id. 220. The rules in re- within six months is a jurisdictional spect to appeals and writs of error fact, and cannot be waived by agree- which govern the Supreme Court are ment of the parties : Stephens v. applicable to the circuit court of ap- Clark, 18 U. S. App. 584. If not peals : West v. Irwin, 9 id. 547 ; Muh- taken within the prescribed time it lenberg County v. Dyer, 31 id. 109. will be dismissed : Hamilton v. Dris- CIRCUIT COURTS OF APPEALS. 311 shall apply to circuit courts of appeals, including all provisions for bonds or other securities to be required. The judges have the same powers and duties as to the allow- ance of appeals or writs of error as belong to the justices or judges in respect of the existing courts of the United States respectively.^ Pow^er to Issue Writs. § 286. Sec. 12 gives the court of appeals the powers specified in Revised Statutes 716, that is, to issue writs of scire facias, and all writs, not specifically pro.ided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law. Appeals from Courts of Indian Territory. § 287. Sec. 13 provided that appeals from the United States Court in the Indian Territory might be taken to the Supreme Court of the United States or to the circuit court of appeals in the eighth circuit, in the same manner as from circuit or district courts under this act. The act of March i, 1895^ created a court of appeals for Indian Territory, and provided that writs of error or appeal from the final decision of that court might be taken to the circuit court of appeals for the eighth circuit in the same manner and under the same regulations as appeals are taken from the United States circuit courts.^ Acts Repealed. § 288. Sec. 14 repeals Revised Statutes section 691 and sec- tion 3 of the act of February 16, 1875, and all acts inconsistent with this act. 1 See N. P. R. Co. v. Anato, 144 U. 29 Stat. L. 6, provided that the S. 465. jurisdiction of the circuit court of '^Act of March i, 1895, ch. 145, \ appeals for the Eighth circuit should II, 2 Supp. R. S. 397. be extended to all suits at law or in 'This statute deprived the circuit equity then pending therein upon writ court of appeals of the Eighth circuit of error to or appeal from the United of the power to hear appeals from the States court in the Indian Territory United States court in the Indian Ter- in all cases wherein such writ of error ritory: Scott v. Hamner, 72 Fed. or appeal would have vested jurisdic- Rep. 289. tion in said circuit court of appeals The Act of Feb. 8, 1896, ch. 14, but for the act of March i, 1S95. 312 FEDKRAL PLEADING, PRACTICE AND PROCEDURE. Appeals from Territorial Courts. § 289. Sec. 15. That the circuit court of appeals in cases in which the judgments of the circuit courts of appeal are made final by this act shall have the same appellate jurisdiction by- writ of error or appeal to review the judgments, orders and de- crees of the supreme courts of the several territories as by this act they may have to review the judgments, orders and decrees of the district courts and circuit courts; and for that purpose the several territories shall, by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits.^ ^ The circuit court of appeals has no ent states : Aztec Mining Co. v. Rip- jurisdiction in an appeal from the ley, 151 U. S. 79. supreme court of a territory except in Tlie district court of Alaska is the cases where its decision is made final supreme court of that territory; ap- by section 6 of this act, that is in peals may be taken from it to the admiralty cases, cases arising under court of appeals of the Ninth circuit, the criminal, revenue, or patent laws of it having been assigned to that circuit the United States, and cases between by an order of the Supreme Court : aliens and citizens of the United Steamer Coquitlam v. U. S., 163 U. States, or between citizens ol differ- S. 346. SUPREME COURT — ORGANIZATION. 313 CHAPTER XII. SUPREME COURT— ORGANIZATION AND SESSIONS. Provisions for the Organization of the Supreme Court. § 290. The provisions of the Revised Statutes relating to the organization of the Supreme Court are as follows : Constitution of. — Sec. 673. The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. Precedence of justices. — Sec. 674. The associate justices shall have precedence according to the dates of their commis- sions, or when the commissions of two or more of them bear the same date, according to their ages. Vacancy in the office of Chief Justice. — Sec. 675. In case of a vacancy in the office of Chief Justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of Chief Justice. Salaries of Judges. — Sec. 676. The Chief Justice of the Su- preme Court of the United States shall receive the sum of ten thousand five hundred dollars a year, and the justices thereof shall receive the sum of ten thousand dollars a year each, to be paid monthly. Appointment of clerk, marshal and reporter. — Sec. ^jy. The Supreme Court shall have power to appoint a clerk ^ and a marshal of said court, and a reporter of its decisions. Appointment of deputy clerk. — Sec. 678. One or more 1 The salary of the clerk shall not 3, 1883, i Supp. R. S. 421, 22 Stat. L. exceed |6,ooo a year: Act of March 603. 314 FEDERAL PLEADING, PRACTICE AND PROCEDURE. deputies of the clerk of the Supreme Court maybe appointed by the court on the appHcation of the clerk, and he may be re- moved at the pleasure of the court. In case of the death of the clerk his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults and mis- feasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond, shall be liable ; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Records of the court of appeals. — Sec. 679. The records and proceedings of the court of appeals, appointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them in the manner provided by law for giving copies of the records and proceedings of the Supreme Court, and such copies shall have like faith and credit with all other proceedings of said court. Marshals and duty. — Sec. 680. The marshal is entitled to receive a salary at the rate of three thousand five hundred dol- lars a year. He shall attend the court at its sessions ; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice in pursuance of law ; and shall take charge of all property of the United States used by the court or its members. With the approval of the Chief Justice he may appoint assistants and messengers to attend the court, with the compensation allowed to officers of the House of Representatives of similar grade. Duty OF THE reporter. — Sec. 681. The reporter shall cause the decisions of the Supreme Court made during his office to be printed and published within eight months after they are made ; and within the same time shall deliver three hundred copies of the volumes of said reports to the Secretary of the Interior. And he shall, in any year when he is so directed by the court, cause to be printed and published a second volume of said deci- sions, of which he shall deliver in like manner and time three hundred copies. SUPREME COURT— ORGANIZATION. 315 Salary of reporter and price of reports. — The reporter of the decisions of the Supreme Court of the United States shall be entitled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume, and an additional sum of one thousand two hundred dollars when by direction of the court he causes to be printed and published in any year a second volume, and said reporter shall be annually entitled to clerk-hire in the sum of one thousand two hundred dollars, and to office rent, stationery, and contingent expenses in the sum of six hundred dollars, and an amount sufficient for the payment of said sums is hereby appropriated. And provided further, T\\2X. the volumes of the decisions which said court shall hereafter pronounce shall be furnished by the reporter to the public at a sum not exceeding two dollars per volume, and the number of vol- umes now required to be delivered to the Secretary of the Interior shall be furnished by the reporter without any charge therefor.^ Section 683 as amended by the act of February 12, 1889,- pro- vides for the disposition of the copies of said reports delivered to the Secretary of the Interior. Without the means thus provided by Congress, the Supreme Court could not have been properly constituted or organized. For to constitute a court in the sense used in the Constitution, there should not only be a judge or judges to hear and determine causes, but clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and judgments and secure due order in its proceedings. Judicial power signifies the power with which courts are clothed, and this embraces not only the power to try and determine, but to execute its orders and judgments. Under these provisions the Supreme Court was duly consti- tuted, and it may take original cognizance of the cases specified in the Constitution. But we shall consider its jurisdiction more particularly in a subsequent chapter. iRev. Stat. I 682, as amended by ^Act of Feb. 12, 18S9, ch. 135, 25 Act of August 5, 18S2, ch. 3S9, par. Stat. L. 661, i Supp. R. S. 642. 10, I Supp. R. S. 374, 22 Stat, L. 219. 316 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Tenure of Office of the Judges. § 291. Having set out the statutes providing for the organiza- tion of the Supreme Court, and shown the mode of appointment of the judges, it may be well to consider briefly the tenure by which the judges hold their offices. We have noticed that the Constitution provides that "the judges of both the Supreme Court and inferior courts shall hold their offices during good behavior." The question as to the policy and wisdom of a permanent tenure of office of judges received much attention at the time of the formation of the Constitution, and it has been the subject of discussion ever since that time. Many of the state constitutions have made these offices elective, and for a short term ; and it can hardly be affirmed, in the light of experience under this mode of securing judicial officer,s, that the judges of the state courts have not generally maintained a character for ability and integrity equal to that secured by appointment and a holding for life or during good behavior. Notwithstanding many objections urged by speculative theorists and political philosophers, it is believed that judges selected by popular election and for short terms have generally given satisfaction ; and there is certainly one advantage enjoyed by this mode of selecting judges as well as other officers, and that is that if they prove incompetent or unworthy, there is an oppertunity for removal without much delay. But owing to the complicated character of our national government, and considering that the judiciary department is a co-ordinate and independent one, there are some important rea- sons why the judges should be appointed in the manner provided by the Constitution, and that the tenure of the office should con- tinue during good behavior. This question was much discussed before the adoption of the Constitution. A contemporaneous writer of rare ability said : " The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent bar- rier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright and impar- SUPREME COURT — ORGANIZATION. 317 tial administration of the laws. Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the pohtical rights of the Constitution, because it will be least in a capacity to annoy or injure them. The execu- tive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse ; no direction either of the strength or the wealth of society; and can take no active resolution whatever. It may be truly said to have neither force norwill,but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacious exercise even of this faculty. . . . Upon the whole, there can be no doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of judicial offices in point of duration; and that, so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government."^ Terms of the Supreme Court. § 292. The provisions of the statute relating to the terms of the Supreme Court require that it shall hold one term annually at the seat of government, commencing on the second Monday of October, and such adjourned or special terms as it may find necessary for the despatch of business ; and that " suits, pro- ceedings, recognizances and processes pending in or returnable to said court shall be tried, heard and proceeded with as if the time of holding said session had not been altered ; " that if at any session of the court a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn it from day to day for twenty days after the appointed time, unless before that time a quorum shall attend ; that if a quorum does not attend within that time, the business of the court shall be 1 The Federalist, No. 78. The Com. (13th ed. by Hohnes), 291 seq., question here discussed ma}' be found and 2 Story's Const. (4th ed. by presented in every light in i Kent's Cooley), 1600 seq. 318 FEDERAI^ PLEADING, PRACTICE AND PROCEDURE. continued over till the next appointed session; and that if, dur- ing a term, after a quorum has assembled, less than a quorum attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn with- out day. They further provide that the justices attending at any term when less than a quorum is present may, within the twenty days mentioned, " make all necessary orders touching any suit, pro- ceeding or process depending in or returned to the court pre- paratory to the hearing, trial and decision thereof" ^ 1 See Rev. Stat, g? 684, 6S5, 686. SUPREME COURT — ORIGINAI. JURISDICTION. 319 CHAPTER XIII. PROCEDURE IN CASES OF ORIGINAL JURISDICTION. Rules of Practice. § 293. Having treated of the constitution and organization of the Supreme Court, we shall now proceed to consider its original jurisdiction, and the pleadings, practice and procedure therein. It may be observed that there are no statutes or general rules of the court that specifically point out the practice or mode of pro- cedure in the Supreme Court, as a court of original jurisdiction, or that prescribe the forms of pleadings therein. But a general statutory provision requires that "all writs and process issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof;" that " those issuing from the Supreme Court or a circuit court shall bear the teste of the Chief Justice of the United States, or when that office is vacant, of the associate justice next in precedence; " ^ and that " all process issued from the courts of the United States shall bear teste from the day of such issue." ^ It is further declared by a general rule of the court that " this court consider the practice of the courts of the King's Bench and of Chancery in England as affording outlines for the practice of this court; and they will, from time to time, make such altera- tions therein as circumstances may render necessary."* The practice of chancery referred to is the practice of the High Court of Chancery of England. This practice would undoubt- ^ Rev. Stat. ^911. A summons or bearing the teste of the clerk only, notice must be under the seal of the and not that of the Chief Justice of court and signed by the clerk : Peas- the Supreme Court, is void : Wells v. lee V. Haberstro, 15 Blatch. 472 ; McGregor, 13 Wall. iSS. Dvvight V. Menitt, 4 Fed. Rep. 614. ^ Gen. Rule 3. ^ Rev. Stat. § 912. A writ of error 320 FEDERAL PLEADING, PRACTICE AND PROCEDURE- tedly regulate the procedure in the federal courts so far as it would be applicable, not in all cases as positive rules, but as furnishing just analogies relating to the practice in the absence of rules of court or statutes prescribing the practice, and in cases where the rules of the English High Court of Chancery would not be strictly applicable.^ The rules of this court further provide that all process of the court shall be in the name of the President of the United States ; that all process in common law or in equity issued against a state shall be served on the governor or chief magistrate and attorney-general of such state; that the process of subpoena issuing out of this court in any suit in equity must be served on the defendant sixty days before the return day of such process; that if, after due service of the same, the defend- ant does not appear at the return day contained therein, the plaintiff is at liberty to proceed ex parte ; and that all motions must be in writing.^ For some time after the adoption of the Constitution and the organization of this court, it was a question much discussed whether, without an act of Congress regulating the practice and mode of procedure, this court could exercise any original juris- diction in cases where the forms and modes of procedure of the English High Court of Chancery were not applicable. This ques- tion was first presented to the court in the case of Florida v. Georgia.^ In this case the state of Florida filed a bill in this court against the state of Georgia, to establish a boundary be- tween them, thereby invoking the aid of the original jurisdiction of the court. The Attorney-General filed a motion therein for leave to appear and plead on behalf of the United States, in such time and form as the court should order. The case was a novel one, there being nothing in the practice or precedents of the English courts furnishing any guide, and but imperfect analogies as to the proper forms and practice in such a case. It was, however, determined that, although Con- gress might prescribe the modes and forms of proceeding for this court, yet this was not essential, and having foiled so to do, the * Equity Rule 90 ; Boyle v. Zache- v. Georgia, 17 How. 478. rie, 6 Pet. 648 ; Poultiiey v. La Fay- '^ Gen. Rules 5, 6. ette, 12 id. 472; Rhode Island v. ^ 17 How. 478 (1854). Massachusetts, 14 id. 210; Florida SUPREME COURT — ORIGINAL JURISDICTION. 321 court should not on this account be deprived of jurisdiction; that it was the duty of the court under such circumstances to prescribe these to accomplish the ends for which the jurisdiction was given by the Constitution; and that, if the established forms and usages of law and equity afforded no precedents for a case within the jurisdiction of the court, it was the further duty of the court to mould and adopt the requisite forms so as to attain the ends of justice, disregarding nice technicalities.^ The general rules of pleading, practice and procedure appli- cable to circuit courts of the United States, which we have already considered, would be equally applicable to the Supreme Court. Procedure in Equity ; Essentials of a Bill. § 294. A party desiring to invoke the original jurisdiction of the Supreme Court on its equity side should first prepare his bill in the form required by the chancery practice in England, subject to such changes as have been made by the rules of this court and acts of Congress. Under the rules of this court he may omit the part usually called the confederacy clause, and the clauses commonly called the charging part of the bill; also what is generally known as the jurisdiction clause, that is, the clause " that the acts complained of are contrary to equity, and that the plaintiff is without any remedy at law." And he " 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 defence or excuse to the case made by the plaintiff;" and the prayer of the bill must ask for the special relief to which the plaintiff supposes himself entitled. The bill must also contain a prayer for general relief; and if an injunction or writ of 7ie exeat regno, or any other special order pending the suit, is required, it must be specially asked for.^ ^ See also Grayson v. Virginia, 3 id. 233; Taylor v. Salmon, 4 Mylne Dall. 339 ; Huger v. South Carolina, & Craig, 141 ; Boyle v. Zacherie, 6 Ibid. 371; New York z/. Connecti- Pet. 648; Pennsylvania j'. Quicksilver cut, 4 id. I ; New Jersey v. New Co., 10 Wall. 553. York, 5 Pet. 284; Rhode Island v. ^ Equity Rule 21. Massachusetts, 12 id. 657; s. c, 15 21 322 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The prayer for process of subpoena must also set forth the names of all the defendants named in the introductory part, and if any of them are known to be infants or under guardianship, it should state this fact, that the court may be able to make such orders on the return of the subpoena as justice may require. But it is sufficient to ask for an injunction or a writ of ne exeat regno, or any other special order, pending the suit, in the prayer for relief, without repeating the same in the prayer for process.' It is further required that " Every bill shall contain the signa- ture of counsel annexed to it, which shall be considered as an affirmation on his part that upon the instruction given to him and the case laid before him there is good ground for the suit in the manner in which it is framed."^ Notwithstanding that the formal jurisdiction clause may be omitted from a bill, it is essential that it should show facts giving the court jurisdiction. The original jurisdiction of the court is quite limited, depending in all cases upon the citizenship or charac- ter of the parties, and not upon the subject-matter or the value of the matter in controversy. The required citizenship or character of the parties should of course be set forth in the bill in order to show the jurisdiction of the court.^ W^hen a State is a Necessary Party. § 295. Where the jurisdiction of the court depends upon the fact that a state is a party, it must appear from the bill that it is so in fact, and it is not sufficient that it be made to appear that the state is indirectly interested in the controversy and may be consequentially affected by the result. The state must in such cases be made a party on the record, or objection may be taken by demurrer on that ground.* But it is sufficient that the state be substantially a party, as where the bill is filed by the governor 1 Equity Rule 23. ^ Rev. Stat. I 687 ; Equity Rules 20 2 Equity Rule 24. Where a bill for and 21 ; Georgia v. Brailsford, 2 an injunction was filed without the Dall. 405; Georgia v. Madrazzo, i proper signature of counsel it was Pet. no. ordered to be taken from the files; * Fowler v. Lindsey, 3 Dall. 411 ; but on being amended in this respect Governor of Georgia v. Madrazzo, i it was, on motion, reinstated, and the Pet. no; Osborne v. Bank of U. S., injunction granted as on a bill and 9 \Vh. 738; Bank of U. S. v. Planters' motion de novo: Roach v. Hulings,5 Bank, Ibid. 904. Cr. (C. C.) 637. SUPREME COURT — ORIGINAL JURISDICTION. 323 of a state on its behalf/ or where the claim made in a libel in admiralty is upon the governor as such, and officially, and not against him personally.^ If the suit is by the state against a corporation, it should be shown by the bill or declaration that the corporation is a citizen of another state, that is, incorporated by or organized under the laws of some other state, naming it ; and it is not sufficient merely to aver that the corporation defendant is a body politic by the laws of another state and doing business within it.^ Jurisdic- tional facts should be clearly averred and not left for inference.* Every bill must contain in itself sufficient matter of fact, both as to jurisdiction and the subject of the claim made, to maintain the case of the plaintiff.^ Frame of Bills ; Interrogatories. § 296. The introductory part of a bill should usually contain the names, places of abode, and a statement of the citizenship of all the parties, plaintiffs and defendants. Where, however, a state is a party, it would not be necessary or practicable to state the abode or citizenship of the state, but a statement of the fact that it is a state would be sufficient. The general principles of equity pleading, practice and procedure are applicable to all the federal courts having equity jurisdiction.*^ It is not necessary to interrogate the defendant, specially and particularly, upon any statement in the bill, unless it is desirable to do so to obtain a discovery/ If interrogatories are inserted, they should be numbered, consecutively i, 2, 3, etc. And the interrogatories which either of the defendants are required to answer should be specified in a note at the foot of the bill, as follows: "The defendant A. B. [or others named] is required to answer the interrogatories numbered respectively i, 2, 3," etc. And if the complainant in his bill waives an answer under oath, 1 Georgia v. Brailsford, 2 Dall. 405. Bank, 9 Wh. 904 ; Bank of Kentucky "^ Governor of Georgia t'. Madrazzo, v. Wister, 2 Pet. 321 ; The Cherokee I Pet. no. Nation v. Georgia, 5 id. i. ^ Pennsylvania v. Quicksilver Co., ^ Harrison v. Nixon, 9 Pet. 483. 10 Wall. 553. " Equity Rule 20. See also Fowler * Railway v. Ramsey, 22 Wall. 322; v. Miller, 3 Dall. 411. Virginia v. West Virginia, 11 id. 39. ' Amended Equity Rule 40. See also Bank of U. S. v. Planters' 324 FEDERAL PLEADING, PRACTICE AND PROCEDURE. or only requires an answer under oath in regard to certain speci- fied interrogatories, the answer of the defendant may be under oath to the whole bill, but it will not be evidence in his favor, except as to such part thereof as shall be directly responsive to such interrogatories, unless the cause is set down for a hearing on the bill and answer only.^ The answer may in such cases also be used as an affidavit, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; and an answer under oath to certain interrogatories will not prevent the defendant from be- coming a witness in his own behalf, as provided by law.^ It is further prescribed that where interrogatories are used in a bill they shall be preceded by the following form: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answers make to such of the several interrogatories hereinafter numbered and set forth, as by the note] hereunder written they are respectively required to answer; that is to say — " I. Whether, etc. " 2. Whether, etc." ^ Leave to File a Bill ; Practice ; Subpoena. § 297. The practice of obtaining leave to file a bill in this court is quite anomalous ; but it seems common, if not univer- sal, although there is no statute or rule of court upon the sub- ject. The usual course is to file a motion asking leave to file the bill, which is generally heard ex parte on a regular motion day.* Where, however, the bill prayed an injunction to restrain the President of the United States from executing a law of Con- gress, it was held proper, under the peculiar circumstances of the case, to hear an argument against the motion for leave to file the bill.^ If the leave to file a bill is granted, the clerk will ^ Equity Rule 41 and amendment. ■* Georgia v. Grant, 6 Wail. 241. * Rev. Stat. ? 858 ; Equity Rule 41, ^Mississippi v. Johnson, 4 Wall, as amended. 475- See also Poultney v. La Fay- * Equity Rule 43. ette, 12 Pet. 472. SUPREME COURT — ORIGINAL JURISDICTION. 325 issue a subpoena ; but an order to issue the subpcena should ac- company the granting of leave to file the bill, and the motion for leave to file the bill should ask for the order for the proper pro- cess. The order may be suspended or rescinded by any judge of the court, upon special cause shown therefor/ Subsequent Proceedings. § 298. It has been determined that if the state shall fail to appear after due service of process upon her, no coercive measures will be allowed to compel an appearance, but the com- plainant or plaintiff will be allowed to proceed ex parte j"^ and he may move for commissions to issue to take the depositions of witnesses ; or he may move the trial of the cause on oral testi- mony, in the usual way, as soon as the cause is reached for trial, or as soon as permitted by the rules or orders of the court. It may be observed that the Supreme Court, in the exercise of its original jurisdiction, has the right to prescribe rules of prac- tice and procedure for itself or the inferior federal courts, and to make such deviations from the English common law and ad- miralty and chancery practice as are necessary to adapt the pro- cess and procedure of the court to the peculiar circumstances of cases arising in this country, limited only by such alterations or regulations as Congress may provide. In the exercise of this authority, the court framed General Rule 5, prescribing the per- sons on whom original process should be served, and the time of service, and the proceedings on a failure of appearance ; and in the case last cited, on the failure of the defendant to appear after due service of process, it was, on motion of the complain- ant, ordered and decreed that the complainant be at liberty to proceed ex parte ; and that unless the defendant, after being served with a copy of the order and decree sixty days before the next following term of the court, should appear before said term and answer the bill, the court would proceed to hear the cause on the part of the complainant, and to decree on the matter of said bill. Within the time required by the order and decree of the court, the state of New York appeared in the case by its ^ Equity Rule 5. Dall. 320 ; New Jersey v. New York, ^ Massachusetts v. Rhode Island, 5 Pet. 284. 12 Pet. 755 ; Grayson v. Virginia, 3 326 FEDERAL PLEADING, PRACTICE AND PROCEDURE. attorney-general and filed a demurrer to the bill, and the ques- tion was raised whether this was a compliance with the order of the court requiring the defendant to answer. The court held that in a legal sense a demurrer was an answer, though not so in a technical sense, and that it was a sufficient compliance with the order/ Proceedings on the Part of the Defendant. § 299. If the defendant desires to appear and defend the cause, or for any purpose connected with it, he should at or before the return day of the process, which, as we have seen, must be at least sixty days after its service, cause an appearance to be entered by the clerk, either personally or by his solicitor, and for that purpose should file with him a precipe for an appear- ance. The appearance may be general, or special for some particular purpose. \A^hen a Bill will be Dismissed on Motion. § 300. We have noticed that jurisdictional facts should be clearly set forth in the bill or declaration. A failure to do so would be fatal on a motion to dismiss or a demurrer for want of jurisdiction. In the case of Rhode Island v. Massachusetts,^ a motion was made to dismiss on the ground of a want of juris- diction, which the court entertained although made after a plea in bar had been filed. But the court overruled the motion, holding they had jurisdiction of the parties and of the subject- matter.^ The general principle in relation to the special limited original jurisdiction of this court is that the court will not take cognizance of a cause where its authority to do so is not manifest from the record, and the court will take notice of this when it is apparent, whether objection for want of jurisdiction is made or not. A motion to dismiss a cause, pending in the courts of the United States, is not analogous to a plea to the jurisdiction of a court of common law or equity in England. There, owing to the peculiar organization and powers of the courts, the rule is ' New Jersey v. New York, 6 Pet. 1 1 How. 552 ; Georgia v. Stanton, 6 323. Wall. 50 ; Cohens v. Virginia, 6 Wh. '12 Pet. 657. 264; Harding v. Handy, 11 id. 103; 2 See also United States v. Hughes, Harrison v. Nixon, 9 Pet. 483. SUPREME COURT — ORIGINAL JURISDICTION. 327 that a party claiming an exemption from the jurisdiction of the court must set out the reasons by a special plea in abatement, and show that some other court has the exclusive cognizance of the case, and must point out to the court where the case belongs. In order to quash a writ or dismiss a bill in England, for want of jurisdiction, the plaintiff must give a better one, and he can never put in a second plea to the jurisdiction of the court. But in the federal courts, irregularity of process or defective service of the same is waived by an appearance and pleading to the issue.^ And when the objection is that the court has no jurisdiction over the parties or the subject-matter, the defendant need not give the plaintiff a better writ or bill. Demurrer for want of Jurisdiction. § 301. A demurrer to a bill or declaration operates as an admission, for the purpose of the demurrer only, that all the averments which are properly pleaded are true. Its purpose is to bring before the court the question of the right to maintain the suit, admitting the allegations to be true; and the court will not inquire aliunde what facts might or might not defeat it, as this is the office of a plea or answer.^ It is manifest that if there is a want of allegations showing that the parties to the suit are the necessary and proper parties to give the court jurisdiction, this would be good ground for demurrer, and for a dismissal; and the proper practice would be to demur, although advantage of the defect might be taken afterwards by motion, plea or answer.^ So far as our present purpose is concerned it will be necessary to consider the demurrer only in relation to its office where there is a want of proper allegations in a bill or declaration as to the character of the parties, as it is this which gives the court origi- nal jurisdiction. We should, however, observe that even where the controversy is between states, the court will not take cogniz- > Voorhees v. Bank of the U. S., 10 VVoodworth v. Edwards, 3Woodb. & Pet. 449; Toland v. Sprague, 12 id. M. 120; Bayerque v. Cohen, i McAlI 300; Knox V. Summers, 3 Cr. 496; 113; i Dan. Ch. PI. 543. Pollard z^. Dwight, 4 zdf. 421. ^Jackson v. Ashton, 8 Pet. 148; ''Grifi&ng v. Gibb, 2 Black 519; Wood v. Wagnon, 2 Cr. 9; Ross t/. Foot V. Link, 5 McLean 616; Ocean Duvall, 13 Pet. 45; Gaylords v. Kel- Insurance Co. v. Fields, 2 Story 59 ; shaw, i Wall. 81. 328 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ance of a controversy which relates solely to matters of a politi- cal character; and a bill which asks for relief in such a case would be subject to a demurrer.' But where the political ques- tion involved, as that of the right of sovereignty and jurisdiction of a state over disputed territory, is merely incidental to the main question to be determined, as in case of a bill to settle the question of a disputed boundary between states, the question is not a political one, so as to oust the jurisdiction of the court.'^ In Georgia v. Stanton the objection to the jurisdiction of the court was taken by motion, but it illustrates the general doctrine equally as well as if it had been raised by a demurrer. The court determined that the bill, both in the body of it and in the prayer for relief, called for the judgment of the court upon political ques- tions ; that the rights for the protection of which the authority of the court was invoked were not those of a private character, but related to those of sovereignty and political jurisdiction; and that the court had no jurisdiction over the subject-matter presented by the bill.-'' Certificate of Counsel and Affidavit Required. § 302. It is further provided by rule that " no demurrer or plea shall be filed to any bill, unless upon a certificate of counsel that in his opinion it is well founded in point of law, and sup- ported by affidavit of the defendant that it is not interposed for delay, and if a plea, that it is true in point of fact." Office of a Plea. § 303. The office of a plea is to furnish some fact or facts not apparent on the bill, but which, if they had been therein stated, would have rendered the bill demurrable. The plea should con- tain averments which, if true, would defeat the relief asked for by the plaintiff. It is allowed in order to save expense and to protect the defendant from a discovery which ought not to be required under the facts and the circumstances of the case ; and it enables the court to decide upon the issues, taking the bill to be true so far as it is not contradicted or qualified by the plea. 1 State of Georgia v. Stanton, 6 478 ; Cherokee Nation v. Georgia, 5 Wall. 50; The Cherokee Nation v. Pet. i. Georgia, 5 Pet. i. ^ 6 Wall. 50. See also Mississippi ^ Rhode Island z'. Massachusetts, 12 v. Johnson, 4 id. 475. Pet. 657 ; Florida v. Georgia, 17 How. SUPREME COURT — ORIGINAL JURISDICTION. 329 An illustration of the office of plea might be found in case of a bill filed in this court by a consul against a citizen. If it should be averred in the bill that the complainant was a consul, which would be an essential jurisdictional fact to be shown, when in fact he was not a consul, the objection on this account could not be taken by demurrer, because a demurrer admits the facts well pleaded. The question could in such a case be raised by a plea denying that the plaintiff was in fact a consul. The juris- dictional question would thus be presented and determined by the judgment of the court on the single issue whether the plain- tiff was or was not a consul. This would be a plea to the juris- diction of the court in abatement, and not in bar of another action in another court.^ Another appropriate case for a plea would be where there was another suit pending for the same matter, where it would also be in abatement.^ It is sometimes necessary to accompany a plea with an answer ; especially is this required in certain cases by the rules of practice prescribed for the courts of equity of the United States. Equity Rule 32 provides that " in every case in which the bill specially charges fraud or combination, a plea to such part must be accom- panied with an answer fortifying the plea and explicitly denying the fraud and combination, and the facts on which the charge is founded."^ It is not, however, within the proper scope of this treatise to consider fully the various kinds of pleadings at law and in equity ; and the reader is referred to those special treatises on these sub- jects where these matters are discussed and illustrated. We may remark in this connection that by the general rules of equity practice, the plea was required to be verified by affi- davit, and under a rule of this court a plea as well as a demurrer is not only required to be supported by the affidavit of the de- fendant that it is not interposed for delay, and in case of a plea, 1 I Dan. Ch. PI. (4 Am. ed. Perkins) » i Dan. Ch. PI. (4 Am. ed.) 614 ; 626; Jones V. League, 18 How. 76. Story's Eq. PI. \ 681, et seq.; Syms 2 2 Dan. Ch. PI. (4 Am. ed.) 633 ; v. Lyle, 4 Wash. (C. C.) 303 ; Living- Mathews z'. Robers, I Green, Ch. 338 ; ston v. Story, 9 Pet. 632; s. c, 11 Way V. Bagshavv, C. E. Green (16 N. id. 352 ; De Sobry v. Nicholson, 3 J.) 213; Cleveland, etc., R. Co. v. Wall. 420; Heath v. Erie R. Co., 8 Erie, 27 Pa. St. 380; Mann v. Rich- Blatch. 347. ardson, 21 Pick. 259. 330 FEDERAL PLEADINCx, PRACTICE AND PROCEDURE. that it is in point of fact true, but the certificate of counsel is required that in his opinion it is well founded in point of law/ Setting Down for a Hearing. § 304. To set down a demurrer or plea for a hearing is to enter the title of the cause in the list of matters ready to come on for a hearing at the next rule day of the court, specifying the matter to be heard, and of which the opposite party must take notice. The entry may be made as a matter of course. On the argument of a plea it has been held that the allegations of the bill may be taken less strongly against the plaintiff than they would be on the argument of a demurrer.- " If a plea is sup- ported by an answer, upon the argument of the plea the answer may be read to counterprove the plea ; and if the defendant appears not to have sufficiently supported his plea by his answer, the plea must be overruled or ordered to stand for an answer only." Where a defendant answered to an original bill, which was afterwards amended, and the defendant put in a plea to the amended bill, the plaintiff was permitted to read the answer to the original bill, to counterprove the plea to the amended bill.^ On the argument of a plea the general rule is that the averments of the bill must be taken as true, except as to those denied by the plea, and by the answer if one is filed in support of the plea ; and if set down by the plamtiff for a hearing, without a reply, the averments contained in it must be treated as true.* So the general rule is that no plea or demurrer can be held bad and overruled upon the argument merely because it does not cover so much of the bill as it might have extended to.^ Nor shall it be overruled merely because the answer of the defendant may extend to some part of the same matter as is covered by it.** Where the Plea or Demurrer is Overruled. § 305. If, upon the hearing of a plea or demurrer, it is over- ruled, the plaintiff, on general principles, is entitled to his costs up to that time, unless the court is satisfied that he had good ' Equity Rule 31. S. C. 540; Gallagher v. Roberts, i 2 Rumbold v. Forteath, 2 Jur. N. S. Wash. (C C.) 320 ; Rowley v. Wil- 686. liams, 5 Wis. 151 ; Davison v^ John- 3 1 Dan. Ch. PI. (4th Am. ed.) 695. son, i C. E. Green (16 N. J. Eq.) 112, * Borgandus v. Trinity Church, 4 ^ Equity Rule 36. Paige 178 ; Lawrence v. Pool, 2 Sand. « Equity Rule 37. SUPREME COURT — ORIGINAL JURISDICTION. 331 ground, in point of law or fact, to interpose the same, and that it was not put in vexatiously or for the purpose of delaying the cause ; ^ and the court may, in accordance with the general pro- cedure in such cases, order the defendant 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 time as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof the bill may, if so ordered, be taken against him pro confesso^ and the matter thereof proceeded in and decreed accordingly.^ Where the Plea or Demurrer is Allowed. § 306. If a plea or demurrer is allowed upon the hearing, the court may allow the plaintiff, on motion, to amend the bill upon such terms as appear reasonable, but the defendant is entitled, as we have stated, to his costs.^ In case of a failure of the plaintiff to reply to a plea, or to set down the same for a hearing at the proper time, he may be considered as admitting the truth and sufficiency of it, and his bill must be dismissed of course, unless the court shall allow him further time to reply or to set the plea down for argument.* But the dismissal of a bill in such a case would be no bar to another suit. ^ Equity Rule 34. ^ Equity Rule 35. 2 Ibid.; Bank of U. S. v. White, 8 * Hughes v. United States, 4 Wall. Pet. 262. 232. 332 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XIV. SUPREME COURT— APPELLATE JURISDICTION. Appeals from Circuit and District Courts. § 307. Appeals or writs of error may be taken from the dis- trict courts or from the existing circuit courts direct to the Su- preme Court in the following cases : ^ Jurisdictional Question. — In any case in which the juris- diction of the court is in issue; in such case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision. The word "jurisdiction" means the jurisdiction of the circuit or district court over the subject matter of the suit and the parties, and does not refer to the question whether the suit should be brought at law or in equity.^ The question of jurisdiction must be certified plainly before the Supreme Court can take jurisdiction: the certificate from the court below is absolutely necessary,^ The certificate must be granted at the term at which the decree or judgment is ' Circuit court of appeals act : Act ^ Van Wagenen v. Sewall, 160 U. of March 3, 1891, ch. 517, 1 5, I Supp. S. 369; Maynard v. Hecht, 151 id. R. S. 901. See ante chapter on cir- 324; Moran v. Hagerman, Ibid. 329; cuit courts of appeals. The Supreme Colvin v. Jacksonville, 157 id. 368 ; Court will decide whether it has jur- Davis v. Geissler, 162 id. 290; Ans- isdiction, without interference from bew v. U. S., 159 id. 695. See also any other court. A circuit court can- Amer. Sugar Refin. Co. v. Johnson, not restrain a party from applying for 13 U. S. App. 681. As to what is a a writ of error nor order the writ sufficient certificate, see In re Lehigh to be dismissed after it has been Min. & Mfg. Co., 156 U. S. 322; granted: /« r^ Chetwood, 165 U. S. Shields v. Coleman, 157 id. 168; 443. Carey v. Houston & Tex. Cent. R. *U. S. V. Swan, 65 Fed. Rep. 647; Co., 150 id. 170; Interior Constm. In re Mudsill Min. Co., 31 U. S. Co. v. Gibney, 160 id. i\T, Chap- App. 112. pell V. U. S., Ibid. 499. SUPREME COURT — APPELLATE JURISDICTION. 333 entered.' After the Supreme Court has passed upon the ques- tion of jurisdiction the question cannot again be raised in the cir- cuit court of appeals.^ If a case involves the constitutionahty of a statute the Supreme Court has jurisdiction of all questions in- volved, including that of jurisdiction, though it has not been certified.^ The act does not give the defeated party a right to have his case finally determined on the merits both in the circuit court of appeals and in the Supreme Court/ After final judgment in the circuit court a party must elect whether to go to the Supreme Court on the question of jurisdiction alone, or to the circuit court of appeals on the whole case; if he elects the latter course that court has power to decide the question of jurisdiction.^ But if one party takes the case to the Supreme Court on the question of jurisdiction, the other party is not precluded from going to the circuit court of appeals on the merits; the latter court may deter- mine whether or not it will hear the appeal until the Supreme Court has decided the question of jurisdiction.*^ In U. S. v. Jahn,'' the Supreme Court, construing the circuit court of appeals act, said : " Giving the act a reasonable construction, taken as a whole, we conclude : (i) If the jurisdiction of the circuit court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal or writ of error directly to this court. (2) If the question of jurisdiction is in issue, and the jurisdiction sus- tained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. (3) If the question of jurisdiction is in issue, ^ Colvin V. Jacksonville, 158 U. S. 70 Fed. Rep. 129; s. c, 36 U. S. 456. App. 167 ; McLish v. Roff, 141 U. S. 2 Nashua & L. R. Co. v. Bost. & L. 661 ; Chic, St. P., M. & O. R. Co. v. R. Corp'n, 5 U. S. App. 97. Roberts, Ibid. 690 ; Schunk v. Mo- =* Scott V. Donald, 165 U- S. 58; line, M. & S. Co., 147 id. 500; Bar- Chappell V. U. S., 160 id. 499 ling v. Bank of British Nth. Am., 7 * Robinson v. Caldwell, 165 U. S. U. S. App. 194. 359; Chic, M. & St. P. R. Co. v. « North Pac R. Co. v. Glaspell, 4 Evans, 19 U. S. App. 233. U. S. App. 238. *Rust V. United Waterworks Co., ' 155 U. S. 109, 114. 334 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified and come directly to this court, or to carry the whole case to the circuit court of appeals, and the question of jurisdiction can be certified by that court. (4) If in the case last supposed the plaintiff has ground of com- plaint in respect of the judgment he had recovered, he may also carry the case to the circuit court of appeals on the merits, and this he may do by way of cross-appeal or writ of error if the defendant has taken the case there, or independently, if the defendant has carried the case to this court on the question of jurisdiction alone, and in this instance the circuit court of appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff objects to the jurisdiction and is, or both parties are, dissatisfied with the judgment on the merits." Prizes Causes. — From the final sentence and decrees in prize causes it is provided by section 695 of the Revised Statutes as follows : " An appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars, and shall be allowed without reference to the value of the matter in dispute on the certificate of the district judge that the adjudication involves a question of general importance. And' the Supreme Court .shall hear and determine such appeals, and shall always be open for the entry thereof" Under the provisions of the statutes for allowing writs of error and appeals the decision must be final and dispose of the whole matter so far as the appellant is concerned. Where the United States filed several libels for condemnation, as prize of war, of a large quantity of cotton and other captured property, and on motion these were consolidated and various claims were inter- posed in the consolidated suit for portions of the libelled property, among which was one by parties who denied the validity of the capture and insisted on the title and the right to a portion of the cotton, but upon the hearing in the district court an order was made dismissing the claims with costs, and the claimants appealed therefrom, it was held, upon a motion to dis- SUPREME COURT — APPELLATE JURISDICTION. 335 miss the appeal in this court on the ground that the decree was not final, that, so far as these appellants and the United States were concerned, it was a final judgment, leaving nothing to be litigated between them, and that the court had jurisdiction thereof.' The statute provides that : " Appeals in prize causes shall be made within thirty days after the rendering of the decree appealed from, unless the court previously extends the time, for cause shown in the particular case; provided^ that the Supreme Court may, if in its judgment the purposes of justice require it, allow an appeal in any prize cause, if it appears that any notice of appeal, or intention to appeal, was filed with the clerk of thedis- trict court within thirty days next after the rendition of the final decree therein."^ The statute further provides that " appeals from the circuit courts, and district courts acting as circuit courts, and from dis- trict courts in prize causes, shall be subject to the same rules, regulations and restrictions as are or may be prescribed in law in cases of writs of error." ^ Capital Crime. — In cases of conviction of a capital crime.* By Act of February 6, 1889,^ in all cases of conviction of crime ^Withenbury v. United States, 5 ment must be reviewed by writ of Wall. 819 ; The Admiral, 3 id. 603. error, and only questions of law Where this court will remand a cause properly presented will be consid- to the district court, see United States ered : Bucklin v. U. S., 159 U. S. 680. V. Weed, 6 Wall. 62 ; The Watchful, A writ of error does not lie in behalf /i5?V/. 91. A technical objection will not of the United States in a criminal be entertained in this court, where it case : U. S. v. Sanges, 144 id. 310. is not raised in the court below : Any justice of the Supreme Court Jecker v. Montgomery, 18 How. iii. may grant a supersedeas and direct ^Rev. Stat, 'i 1009; The Neustra the prisoner to be admitted to bail Senora de Regla, 17 Wall. 29. and fix the amount of bail ; if the ^ Rev. Stat. \ 1012; Yeaton v. judge of the court before whom the Lenox, 7 Pet. 220 ; The Protector, 1 1 prisoner was tried refuses to obey Wall. 82. the order, he may be compelled by ■* The act originally read " capital mandamus from the Supreme Court or otherwise infamous" crime, but to do so: Hudson t'. Parker, 156 U. was amended by the Act of Jan 20, S. 277. Circuit courts of appeals 1897, 29 Stat. L. 492, the amendment have no jurisdiction in capital cases : not to apply to pending cases: " In- Folsom v. U. S., 160 U. S. 121. famous crime" defined in Stokes v. ^ Act of Feb. 6, 1889, ch. 113, § 6, U. S., 23 U. S. App. 2S9. The judg- 25 Stat. L. 655, i Supp. R. S. 639. 336 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the punishment for which is death, tried before any United States court, the final judgment of such court against the respondent shall, upon his application, be re-examined, reversed or affirmed by the Supreme Court, and the proceedings are regulated. Constitutional Question. — In any case that involves the construction or application of the Constitution of the United States.^ Constitutionality of Acts of Congress and Validity of Treaties. — 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. Constitutionality of State Laws. — In any case in which the constitution or law of a state is claimed to be in contraven- tion of the Con.stitution of the United States. Appeals from the Circuit Courts of Appeals. § 308. An appeal lies to the Supreme Court from the circuit court of appeals, in all cases, where the decision of that court is not made final,^ where the matter in controversy exceeds one thousand dollars besides costs. Time of Appeal. — All such appeals and writs of error must be brought within one year after the entry of the order, judgment or decree sought to be reviewed.^ ^ The constitutional right must have given to a judgment of another state been claimed in the court below : is not a constitutional question ; it Cornell v. Green, 163 U. S. 75; Mor- should betaken to the circuit court of rison v. Watson, 154 id. iii. Where appeals: Merrittw. Amer. Steel Barge the constitutionality of an act is in- Co., 75 Fed. Rep. 813. See also Scran- volved, the Supreme Court has juris- ton v. Wheeler, 16 U. S. App. 152. diction of the entire case : Horner ''■ Act of March 3, 1891, supra. The V. U. S., 143 z'flf. 570. A party may cases where the decision of the circuit appeal to the Supreme Court on a court of appeals is made final are those constitutional question and also to where the jurisdiction is dependent the court of appeals on other ques- upon the diverse citizenship of the tions : McLish v. RofF, 141 id. 661 ; parties, admiralty cases, and cases Pullman's Pal. Car Co. v. Centr. Trans, arising under the patent, revenue and Co. , 76 Fed. Rep. 401. The question criminal laws : Ibid. whether due force and effect has been * Act of March 3, 1891, SUPREME COURT— APPELLATE JURISDICTION. 337 Certified Cases and Certiorari. — The Supreme Court also has jurisdiction in cases certified to it by the circuit court of appeals, and may order any case the decision of which is made final in that court to be brought before it by certiorari or other- wise.^ Appeals from Territorial Courts. § 309, The Supreme Court has jurisdiction of appeals from the supreme courts of the territories except in those cases in which the judgment of the circuit court of appeals is made final. In such cases the appeal is to the circuit court of appeals.^ The Supreme Court may review the final judgments of any territory^ where the value of the matter in dispute, exclusive of costs, exceeds five thousand dollars. This provision does not apply to cases in which is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States ; in all such cases an appeal or writ of error may be brought without regard to the amount in dispute.* And such appeal or writ of error may be taken within the time and in the manner provided by law, although such territory may have been admitted as a state after the judgment or decree was rendered; and the Supreme Court is required to direct the mandate in such cases to such court as the nature of the case requires.^ ^ Act of March 3, 1891. See aide lies in a habeas corpJis case, as it in- chapter xi. volves personal liberty and not 2 Shute V. Keyser, 149 U. S. 649. money : In re Borrego (New Mex.), ^The territory of Washington was 46 Pac. Rep. 211. excepted from this act. Where the By act of March i, 18S9, ch. 333, \ supreme court of the State of Wash- 6, i Supp. R. S. 672, 25 Stat. L. 783, ington denied a petition for a rehear- the Supreme Court may review and ing, which had been presented to the reverse or affirm the final judgment supreme court of the territory and or decree of the U. S. court for In- transferred to the state court under dian Territory where the value of the the act admitting the state to the matter of dispute, exclusive of costs, Union, it was held that the Supreme exceeds |i,ooo. Court had no jurisdiction to review ^ Rev. Stat. I 703. The provisions the judgment: North. Pac. R. Co. v. of these sections were extended to Holmes, 155 U. S. 137. the territory of Utah, by an act of *Rev. Stat. \ 702; Act of March 3, June 23, 1874, 18 Stat. L. 254. See 18S5, ch. 355, 23 Stat. L. 443, I Supp. also Rev. Stat. \ 704. R. S. 485. Under this act no appeal 22 3118 FEDERAL PLEADING, PRACTICE AND PROCEDURE. "When any territory is admitted as a state, and a district court is established therein, the said district court shall take cognizance of all cases which were pending and undetermined in the superior court of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court, and shall pro- ceed to hear and determine the same." ^ In such cases the judgments or decrees of the district court may be reviewed in the Supreme Court on writs of error or ap- peal, in the same manner and with the same effect as if such judgments or decrees had been rendered in the superior court of such territory ; and mandates and writs necessary to the exer- cise of appellate jurisdiction in such cases must be directed to such district judge, who is required to obey the same." The appellate jurisdiction of the Supreme Court over the judgments and decrees of the territorial courts in cases of trial by jury is exercised by writ of error and in all other cases by appeal, according to the rules and regulations prescribed. But, on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, must be made and certified by the court below, and transmitted to the Supreme Court with the transcript of the proceedings and judg- ment or decree,^ On appeals from territorial courts the Supreme Court will not ^ Rev. Stat. | 569. See also ?? 567, weight of the evidence, nor its suffi- 568. ciency to support the findings of the *Rev. Stat. § 704. For construe- court : Idaho &. O. Land Co. z'. Brad- tion of this section, see Forsyth v. burj', 132 U. S. 509 ; San Pedro, etc., United States, 9 How. 571; McNulty Co. v. U. S., 146 id. 120; Smith v. V. Batty, 10 id. 72. Gale, 144 id. 509 ; Haws v. Victoria 3 Act of April 7, 1874, ch. 80, \ 2, Copper Min, Co., 160 id. 303 ; Gilder- 18 Stat. L. 27, I Supp. R. S 7. On sleeve v. New Mex. Min. Co., 161 id. an appeal from a territorial court the 573. The same applies where a jury Supreme Court will decide whether is waived or tlie suit is in the nature the judgment or decree is supported of an equity suit and the court below by the facts as found by the court, finds the facts : Mammoth Min. Co. and upon the admission or rejection v. Salt Lake Machine Co., 151 id. of evidence, where exceptions have 447 ; Grayson v. Lynch, 163 id. 468. been taken ; it cannot consider the SUPREME COURT — APPELLATE JURISDICTION. 339 pass upon a question of practice unless it is apparent that injus- tice has been done/ As before stated, appeals from territorial courts to the Supreme Court are allowed in those cases in which the judgment of the circuit court of appeals is not final. Appeals from District of Columbia. § 310. The final judgments and decrees of the court of appeals of the District of Columbia may be reviewed in the Supreme Court, under the same regulations as were formerly provided in cases of writs of error and appeals from the supreme court of the District,^ where the value of the matter in controversy, ex- clusive of costs, exceeds the sum of five thousand dollars : and also in cases, without regard to the value in dispute, wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised by the United States.^ By the act of January 21, 1896/ an appeal lies to the Supreme Court of the United States to determine questions of constitu- tionality in the highways system of the District of Columbia. The act of March 3, 1897, provides that 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 cer- tiorari 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.^ ^ Salina Stock Co. v. Salina Creek Supreme Court of the District in crim- Co., 163 U. S. 109. inal cases: In re Heath, 144 U. S. ^/. (?., the same as are provided in 92; Cross v. U. S., 145 id. 571 ; nor writs of error and appeals from cir- its judgments on /zrt3^«^ro;^;/^.- Cross cuit courts. V. Burke, 146 id. 82 ; In re Schneider, ^ Act of Feb. 9, 1893, ch. 74, \ 8, 28 148 id. 157. An order admitting a will Stat. L. 160. This act does not confer to probate should be brought before jurisdiction on the Supreme Court to the Supreme Court by writ of error: review judgments of the court of ap- Campbell v. Porter, 162 U. S 478. pealsincriminalcases: Chapman z/.U. * Act of Jan. 21, 1896, ch. 5, 29 Stat. S., 164 U.S. 436 ; Perrinez'. Slack, /(5zV. L. 3, 2 Supp. R. S. 445. 452. The Supreme Court has nojur- ^ Act of March 3, 1897, ch. 390, 29 isdiction to review judgments of the Stat. L. 692, 2 Supp. R. S. 609. 340 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Appeals from the Court of Claims. § 311. The United States may also take an appeal from any judgment of the Court of Claims adverse to the United States, and the plaintiff may also appeal in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of the said court as provided by section 1086.^ Appeals must be taken within ninety days after the rendition of the judgment, and the procedure is regulated by the rules for the Court of Claims pro- mulgated by the Supreme Court." Where Congress has authorized the Court of Claims to take jurisdiction in equity, its finding of facts may be reviewed by the Supreme Court.^ But its finding of facts in an action at law is like the verdict of a jury, and where the testimony is not dis- closed the Supreme Court will not modify the finding/ The Supreme Court will not review the finding where there is nothing in the record which authorizes it to go behind the finding.^ Where the head of a department, with the consent of the claim- ant, transmits a case to the Court of Claims, and the court reports the case back to the department under the provisions of the act of March 3, 1887, the claimant cannot appeal from the findings of fact and of law and the decision of the court thereon/' Appeals from Court of Private Land Claims. § 312. An appeal lay to the Supreme Court from the decisions of the Court of Private Land Claims if taken within six months from the date of the decision, subject to the same conditions, except in respect to the amount in controversy, as appeals from decisions of the circuit courts. Upon such appeals the Supreme Court might retry the case, as well issues of fact as of law, and cause new testimony to be taken, and amend the record.^ This court has been abolished, the act of March 2, 1895,^ providing 1 Rev. Stat. § 707 ; Ibid. § 1086. 26 Stat L. 854, i Supp. R. S. 920. ^^ Rev. Stat. § 708. See /'o^/ for the These provisions were not manda- Court of Claims Rules. tory, but simply gave the court power *U. S. V. Old Settlers, 148 U. S. to take further proof and amend if 427. they thouglit proper to do so : U. S. *Stone V. U. S-, 164 U. S. 380. v. Coe, 155 U. S. 76. ^Talbert v. U. S., 155 U. S. 45. « Act of March 2, 1895, ch. 177, par. «/« r^ Sanborn, 148 U. S. 222. 22, 28 Stat. L. 744, 2 Supp. R. S. ■ Act of March 3, 1891, ch. 539, 1 9, 417. SUPREME COURT — APPELLATE JURISDICTION. 341 that the powers and functions of the court shall cease and deter- mine on the thirty-first day of December, 1897. Appeals from Interstate Commerce Commission. § 313. By the act of March 2, 1889/ an appeal from the circuit courts to the Supreme Court was allowed, in complaints for violation of the interstate commerce act where the subject in dispute was of the value of two thousand dollars. This has been repealed by the court of appeals act of March 3, 1891, and no appeal now lies to the Supreme Court. ^ Appeals from Highest Court of a State. § 314. The section of the Revised Statutes providing for a review and re-examination of the judgments and decrees of state courts is as follows: " A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision is against the title, right, privi- lege or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error.^ The writ shall have the same effect 1 Act of March 2, 1S89, ch. 382, ^ 5, should be interpreted and enforced 25 Stat. L. 855, I Supp. R. S. 689. by the state courts in the same sense 2 Interstate Com. Commrs. v. Atchi- that they are in the courts of the son T. & S. F. R. Co., 149 U. S. United States. This action was for a 264. maritime tort committed upon navi- ' The plaintiff claimed the right gable waters and within the admi- under the U. S. statutes to navigate ralty jurisdiction, and the appellate on the Hudson river with masthead jurisdiction of this court over ques- light and side lights in accordance tions national and international in with the statutory rules on the sub- their nature cannot be restrained by ject. The Supreme Court said : " It the mere fact that the party plaintiff is of vital importance that these rules has elected to pursue his common 342 FEDERAL PLEADING, PRACTICE AND PROCEDURE. as if the judgment or decree complained of had been rendered or passed in a court of the United States, and the proceedings upon the reversal shall be the same, except that the Supreme Court may at their discretion proceed to a final decision of the case, and award execution or remand the same to the court from which it was so removed. The Supreme Court may reverse, modify or affirm the judgment or decree of such state court, and may at their discretion award execution, or remand the same to the court from which it was removed by the writ."^ The statute makes no limitation in respect to the character or subject-matter of the suit. If there could have been any ques- tion concerning the appellate jurisdiction of this court in criminal cases under the provisions of the Judiciary Act, it would appear to be settled by the provision of section 710 of the Revised Statutes,^ which provides as follows : " Cases on writs of error to reverse the judgment of a state court in any criminal case shall have precedence, on the docket of the Supreme Court, of all cases to which the government of the United States is not a law remedy in a state court : " Belden V. Chase, 150 U. S. 691. Where an action is brought against officers of the United States to re- cover land claimed by the United States, a judgment rendered against the officers for both title and posses- sion, is a decision against the validity of an authority claimed under the United States, and the Supreme Court has jurisdiction : " So far as the judgment of a state court against the validity of an authority set up by a defendant under the United States necessarily involves the decision of a question of law, it must be reviewed by this court, whether that question depends upon the constitution, laws, or treaties of the United States, or upon principles of general jurispru- dence:" Stanley v. Schwalby, 162 U. S. 255. 1 Rev. Stat. § 709. See Rev. Stat. I 1017, Act of Feb. 18, 1875. The court of appeals act (March 3, 1891, ch. 517, \ 5, 2 Supp. R. S. 903) pro- vides that " nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a state, nor the con- struction of the statute providing for review of such cases." The judgment of a state court, re- manding a case to the trial court for further proceedings, is not a final judg- ment which can be reviewed by the Supreme Court : Rice v. Sanger, 144 U. S. 197; Meagher z'. Minn. Thresher Mfg. Co., 145 id. 608 ; Hume v. Bowie, 148 id. 245 ; Werner v. Charleston, 151 id. 360. For construction of words "final judgment or decree," SQQ post, g 331. '^This provision was embraced in an act of Congress of July 13, 1866, ch. 184, I 69, 14 Stat. L. 172. SUPREME COURT — APPELLATE JURISDICTION. 343 party, excepting only such cases as the court, in its discretion, may decide to be of pubhc importance."^ ^V^its of Error to State Courts ; Not of Right. § 315. Writs of error to the state courts are issued in the same manner and under the same regulations, and have the same effect, as if the judgment or decree complained of had been ren- dered or passed in a court of the United States;^ but they are not allowed as of right. The practice is to submit the record of the state court to a justice of the Supreme Court, who upon examination of it determines whether any question was made or decided in the state court which is cognizable by this court, and whether there is a case made by the record to justify the allow- ance of the writ.^ If the decision appears to involve a question that gives the court jurisdiction, it is generally allowed; but if no such ques- tion appears to have been made or decided in the court below, or where, although a claim of right under the Constitution or laws of the United States was made, yet it is clear that the juris- diction of the court does not extend to the case presented, the writ will not be allowed.* But any set, from whatever source originating, to which the state gives the sanction and the force of a law is within the meaning of the statute providing that a judgment or decree of a state court may be re-examined by this court, " where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity." If a state recognizes a statute as legal, though in fact it may not be so, this becomes an act and a statute of the state within the meaning of the provision 'Twitchell v. The Commonwealth, U. S. 183. 7 Wall. 321; Cohens z/. Vh-ginia, 6 *Twitchell t/. The Commonwealth. Wh. 264; Worcester v. Georgia, 6 7 Wall. 321; Gleason v. Florida, 9 Pet. 515. id. 779; Bartemeyer v. Iowa, 14 ■■^Rev. Stat. \ 1003. id. 26; Barron v. The City of Bal- * Applications for a writ of error to timore, 7 Pet. 243; Fox v. Ohio, 5 a state court are not entertained, How. 434; Smith v. Maryland, 18 unless at the request of a member of id. 76 ; Withers v. Buckley, 20 the Supreme Court concurred in by id. 90. his associates: In re Robertson, 156 344 FEDERAL PLEADING, PRACTICE AND PROCEDURE. under consideration; and if the question is presented to a state court, whether such " statute or authority exercised under any- state " is void on the ground of its being repugnant to the Con- stitution of the United States, and the decision is in favor of the vahdity of the statute or authority, a writ of error lies to revise the decision of the state court.' A Proper Question Must be Presented by the Record. § 316. In order to confer jurisdiction upon this court to review, on a writ of error, the final decision of the highest state court, it must appear in the record certified to this court that a federal question was presented to the court below ; that is, it should clearly appear, either that there was drawn in question the valid- ity of a treaty or statute of, or an authority exercised under, the United States, and that the decision was against its validity f or the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity;^ or that some title, right, privilege or immunity was claimed under the Constitution, or some treaty, statute of or commission held or authority exercised under the United States, and the decision was against the title, right, privilege or immun- ity specially set up or claimed by the plaintiff in error. If the record fails to show this, the writ will be dismissed for want of jurisdiction.'* If the question presented is one of prescription, or ^Williams v. Bruffy, 96 U. S. 176. lowing propositions must be regarded See also Ford v. Surget, 97 id. 594 ; as settled : The Binghamton Bridge, 3 Wall. 51 ; i. That the certificate of the pre- University v. People, 99 U. S. 309. siding judge of the state court as ^ Stanley v. Schwalby, 147 U. S. 508. to the existence of grounds upon ' McPhersont/. Blacker, 146 U. S. I. which the interposition of the Su- ^Capertonz'. Bowyer, 14 Wall. 216 ; preme Court might be successfully Steines v. Franklin Co., Ibid. 15 ; invoked, while always regarded with Hamilton Co. v. Massachusetts, 6 id. respect, cannot confer jurisdiction 636; Schuyler Nat. Bank i^. Bollong, upon the court tore-examine the judg- 150 U. S. 85 ; C. B. & Q. R. Co. v. ment below : Powell v. Brunswick Chicago, 166 id. 226. Where a right County, 150 U. S. 433. under naturalization laws is denied, 2. That the title, right, privilege the Supreme Court has jurisdiction : or immunity must be specially set up Boyd V. Thayer, 143 id. 135. In Say- or claimed at the proper time and in ward V. Denny, 158 id. 180, Mr. the proper way : Duncan z*. Missouri, Chief Justice Fuller said that the fol- 152 U. S. 737 ; Miller v. Texas, 153 id. SUPREME COURT — APPELLATE JURISDICTION. 345 of discretion in refusing to grant a motion for a new trial, or a rehearing in an equity suit, or whether a statute is repugnant to the constitution of the state, there is involved no federal question, and a writ of error to review a final judgment of the highest state court thereon will be dismissed.^ 535 ; Morrison v. Watson, 154 id. Ill ; Winona & St. Peter Land Co. V. Minn., 159 id. 540. 3. That such claim cannot be recog- nized as properly made when made for the first time in a petition for re- hearing after judgment : Bushnell v. Crooke Mining Co., 148 U. S. 682 ; Loeber v. Schroeder, 149 id. 580 ; Miller v. Texas, 153 id. 535 ; Pirn v. St. Louis, 165 U. S. 273 ; Miller v. Cornwall R. Co., 18 Sup. Ct. Repr. 34- 4. That the petition for the writ of error forms no part of the record upon which action is taken in the Supreme Court : Butler v. Gage, 138 U. S. 52. 5. Nor do the arguments of coun- sel, though the opinions of the state courts are now made such by rule : Gibson v. Chouteau, 75 U. S. 314 ; Par- malee v. Lawrence, 78 id. 36 ; Gross V. U. S. Mortg. Co., 108 id. 477; U. S. V. Taylor, 147 id. 695. 6. The right on which the party relies must have been called to the attention of the court, in some proper way, and the decision of the court must have been against the right claimed : Maxwell v. Newbold, 59 U. S. 515; Hoyt V. Thompson, 66 id. 518. 7. Or at all events, it must appear from the record, by clear and neces- sary intendment, that the federal question was directly involved so that the state court could not have given judgment without deciding it ; that is, a definite issue as to the pos- session of the right must be distinctly deducible from the record before the state court can be held to have dis- posed of such federal question by its decision : Powell z'. Brunswick County, 150 U. S. 433. If the decision of a federal ques- tion was necessarily involved, it is not necessary that it should appear affirmatively in the record that such question was decided : Kankanna Co. V. Green Bay & M. C. Co., 142 U. S. 254 ; Roby v. Colehowe, 146 id. 153. When the federal question has been decided erroneously the Supreme Court will look beyond; but not otherwise : McLaughlin v. Fowler, 154 id. 663. The right de- nied must be one of the plaintiflfs in error and not of a third person only : Ludeling v. ChafFe, 143 id. 301. ^ Marqueze v. Bloom, 16 Wall. 351 ; Gibson v. Chauteau, 8 id. 314; Worthy v. The Commissioners, 9 id. 613; Northern Railroad v. The People, 12 id. 384; Rector v. Ash- ley, 6 id. 174; Furman v. Nichol, 8 id. 56; Peck V. Sanderson, 18 How. 42; Bank v. McVeigh, 98 U. S. 332 ; Lange v. Benedict, 99 id. 68. No federal question is raised where a state court denies an application to amend a petition to remove a case to a federal court : Steven's Admr. v. Nichols, 157 id 370. The Supreme Court cannot review the judgment of the highest court of a state upon a question of fact: Dower v. Richards, 151 id 658; Israel v. Arthur, 152 id. 355; Lloyd V. Matthews, 155 id. 222 ; In re Buchanan, 158 id. 31. 346 FEDERAL PLEADING, PRACTICE AND PROCEDURE. A Specific Question Must be Presented by the Record. § 317. The record must present a specific question or specific questions for review; and it is not sufficient that it state in a general way that " the charge of the court, the verdict of the jury and the judgment below are each against and in conflict with the Constitution and laws of the United States," but the specific clause in the Constitution, or the particular statute or act of Con- gress, should be indicated, that the court may determine not only what the claim is, but whether it was denied.^ Nor will this court entertain jurisdiction where it appears from the record that the judgment or decree of the court below may be well sustained upon other grounds than the one involved in the federal question presented, although there was error in the decision as to the latter.^ But where the judgment or decree cannot be maintained on other grounds, and a federal question has been presented and the highest state court has decided against the right claimed by the plaintiff in error, this court will entertain jurisdiction of the case and re-examine the judgment below, and determine whether it was a proper one, and either reverse or affirm it.^ An annual license tax was imposed upon insurance companies located and having an office and doing business within a city, by an ordinance of the city. The question raised in the highest state court was whether such an ordinance was not repugnant to ^Maxwellz/. Newbold, 18H0W. 511; U. S. 679; New Orleans v. New Wolf V. Stix, 96 U. S. 541 ; Mathews Orleans Water Works Co., 142 id. 79 ; V. McStea, 6 Wall. 646 ; Messenger v. Hammond v. Johnston, Ibid. 73 ; Mason, 10 id. 507; Edwards v. El- Delaware City, etc., Nav. Co. 7/. Rey- liott, 21 id. 532 ; Scott v. Jones, 5 bold. Ibid. 636 ; Eustis v. Bolles, 150 How. 343 ; Clarke v. McDade, 165 id. 361 ; Rutland R. Co. v. Central U. S. 16S. Vermont R.Co., 159 id. 630; Seneca 2 Kennebec Railroad v. Portland Nation v. Christy, 162 id. 283 ; Dib- Railroad, 14 Wall. 23. See also Kling- ble v. Billingham Bay Land Co., 163 er V. Missouri, 13 id. 257 ; Railroad id. 63 ; Bacon v. Texas, Ibid. 207. Company v. Maryland, 20 id. 643 ; ' Murdock v. The City of Memphis, Cockroft V. Vose, 14 id. 5 ; Bank of 20 Wall. 591 ; Armstrong v. Trea- West Tennessee v. Citizens' Bank, 14 surer, 16 Pet. 281 ; Crowell v. Randall, id. 9; Palmer v. Marston, Ibid. 10; 10 fa'. 368; Cousin z/. Blane, 19 How. Sevier v. Haskell, Ibid. 12 ; Smith v. 202 ; Grand Gulf R. Co. v. Marshall, Adsit, 16 id. 185; Moore v. Mis- 12 id. 165; Williams v. Norris, 12 sissippi, 21 id. 636; Henderson Wh. 117 ; Brown z/. Atwell, 92 U. S. Bridge Co. v. Henderson City, 141 327 ; Rev. Stat. \ 709. SUPREME COURT — APPELLATE JURISDICTION. 347 the Constitution of the United States, and the state court decided that it was not. This court held that a writ of error would lie from the decision.^ So an objection to the introduction of a deed as evidence for the want of a revenue stamp, required by the statutes of the United States, but which was admitted in evidence notwithstand- ing the objection,^ was held to present a question as to the proper interpretation of a United States statute ; * and so the power of the court in bankruptcy under such statutes to order a sale of property in a particular case was also held to present a proper federal question and to give the Supreme Court jurisdiction on a writ of error.* Right of the United States to a Writ of Error. § 318. Where the United States is a party to a suit in a state court, it has the same right to a review by a writ of error, and no more than a private individual, and they are entitled to it under the same circumstances.^ Highest Court of a State; Construction. § 319. The statute provides for the removal of a cause by a writ of error in the cases specified, from the final judgment or decree of "the highest court of a state in which a decision in the suit could be had." ^ It does not follow, therefore, that the deci- 1 Home Insurance Co. v. City Coun- Huntington v. Attrill, 146 id. 657. oil, 93 U. S. 116. See also Osborne z/. But the mere construction of such a Mobile, 16 Wall. 479 ; Cannon v. New judgment does not deny full faith and Orleans, 20 id. 577; Sevier v. Has- credit so as to give jurisdiction: Glenn kell, 14 zfi?. 15 ; McGuire z'. The Com- v. Garth, 147 id. 360. Where the monwealth, 3 id. 382 ; The License supreme court of a state fails to give Cases, 5 id. 462 ; Weston v. City proper efifect to a decree of a U. S. Council, 2 Pet. 449. circuit court the Supreme Court has 2 Hall V. Jordan, 15 Wall. 393. jurisdiction to correct the error: Dow- ^ Gregory v. McVeigh, 23 Wall. 294. ell v. Applegate, 152 id. 327. * O'Brien v. Weld, 92 U. S. 81. The ^ United States v. Thompson, 93 U. question whether a receiver appointed S. 586. See also Dolman v. Insur- by a federal court is responsible for ance Co., 14 Wall. 666; Insurance the acts of his predecessor is not a Co. v. Hendren, 92 U. S. 287 ; Rock- federal question : McNulta v. Loch- hold v. Rockhold, Ibid 130. ridge, 141 U. S. 327. The Supreme " Where the highest state court de- Court has jurisdiction where state cides a federal question against ap- court declines to give full faith and pellant, and remands it for further credit to a judgment of another state : proceedings, and the lower court ren- 348 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sion sought to be reviewed should have been rendered by the highest court or court of last resort in the state; but it is only- necessary that it be the court of last resort, or the highest court where a decision could be had in the particular case in which a review of the decision is desired. If there is a trial in a state court of original jurisdiction, and a federal question is presented, if there is no right of appeal therefrom to the highest court of review in the state for want of the sufficiency of the amount in controversy, or for any other cause, then the writ may issue to such state court of original jurisdiction, and the Supreme Court can take cognizance of the cause.^ And this has been held to be proper where a party has a clear right to appeal from an inferior to a hif^her state court, but this right is unlawfully refused; in which case it has been held proper to send the writ to the former, and to hear and determine the cause when the record is properly certified from such court.^ There are other cases where the writ will issue to an inferior state court; and the letter of the law will not be permitted to de- stroy its spirit and purpose. Thus, where a cause involving a federal question has been duly passed upon and determined against the party insisting upon rights under federal laws, in the highest court of the state, and has been remanded to an inferior court of the state, requiring it to proceed in accordance with the opinion, and enter judgment there, the inferior court would in such a case be treated as the highest court of the state, and the writ of error would properly issue to it.^ In case the highest court of the state reverses the judgment or decree of the inferior court, and remands the cause for further proceedings, a writ issuing to the former for the purpose of reviewing a federal question would be dismissed;* mere reversal by the highest state court of the judgment or decree of an infe- rior court is not such a final judgment of the highest state court ders final judgment against him, he 294 ; Downham v. Alexandria, 9 must appeal again to highest state id. 659; Richmond, etc., R. Co. court although it declines to recon- v. Railroad Company, 13 How. 80; sider the questions decided on first Windsor v. McVeigh, 93 U. S. 274 ; appeal : Great Western Telegr. Co. Bryan v. Bates, 94 Mass. 201 ; Bacon V. Burnham, 162 U. S. 339. v. Texas, 163 U. S. 207. 1 Miller v. Joseph, 17 Wall. 655. ^^^therton v. Fowler, 91 U. S. 143. 2 Gregory v. McVeigh, 23 Wall. * Davis v. Couch, 94 U. S. 514. SUPREME COURT— APPELLATE JURISDICTION. 349 as is contemplated by the statute giving jurisdiction to the Supreme Court on writs of error to the state courts.^ What the Certified Record Must Contain. § 320. The record should clearly show that a proper federal question was presented, and in case a right, title, privilege or immunity was set up and claimed, it must appear that this was claimed by the plaintiff in error for himself and not for another, and that the decision was against him.^ It must further appear from the certified record that the state court decided the very case relied upon to give the Supreme Court jurisdiction ;^ and if it appears from the record that it was not necessary for the state court to pass upon the question, or that such a question was not in fact passed upon/ or that the decision rested upon the general principles of the law of nations, or upon a constitutional provision which merely declares a settled rule of jurisprudence,^ this court will not take cognizance of the cause, but will dismiss the writ for the want of jurisdiction.*' Jurisdiction Cannot be Conferred by Consent. § 321. It is a doctrine universally recognized that jurisdiction, either original or appellate, of federal courts cannot be conferred by consent. The jurisdiction of these courts is conferred by the Constitution and by acts of Congress, and is special and limited; and they have no jurisdiction except in the particular cases pro- vided for them. Neither the consent of both parties nor of their counsel can give jurisdiction either of an original case or an appeal or writ of error, but the record must show the requisite facts conferring it.^ ^McComb V. Commissioners, 91 Lockhart, 17 zV. 580. U. S. I ; Tracy v. Holcomb, 24 How. =* Tennessee Bank v. Bank of Louis- 427 ; Parcels v. Johnson, 20 Wall. 654. iana, 14 Wall. 9 ; Palmer v. Marston, 2 Warfield v. Chaffe, 91 U. S. 690 ; Ibid. 10. Long V Converse, Ibid. 105 ; Verden « New York Life Ins. Co. v. Hen- V. Coleman, i Black 472 ; Henderson dren, 92 U.S. 286; Bethel v. Damaret, V. Tennessee, 10 How. 311 ; Hale v. 10 Wall. 537. Gaines, 22 id. 149. ' Mills v. Brown, 16 Pet. 525 ; * Cockroft V. Vose, 14 Wall. 5. Walker v. Taylor, 15 How. 64; IMed- *Long V. Converse, 91 U. S. 105; berry v. Slate, 24 id. 413; Murdock Texas v. White, 6 Wall. 733; Hunt- v. Memphis, 20 Wall. 590; Smith z/. ingdon v. Texas, 16 id. 412; Horn v. Adsit, 16 id. 185. 350 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Constitutionality of State Laws. § 322. If the question presented was whether a statute of a state was void on the ground of its repugnance to the Constitu- tion of the United States, it must appear from the record that the decision was in favor of its validity, or the Supreme Court could not take cognizance of the case.^ But if it is claimed that the legislature of a state had no authority to make the statute, or did not pass the statute involved in the controversy, this would not present a federal question which could be reviewed on a writ of error.^ Illustration of the Application of the Statute. § 323. The construction and application of the provision of the federal statute under consideration may be illustrated by a few cases. Thus, where the plaintiff in error sued upon certain notes, claiming that under a proper construction of the Constitu- tion of the United States he was entitled to the payment thereof in gold and silver coin, and the decision of the court below was against his claim, this was held to be a proper case for review on a writ of error.^ So where the question presented was whether the mortgage of a vessel, duly recorded in pursuance of an act of Congress, gave a better lien than an attachment under the statute of a state, and the decision was that it did not, this was held review- able on a writ of error.* 1 Walker v. Taylor, 5 How. 64 ; Where it is claimed that a statute im- Commonwealth Bank v. Griffith, 14 pairs the obligation of a contract and Pet. 56; Rector v. Ashley, 6 Wall, the validity of the statute is admitted, 142 ; Gordon v. Caldcleugh, 3 Cr. and it is only a question of its con- 268; Doe V. Eslava, 9 How. 421; struction, the Supreme Court has no Montgomery v. Hernandez, 12 Wh. jurisdiction : Centr. Land Co. v. 129. Laidley, 159 id. 103. ^ Scott t'. Jones, 5 How. 343 ; Coons * Trebilcock v. Wilson, 12 Wall. V. Gallagher, 15 Pet. 18 ; Williams v. 687. See also Dooley v. Smith, 13 Norris, 12 Wh. 117; Owingsw. Speed, id. 604; Legal Tender Cases, 12 id. 5 id. 420; McKinney z'. Carroll, 12 457; University v. People, 99 U. S. Pet. 70 ; Crowell v. Gallagher, 10 id. 309. 368. The validity of a statute is not * Aldrich v. ^tna Co., 8 Wall. 491. drawn in question every time that See also White's Bank z'. Smith, 7?^. rights under it are controverted: 640. Ferry v. King County, 141 U. S. 668. SUPREME COURT — APPELLATE JURISDICTION. 351 Claim Under a Statute, Grant or Treaty of the United States. § 324. If a title, right or privilege is claimed under a statute, grant or treaty of the United States^ the decision must be against the title, right or privilege specially set up or claimed by the party seeking a review of the judgment of the state court. Thus, where a defendant in a suit in ejectment claimed the land in controversy under a title which sprung from a reserva- tion in a treaty between the United States and an Indian tribe, and the state court decided against the validity of the title thus set up, it was held by the Supreme Court that the title thus as- serted grew out of a treaty, and that the case presented a proper federal question which gave the court jurisdiction.^ So where the claim of title to land rested upon an act of Congress, it was held that it must appear that the decision was against the claim thus asserted, to give the Supreme Court jurisdiction on a writ of error.^ And where the question presented to the state court was as to the validity of a patent of lands granted by the United States, and the decision of the state court was against its validity, this was held to be reviewable on a writ of error;^ Review on Error in Criminal Cases. § 325. The statute covers decisions in criminal cases as well as in civil suits, and there is no distinction between them in respect to the right of re-examination in this court.* ^ Henderson v. Tennessee, 10 How. 539 ; Worcester v. Georgia, 6 id. 311 ; O wings v. Norwood, 5 Cr. 344 ; 515 ; Cohens v. Virginia, 6 Wh. 264 ; Udell V. Davidson, 7 How. 769 ; Ful- Twitchell v. Commonwealth, 7 Wall, ton V. McAflFee, 16 Pet. 149; Mont- 32. No appeal lies unless the ac- gomery v. Hernandez, 12 \Vh. 129. cused was deprived of some consti- ^ Rector v. Ashley, 6 Wall. 142; tutional right or unless the trial was Bagnel v. Brodrick, 13 Pet. 436 ; Les- held under a statute which is uncon- sieur v. Price, 12 How. 60. stitutional: Gibson v. ]\Iiss., 162 U.S. ^Reichart v. Felps, 6 Wall 160. 565. See also Taylor v. Maguire, 17 id. Where a person has been arrested 253 ; Neilson v. Lagow, 12 How. no ; and taken by violence from one state Carpenter v. Williams, 9 Wall. 786. to another, where he is held under Spies V. Illinois, 123 U. S. 131: process legally issued, the Supreme Brooks V. Missouri, 124 id. 394; Court will not interfere: Cook v. Clark V. Pennsylvania, 128 id. 395; Hart, 146 U. S. 183, affirming Ker Quimby v. Boyd, Ibid. 4S8. v. 111. 119 id. 463, and Mahon v. Jus- *Prigg V. Commonwealth, 16 Pet. tice, 127 id. 700. 352 FEDERAI, PLEADING, PRACTICE AND PROCEDURE. The statute gives precedence in such cases on the docket of the Supreme Court. It provides as follows : " Cases on writs of error to revise the judgment of a state court in any criminal case shall have precedence on the docket of the Supreme Court of all cases to which the government of the United States is not a party, excepting only such cases as the court in its discretion may decide to be of public importance." ^ Jurisdiction Depending upon Amount in Controversy. § 326. In some of the statutes, as has been seen, the right to a writ of error or an appeal is limited to cases where the matter in dispute exceeds a certain amount. Under the Revised Statutes^ the matter in dispute, exclusive of costs, must have exceeded the sum or value of ;^5000. Although this provision has been repealed, by the court of appeals act, nevertheless the cases decided under it are applicable, at the present time, to the pro- vision of the later statutes in which a jurisdictional amount is limited.^ These cases will now be referred to, it being borne in mind that they were decided under the provision limiting the amount to ;^5000. It is manifest that the judgment itself frequently determines the question as to the right so far as the value in controvery is concerned, as, for example, where it is against a defendant and it does not exceed the jurisdictional amount, exclusive of costs. In such a case if he were to prosecute a writ of error the Supreme Court would have no jurisdiction, although the claim of the plaintiff might exceed that sum.* Thus where the plaintiff claimed for the infringement of a patent more than the amount required to entitle him to a writ of error, but obtained a judg- ment for only ;^400, it was held on a writ of error by the defend- ant that the amount in controversy as to him was only ^$400, and that the court had no jurisdiction of the writ.^ 1 Rev. Stat. | 710. * Smith v. Honey, 3 Pet. 469. '^ § 691 as amended by the act of * Gordon v. Ogden, 3 Pet. 33 Feb. 16, 1875. (1830); s. c, Lawyers' Ed. Bk. 7, p. ^ Appeals from the circuit court of 592, note. See also Rodd v. Heartt, appeals to the Supreme Court are 17 Wall. 354 ; Clifton v. Sheldon, 23 limited to cases where the amount in How. 481 ; Wise v. Turnpike Co., 7 controversy, exclusive of costs, ex- Cr. 276. ceeds f 1,000. See a7ite, \ 280. SUPREME COURT — APPELLATE JURLSDICTION. 353 If the judgment below is against the defendant, the amount of the judgment on general principles would fix the amount in con- troversy as to him, in the absence of a counter claim ; but if the judgment be less than the jurisdictional amount for either party, and the plaintiff sues out the writ of error, this court has juris- diction if the damages claimed in the declaration, less the amount of the judgment, exceed that sum. ^ The matter in controversy is the amount at the time the judgment is rendered, and when the right to a review attaches; hence the interest accruing thereafter cannot be added to the judgment in computing the amount in contro- versy.^ The amount in dispute is usually found in the pleadings, but the court will not be confined to them in determining this question of the sufficiency of the matter in controversy, and it is sufficient to defeat the right to review if it otherwise appears in the record.^ In an action upon a money demand where the general issue is pleaded, the value in dispute is the debt claimed and its amount stated in the body of the declaration, and not merely the dam- ages claimed in the prayer for judgment at its conclusion; and if the debt does not exceed the jurisdictional amount the plaintiff is not entitled to a review on a writ of error, although the amount of damages claimed exceeds that sum.* But if an action is ^ Walker v. United States, 4 Wall, judgment actually rendered was for 163 ; Gordon v. Ogden, 3 Pet. T,Ty. an amount which gave the court ^Bank of U. S. v. Daniel, 12 Pet. jurisdiction the writ would not be 32 ; Smith v. Honey, 3 id. 469 ; dismissed on the ground that it Walker v. United States, 4 Wall, should have been for less: B. & O. 163; Western Union Tel. Co., 93 R. Co. v. Griffith, 159 U. S. 603. U. S. 565. In Benson Min. Co. The demand for the amount must V. Alta Min. Co., 145 U. S. 428, appear to have been made in good the district court of a territory faith : Gorman v. Havird, 141 id. 206. awarded a judgment for 14,590.06 Where the amount is raised for the with interest from its date. The Su- purpose of giving the court jurisdic- preme Court of the territory affirmed tion the writ will be dismissed : the judgment. The interest from the North. Pac. R. Co. v. Booth, 152 id. dateof the judgment to its affirmance 671. made the amount over |5,oqo ; and it ^ Gray v. Blanchard, 97 U. S. 564. was held that the Supreme Court had * Lee v. Watson, i Wall. 337; jurisdiction. Where the circuit court Schacker v. Hartford Fire Ins. Co., improperly added interest to a ver- 93 U. S. 241. The amount must be diet, thereby increasing the amount determined by the sum directly in- to over I5, 000, it was held that as the volved in the particular case, and 23 354 FEDERAL PLEADING, PRACTICE AND PROCEDURE. brought to recover less than the jurisdictional amount required on a writ of error, and the defendant pleads a set-off or counter claim in excess of that amount in a state where he is entitled to a judgment for the excess of such a set-off or counter claim, if the judgment is against him he may sue out a writ of error.* The amount of the matter in controversy must exceed the juris- dictional amount, or there would be no jurisdiction on a writ of error; hence if it is precisely that amount, no writ of error lies.^ If the verdict is for more than that amount, and the party in whose favor it is rendered will enter a remittitur for the excess before the entry of a judgment on the verdict, this will defeat any right to the writ, as the amount of the matter in controversy at the time of the judgment entry would be less than the amount required.^ If a judgment is for more than the jurisdictional amount, yet if the cause was tried on an agreed statement of facts in which the defendant admitted that he owed sufficient of the amount claimed to reduce the matter in dispute to less than that sum, no writ of error will lie.* The same general principles prevail where the value of the amount in controversy is an element of jurisdiction in all the various federal courts, whether at law or in equity, and whether on a writ of error or appeal.^ not by contingent loss which may be ^ Ryan v. Bindley, i Wall. 66. incurred by either of the parties by Where a defendant put in a counter reason of the judgment: New Eng- claim for $10,000, and the plaintiff land Mtge. Co. v. Gay, 145 U. S. 123. recovered less than |5,ooo, it was Where the judgment of the lower held that the defendant might take court was for less than |5,ooo it was the case to the Supreme Court : held that the Supreme Court had not Buckstaff v. Russell, 151 U. S. 626. jurisdiction although the decision in- See also Clark v. Sidway, 142 id. 682. volved the validity of a lease and in- ^ Walker v. United States, 4 Wall. directly a sum greater than the juris- 163; Western Union Tel. Co. v. dictional amount: Clay Center v. Rogers, 93 U. S. 565. Farmers' Loan & Tr. Co., 145 id. '• Thompson z'. Butler, 95 U. S. 694. 224. So in a bill to restrain the col- * Tinstman v. First Nat. Bk., 100 lection of a tax, unaccrued taxes U. S. 6. cannot be added : Washington & G. * See ante, ch. viii ; also Yzanga Del R. Co. V. Dist. of Columbia, 146 id. Valie v. Harrison, 93 U.S. 233; Cook 227 ; Trask v. Wanamaker, 147 id. v. United States, 2 Wall. 518. The 149 ; Hollander v. Fechheimer, 162 judgment against the defendant is id. 326; Citizens' Bank v. Cannon, prima facie the amount in contro- 164 id. 319. versy, and this continues until the SUPREME COURT — APPELLATE JURISDICTION. 355 ^Vhe^e the Matter in Controversy is not Susceptible of Valuation. § 327. The matter in controversy must be such as is capable of a pecuniary estimate of its value, otherwise there can be no appellate jurisdiction of the suit. Thus, for example, where the matter in dispute is the right to freedom ; ^ or the right to the custody of a minor child ;^ or whether the defendant below is liable to imprisonment on execution process ; ^ or as to the right of guardianship of the persons and property of children, but not on account of any pecuniary value attached to the office/ — there is in such cases no right of revision on writ of error or appeal, as there is no matter in dispute susceptible of a pecuniary valuation. But it has been held that a " mining claim " in Nevada maybe the subject of a controversy, and of value in money, even though the land on which the claim exists has never been surveyed and brought into market; and if it appears that it is of the requisite value, the Supreme Court will take cognizance of the case upon writ of error or appeal.^ It is not sufficient, as we have noticed, that the value of the matter in dispute is precisely the jurisdictional amount, but it must exceed that sum to give this court jurisdiction; and where the judgment is for that amount in favor of the plaintiff, and the defendant prosecutes in error, the amount in controversy is fixed by the judgment, and this court has no jurisdiction.^ Value a Jurisdictional Fact ; Consent cannot confer Juris- diction. § 328. It is evident that the value of the matter in dispute is an essential jurisdictional fact, and this court will not take cogni- zance of a writ of error or appeal unless it be made in some manner to appear that it is of the value fixed by the statute. contrary is shown : Troy v. Evans, Ritchie v. Manro, 2 Pet. 243. A writ 97 U. S. I. If the value of the of error will not He to a refusal to set amount in controversy is precisely aside a judgment on motion : Connor $5,000, no writ of error lies: Western v. Feugh, 18 How. 394. Union Tel. Co. v. Rogers, 93 U. S. ^ Sparrow v. Strong, 3 Wall. 97. 565. "^ Walker v. United States, 4 Wall. 1 Lee V. Lee, 8 Pett. 44. 163 ; Knapp v. Banks, 2 How. 73 ; "^ Barry v. Mercein, 5 How. 103. Smith v. Honey, 3 Pet. 469 ; Gordon ^ Pratt V. Fitzhugh, i Blatch. 271. v. Ogden, Ibid. 33. * De Kraft v. Barney, 2 Black 704 ; 356 FEDERAL PLEADING, PRACTICE AND PROCEDURE. And it is a general doctrine of the federal courts that consent cannot confer jurisdiction in respect to the value of the amount in controversy/ The statute carefully restricts the appellate jurisdiction of this court, and where this is wanting, or is not made to appear from the record, it will not examine into the questions presented in a case by the consent of parties or on the request of counsel.^ "Where the Value of the Matter in Controversy does not Appear on the Record. § 329- In some cases it is not essential that the value of the matter in controversy be stated in the declaration or other plead- ing; as, for instance, in cases of replevin, and of proceedings for a writ of mandamus, and in suits in ejectment and for dower. On a writ of error or appeal in such cases, the practice is to allow affidavits in the Supreme Court to show the value of the matter in the controversy.^ But this will not be allowed on appeal after the cause has been dismissed for want of jurisdiction apparent upon the record.* The same practice prevails in admir- alty cases; and where it does not appear from the record in those cases what the value of the interest of the appellant is, he will ' Kelsey v. Forsyth, 21 How. 85; and the stipulation showed that more Guild V. Frontin, 18 id. 135; Suy- than |i, 000 was involved in the main- dam V. Williamson, 20 id. 428; tenance of the agreement of associa- Sampson v. Welsh, 24 id. 207. But tion, and that the court had jurisdic- see Arthurs v. Hart, 17 id. 6; tion : U. S.z'. Trans-Missouri Freight Shankland v. Washington, 5 Pet 390 ; Assn., 166 U. S. 290, 310. Railroad Co. v. Ramsey, 22 Wall. 322. - Mills v. Brown, 16 Pet. 525 ; The A stipulation between the parties, with Lucy, 8 Wall. 307; The Nonesuch, other facts in the record, maybe con- 9 id. 504; Pennsylvania v. Quick- sidered as sufficient proof of the silver Co. , 10 id. 558 ; Railway Com- amount in dispute. A bill was brought pany t', Ramsey, 22 /t/. 322; Walker to dissolve an association of railroads v. Taylor, 5 How. 64. for the regulation of freight rates. ^ Rush v. Parker, 5 Cr. 287 ; Ex The parties stipulated "that the daily parte Bradstreet, 7 Pet. 634; Course freight charges on interstate ship- v. Steadman, 4 Dall. 22. See also ments collected by all the railway Peyton v. Robertson, 9 Wh. 527 ; companies at points where they com- Cooke v. Woodrow, 4 Cr. 13 ; Carr v. pete with each other were at the time P'ife, 156 U. S. 494 ; U. S. v. Trans- of the agreement mentioned in the Missouri Freight Assn., 166 /o'. 290. pleadings herein and have been since, * Richmond v. Milwaukee, 21 How. more than |i, 000." The court held 391. that the facts appearing in the record SUPREME COURT — APPELLATE JURLSDICTION. 357 be permitted in this court to make proof that his interest exceeds the jurisdictional sum, and allowed time therefor.' "When the Value stated in the Pleadings is Conclusive. § 330. Where the declaration or bill states the value of the property or interest in controversy, this is held to be conclusive of that fact, and affidavits will not, generally, be received to show the property or interest of more value." Where there was a claim on a fund in the registry of the admiralty of several mort- gagees secured by one mortgage, and the fund exceeded the jurisdictional amount, it was held that an appeal would lie to this court by the mortgagees in a body, though the claim of no one of them exceeded that sum.^ But where a decree was made by the circuit court sitting in admiralty that two persons should pay a certain amount of freight in different sums, neither of which amounted to the sum that gave the right of appeal, though the sums decreed to be paid by both exceeded that amount, the court, on appeal by one of the parties, held that it must be dis- missed for want of jurisdiction, as the rights of the two were distinct and independent, and that if the freight was a joint matter, both should have joined in the appeal.^ So where, in proceedings under libels in admiralty, for seamen's wages, the circuit court adjudged that there was due the libellants over ;^32,ooo from the respondents, and a separate decree was entered for the amount due each libellant respectively, but none of the sums thus decreed amounted to the jurisdictional sum required for an appeal, and from these separate decrees the respondents in the circuit court prayed an appeal to this court, and gave a separate appeal bond upon the appeal from each, as well as a joint appeal from the whole, the appeal was dismissed, upon the ground that the sum in controversy in each case was less than the amount required to confer jurisdiction on this court.' ' The Grace Girdler, 6 WalL 441 ; several persons claim under the same Richmond z/. Milwaukee, 21 How. 391. title, the court has jurisdiction, al- ^ Richmond v. Milwaukee, 21 How. though each claim is less than the 391; Brown v. Shannon, 20 id. 55; jurdisdictional amount; but where Bankof Alexandria z'.Hooff, 7 Pet. 16S. the claims are separate and distinct ^ Rodd V. Heartt, 17 Wall. 354. and merely joined for convenience the * Clifton V. Sheldon, 23 How. 4S1. court has no jurisdiction over claims ^ Oliver v. Alexander, 6 Pet. 143. under |5,ooo : New Orleans Pac. R. Where the validity of a title exceed- Co. v. Parker, 143 U. S. 42, and see ing |5,ooo in value is involved, and Chapman v. Handley, 151 id. 443. 358 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The same doctrine applies in proceedings by a libel for salvage, and in proceedings /;/ ron generally. When separate claims are interposed for salvage, although the libel is joint against the whole property, each claim is treated as a separate and distinct proceeding. In form it is joint, but in its nature and effect it is a several suit of each claimant, upon which there may be a separate and independent hearing and decree. It follows, therefore, in such cases, that to entitle the claimants to an appeal there must be the jurisdictional amount required as to each of the claimants/ Final Judgments and Decrees. § 331. In order that a writ of error or an appeal may be taken to the circuit court of appeals or to the Supreme Court, the judgment or decree of the lower court must be final. A judg- ment or decree is final when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to execute the judgment or decree.^ A decree by con- sent is a final one from which an appeal may be taken. ^ 1 1 StraUon v. Jarvis, 8 Pet. 4. "^ Talley v. Curtain, 8 U. S. App. 424 ; Dufour v. Lang, 2 id. 477 ; Tex. & Pac R. Co. V. Gentry, 163 U. S. 353 ; Butterfield v. Usher, 91 id. 246 ; Sage V. Railroad Co. 96 id. 712 ; Ful- ler V. Claflin, 92 id. 14. A decree granting an injunction and ordering an account before a master was held not to be final : Keystone Manganese and Iron Co. v. Martin, 132 U. S. 91; in this case the decisions are reviewed at length by Mr. Justice Blatchford. See also Lewisburg Bank v. Sheffey, 140 id. 445 ; Hohorst v. Hamburg- Amer. Packet Co., \\Zid. 262. Where the decree of the circuit court does not secure to a party the relief to which the decision of the Supreme Court entitles him, the decree is not final; the circuit court cannot by a partial compliance lose the power to obey the mandate of the Supreme Court to its full extent: Moran v. Schooling, 29 U. S. App. 71. See as to decisions determining a collateral matter. Brush Electric Co. V. Cal. Elec. Lt. Co., 7 U. S. App. 208. ^ Pacific Railroad v. Ketchum, loi U. S. 289. Where a libel was ordered to stand dismissed if not amended within ten days, and an appeal was taken, it was held that the taking of the appeal was an election to waive the right to amend, that the decree of dismissal took effect immediately and was a final decree from which an appeal might be taken : The Three Friends, 166 U. S. i. For examples of final decisions see Cent. Tr. Co. v. Hiawassie Co. 2 U. S. App. i ; New Orleans v. Peake, Ibid. 403 ; Duff v. Carrier, 3 id. 552 ; Rust v. United Waterworks Co. (8th Circ), 70 Fed. Rep. 129; Stanley v. Roberts, 19 U. S. App. 407 ; Gunn v. Black, Ibid. 489 ; Cent. Tr. Co. v. Madden, 25 id. 430 ; Salmon v. Mills, 27 id. 732. I SUPREME COURT — APPELLATE JURISDICTION. 359 Where a decree in admiralty was made that a sum of money was due, without ascertaining the amount of money or decree- ing its payment, it was held that this was not a final decree, and the appeal therefrom was dismissed on that account' But a decree setting aside certain deeds as fraudulent and void ; that certain lands and personal property should be delivered to com- plainant ; and that arf account of profits should be taken ; and further providing that the bill be retained for certain matters re- ferred to a master for a report, and that as to other matters it be dismissed without prejudice, was held to be a final decree within the meaning of the statute.^ And a decree deciding the right to property in controversy and directing it to be delivered by the defendant to the complainant, and providing for its immediate execution, but leaving some accounts to be adjusted in pursu- ance of the decree, was held to be a final decree within the statute.^ If the decree does not settle the rights of the parties to the controversy, nor substantially determine the rights of the parties under the pleadings, it is not a final one from which an appeal can be taken. Thus, no appeal can be taken from a decree for costs alone;* or from an order refusing to permit a person to intervene ;^ or from a decree denying a motion to consolidate two cases, or refusing to make a person a party defendant,*' or from a decree of the circuit court, affirming a decree of the dis- trict court, enjoining proceedings under a treasury warrant of distress;^ or from an order of the circuit court refusing to re- lease a party on a writ of habeas corpus ; ^ or from an order dis- barring an attorney;^ or from an entry of a decree merely in pursuance of a mandate \^^ or from a decree directing a defend- ' Montgomery v. Anderson, 21 properly awarded : Citizens' Bank y. How. 386. Cannon, 164 id. 319. ^ Forgay v. Conrad, 6 How. 201. * ^^/^r/^ Cutting, 94 U. S. 14. See also Michoud v. Girod, 4 id. 503 ; " In re Streett, 8 U. S. App. 645. Whiting V. Bank of U. S., 13 Pet. 15. ' United States, v. Nourse, 6 Pet. ^ Thompson v. Dean, 7 Wall. 342. 470. *■ Elastic Fabric Co. v. Smith, 100 ^ In re Philip Henrich, 5 Blatch. U. S. no; City Bank of Fort Worth 414. V. Hunter, 152 id. 512; Du Bois v. « ^Ir/iar/^ Robinson, 19 Wall. 513. Kirk, 158 id. 58 ; but where the appeal ^^ United States v. Fremont, 18 How. is taken on other grounds the court 30 ; Corning v. Troy Iron, etc., Fac- may consider whether costs were tory, 15 id. 451 ; United States v. 360 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ant to execute a conveyance of certain property, and referring the case to a master to take an account of the rents and profits;' or from a decree declaring an assignment for the benefit of creditors void, and referring the cause to a master to take an account of the property;- or from a decree for the sale of prop- erty to enforce a lien, which does not ascertain the property nor the amount of the debt ;^ or from a decree dissolving an injunc- tion without dismissing the bill ;^ or from an order refusing to set aside a decree ;'' or from a decision upon an application to set aside a decree and permit a party to except to a master's re- port ■,^ or from an order refusing to grant a rehearing ;^ or from a decree either maintaining or dismissing a cross-bill ;** or from a decree upon a cross-bill made before the final decree upon the original bill f or from an order appointing a receiver ; '" or from an order appointing commissioners to assess damages for land taken by a bridge company ;'' nor from an order of a circuit court remanding a cause to a state court,'^ or refusing to re- mand;''^ but if a motion to remand be made and refused, the action of the circuit court may be reviewed after final judgment.'* A decree in contempt proceedings ordering the petitioner to be imprisoned is not reviewable;'^ nor is a refusal to quash a writ or indictment on motion;'^ nor are discretionary motions, such Fossalt, 21 id. 445. Where an appel- ' Cambuston z'. United States, 95 late court remands a case to the lower U. S. 285. court for further proceedings in con- ** Ayres p. Carver, 17 How. 591. formity with its opinion, the decree is •' Ex parte Railroad Co., 95 U. S. not final: Union Mut. Life Ins. Co. 221. V. Kirchoff, 160 U. S. 374. See also ^^ Fla. Construction Co. v. Young, Rice V. Sanger, 144 id. 197; Meagher 11 U. S. App. 683. V. Minn. Thresher Mfg. Co., 145 id. " Luxton v. North Riv. Bridge Co., 608. 147 U. S 337. ^ Beebe v. Russell, 19 How. 283. ^'^ In re Coe, 5 U. S. App 6 ; Jay v. * Pullian V. Christian, 6 How. 209. Adelbert College, 146 U. S. 355. ^ Railroad Co. v. Swasey, 23 Wall. ^^ Bender v. Pennsylvania Co., 148 405. U. S. 502. * Hiriat v. Ballon, 9 Pet. 156; " Mo. Pac. R. Co. z^. Fitzgerald, 160 Thomas v. Wooldridge, 23 Wall. 283. U. S. 556. * Brockett v. Brockett, 2 How. 238 ; '^ Kingi/. Wooten, 2 U. S. App. 651 ; Wylie V. Coxe, 14 id. i ; McMickin v. In re Debs, 158 U. S. 564. Perin, 18 id. 507. '* Loeber v. Schroeder, 149 U. S. * Terry v. Commercial Bank, 92 U. 580; Durland v. U. S., 161 id. 306. S. 454- I SUPREME COURT — APPELLATE JURISDICTION. 361 as motions for new trials, continuances and the like reviewable ; ' nor an order of the circuit court to quash an execution ;" or a decision of the court upon a rute or motion;^ or a judgment upon a demurrer to some parts of a replication, and a motion to strike out other parts, still leaving in the replication some essen- tial allegations ; * where a bill is dismissed as to one defendant who had demurred, but is undisposed of as to other defendants who had answered, the decree is not final.'^ An appeal does not lie from a decision upon a motion made to dissolve an injunction.*' Nor does it lie from the decision of the circuit court, in the exercise of its revisory powers, over the decisions of registers in bankruptcy relating to the adjustment of priorities of creditors and conflicting interests in a bankrupt's estates, taken on appeal to the circuit court, under the provisions of the late Bankrupt Act' When there was a decree in chancery in the circuit court, in which there was a reference to a master to ascertain the amount " N. Y. & Tex. Steamship Co. v. Anderson, i U. S. App. 176; INIorn- ing Journal Assn. v. Rutherford, Jdid. 296; Southwest Va. Imp. Co. w. Frari, 8 i(i. 444 ; Nor. Pac R. Co. v. Conger, 12 id. 240; Walton v. Chic. H. P. M. & O. R. Co., 12 id. 511; Davis v. Patrick, 12 id. 629 ; Marco v. Hicklin, 15 ^^- 55 ; Dietz v. Lymer, 19 id. 663; Mack 57. Porter, 25 id. 525 ; Cent. Vt. R. Co. V. Bateman, 26 id. 584 ; Edward P. Allis Co. V. Columbia Mill Co., 27 id. 583; Cox V. Hart. 145 U. S. 376; Max. Centr. R. Co. v. Pinkney, 149 id. 194 ; Wheeler v. U. S., 159 id. 523 ; Bucklin v. U. S-, Ibid. 682 ; Goldsby V. U. S., 160 id. 70 ; Addington v. U. S., 165 id. 184. ^ McCargo v. Chapman, 20 How. 555 ; Boyle z'. Zacherie, 6 Pet. 64S ; Early v. Rogers, 16 How. 599. ■''Toland v. Sprague, 12 Pet. 300; Brooks v. Hunt, 17 John. 484; Dos- well V. De La Lanza, 20 How. 29 ; Henderson v. Moore, 5 Cr. 12; Barr z'. Gratz, 4 Wh. 220 ; Marine Ins. Co. V. Hodgson, 6 Cr. 206. * Holcombe i'. McKusick, 20 How. 552. If a circuit court on motion dis- miss a suit on the ground that it has no jurisdiction, a writ of error will not lie to revise the judgment : In- surance Co. V. Comstock, 16 Wall. 258; Railroad Co. v. Wiswall, 23 id. 507. * Bank of Rondout v. Smith, 156 U. S. 330. See also Hohorst z'. Ham- burg Amer. Packet Co., 148 id. 262. For examples of decisions held not to be final, see Dudley E.Jones Manufg. Co. V. Munger Manufg. Co., 2 U. S. App. 188; Hamner v. Scott, 19 id. 639 ; Merriman v. Chic. & E. I. R. Co., 24 id. 428; Porter v. Davidson, 25 id. 353 ; Elder v. McCloskey, 37 U. S. App., 199 ; Lockwood v. Wickes (8th Circ). 75 Fed. Rep. 118 ; Beak & Pauli Lith. Co. v. Wacker & Birk B. & M. Co. (7th Circ), 76 id. 10. ^ Collum V. Eager, 2 How. 61 ; Ver- den V. Coleman, 18 id. 86; Gibbons r. Ogden, 6 Wh. 448. ' Hall V. Allen, 12 Wall. 452. 362 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of damages sustained by the plaintiff for an infringement of a patent right by the defendant, and the decree perpetually enjoined the further use of it by the defendant, but did not decree the pay- ment of costs, they and all other questions in the cause being reserved until the coming in of the report of the referee, it was held that this was not a final decree from which an appeal would lie to this court.' The decree must be filed in order to give jurisdiction on appeal. Therefore where a decree was made in admiralty that a sum of money was due, but the amount was not determined at the time of the appeal and no order made for its payment, it was held on appeal that this was not a final decree from which an appeal could be taken, and that it could not be cured by any amendment in the Supreme Court' But where a decree decided the rights of liti- gants to the property in controversy, and entitled the complainant to have it carried into execution, but left certain accounts to be adjusted between the parties in pursuance of the decree, this was held to be appealable.^ So a decree entered at chambers for the foreclosure of a mortgage and a sale of the mortgaged property pursuant to a power contained in a mortgage importing a con- fession of judgment on non-payment, and under a proceeding in Louisiana called " executory process," was held to be a final decree and appealable.* So when a decree was m.ade setting aside certain deeds as fraudulent and void, and that certain lands and slaves be delivered up to the complainant, and that the master should take and report an account of the rents and profits of the lands and slaves and of certain money and notes, retaining the bill for this latter purpose, this was held to be a final decree from which an appeal could be taken, as the determination of 'Bernard v. Gibson, 7 How. 650. injunction to restrain infringements of Suits at law can only be brought to a patent, and for an account and a the Supreme Court by a writ of error, reference to a master to take and and not by appeal : Sarchet v. United state the same and report thereon. States, 12 Pet. 143; Parish v. Ellis, was held not to be appealable: Hu- 16 id. 451; United States v. Good- miston v. Stanthorp, 2 Wall. 106; win, 7 Cr. 108. Bernard v. Gibson, 7 How. 650. 2 Montgomery z/. Anderson, 21 How. * Marin v. Lalley, 17 Wall. 14. See 336. also Bronson v. Railroad Company, * Thompson v. Dean, 7 Wall. 342. 2 Black 524; Whiting z'. Bank of U. But a decree awarding a permanent S., 13 Pet. 15. SUPREME COURT — APPELLATE JURISDICTION. 363 the question of title to the lands and slaves was a final one within the meaning of the statute/ But appeals cannot be taken from merely interlocutory orders ;^ or from the decision of a court as to the terms on which an amendment will be allowed on sustaining a demurrer to a bill;^ or from the decision of a court adjusting priorities and conflicting interests in a bankrupt's estate ; ' or from a decree reversing a decree in the court below for the foreclosure of a mortgage and remanding the cause back for a new trial;^ But an appeal will lie from a decree of the circuit court confirming a sale made by its previous order, which disposes oi the whole matter of the suit.'' ^ Forgay v. Conrad, 6 How. 201. ^ Forgay v. Conrad, 6 How. 201. See also Ex parte Cutting, 94 U. S. 14. * Sheets v. Seldon, 7 Wall. 416. * Hall V. Allen, 12 Wall. 452 ; Mor- gan z^. Thornhill, 11 id. 65; Mead v. Thompson, 15 id. 635. '" Moore v. Robbins, 18 Wall. 588 ; Tracy v. Holcomb, 24 How. 426; Brown v. Union Bank, 4 id. 465. * Sage V. Railroad Company, 96 U. S. 712 ; Blossom v. Railroad Com- pany, I Wall. 655; Butterfield v. Usher, 91 U. S. 246. 364 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XV. APPELLATE PROCEDURE. All the Parties Must Join in a ^A/^^it of Error or Appeal. § 332. Having considered the jurisdiction of the Supreme Court on writs of error and appeals, we come now to the subject of appellate procedure. With regard to the circuit court of appeals it is provided by rule of court that the practice in that court shall be the same as in the Supreme Court as far as that shall be applicable, and that the process shall be in like form and tested in the same manner as process of the Supreme Court.^ Hence we shall consider the two courts together in discussing this question of procedure. It is essential that all the parties against whom a joint judg- ment has been rendered should join in the application for a writ of error or in the appeal, unless sufficient cause be shown for the non-joinder.^ If one of two parties refuses to join in a writ of error, the other party may issue a writ of summons, by which the party refusing to join may be brought before the court; and if he still refuses, an order or judgment of severance may be made by the court, in which case the party desiring to prosecute a writ of error or appeal can do so alone. The effect of the judgment of severance is that the party refusing to proceed is ' Circ. Ct. of App. Rules 8 and 9. tiff in error and not the initial letter See Mercantile Trust Co. v. Wood, thereof only : Walton 7j. Marietta 19 U. S. App. 567. Chair Co., 157 U. S. 342. The act of ■^Williams v. Bank, 11 Wh. 414; March 3, 1875, ch. 137, ^ 9, 18 Stat. L. Masterson v. Herndon, 10 Wall. 416 ; 470, i Supp. R. S. 85, regulates pro- Hampton V. Rouse, 13 ill. 187 ; ceedings where one of the parties to Simpson v. Greeley, 20 id. 152; a final judgment or decree in the cir- O'Dowd V. Russell, 14 id. 402; cuit court has died before the time Hedges v. Seibert. etc., Co., 3 U. S. for a writ of error or appeal has ex- App. 25. A writ of error should pired. And see Gen. Rule 15, Circ. state the Christian name of the plain Ct. of App. Rule 19. SUPREME COURT — APPELLATE PROCEDURE. 365 barred from prosecuting the same right in another action, and the defendant in the writ of error cannot be harassed by a subse- quent suit or proceeding for the same cause of action, by the party thus refusing to unite in the application for the writ, it being joint in its nature.^ But there are cases where, although there are several parties defendant, one of them may bring a writ of error without joining the others. For example, where a suit was brought by the plaintiffs against a defendant to recover a balance due for work and materials furnished in building a house, and to enforce a lien therefor against the house and the lot on which it was situated; and several other parties who " had or claimed to have some interest claim or lien on the encumbered premises," as stated in the peti- tion or bill, were made defendants ; but it was also claimed by the plaintiff in his said petition or bill that " their interest, claim or lien, if any, had accrued subsequently to that of plaintiffs ; " and it prayed for a personal judgment only, against the party for whom the work and materials were furnished, and that the other defendants be barred and foreclosed of all right, claim, lien, etc., in, on and to the premises, and that the premises be decreed to be sold, etc., and a judgment was rendered against the defendant first above mentioned in personam, for the debt, and a decree entered that the premises should be sold, etc., and to this judg- 1 Simpson w. Greeley, 20 Wall. 152 ; of a decree rendered in the lower Mussina v. Cavazos, 6 id. 355 ; Mas- court : Mail Co. v. Flanders, 12 Wall, terson v. Herndon, 10 Wall. 416 ; 130. And see The Stephen Morgan, Williams v. Bank of the U. S., 11 94 U. S. 599; Groves v. Sentell, 153 Wh. 414; Todd V. Daniel, 16 Pet. id. 465; U. S. v. Blackfeather, 155 id. 521; Wilson z'. Insurance Co., 12 id. 180; Cherokee Nation z/. Blackfeather, 140; Brooke's Abr. 238,///?. "Sum- Ibid. 218; U. S. v. Perry, 4 U. S. mons and Severance;" 2 RoUe's App. 386; Calder v. Henderson, 2 Abr., tit. same, 488; Arch. Civ. id. 62T. As, under the act of March Plead. 54; Tidd's Prac. 129, 1136, 3, 1875, ch. 137, it was in the power 1 169; Deneal v. Archer, 8 Pet. 526 ; of the court to re-arrange the parties Smyth V. Strader, 12 How. 327; and place them on different sides ac- Hardee v. Wilson, 146 U. S. 179 ; cording to the actual facts, it is to be Inglehart v. Stansbury, 151 id. 68 ; assumed that that power was exer- Davis V. Mercantile Trust Co., 152 cised by the court below, and its ac- id. 590; Sipperley z'. Smith, 155 id. tion in that respect is not reviewable 86 ; The Columbia, 29 U. S. App. 647. in the Supreme Court : Evers v. Wat- No one but an appellant can be heard son, 156 U. S. 527. in an appellate court for the reversal 366 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ment the latter sued out a writ of error, it was held by the Supreme Court that the judgment was of such a separate char- acter as authorized him to ask to have it reviewed in the latter court, without joining with him his co-defendants in the court below/ And, in general, where a decree is several as to different defendants and the interest represented by each is separate and distinct from that of the others, any party may appeal separately to protect his own interests.^ Proper Parties on the Record. § 333. A judgment will not be re-examined upon a writ of error unless there are proper parties to it. An inanimate object, like a vessel, has not the legal capacity to prosecute legal pro- ceedings in the federal courts ; and hence it cannot prosecute a writ of error or appeal. But in proceedings in rem, if a person claims the thing or its proceeds, he becomes a party to the pro- ceedings, and has all the rights in respect to a writ of error or an appeal that any other party has.^ One who was not a party to the original proceeding cannot appeal unless he shows that he has been admitted as a party by the express order of the court, or has been treated as a party to the record.* Bill of Exceptions. § 334. The exceptions to the rulings of the court below must be taken at the time and stated in the bill of exceptions or they will not be considered in the appellate court.^ They should also be specifically and fully set out.'' A defence not considered nor "Germain v. Mason, 12 Wall. 259. U. S. v. Goodrich, 12 id. 108 ; Bracken ^Giimian v McKee, 159 U. S- 303. v. Un. Pac R. Co. Ibid. 421; Masonic 3 Steamboat Burns, 9 Wall. 237. Benevolent Assn. v. Lyman, 18 id. *Ex parte Cutting, 94 U. S. 14; 5o7 ; Terre Haute & I. R. Co. v. Sage V. Central R. Co., 93 id. 412; Mansberger, 24 id. 551. See as to ^.ar/ar/^ Jordan, 94 zrf. 248. waiver of exceptions: Campbell v. ^ Allis V. U. S., 155 U. S. 117 ; Bos- Haverhill, 155 U. S. 610. ton & Albany R. Co. v. O'Reilly, 158 ^ Ward v. Cochran, 150 U. S. 597 ; id. 334 ; Claasen v. U. S., 142 id. 140 ; Bogk v. Gassert, 149 id. 17 ; Hick- Topliflf z'. Topliff, 145 id. 156; Tex. ory v. U. S., 160 id. 408; Shaner & Pac. R. Co. V. Volk, 151 id. 73; v. Alterton, 151 id. 607 ; Buckstaff z/. Hickory v. U. S., Ibid. 303 ; Wasatch Russell, Ibid. 626 ; Newport News & Min. Co. V. Crescent Min. Co., 148 zrf. Miss. Val. Co. v. Pace, 158 id. 36 ; 293 ; Tucker v. U. S., 151 id. 164 ; St. Thiede v. Utah Ty., 159 id. 510; Un. Clair V. U. S., 154 id. 134; Herrick v. Pac. R. Co. v. Callaghan, 161 id. 91 ; Tripp G. L. Co., 5 U. S. App. 507 ; South Carolina v. Wesley, 155 id. SUPREME COURT — APPELLATE PROCEDURE. 367 determined in the lower court may not be urged in the Supreme Court or circuit court of appeals.^ A bill of exceptions may- be signed after the expiration of the term at which judgment was rendered, if the parties agree or the court orders an exten- sion of the time for its presentation.^ It cannot be used to bring up the whole testimony in a case.^ Time for Review Limited. § 335. The time within which a writ of error may be prose- cuted or an appeal taken in a civil action at law or in equity is limited to two years after the entry of the judgment, decree or order, except where the party entitled to prosecute a writ of error or to take an appeal is an infant, or insane, or imprisoned, in which case the writ may be prosecuted or the appeal taken within two years after the judgment, decree or order is entered, exclusive of the term of such disability.* The writ of error must be brought or the appeal taken within two years, except in the cases above stated; and a writ of error is not brought, within the meaning of the statute, until it is filed in the court where the judg- ment, decree or order was entered. It is not sufficient that the writ is tested or issued within the time limited, but all the steps necessary for the perfecting of the right to a writ or an appeal, on the part of the party desiring a review of the decision, must be taken.* The language of the section of the Revised Statutes just cited is that " no judgcnent, decree or order of a circuit or district court in any civil action at law or in equity shall be reviewed in the Supreme Court on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years 542 ; Red River Cattle Co. v. Sully, 163 id. 468. 144 ?V/. 209. AndseeCir. Ct. ofApp. * Rev. Stat. \ 1008. A bill of re- Rules 10 and 12. view must be filed within the time ^U. S. Nat. Bk. V. First Nat. Bk., 27 allowed by this section for an appeal, U. S. App. 750 ; Newman v. Schwe- unless special reasons are shown : rin, 22 id. 393. As to the authentica- Rector v. Fitzgerald, 19 U. S. App. tion of the bill of exceptions under 423. Rev. Stat. ^ 953, see Cooke sy. Avery, * Brooks v. Norris, 11 How. 204. 147 U. S. 375. Objection may be taken by motion : '^Waldron v. Waldron, 156 U. S. Ib^d. A rebellion in the state where 361 ; U. S. V. Jones, 149 id. 262. the court sits suspends the limitations ^St. Louis V. West. Un. Tel. Co., during its continuance: The Protec- 166 U. S. 3S8 ; Grayson v. Lynch, tor, 9 Wall. 6S7. 368 FEDRRAL PLEADING, PRACTICE AND PROCEDURE. after the entry of such judgment, decree, or order," etc. The entry of a "judgment, decree or order" here referred to has been construed to mean such a one as substantially disposes of the whole case, and not a mere preliminary, discretionary or inci- dental judgment, or an interlocutory order or decree, which does not thus dispose of the matter in controversy/ In all cases under section 6 of the circuit courts of appeals act not made final in the circuit courts of appeals, the appeal or writ of error to the Supreme Court must be taken or sued out within one year after the entry of the order, judgment or decree sought to be reviewed." Want of Jurisdiction Apparent of Record. § 336. If it is apparent on the record that the appellate court has no jurisdiction of an appeal, it will dismiss it without any motion for that purpose, and even if both parties should oppose it;^ and in such a case an appellant may of course have it dis- missed on motion therefor, even though it be resisted by the appellee.* And where the Supreme Court has once reviewed a case, and a mandate has been issued and a judgment entered in the circuit court in accordance with such mandate, an appeal therefrom will be dismissed with costs, on motion of the appellee, as a matter of course.^ If an appeal has been once dismissed, it cannot be redocketed without a new appeal;^ and if an appeal is not allowed in open court at the term at which it was rendered, it will be dismissed, where no citation has been issued and the appellee does not appear.^ Right of the Appellant to Dismiss an Appeal. § 337. An appellant has the right to dismiss his appeal, and this right could be exercised at any time before the submission of the cause, unless the adverse party should also appeal ; and even though resisted by the other side.~^ ' Forgay v. Conrad, 6 How. 201; ham v. First Nat. Bk., 10 U. S. Whitney v. Bank of U. S., 13 Pet. 15 ; App. 485. Michoud V. Girod, 4 How. 503. * Latham's Appeal, 9 Wall. 145. '' Act of March 3, 1891, ch. 517, ?, 6, '" Stewart v. Salamon, 97 U. S. 361. 26 Stat. L. 826, I Supp. R. S. 904. " Rogers v. Law, 21 How. 526. ■■'Gruner v. United States, 11 How. ' Vansant v. Gaslight Co., 99 U. S. 163; Sampson v. Welsh, 24 id. 213. 207 ; The Lucy, 8 Wall. 307 ; Mer- - Latham's Appeal, 9 Wall 145. It rill V. Petty, 16 Wall. 338; Burn- is irregular for appellant's counsel to SUPREME COURT — APPELLATE PROCEDURE. 369 When Dismissed of Course. § 338. If an appeal is not allowed in open court at the term at which the decree was rendered, and no citation has been issued, the appeal will be dismissed, even though the appellee does not appear ;^ and the appeal from a decree of the circuit court entered in accordance with a mandate of the appellate court will of course be dismissed on motion of the appellee, as the matter, having once been determined by the court, could not be reheard and determined in this way.^ Appeals Cannot be Taken in the Name of a Steamboat or a Partnership. § 339. An appeal must be taken in the name of some person. An inanimate object, like a steamboat or other vessel, has no capacity to prosecute legal proceedings or to take an appeal, even where the proceedings are in admiralty and in rem} Nor can an appeal be taken in a partnership name where the record does not set forth the names of the parties to it. The doctrine is the same in this respect whether the proceeding is by writ of error or appeal, or in equity, admiralty or prize cases. In all these cases the names of the individual parties to the suit or proceeding must be stated, and where the interest is joint, as we have already seen, all those on the same side must join in the appeal. Where in admiralty the appeal was taken by and in the name of " William A. Freeborn & Co.," this court, on motion to dismiss for want of jurisdiction, sustained the motion and refused to allow the appellant to amend the petition of appeal, citation, bond or the libel.* So where, in a writ of file, with a motion to dismiss, the ap- the appeal : IMills v. Green, 159 U. S. peal papers stating the grounds on 651. which the motion is made: U. S. v. ^ Stewart v. Salamon, 97 U. S. 361. Griffith, 141 U. S. 212. A cause dismissed under a rule of ^ Vansant f . Gaslight Co., 99 U. S. court cannot, at a subsequent term, 213. When, pending an appeal from be redocketed without a new appeal: the judgment of a lower court and Rogers v. Law, 21 How. 526. without any fault of the defendant, ^ Steamboat Burns, 9 Wall. 237. an event occurs which renders it im- * The Protector, 11 Wall. 82. See possible for the appellate court, if it also Smith v. Clark, 12 How. 21; should decide the case in favor of the O wings v. Kincannon, 7 Pet. 399; plaintiff, to grant him any effectual Porter f. Foley, 21 How. 393; Hodge relief, the court will not proceed to a v, Williams, 22 id. 87 ; Williams v. formal judgment, but will dismiss Bank, 11 Wh. 414. 24 370 FEDERAIv PLEADING, PRACTICE AND PROCEDURE. error, the parties were described as Holliday et alv. Boston ct al., the same rule was applied.^ Writ of Error upon an Agreed Case. § 340. It is the well-estabHshed practice in this country, and especially in the federal courts, to take the judgment of the court upon a case stated, or an agreed statement of facts. In such cases it is usual for counsel representing their clients to sign the statement, which becomes a part of the record of a cause, and a writ of error will lie from a decision thereon, if it is an agreement of ultimate facts, and not the mere evidence of the facts. In this respect it is in the nature of a special verdict. Like a special verdict, if it is ambiguous or imperfect, if it contains only the evidence of facts and not the facts themselves, or contains only a part of the facts in issue essential to be shown,^ and is silent as to others, this court will remand the case for a new trial.^ There would in such a case be nothing from which the court could determine whether the judgment is consistent with the facts. But where the ultimate facts relating to the points in issue are properly admitted in the court below, the judgment of the court below, based upon such stated case, may be here reviewed on a writ of error, without a bill of exceptions.* The Writ and Record. § 341. When a writ of error is allowed it will be issued by the clerk of the court, as we shall hereafter more particularly notice, ^ Holliday v. Boston, 4 How. 645. a stipulation of counsel as to evidence See also Deneale v. Stump, 8 Pet. bearing on a finding of the court be- 526 ; Wilson v. The Life and Trust low : Fort Worth City Co. v. Smith Ins. Co., 12 id. 140; Davenport v. Bridge Co., 151 id. 294. Fletcher, 16 How. 142. '^ Graham v. Bayne, 18 How. 60 ; ^Norris v. Jackson, 9 Wall. 125; Prentice v. Zane, 8 2^.481; Burr v. Insurance Co. v. Tweed, 7 id. 44. Des Moines Co., i Wall. 99. Where some facts are agreed to and * Stimpson v. Railroad, 10 How. there is oral testimony as to others 329; United States v. Eliason, 16 Pet. and the trial court makes a ruling of 291 ; Ingle v. Coolidge, 2 Wh. 363 ; law on a point not affected by the Miller v. Nichols, 4 id. 311 ; Shank- oral testimony, the appellate court land v. Washington, 5 Pet. 390. For may consider it, notwithstanding the the practice of the Supreme Court on fact that there was only a general acertificateof division of opinion, see finding of facts: St. Louis v. West, chapter viii. .J?(/>ra. For writs of error Un. Telegr. Co., 148 U. S. 92. The and appeals where cases are tried Supreme Court cannot take notice of without a jury, see the same chapter. SUPREME COURT — APPELLATE PROCEDURE. 371 signed by him and under the seal of the court. ^ It is the duty of the clerk to which it is directed to make return thereto, and to annex to and return with the writ, " at the day and place men- tioned, an authenticated transcript of the record, and assignment of errors, and a prayer for reversal, with a citation to the adverse party;" ^ and in all cases brought to the Supreme Court by writ of error or appeal, the clerk of the court by which the judgment or decree was rendered is also required to annex to and remit with the record a copy of the opinion or opinions filed in the case ; and no cause will "be heard until a complete record, con- taining in itself, and not by reference, all the papers, exhibits, depositions and other proceedings which are necessary to the hearing in this court, shall be filed." ^ In the circuit court of appeals the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of error shall set out the part referred to in totidem verbis whether it be in instructions given or in instruc- tions refused. Such assignment of errors shall form part of the transcript of the record, and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.* ^ Gen. Rule 8. 36 as to the allowance of appeals or ^ Rev. Stat. I 997. writs of error in such cases. The ^ Gen. Rule 8, par. 2 and 3. transcript on an appeal to a circuit * Circ. Ct. of App. Rule 11. Gen. court of appeals need not always Rule 35 makes the same provision in contain all the proofs, entries, papers the Supreme Court where an appeal and proceedings below. See Nashua or writ of error is taken from a dis- & L. R. Corp. v. Boston & Lowell trict or circuit court direct to that Corp., 21 U. S. App. 50. As to the court under ? 5 of the circuit courts transmission of the copy, filing the of appeals act. And see Gen. Rule record, etc., see Circ. Ct. of App. Rule 372 FEDERAL PLEADING, PRACTICE AND PROCEDURE. If there is a failure in these respects the circuit court may either dismiss the writ or appeal or may dispose of the case so far as it can consistently be done on the record returned.^ But it is the duty of the plaintiff in error to see that a proper tran- script is prepared, and if it does not contain all that it should contain, he may, on a proper showing, procure a certiorari, for diminution of record, and thereby secure a full and proper return. But the citation is not considered as a part of the record, as it is not a part of the proceedings of the court, and hence a cause will not be dismissed on this account, but proof thereof may be shown aliimde} Rules Relating to the Transcript and Papers. § 342. Rule 8 provides that whenever it shall be necessary or proper, in the opinion of the presiding judge of the circuit court or district court exercising circuit court jurisdiction, that original papers of any kind should be inspected in the Supreme Court upon appeal or writ of error, he may make such rule or order for the safe-keeping, transportation and return of such papers as to him may seem proper, and the Supreme Court will receive and consider such papers in connection with the transcript of the proceedings. And Rule 1 1 provides that whenever any record transmitted to the Supreme Court upon a writ of error or appeal shall contain any document, paper, testimony or other proceeding in a foreign language, and the record does not contain a transla- tion of such document, paper, testimony or other proceeding, made under the authority of the inferior court or admitted to be correct, the record shall not be printed, but the case shall be reported to the court by the clerk, and the court will thereupon 14. And see Rule 10, as to the bill i ; Deitsch v. Wiggins, Ibid. 539. As of exceptions. A circuit court of to the taking of supersedeas bonds, appeals will not take judicial notice see Gen. Rule 29 ; Circ. Ct. of App. of proceedings had in the circuit or Rule 13; Davis v. Wakelee, 156 U. district courts which form no part of S. 680. the record of the case before it : U. S. ^ Innerarity v. Byrne, 5 How. 295. V. Manderson's Ex'rs., 3 U. S. App. And see Jacobs v. George, 150 U. S. igg. 415. As to the practice where a ques- 1 It was so held also where there tion of law is certified by the circuit was a failure to file a brief, in the court of appeals to the Supreme form required by Gen. Rule 21 : Port- Court, see Gen. Rule 37. land Co. v. United States, 15 Wall. SUPREME COURT — APPELLATE PROCEDURE. 373 remand it to the inferior court in order that a translation may be there supplied and inserted in the record.^ In case of appeal of any cause in equity or of admiralty and maritime jurisdiction, or of prize or no prize, a transcript of the record and copies of the proofs, and of such entries and papers on file as may be necessary on the hearing of the appeal, must be transmitted to the Supreme Court. And either the court below or the Supreme Court may order any original document or other evidence to be sent up in addition to the copy of the record or in lieu of a part of it. On such appeals no new evidence can be received in the Supreme Court except in admiralty and prize cases.2 j^iq transcript is required to be under the hand of the clerk with the seal of the court; but it is sufficiently authen- ticated if it be signed by a deputy clerk in the name of and for his principal, and sealed with the seal of the court.^ With regard to cases where the district and circuit courts have concurrent jurisdiction with the court of claims, the act of March 3, 1887,* provides : "That when the findings of fact and the law- applicable thereto have been filed in any case as provided in section six of this act, and the judgment or decree is adverse to the government, it shall be the duty of the district attorney to transmit to the Attorney-General of the United States certified copies of all the papers filed in the cause, with a tran- script of the testimony taken, the written findings of the court and his written opinion as to the same. Whereupon the Attorney- General shall determine and direct whether an appeal or writ of error shall be taken or not; and when so directed the district attorney shall cause an appeal or writ of error to be perfected in accordance with the terms of the statutes and rules of practice governing the same : Provided, That no appeal or writ of error shall be allowed after six months from the judgment or decree in such suit. From the date of such final judgment or decree interest shall be computed thereon at the rate of four per centum per annum until the time when an appropriation is made for the payment of the judgment or decree." ^ Gen. Rule 8, par. 5. And see ^ Garneau v. Dozier, 100 U. S. 7. Circ. Ct. of App. Rule 14. " Act of March 3, 1887, ch. 359, 1 10, 2 Rev. Stat. \ 698 ; Ibid. \ 750. 24 Stat. L. 505, i Supp. R. S. 561. 374 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Writs of Error and Appeals; when Feturnable. § 343. In reference to the time of the return of a writ of error or appeal it is provided by rule that " all appeals, writs of error and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day." ^ It is further required by statute that the adverse party shall have at least thirty days' notice on a citation to the Supreme Court.^ Appearance of Counsel ; and the Parties. § 344. Upon the filing of the transcript of the record, brought | up either by writ of error or appeal, the appearance of the counsel for the plaintiff in error or appellant shall be entered.'^ If there should be no appearance entered for the plaintiff or appellant when the case is called for trial, the defendant or appellee may have the case called and dismiss the writ of error, or may open the record and ask for an affirmance of the judgment below.'' If the defendant fails to appear when the cause is called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment according to the right of the case.^ If neither party appears when the case is reached on a regular call of the docket, and no appearance is entered for M either party, the case must be dismissed at the cost of the plain- W tiff; ^ and if at the second term neither party is prepared to || argue the cause, it will be dismissed at the cost of the plaintiff, unless sufficient excuse is shown for a postponement.^ Docketing Cases ; Filing Transcript. § 345. It is the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of the 1 See also Circ. Ct. of App. Rule 15. be dismissed simply because that 2 Rev. Stat. § 999. See also Gen. counsel had not authorized such Rule 9 See as to service, Tripp v. entry, when the appellant, on learning Santa Rosa St. R. Co., 144 U. S. 126, of the mistake, appears by other and, as to signing, Freeman v. Clay, counsel and prosecutes it in good 2 U.' S. App. 151. f'i'th : Davis v. Wakelee, 156 U. S. 3 Gen. Rule 9, par. 3. An appeal 680. authorized by the appellant person- * Gen. Rule 16. ally, and in good faith entered in the '= Gen. Rule 17. Supreme Court in the name of the "Gen. Rule 18. attorney and counsel below, will not ' Gen. Rule 19. f SUPREME COURT — APPELLATE PROCEDURE- 375 Supreme Court by or before the return day, whether in vacation or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of the court, may enlarge the time, by or before its expiration, the order of enlargement to be filed with the clerk of the court. If the plaintiff in error or appellant fails to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judgment or decree was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case is the plaintiff in error or appellant entitled to docket the case and file the record after the same has been docketed and dismissed under this rule, unless by order of the court. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of the Supreme Court; and, if the case is docketed and a copy of the record filed with the clerk by the plaintiff in error or appellant within the period of time above limited and prescribed by this rule, or by the defendant in error or appellee at anytime thereafter, the case shall stand for argument. "^ But in cases of writs of error or appeals from California, Oregon, Washington, New Mexico. Utah, Nevada, Arizona, Montana, Idaho, Wyoming, North Dakota, South Dakota and Alaska, the time mentioned above is extended to sixty days.^ To sustain a motion to have the case docketed and dismissed it would be necessary to procure and produce a certificate of the clerk of the court below, stating the cause and showing that the appeal had been duly allowed.^ And it has been held that the certificate of the clerk of the court below, that he cannot consistently with his other duties certify the record in time to comply with the rule, is not a suffi- cient reason for extending the time prescribed by the rule.* But in a later case the court was disposed not to enforce it, where the delay in procuring the transcript arose from no fault of the ^ Gen. Rule 9. And see Circ. Ct. * Sturgess v. Harrold, iS How. 40. of App. Rules 16 and 17. See also Edmondson v. Bloomshire, 2 Ibid. 7 Wall. 306. ^West V. Brashear, 12 Pet. loi. 376 FEDERAL PLEADING, PRACTICE AND PROCEDURE. appellant, but resulted from the fraud of the other party, or the ill-founded order of the court, or the contumacy of the clerk below.^ In the absence of any showing of excuse for the delay, the transcript must be filed and the case docketed in the Supreme Court within the time prescribed by Rule 5. or the court will not have jurisdiction and the cause will be dismissed; but this would not prevent another appeal at any time within two years, and the court would take cognizance of the case on such sub- sequent appeal, if the transcript was properly filed and the case docketed within the time prescribed after the date of the last appeal.^ Motion Day. § 346. By a rule of the Supreme Court Monday of each week is motion day, on which all motions ready for argument will be heard. All motions not required by the rules of the court to be put on the docket are entitled to a preference, and will be heard immediately after the rendering of opinions, if such motions shall be made before the court shall have entered upon the hearing of a cause upon the docket.^ Motions to Dismiss and Affirm, § 347. All motions must be in writing, and contain a brief statement of the facts on which they are based and the objects of the motion ; and no motion to dismiss, except on special assignment by the court, can be heard unless previous notice thereof is given to the adverse party or the attorney or counsel of such party. And all such motions, except those to docket and dismiss, as provided for by the ninth rule, must be submitted in the first instance on printed briefs or arguments ; and if the court desires further argument on the subject, it will be ordered in connection with the hearing on the merits. The party mov- ing to dismiss is required to serve notice of the motion, with a copy of his brief or argument, on the counsel for the plaintiff in ^ United States v. Gomez, 3 Wall. 721. And see Evans v. State Bank, 752. See also United States z^. Hodge, 134 U. S. 330; Tuskaloosa Northern 3 How. 534 ; Villabolos v. United R. Co. v. Gude, 141 id. 244 ; Williams States, 6 id. 81. v. Passumpsic Bk. Ibid. 249 ; Wauton ' Steamer Virginia 7^. West, 19 How. v. De Wolf, 142 id. 138. 182; United States v. Carey, 6 id. "Gen. Rule 6. 106; Mesa V. United States, 2 Black SUPREME COURT — APPELLATE PROCEDURE. 377 error or the appellant of record in this court, at least three weeks before the time fixed for submittting the motion, except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice must be served at least thirty days be- fore the time fixed for the hearing of the same/ With a motion to dismiss a writ of error to a state court there may also be united a motion to affirm on the ground that, al- though the record may show that the court has jurisdiction, it is manifest that the writ was sued out for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument.^ But in such a case, if there is no color of right to dismiss and the case is clearly within the juris- diction of the court, the motion to affirm merely will be denied.^ If the court below, having no jurisdiction, gives a judgment in a cause for either party, or improperly decrees affirmative relief to a claimant, this court will reverse it, and not merely dis- miss the suit. But it is not important on error or appeal when or how the court below obtained jurisdiction. It is sufficient that it had jurisdiction at the time the judgment or decree was rendered, even though rendered by consent, and no errors of law will be considered which were waived by such consent.* Mode of Service of Notice and Proof. § 348. Service of the notice of a motion to dismiss maybe made on counsel by mail ; and an affidavit of the deposit in the mail of the notice and brief or argument to the address of the counsel to be served, duly postpaid, at such time as to reach him by due course of mail three weeks or thirty days, as the case may require, before the time fixed by the notice for a hear- ing, will be regarded z.?, prima facie evidence of service on coun- sel who reside without the District of Columbia ; and on proof of such service the motion will be considered, unless for satisfac- tory reasons further time be given by the court to either party.' ^ Gen. Rule 6. And see Circ. Ct. printed as will enable the court to of App. Rule 21. act understandingly without referring 2 Ibid. to the transcript : Walston v. Nevin, HVhitney v. Cook, 99 U. S. 607. 128 id. 578. And see Sire v. Ellithorpe Air Brake * Pacific Railroad v. Ketchum, loi Co., 137 id. 579 ; Kauffman v. Woot- U. S. 289; Removal Cases, 100 U. S. ters, 138 id. 285. On such motions 457. so much of the record must be * Gen. Rule 6, par. 4. o78 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Procedure in Case of Diminution of Record. § 349. We have referred to certiorari as the proper remedy in case of diminution of the record sent up to this court in case of writ of error or appeal.^ But this will not be awarded unless a motion therefor is made in writing, and the facts on which it is based shall be verified by affidavit or admitted by the opposite party. It is further required that all motions for a certiorari shall be made at the first term of the entry of the cause ; other- wise it cannot be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay.^ A return to a certiorari is sufficient if made by the clerk, without being signed by the judge.^ If there appears to be an omission of an impor- tant paper from the record sent up, which may be necessary for a correct decision of the case, the court may, on its own motion, order the case continued and a certiorari to be issued to bring it up.* The writ of certiorari is properly used in such cases only to bring up to the court of error documents, writings and other portions of the record which have not been sent up, and it cannot be used to compel the Court of Claims to supply certain sup- posed defects in its conclusions deducible from the evidence before it.^ Where either Party Dockets the Case ; Rights of Appellee. § 350. Either party may docket a cause; and if docketed and a copy of the record is filed with the clerk, either by the plaintiff in error or appellant, within the time prescribed by Rule 9, or by the defendant in error or appellee at any time thereafter, the case stands for argument.^ ^ Post, \ 373. missioner appointed by the court "^ Gen. Rule 14 ; Circ. Ct. of App. under the act of September 18, 1850, Rule 18. he being in no legal sense a magis- '' Stewart v. Ingle, 9 Wh. 526; trate inferior to the circuit court: Worcester v. Georgia, 6 Pet. 515. Ex parte Van Orden, 3 Blatch. 166. * Morgan v. Curtenius, 19 How. 8. In a case of equitable jurisdiction See also Ex parte Dugan, 2 Wall, before the Court of Claims, the whole 134; Clark V. Hackett, i Black 77; record must be sent up, as the Su- Stearns v. United States, 4 Wall. i. preme Court reviews the law and * United States v. Adams, 9 Wall, facts : Harvey w. U. S., 105 U. S. 671 ; 661. The circuit court had no power U. S. v. Old Settlers, 148 id. 427. to issue a writ of certiorari to a com- ® Gen. Rule 9, par. 2. I I SUPREME COURT — APPELLATE PROCEDURE. 379 "When a State is a Party. § 351. In certain cases a state is entitled to priority on the docket, where it is a party to a suit. Section 949 of the Revised Statutes provides: "When a state is a party, or the execution of the revenue laws of a state is enjoined or stayed in any suit in a court of the United States, such state, or the party claiming under the revenue laws of a state the 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 pref- erence to any civil cause pending in such court between private parties." Under the provisions of this section, if the state is plaintiff merely ex relatione, the cause will not be advanced even on the consent of both parties, as where the suit is in the name of a state and in the nature of a quo warranto to try the title to an office.^ Nor are the ordinances of a municipal corporation levying taxes, revenue laws of a state within the meaning of the statute, and a case arising under them is not entitled to priority on the docket.^ Nor will preference be given to cases in which the execution of the revenue laws of a state is enjoined, unless it satisfactorily appears that the operations of the government of the state will be embarrassed by the delay. The court may determine, under all the circumstances of the case, what is a " sufficient reason '' for the preference given by the statute.^ The motion for the advancement of a cause under the statute must be made by a state or by a party claiming under the laws of a state.* Where a person was indicted and convicted in one of the inferior courts of the state of Maryland for trading without having a license as required by the laws of that state, and the judgment was affirmed in the court of appeals of that state, and brought to the Supreme Court on a writ of error, where a motion was made by the plaintiff in error to advance the cause, it was held that the motion was not within the foregoing statute, as the motion was not filed by the state nor by a party claiming under ^ Miller w. State, 12 Wall. 159. also as to advancing causes: Carter ^ Davenport City v. Dovvs, 15 Wall. v. Greenhow, 109 U. S. 64 ; Louisiana 390. V. New Orleans, 103 id. 521 ; Sage v. ^ Hoge V. Railway Co., 93 U. S. i. Central R. Co., 93 id. 412. * Ward V. State, 12 Wall. 163. See 380 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the laws of the state; that under the 26th rule of the court it was a motion addressed to its discretion, and inasmuch as it appeared that the plaintiff in error was not in jail, the court refused to grant the motion.^ And, as we have observed, the statute does not apply to the ordinances of a municipal corporation, as they cannot be classed as revenue laws of a state ; and the preference given to the state, when it is a party, or when its revenues are enjoined, to any party claiming under such laws, is from the presumed import- ance of such cases to the internal welfare of such state and be- cause of its dignity as a member of the Union, and these reasons for the preference do not apply to municipal more than to private corporations.^ Submission of Causes on Printed Arguments. § 352. Causes may be submitted to the court on printed argu- ments, where counsel on both sides choose to do so, within the first ninety days of the term ; but in such cases twenty copies of the arguments, signed by attorneys and counsellors of the court, must be first filed — ten copies for the court, two for the reporter, three to be retained by the clerk, and the residue for counsel. And if a case is reached on a regular call of the docket, and a printed argument shall be filed for one or both parties, the case stands on the same footing as if there were an appearance by counsel. But if a case, under such circumstances, is argued orally on behalf of one party only, a ' printed argument on behalf of the other party will not be received unless it is filed before the argument begins, and if none is filed, the court will consider and decide the case upon the ex parte argument ; and no brief or argument will be received, through the clerk or otherwise, after the case has been argued and submitted, except after notice to the opposite party, and upon leave granted in open court.^ Call of the Docket. § 353. The mode of procedure on a call of the docket is pointed out by the rules of the court. The call commences on the second day of the term, and cases will be taken up for argu- MVard t'. Maryland, 12 Wall. 163. 390. 2 Davenport City v. Dovvs, 15 Wall. ' Gen. Rule 20. SUPREME COURT — APPELLATE PROCEDURE. 381 ment in the order they stand on the docket, if the parties or either of them are ready when the cases are called. If neither party is ready, the case will go down to the foot of the docket; but only ten causes will be considered as liable to be called each day, including the one under argument^ Criminal cases, however, may be advanced, on motion of either party, by leave of court, as well as may cases once adjudicated by the court upon the merits, and again brought up by writ of error or appeal ; and revenue cases in which the United States are concerned, which also involve or affect some matter of gen- eral public interest, may also, by leave of court, be advanced on motion of the Attorney- General ; but all motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reasons for the application.^ No other cause will be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar circumstances to be shown to the court ; and every cause which shall have been called in its order and passed, and placed at the foot of the docket, will, if not reached again during the term, be continued to the next term. But after a cause has been passed, under circumstances which do not require it to be placed at the foot of the docket, the parties may have it heard by filing with the clerk a joint request to that effect. The clerk must then re- instate the case for call ten cases after the case under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, then either party may move to take up the cause, and it will then be assigned to such a place on the docket as the court may direct. But no stipulation to pass a cause without placing it at the foot of the docket will be recognized as binding upon the court, and a cause can otherwise be passed only upon an application made for that purpose, and by leave granted in open court. ^ Two or more cases involving the same question may, however, by leave of court, be heard together, but they must be argued as one case.* ' Gen. Rule 26. portance have been assigned for what 2 Gen. Rule 26. If a cause has been may be the remainder of the teim : placed at the foot of the docket, the Berry v. Mercein, 4 How. 574. court will not take it up on motion ^ Gen. Rule 26, pars. 7, 9, 10. and assign a day for its argument, * Gen. Rule 26, par. 8. when other cases of great public im- 382 FEDERAI, PLEADING, PRACTICE AND PROCEDURE. Cases brought by error or appeal, under the acts of February 25, 1889, chapter 236, and March 3, 1 891, chapter 517, section 5, where the only question in issue is that of the jurisdiction of the court below will be advanced on motion, and heard under the rules prescribed by rule 6, in regard to motions to dismiss writs of error and appeals/ The Argument ; Preparation for the Same ; Procedure on. § 354. Only two counsel will be heard for each party on the argument of a cause, and only two hours on each side will be allowed for argument, unless by special leave of the court, granted before the argument begins. This time may be appor- tioned between the counsel in their discretion ; but there must be a fair opening of the case by the party having the opening and closing arguments.- When no oral argument is made for one of the parties, only one counsel will be heard for the adverse party.^ At least six days before the argument, the counsel for the plaintiff in error or appellant is required to file with the clerk of the court twenty-five copies of a printed brief, one of which on application he is required to furnish to each of the counsel engaged upon the other side. This brief is required to contain, and in the order hereinafter stated — 1. A concise abstract or statement of the case, presenting suc- cinctly the questions involved and the manner in which they are raised. 2. An assignment of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and specifi- cally each error asserted and intended to be urged, and in cases brought up by appeal the assignment shall state, as specifically as may be, in what the decree is alleged to be erroneous. If error is assigned to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. 3. A brief of the argument, exhibiting a clear statement ot the points of law or fact to be discussed, with a reference to the pages of the record, and the authorities relied upon in support 1 Gen. Rule 32. ^ Gen. Rule 21, par. 6. ^ Gen. Rule 22. SUPREME COURT — APPELLATE PROCEDURE. 383 of each point. When the statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 4. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidcm verbis, whether in the instructions given or instructions refused. 5. When the error alleged is to the admission or to the rejec- tion of evidence, the specification shall quote the full substance of the evidence admitted or rejected. 6. Counsel for a defendant in error, or appellee, shall file with the clerk twenty-five printed copies of his argument, at least three days before the case is called for a hearing. His brief shall be of a like character with that required of the plaintiff or appellant, except no assignment of error is required, and no statement of the case unless that presented by the plaintiff or appellant is con- troverted. 7. Without such an assignment of errors, counsel will not be heard except at the request of the court, and errors not assigned according to this rule will be disregarded, though the court, at its option, may notice a plain error not assigned. When, according to this rule, the plaintiff in error or appellant is in default, the case may be dismissed on motion, and when a defendant in error or an appellee is in default, he will not be heard except on consent of his adversary and with request of the court.^ The plaintiff or appellant is entitled to the opening and closing argument, except when there are cross appeals, when they are required to be argued together, and the plaintiff in the court below is entitled to open and conclude the argument.^ Judgment on Review. § 355. The court may, on review of any judgment, decree or order of the circuit court or the district court acting as a circuit court, or in prize cases, affirm, modify or reverse it, or may direct such judgment, decree or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require. Rut the court is prohibited from issuing exe- cutions in such cases, and is required to send a mandate to the ^ Gen. Rule 21. ' Gen. Rule 22. 384 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court below to award execution on the judgment.^ There is, however, a discretion in the court in respect to giving a judg- ment and awarding execution in case of a writ of error to a state court. In such a case it may proceed to a final decision and award the execution or remand the same to the court from which the case was removed.^ The practice and power of the court in such cases may be illustrated by its procedure in a certain case. In Insurance Com- panies IK Boykin,^ the defendant in error brought a suit on a policy of insurance for a loss sustained. The policy was signed by four companies who were made defendants, each of whom had agreed to become liable for one-fourth of any loss to the extent in all of ten thousand dollars, and the plaintiffs in error had consented that the action might be brought against all of them jointly instead of severally. The verdict of the jury was "that said defendants did promise and assume as said plaintiff hath alleged, and they assess the damages of the said plaintiff at ten thousand dollars, with interest from the 20th of March, 1867," and the court rendered a joint judgment accordingly. This was one of the errors assigned in this court. It was here held that the verdict was a good one, but that the court ought to have rendered a judgment that the plaintiff recover of each of the defendants severally for the one-fourth part of the ten thou- sand dollars, and interest from the time mentioned in the verdict, and joint judgment against all of the defendants for costs. And the Supreme Court entered the judgment which the circuit court should have done. It is the usual practice of the court to dismiss a cause where the court below had no jurisdiction of it. But this in some cases v/ould work injustice, as, for instance, where the inferior court has given a judgment or decree for plaintiff, or improperly de- creed affirmative relief to a claimant in a case where it had no jurisdiction. " In such a case the judgment or decree of the court below must be reversed, else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and deter- mine the matter."^ In such a case the judgment or decree 1 Rev. Stat. § 701. » 12 Wall. 433. ^ Rev, Stat. 709, amended Febru- * United States v. Huckabee, 16 ary 18, 1875. Wall. 414. SUPREME COURT — APPELLATE PROCEDURE. 385 should be reversed for want of jurisdiction, and the cause re- manded with directions to dismiss the case.^ Judgment where there are Errors Apparent in the Record. § 356. Where there is manifest error apparent on the face of the record a re-examination in the appellate court will be had, whether it appears by a bill of exceptions or otherwise. What- ever the error may be, the facts must appear on the record in order to enable the court to review the case; but neither a bill of exceptions nor a special verdict nor an agreed case is always necessary in order to make the error apparent to a court of review. The error may otherwise appear, and where it is thus manifest, the court will consider and revise the judgment. Thus, where a suit was brought on a policy of insurance on a vessel and cargo for a total loss, and the jury found a verdict for the whole amount insured with interest, and five thousand dollars damages besides for the detention of the money and interest, and judgment was entered therefor, on error, it was held that the plaintiff below could not recover damages beyond the legal interest; that the error did not require a venire de novo, as it consisted in giving judgment for the five thousand dollars dam- ages. The Supreme Court therefore reversed and modified the judgment by disallowing the five thousand dollars, and the cause was remanded with directions to enter judgment for the residue found by the jury with interest.^ Judgment; Interest; Damages. § 357. Where the judgment of the inferior court is affirmed on a writ of error, interest on the same at the same rate that similar ^ Cutter V. Rae, 7 How. 729 ; Mans- take notice of an assignment of error field, C. & L. M. R. Co. v. Swan, iii that the damages found by the jury U. S. 379. And see \ 10 of the Cir- were excessive and given under the cuit Courts of Appeals Act. influence of passion and prejudice. ^ Insurance Co. v. Piaggio, 16 Wall. Such an error is to be redressed by a 378 ; Suydam z/. Williamson, 20 How. motion for a new trial: Lincoln v. 427; Burnett v. Butterworth, 11 id. Power, 151 U. S. 436. After a final 669 ; Slocum v. Pomeroy, 6 Cr. 221 ; decree in a case, an apparent want of Garland z*. Davis, 4 How. 131 ; Cohens jurisdiction on the face of the record V. Virginia, 6 Wh. 410 ; Wiborg v. U. cannot be availed of in a collateral S., 163 U. S. 632; Tex. & Pac. R. proceeding: Evers v. Watson, 156 Co. V. Rogers, 13 U. S. App. 547. U. S. 527. The Supreme Court cannot, however, 25 386 FEDERAL PLEADING, PRACTICE AND PROCEDURE. judgments bear interest in the state where the judgment is ren- dered is allowed from the date of the judgment below until it is paid.^ And " in all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of ten per cent., in addition to interest, shall be awarded upon the amount of the judgment."^ And " the same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court." ^ In cases in admiralty, damages and interest may be allowed if specially directed by the court.'' ^A/he^e the Verdict is Clearly Fight the Court will not Reverse for Technical Inaccuracies in the Charge. § 35S. Where there is no evidence to impeach the claim made, and it is established by competent evidence, and there is no set- off, counter-claim, release or payment pleaded or shown, the court may instruct a jury to find for the plaintiff the amount so proven, as such an instruction is in accordance with the legal effect of the evidence, and there would be no disputed facts on which the jury could pass.^ And if it clearly appears in any case that there are no disputed facts bearing on the real matters in issue, and the verdict is manifestly right, and especially where the record shows that no other result would be obtained by a new trial, the appellate court will not reverse the case, although there may have been some technical inaccuracies in the instruc- tions given to the jury.^ ^ Gen. Rule 23, par. i. And see cannot be reversed on error if any Circ. Ct. of App. Rule 30. count is good and is suflScient to sup- 2 Ibid., par. 2. port the judgment: Claasen v. U. S., * Ibid., par. 3. 142 U. S. 140. As to the power of * Ibid., par. 4. the court to instruct the jury to find a ^ Bevans v. United States, 13 Wall, verdict for the defendant, see Mer- 56. rick's Exr. 7AGiddings, 115 U. S. 300; « Walburn v. Babbitt, 16 Wall. 577. Butler v. Nat. Home for Soldiers, 144 And see Boston & Albany R. Co. v. id. 64; Tex. & Pac R. Co. v. Cox, O'Reilly, 158 U. S. 334. In a crim- 145 id. 593; Toplitz v. Hedden, 146 inal case, a general judgment upon an id. 252 ; Del., L. & W. R. Co. v. Con- indictment containing several counts verse, 139 id. 469. and a verdict of guilty on each count, SUPREME COURT — APPELLATE PROCEDURE. 387 When a New Trial will be Awarded. § 359. Under the sanction of the Revised Statutes allowing the Supreme Court, on a review of a judgment or decree of the inferior court, to direct " such further proceedings to be had by the inferior court as the justice of the case may require," the court may, unquestionably, direct a trial to be had de novo, where in its opinion justice requires it. This was the practice under the Judiciary Act, and is in accordance with the practice at common law where the record did not furnish facts upon which to base a judgment. In such a case the statutes would require the court, in the exercise of its proper functions as an appellate court, and in furtherance of justice, to remand the cause for a new trial. If there is a demurrer to evidence, there should be a joinder in demurrer, and this supposes that the facts are admitted; the proper function of such a demurrer being to submit to the court the law arising from the facts. The party demurring to the evi- dence cannot insist upon a joinder in demurrer, under the com- mon law practice, without distinctly admitting upon the record every fact and every conclusion which the evidence given for the adverse party conduces to prove; and if there should be a joinder in the demurrer, without such admission and a judgment thereon, the judgment would be reversed for this cause, and in such a case the appellate court would necessarily have to remand the cause for a new trial.' So, where the special verdict of a jury is too imperfect to enable the court to render a judgment upon it, although it may reverse the judgment of the court below, it will remand the cause, with directions to set aside the verdict and award a venire facias de novo? When a Cause will be Remanded for Amendments. § 360. In an action on the case, there was a plea of " non assumpsit," and the issue and verdict followed the plea. On error, it was held by this court that this defect was a material one and not cured by the verdict; that it did not contain enough of substance to put in issue the material parts of the declaration ; that the judgment on the verdict was not properly rendered ; and although this court would not direct amendments or a repleader, ^ Gibson v. Hunter, 2 H. Bl. 187 ; ^ McArthur v. Porter, t Pet. 626. Fowle V. Alexandria, 11 Wh. 320; See also Farr z^. United States, 5 Pet. Bank of U. S. v. Smith, Ibid. I'ji. 373 ; Graham v. Bayne, 18 How. 60. 388 FEDERAL PLEADING, PRACTICE AND PROCEDURE. it reversed the judgment and remanded the case for further pro- ceedings.^ A new trial has sometimes been awarded in courts of error to enable parties to amend,^ and in one case the court not only reversed a judgment and awarded a venire de novo, but gave " directions also to allow the parties liberty to amend their pleadings."^ The Mandate. § 361. It will be noticed that the Supreme Court, in the exer- cise of its jurisdiction on appeals from the inferior federal courts, does not possess the power to execute its judgments except in certain cases. It can only send a special mandate to the inferior federal court to award execution. But on a writ of error to a state court, as we have noticed,^ the court "may reverse, modify or affirm the judgment or decree of such state court, and may at their discretion award execution." By Rule 39 mandate shall issue as of course after the expira- tion of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in session, but during the term.^ Mandate Conclusive upon the Court Below. § 362. The court to which the mandate is directed must exe- cute it according to its directions and the intentions of the appel- late court. Where the mandate is uncertain and ambiguous in its terms, the court to which it is directed must exercise its judg- ment in the matter in the light of the opinion and decision of the appellate court and the reason and justice of the case. The authority of such appellate court or the jurisdiction of the inferior court to try the cause cannot be inquired into. Where the merits of the controversy are decided, and the mandate requires the execution of the decision, it is final.^ Nor will a mandamus ^ Garland v. Davis, 4 How. 131 ; Wh. 730 ; Mollan v. Torrance, Ibid. Day V. Chism, 10 Wh. 404. 537. 2 United States v. Hawkins, 10 Pet. * See ante, \ 355 ; Rev. Stat. § 709. 125; Barnes v. Williams, 11 Wh. 416; » See also Circ. Ct. of App. Rule Bellows V. Bank, 2 Mason 31 ; Peter- 32. son V. United States, 2 Wash. (C. C.) •' Skillern v. May, 6 Cr. 267 ; Ex 36. parte Story, 12 Pet. 339; Ex parte ^ United States v. Kirkpatrick, 9 Dubuque, etc, R. Co., i Wall. 69 SUPREME COURT — APPELLATE PROCEDURE. 389 in the nature of -a. procedendo be granted thereafter by the Supreme Court, to the judge of the court below, to compel him to sign a bill of exceptions in the case,^ nor can such court entertain a petition for a rehearing of the case after a decision of the Supreme Court and the issue of a special mandate for its execution, as the court has no authority to disturb the final judgment or decree of the Supreme Court, and can only settle what remains to be done by the execution of the mandate.^ The Mandate may be Revoked. § 363. Notwithstanding the court below cannot question the authority of the Supreme Court in issuing the mandate, or disobey its requirements, the Supreme Court may, in a proper case, declare the judgment rendered by it null and void, and revoke the mandate. Thus, where an appeal from a circuit court was prosecuted, and a decree was rendered against the appellee without an appearance on his part, and a mandate was issued to the circuit court, and at a subsequent term it was made to appear that there had been no citation served upon the appellee, the court declared the former judgment null and void, and the mandate was revoked.^ This practice was followed in the subsequent case of United States V. Gomez.* The cause was docketed and dismissed on motion of the appellee and remanded, and a mandate sent down to the court below. A motion was afterwards made in the Supreme Court for the rescision of the order of dismissal and for a recall of the mandate; and the court being satisfied from When a case has once been decided cree may be consulted to ascertain by the Supreme Court on appeal, wliat was intended by the mandate ; and remanded to the circuit court, and, either upon an application for a that court must execute the decree of writ of mandamus, or upon a new the Supreme Court according to its appeal, it is for the Supreme Court to mandate. If it does not, its action construe its own mandate : In re maybe controlled, either by a new Sanford Fork and Tool Co., 160 U. appeal or by writ of mandamus ; but S. 247. And see In re Potts, 166 id. it may consider and decide any mat- 263. ters left open by the mandate, and its ^ Ex parte Story, 12 Pet. 339. decision of such matters can be re- ^ Chaires v. United States, 3 How. viewed by a new appeal only. The 611. opinion delivered by the Supreme ' ^.r /'rt-r/^ Crenshaw, 15 Pet. 119. Court at the time of rendering its de- * 23 How. 326 (1859). 390 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the evidence before it that no appeal in the case had been granted by the court below, and that the cause was not properly before it when it was remanded at the instance of the appellee, it rescinded and annulled the decree of dismissal and revoked and cancelled the mandate. Costs on Affirmance, Reversal, Dismissal. § 364. By the 24th rule, costs are allowed to the defendant in error or appellee, as the case may be, in all cases of dismissal, except where the dismissal is for the want of jurisdiction, unless otherwise agreed by the parties; and in all cases of the affirm- ance of the judgment or decree of the inferior courts, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise ordered by the court. But in case of a reversal of any such judgment or decree, costs are allowed to the plaintiff in error or appellant, as the case may be, unless other- wise ordered by the court; and the costs of the transcript of the record are a part of such costs. These provisions, however, do not apply to cases where the United States are a party. In such cases no costs will be allowed in the court for or against the United States.^ In case any suit is dismissed in the appellate court, it is the duty of the clerk to issue a mandate or other process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings of this court, so that such further proceeding may be had therein as law and justice may require ; and it is his duty also to insert in such mandate or other proper process any costs that may be allowed in the court, and annex to it a bill of items of such costs taxed in detail.^ Recording the Opinions. § 365. The opinion of the court, upon the delivery thereof, must be recorded by the clerk immediately ; and it is his duty ^Gen. Rule 24, paragraphs 1, 2, 3, into the circuit court of appeals on 4. And see Circ. Ct. of App. Rule one and the same bill of exceptions 31. Where both parties to an action and record, the costs on the writs of at law seek the review of the judg- error will be equally divided between ment therein in a circuit court of them: Imperial Life Ins. Co. w. New- appeals and by a written stipulation comb, 19 U. S. App. 669 ; 27 id. 290. between them the cause is brought '•^ Gen. Rule 24, paragraphs 5, 6. SUPREME COURT— APPELLATE PROCEDURE. 391 to furnish the reporter with a copy of the same as soon as it shall be recorded. This is required to be done during the term, in order to avoid delay in the publication of the reports. The original opinions must be filed with the clerk for preservation. The statute further expressly provides that " where, upon a writ of error, judgment is affirmed in the Supreme Court or a cir- cuit court, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs at its dis- cretion ; " ^ and that " there shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdic- tion of the court, or for any error in fact." ^ If the writ is sued out merely for delay, damages will be allowed at the rate of not exceeding ten per cent, from the date of the judgment in the circuit court ;^ but damages for more than that sum cannot be given.^ If every question involved in the case has been settled by former adjudications, this is satisfactory evi- dence that the writ has been sued out for delay, and damages will be allowed therefor.^ But damages for a delay cannot be allowed on the affirmance of a decree in admiralty.® Eehearing. § 366. It has been held that the court has no authority to reverse its own decisions ;^ yet, as we have seen, it has frequently exercised a revisory power over them, where it had no jurisdiction in fact, but had been induced to assume jurisdiction by fraud or mistake.* iRev. Stat. ? loio; Winchester v. ^Gen. Rule 23, par. 2; Kilboume Jackson, 3 Cr. 514; Himely v. Rose, v. State Savings Inst., 22 How. 503; ^id. 313; Mclver v. Wattles, 9 Wh. Sutton v. Bancroft, 23 id. 320; Jen- 650; Kilbum V. State Savings Inst., kins v. Banning, Ibid. ^S5\ Prentice 22 How. 503; Hennessy v. Sheldon, v. Pickersgill, 6 Wall. 511 ; Hall v. 12 Wall. 440. Jordan, 19 id. 271 ; Hennessy v. Shel- 2Rev. Stat. ? loii. See Stafford z/. don, 12 id. 440; Gregory Consold. Union Bank, 16 How. 135. This sec- Min. Co. v. Starr, 141 U. S. 222. tion does not forbid the review of a * West Wisconsin R. Co. v. Foley, decision, even on a plea in abate- 94 U. S. 100. ment, of any question of the jurisdic- ^ Penywit v. Eaton, 15 Wall. 380, tion of the court below to render judg- 382. ment against the defendant, though ^ The Douro, 3 Wall. 564. depending on the sufficiency of the 'Jackson v. Ashton, 10 Pet. 480. service of the writ : Goldey v. Morn- * Ex parte Crenshaw, 15 Pet. 119 ; ing News, 156 U. S. 518. United States v. Gomez, 23 How. 326. 392 FEDERAL PLEADING, PRACTICE AND PROCEDURE- It has been further held that the practice in the Enghsh chan- cery courts relatinj^ to a rehearing has no application to the Supreme Court sitting as an appellate tribunal, as the nature and office of the two tribunals are different, and the same rules of practice for a rehearing would not be applicable to both.^ The Supreme Court has, however, in several cases allowed a rehearing, and in 1852, in the case last cited, the court ruled: "That no reargument will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion and desires a further argument on the subject. And when that happens, the court will of its own accord apprise the counsel of its wishes and designate the points on which it desires to hear them."^ In 1869 this rule was extended so as to allow counsel to apply for a rehearing, in case the court does not order one. This rule, contained in an opinion of the court by Chief Justice Chase, is as follows : " Where the court does not on its own motion order a rehearing, it will be proper for counsel to submit without argument, as has been done in the present instance, a brief written or printed petition or suggestion of the point or points thought important. If upon such petition or suggestion any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. If not so moved, the rehearing will be denied as of course."^ And now by Rule 30 it is provided that "a petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special order granted during the term ; and must be printed and briefly and distinctly state its grounds, and be sup- ported by certificate of counsel ; and will not be granted, or per- mitted to be argued, unless a justice who concurred in the judg- ment desires it, and a majority of the court so determines,"* Adjournments. § 367, Rule 27 provides: "The court will at every session announce on what day it will adjourn at least ten days before the time which shall be fixed upon; and the court will take up no ^ Brown v. Aspden, 14 How. 25. ^ Public Schools v. Walker, 9 Wall, * Brown v. Aspden, supra; United 603. States V. Knight, i Black 489. * See also Circ. Ct. of App. Rule 29. SUPREME COURT — APPELLATE PROCEDURE. 393 case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjourn- ment." Dismissal in Vacation ; Duties of Clerk. § 368. Parties to a suit in the Supreme Court may have it dis- missed in vacation. The attorneys of the respective parties who are entered on the record for this purpose may sign an agree- ment in writing, directing the clerk to dismiss the case, and specifying the terms on which it may be dismissed as to costs. After filing this with the clerk and the payment of the fees which may be due him in the cause, it is his duty to enter the case dis- missed, and to give either party requesting it a copy of the agreement filed with him; but no mandate or other process can issue thereon without an order of the court/ The Fecord on Appeal from the Court of Claims. § 369. On appeal from the Court of Claims, cases are heard upon the record, which must contain — " I. A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such interlocutory orders, rulings, judgments and decrees as maybe necessary to a proper review of the case. " 2. A finding by the Court of Claims of the facts in the case established by the evidence in the nature of a special verdict, but not the evidence establishing them ; and a separate statement of the conclusions of law upon said facts on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as apart of the record."^ Rule in Reference to the Record to be Strictly Observed. § 370. The transcript of the record must be prepared strictly in conformity with the rule prepared by the Supreme Court. Only such statement of facts found should be sent up as is neces- sary to enable the court to determine upon the correctness of the conclusions of law decided by the court below, based upon the facts found.^ If the statement of facts found is not suffi- ^ Gen. Rule 28. And see Circ. Ct. ^ De Groot v. United States, 5 of App. Rule 20. Wall. 419. ^ Court of Claims Rule i. 394 FEDERAL PLEADING, PRACTICE AND PROCEDURE. cient, the Supreme Court will not dismiss the case, but remand it to the Court of Claims for a proper finding.^ Petition for the Allowance of an Appeal. § 371. The second rule in reference to the Court of Claims provided for appeals in cases of judgments or decrees rendered before the adoption of it, to wit, the December Term, 1865, in which cases it was necessary for a party desiring to appeal to make application by petition to the Court of Claims therefor. This rule is now probably obsolete, as there can be no cases to which it would be applicable.^ Order of Allowance ; Time Limited. § 372. Appeals from the Court of Claims are not a matter of right, and can only be secured by application for an allowance of the same, to the Court of Claims or the Chief Justice thereof in vacation. This must be made within ninety days after the judgment is rendered ;^ but the limitation ceases from the time the application is made.* If, after an appeal has been allowed, a motion is made for a new trial, this is no ground for a dismissal of the appeal, unless the motion for a new trial prevails, in which case the appeal should be dismissed.^ And the court may for good cause shown revoke an order allowing an appeal. The allowance in such a case does not absolutely remove the cause from the jurisdiction of the court so long as the record has not in fact been certified up to the appellate court.^ The only mode for the review of judgments of the Court of 1 United States v. Adams, 6 Wall, ment no appeal or writ of error is allowed after six months from such lOI. * See Silverhill v. United States, 5 judgment or decree : Act of March 3, Ct. of CI. 610. 1887, ch. 359, I 10, 24 Stat. L. 505, i » Rev. Stat. \ 708. Supp. R. S. 561. * Ct. of CI. Rule 3. See McNutt v. ^ United States v. Ayers, 9 Wall. United States, 8 Ct. of CI. 185. In 608; United States v. Crussell, 12 suits in which, by the act of March 3, id. 175 ; United States v. Young, 1887, the jurisdiction of the Court of 94 U. S- 258. Claims is concurrent with that of the ^ Ex parte Roberts, 15 Wall. 384. circuit and district courts, where the An appeal cannot be taken from a judgment or decree in one of the lat- decision granting a new trial : Young ter courts is adverse to the Govern- v. United States, 95 U. S. 641. SUPREME COURT — APPELLATE PROCEDURE. 395 Claims provided by the statutes is on appeal, and the Supreme Court, therefore, has no power to review them on a writ of error.^ In Case of Diminution of Record. § 373, If either party should desire the court below to supply supposed defects in its fact conclusions deducible from the evi- dence, the proper practice would be to apply by motion for an order on the Court of Claims to make return as to the existence or non-existence of the particular facts set out in the motion ; but a writ of certiorari would ordinarily issue on a proper applica- tion, alleging a diminution of record or writings.^ It is made the duty of the Court of Claims, in all cases where either party is entitled to an appeal, to make and file their find- ings of fact and their conclusions of law therein in open court, before or at the time they enter their judgment in the case ; and in all such cases each party at such time, before the trial, as the court shall prescribe, must submit to the court a request to find all the facts which the party considers proven and deems mate- rial to the due presentation of the case in the findings of facts.^ ^ Latham's Appeal, 9 Wall. 145 ; elusions of law thereon : Chase v. U. United States v. Young, 94 U. S. S., 155 U. S. 489. 258. It is otherwise as to judgments "^ United States v. Adams, 9 Wall, in a circuit or district court in cases 661. brought under the act of March 3, ^ Ct. of CI. Rules 4 and 5. A con- 1887, ch. 359. They may be brought sideration of the jurisdiction, practice by writ of error, but will be reexam- and procedure in the Court of Claims ined only when the record contains a will be found in chapter \\\. posi. specific finding of facts with the con- 39G FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XVI. COURT OF CLAIMS— JURISDICTION, PLEADING, PRACTICE AND PROCEDURE. A Fundamental Principle: Governments or Sovereignties cannot be Sued. § 374. It is a familiar doctrine of the common law that a state, nation or sovereignty cannot be sued in its own courts without its consent.^ It is manifest, however, that all civilized nations must, in the usual course of their affairs, enter into contracts, and, in the execution of their various functions and duties, become justly liable to private persons and corporations. Pre- vious to the act of Congress of February 24, 1855, the only remedy for a party having a claim against our government was by petition to Congress for special legislative action in the par- ticular case, and if granted, a particular appropriation was neces- sary to satisfy the same. The act providing for a Court of Claims was passed to remedy a great mischief, to avoid many grievous wrongs, and to promote justice, and it has been liberally construed to accomplish the object intended.^ It provided for the organization and sessions of a Court of Claims, and gave it 1 "Immunity from suit is an inci- ant in an ascertained amount; U. S. dent of sovereignty:" Mr. Justice z^. Eckford, 6 Wall. 484. Daniels, in Bonner v. United States, ^ Brown v. The United States, 6 Ct. 9 Wall. 156; United States v. McLe- C. C 171; Cross v. U. S., 14 Wall, more, 4 How. 286 ; Beers z/. Arkan- 479; Clark v. U. S., 95 U. S. 539. sas, 20 id. 527 ; Hans v. Louisiana, The Court of Claims is not a local 134 U. S. I ; McGahey v. Virginia, but a national court, with jurisdiction 135 id. 662. And where the govern- throughout the United States, and a ment sues an individual no judgment claim in suit in it is not a local asset : on a plea of set off can be rendered King v. U. S., 27 Ct. CI. 529; Ruther- against the government, although it ford v. U. S., Ibid. 539. All United may be judicially ascertained that on States courts are within its territorial striking a balance of just demands jurisdiction: Peterson v. U. S., 26 the latter is indebted to the defend- id. 93. COURT OF CLAIMS. 397 jurisdiction to hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive depart- ment, or upon any contract, express or implied, with the govern- ment of the United States, and all claims which might be referred to it by either house of Congress;^ and it made further pro- visions for practice and procedure in said court.^ Since the original act for providing for this court was adopted, additional powers have at various times been conferred upon it, and addi- tional regulations made as to practice and procedure therein; and a large amount of business is now annually transacted by it.^ Organization and Sessions of the Court of Claims. § 375. In regard to the organization and sessions of the Court of Claims, the Revised Statutes provide as follows : Judges. — Sec. 1049. The Court of Claims, established by the act of February 24, 1855, shall be continued. It shall consist of a chief justice and four judges, who shall be appointed by the President, by and with the advice and consent of the Senate, and hold their offices during good behavior. Each of them shall take an oath to support the Constitution of the United States and to discharge faithfully the duties of his office, and shall be entitled to receive an annual salary of four thousand five hundred dollars, payable quarterly from the treasury,* Seal. — Sec. 1050. The Court of Claims shall have a seal, with such device as it may order. Court-rooms, etc., how provided, — Sec. 105 1. It shall be ^ Act of Feb. 24, 1855, ch. 122, § i, judgment may be reviewed in the V. 10, p. 612. Supreme Court, its decision must be ^ A statement of the causes which confined to tlie legal rights ot" the led to the establishment of the Court parties : Western Cherokee Indians of Claims, and an interesting and v. U. S., 27 Ct. CI. i, succinct history of the same, has been * By act of March 3, 1881, ch. 130, prepared by the Hon. William A, par, 4, 21 Stat, L. 385, i Supp. R. S, Richardson, Chief Justice of the court. 320, the salaries appropriated for the The whole of this pamphlet {2d edi- United States Court of Claims and tion, 1885) is inserted at the end of Territorial judges may hereafter be this chapter. paid monthly. And tliey "shall be ^ Congress can confer upon the paid monthly," by Act of July 31, Court of Claims powers not strictly 1894, ch. 174, § 13, 28 Stat. L. 162, 2 judicial, such as those of a quasi in- Supp. R. S. 218, ternational tribunal; but when its 398 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the duty of the Speaker of the House of Representatives to appropriate such rooms in the Capitol at Washington, for the use of the Court of Claims, as may be necessary for their accom- modation, unless it appears to him that such rooms cannot be so appropriated without interfering with the business of Congress. In that case the court shall procure, at the city of Washington, such rooms as may be necessary for the transaction of their business. Sessions. — Sec. 1052. The Court of Claims shall hold one annual session, at the city of Washington, beginning on the first Monday in December and continuing as long as may be neces- sary for the prompt disposition of the business of the court. Quorum. — And any two of the judges of said court shall con- stitute a quorum, and may hold a court for the transaction of business.^ Officers of the court. — Sec. 1053. The said court shall ap- point a chief clerk, an assistant clerk if deemed necessary, a bailiff and a messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the performance thereof; and for misconduct or incapacity they may be removed by it from office; but the court shall report such removals, with the cause thereof, to Congress, if in session, or, if not, at the next session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. Salaries of clerks, bailiff and messenger. — Sec. 1054. The salary of the chief clerk shall be three thousand dollars a year, of the assistant clerk two thousand dollars a year, of the bailiff fifteen hundred dollars a year, and of the messenger eight hundred and forty dollars a year, payable quarterly from the treasury. Clerk's bond. — Sec. 1055. The chief clerk shall give bond to the United States in such amount, in such form and with such security as shall be approved by the Secretary of the Treasury. Contingent fund. — Sec. 1056. The said clerk shall have authority, when he has given bond as provided in the preceding section, to disburse, under the direction of the court, the contin- gent fund which may from time to time be appropriated for its ' The act of 1874, ch. 468, requires three judges to make a quorum or enter any judgment. i COURT OF CLAIMS. 399 use; and his accounts shall be settled by the proper accounting officers of the treasury in the same way as the accounts of other disbursing agents of the government are settled. Reports to Congress ; copies for departments, etc. — Sec. 1057. O^ ^^^ fi''^^ ^^y °^ every December session of Congress, the clerk of the Court of Claims shall transmit to Congress a full and complete statement of all 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. At the end of every term of the court he is required to transmit a copy of its decisions to the heads of departments ; to the Solicitor, the Comptrollers and the Auditors of the Treas- ury; to the Commissioners of the General Land-Office and of Indian Affairs; and to the chiefs of bureaus, and to other offi- cers charged with the adjustment of claims against the United States. Members of Congress not to practice in the Court. — Sec. 1058. Members of either house of Congress shall not practice in the Court of Claims. Jurisdiction, Pleading, Practice and Procedure of the Court of Claims. § 376. The Revised Statutes and the amendments thereof provide as follows in reference to the jurisdiction, powers and procedure of the Court of Claims : Jurisdiction of claims founded on statutes or contracts, OR referred by Congress. — Sec. 1059. The Court of Claims shall have jurisdiction to hear and determine the following matters : ^ First. All claims 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, and all claims which may be referred to it by either house of Congress. Jurisdiction of set-offs and counter-claims of United States. — Second. All set-offs, counter-claims, claims for dam- ages, whether liquidated or unliquidated, or other demands what- ^ See § I of the Tucker Act infra. 400 FEDERAL PLEADING, PRACTICE AND PROCEDURE. soever, on the part of the government of the United States against any person making claim against the government in said court. Jurisdiction of claims of disbursing officers for losses, ETC. — Third. The claim of any paymaster, quartermaster, com- missary 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, records or papers in his charge, and for which such officer was and is held responsible. Jurisdiction of claims for captured and abandoned pro- perty. — Fourth. Of all claims for the proceeds of captured or abandoned property, as provided by the act of March 12, 1863, chapter 120, entitled, "An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrec- tionary districts within the United States," or by the act of July 2, 1864, chapter 225, being an act in addition thereto; provided, that the remedy given in cases of seizure under the said acts, by preferring claim in the Court of Claims, shall be exclusive, precluding the owner of any property taken by agents of the Treasury Department as abandoned or captured property in virtue or under color of said acts from suits at common law, or any other mode of redress whatever, before any court other than the said Court of Claims; provided, 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 navy engaged in the sup- pression of the rebellion. Private claims in Congress, when transmitted to Court OF Claims. — Sec. 1060. All petitions and bills praying or pro- viding for the satisfaction of private claims against the govern- ment, founded upon any law of Congress, or upon any regula- tion 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 Representatives, with all the accompanying documents, to the Court of Claims. court of claims. 401 Judgments for set-off or counter-claim, how enforced.— Sec. 1 06 1. Upon the trial of any cause in which any set-ofif, counter-claim, claim for damages or other demand is set up on the part of the government against any person making claim against the government in said court, the court shall hear and determine such claim or demand both for and against the gov- ernment and claimant; and if upon the whole case it finds that the claimant is indebted to the government, it shall render judg- ment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any tran- script of such judgment, filed in the clerk's office of any district or circuit court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court, and be enforced as other judgments in such courts are enforced. Decree on accounts of paymasters, etc. — Sec. 1062. When- ever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts. Claims referred by departments. — Sec. 1063. 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 adjust- ment of a class of cases, without regard to the amount involved in the particular 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 per- taining thereto, to be transmitted to the Court of Claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant ; and the Secretary of the Treasury may, upon the certificate of any auditor or comptroller of the Treasury, direct any account, matter or claim, of the 26 402 FEDERAL PLEADING, PRACTICE AND PROCEDURE. character, amount or class described in this section, to be trans- mitted, with all the vouchers, papers, documents and proofs per- taining thereto, to the said court, for trial and adjudication; pro- vided, 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 voluntary action of the claimant.^ Procedure in cases transmitted by departments. — Sec. 1064. All cases transmitted by the head of any department, or upon the certificate of any auditor or comptroller, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the Court of Claims, and shall in all respects be subject to the same rules and regulations. Judgments in cases transmitted by departments, how paid. — Sec. 1065. The amount of any final judgment or decree ren- dered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sections, shall be paid out of any specific appropriation applicable to the case, if any such there be ; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. Claims growing out of treaties not cognizable therein. — Sec. 1066. 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. Claims not to be prosecuted by parties having suits in other courts respecting same against persons acting for the United States. — Sec. 1067. No person shall file or prose- cute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has 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 pro- fessing to act, mediately or immediately, under the authority of the United States. ^ See Bowman Act, \ 2, and Tucker Act, § 12, infra. COURT OF CLAIMS. 403 Aliens. — Sec. 1068. Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by- reason of their subject-matter and character, might take juris- diction. Limitation. — Sec. 1069. Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives as provided by law, within six years after the claim first accrues : provided, that the claims of married women first accrued during marriage, or per- sons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court, or transmitted, as aforesaid, within three years after the disability has ceased ; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. Rules of practice; contempts. — Sec. 1070. The said court shall have power to establish rules for its government and for the regulation of practice therein, and it may punish for contempt in the manner prescribed by the common law, may appoint com- missioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. Oaths and acknowledgments. — Sec. 1071. The judges and clerks of said court may administer oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same. Petition, what to set forth. — Sec. 1072. The claimant shall, in all cases, set forth in his petition the claim, the action thereon in Congress or by any of the departments, if such action has been had; what persons are owners thereof or interested therein, when and upon what consideration such persons became so interested; that no assignment or transfer of said claim, or of any part thereof or interest therein, has been made, except as 404 FEDERAL PLEADING, PRACTICE AND PROCEDURE. stated in the petition; that said claimant is justly entitled to the amount therein claimed from the United States, after allowing all just credits and offsets; that the claimant, and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted or given encourage- ment to rebellion against tlie said government, and that he believes the facts as stated in the said petition to be true. And the said petition shall be verified by the affidavit of the claimant, his agent or attorney. Petition to be dismissed if issue found against claimant AS to allegiance, etc. — Sec. 1073. The said allegations as to true allegiance and voluntary aiding, abetting or giving encour- agement to rebellion against the government may be traversed by the government, and if on the trial such issues shall be decided against the claimant, his petition shall be dismissed. Burden of proof and evidence as to loyalty. — Sec. 1074. Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to the late rebel- lion, the claimant asserting the loyalty of any such person to the United States during such rebellion shall be required to prove affirmatively that such person did, during said rebellion, con- sistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion; and the voluntary residence of any such person in any place where, at any time during such residence, the rebel force or organization held sway, shall be prima facie evidence that such person did give aid and comfort to said rebellion and to the persons engaged therein. Commissioners to take testimony. — Sec. 1075. The Court of Claims shall have power to appoint commissioners to take testi- mony to be used in the investigation of claims which come be- fore it; to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such testi- mony, whether taken at the instance of the claimant or of the United States. Power to call upon departments for information. — Sec. 1076. The said court shall have power to call upon any of the departments for any information or papers it may deem neces- COURT OF CLAIMS. 405 sary, and shall have the use of all recorded and prhited reports made by the committees of each house of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest. When testimony not to be taken. — Sec. 1077. When it ap- pears to the court in any case that the facts set forth in the peti- tion of the claimant do not furnish any ground for relief, it shall not be the duty of the court to authorize the taking of any testi- mony therein. Witnesses not excluded on account of color. — Sec. 1078. No witness shall be excluded in any suit in the Court of Claims on account of color. Examination OF CLAIMANT. — Sec. io8u. The court may, at the instance of the attorney or solicitor appearing in behalf of the United States, make an order in any case pending therein, direct- ing any claimant in such case to appear, upon reasonable notice, before any commissioner of the court, and be examined on oath touching any or all matters pertaining to said claim. Such ex- amination shall be reduced to writing by the said commissioner, and be returned to and filed in the court, and may, at the discre- tion of the attorney or solicitor of the United States appearing in the case, be read and used as evidence on the trial thereof. And if any claimant, after such order is made, and due and rea- sonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. Testimony taken where deponent resides. — Sec. 1081. The testimony in cases pending before the Court of Claims shall be taken in the county where the witness resides, when the same can be conveniently done. Witnesses, how compelled to attend before commis- sioners. — Sec. 1082. The Court of Claims may issue subpoenas to require the attendance of witnesses in order to be examined before any person commissioned to take testimony therein, and 406 FEDERAL PLEADING, PRACTICE AND PROCEDURE. such subpoenas shall have the same force as if issued from a dis- trict court, and compliance therewith shall be compelled under such rules and orders as the court shall establish. Cross-examination.— i>^. 1083. In taking testimony to be used in support of any claim, opportunity shall be given to the United States to file interrogatories, or by attorney to examine witnesses, under such regulations as said court shall prescribe ; and like opportunity shall be afforded the claimant, in cases where testimony is taken on behalf of the United States, under like regulations. Witnesses, how sworn. — Sec. 1084. The commissioner tak- ing testimony to be used in the Court of Claims shall administer an oath or affirmation to the witnesses brought before him for examination. Fees of commissoiner, by whom paid. — Sec. 1085. When testimony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the commission and notice, shall be paid by such claimant ; and when it is taken at the instance of the government, such fees, together with all post- age incurred by the Assistant Attorney-General, shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Congress for that purpose. Claims forfeited for fraud. — Sec. 1086. Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment or allowance of any claim or any part of any claim against the United States, shall ipso facto forfeit the same to the government ; and it shall be the duty of the Court of Claims, in such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prosecuting the same. New Trial on motion of claimant. — Sec. 1087. When judg- ment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. New trial on motion of United States. — Sec. 1088. The Court of Claims, at any time while any claim is pending before COURT OF CLAIMS. 407 it or on appeal from it, or within two years next after the final disposition of such claim, may on motion on behalf of the United States grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong or injustice in the prem- ises has been done to the United States ; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. Payment of judgments. — Sec. 1089. In all cases of final judg- ments by the Courts of Claims, or on appeal by the Supreme Court where the same are affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the Court of Claims, and signed by the Chief Justice, or in his absence by the presiding judge of said court. Interest. — Sec. 1090. In cases where the judgment appealed from is in favor of the claimant, and the same is afifimed by the Supreme Court, interest thereon at the rate of five per centum shall be allowed from the date of its presentation to the Secre- tary of the Treasury for payment as aforesaid ; but no interest shall be allowed subsequent to the affirmance, unless presented for payment to the Secretary of the Treasury as aforesaid. The act of 1890 provides "that hereafter it shall be the duty of the Secretary of the Treasury to certify to Congress for appro- priation only such judgments of the Court of Claims as are not to be appealed, or such appealed cases as shall have been decided by the Supreme Court to be due and payable. And on judg- ments in favor of claimants which have been appealed by the United States and affirmed by the Supreme Court, interest at the rate of four per centum per annum shall be allowed and paid from the date of filing the transcript of judgment in the Treasury Department up to and including the date of the mandate of affirmance by the Supreme Court; Provided, That in no case shall interest be allowed after the term of the Supreme Court at which said judgment was affirmed."^ * Act of Sept. 30, 1S90, ch. 1 126, par. 4, 26 Stat. L. 504, i Supp, R. S. 811. 408 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Interest ox claims. — Sec. 1091. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipu- lating for the payment of interest. Payment of judgment a full discharge, etc. — Sec. 1092. The payment of the amount due by any judgment of the Court of Claims and of any interest thereon allowed by law, as herein- before provided, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the controversy. Final judgments a bar. — Sec. 1093. Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy. Attorney-General to transmit petition in certain cases to departments, etc. — Sec. 188. In all suits brought against the United States in the Court of Claims founded upon any con- tract, agreement or transaction with any department, or any bureau, officer or agent of a department, or where the matter or thing on which the claim is based has been passed upon and decided by any department, bureau or officer authorized to adjust it, the Attorney-General shall transmit to such depart- ment, bureau or officer a printed copy of the petition filed by the claimant, with a request that the department, bureau or officer shall furnish to the Attorney-General all facts, circum- stances and evidence touching the claim in the possession or knowledge of the department, bureau or officer. Such department, bureau or officer shall, without delay and within a reasonable time, furnish the Attorney-General with a full statement, in writing, of all such facts, information and proofs. The statement shall contain a reference to or description of all such official documents or papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defence of the United States against the claim, mentioning the department, office or place where the same is kept or may be procured. If the claim has been passed upon and decided by the department, bureau or officer, the statement shall succinctly state the reasons and principles upon which such decision was COURT OF CLAIMS. 409 based. In all cases where such decision was founded upon any act of Congress, or upon any section or clause of such act, the same shall be cited specifically; and if any previous interpretation or construction has been given to such act, section or clause by the department, bureau or officer, the same shall be set forth succinctly in the statement, and a copy of the opinion filed, if any, shall be annexed to it. Where any decision in the case has been based upon any regulation of a department, or where such regulation has, in the opinion of the department, bureau or officer transmitting such statement, any bearing upon the claim in suit, the same shall be distinctly quoted at length in the statement. But where more than one case, or a class of cases, is pending, the defence to which rests upon the same facts, circumstances and proofs, the department, bureau or officer shall only be required to certify and transmit one statement of the same, and such statement shall be held to apply to all such cases as if made out, certified and transmitted in each case respectively. Appeals to Supreme Court. — Sec. 707. An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section 1086. Appeals; time and manner of taking. — Sec. 708. All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regu- lations as the Supreme Court may direct. Assignment of claims against United States before issue of warrant void. — Sec. 3477. All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authority for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. 410 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Such transfers, assignments and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment or warrant of attorney to the person acknowledging the same. Contracts of Secretaries of War, Navy and Interior to BE IN writing, signed, ETC. — Sec. 3744. It shall be the duty of the Secretary of War, of the Secretary of the Navy and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the government, or by their officers under them, appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof; a copy of which shall be filed by the officer making and signing the contract in the return office of the Department of the Interior, as soon after the con- tract is made as possible, and within thirty days, together with all bids, offers and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers or proposals for the same. All the copies and papers in relation to each contract shall be at- tached together by a ribbon and seal, and marked by numbers in regular order, according to the number of papers composing the whole return,^ Three judges to constitute a quorum, etc. — That any three judges of the Court of Claims shall constitute a quorum ; /rzaf. secure the fulfillment of a contract on 336; Brooke v. United States, 2 id. which the claim is based, was not 180 ; Stoddart v. United States, 4 id. competent to testify in favor of the 511. claimant: Ibid.; Macauley's Case, ^Hebrew Congregation v. United ii Ct. CI. 575. COURT OF CLAIMS. 461 When the Claimant may be Examined as a Witness. § 422. At the instance of the attorney or solicitor appearing on behalf of the United States, the court may make an order in any case pending therein, directing the claimant to appear upon reasonable notice before any commissioner of the court and be examined touching any or all of the matters pertaining to the claim. Such examination is required to be reduced to writing by the commissioner and to be returned to and filed in the court, and it may, in the discretion of the attorney or solicitor of the United States appearing in the cause, be read and used in evi- dence on the trial of the cause. If the claimant fails to appear or refuses to testify or answer as to all matters within his knowl- edge material to the issue after reasonable notice thereof, the court may order that such cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises.^ Under the provisions of the section last cited, it has been held that no order can be made for the examination of the assignor of the claimant. The examination provided for by this section is limited to the claimant himself, and cannot be extended to other persons. He alone by the provisions of the section can be held responsible for his non-attendance as a witness, after reasonable notice ; he alone can be affected by his refusal to tes- tify; and it is only for his refusal that the court can delay the trial until he shall have fully complied with the order of* the court in that behalf.^ The Testimony to be Taken in the County where the Wit- ness Resides ; how Witnesses Compelled to Attend. § 423. The statute particularly requires that the testimony in cases pending in this court shall be taken in the county where the witness resides, when it can be conveniently done ; and the court may issue subpoenas to require the attendance of a witness ' Rev. Stat. ^ 1080. This section is the Government can take the deposi- not repealed by the Indian Depreda- tion of the claimant with the privilege tions act, 1891, and is applicable to of using it or not, at its option: Ear- cases arising under it. The order hart v.\J. S , /did.. ^4^. may be granted on an e:f parie appli- ^ Macauley v. United States, 11 Ct. cation: Truitt v. U. S., 30 Ct. CI. 19. CI. 575. There is no other method by which 4G2 FEDERAL PLEADING, PRACTICE AND PROCEDURE. before any person appointed commissioner by the court for that purpose ; and the subpoenas have the same effect as if issued from any district court, and compliance therewith may be com- pelled under rules and orders of the court.^ Either Party may Cross-examine Witnesses. § 424. The statute provides that in taking testimony to be used in support of a claim, the United States shall have an opportunity to file interrogatories, or by attorney to examine witnesses under such regulations as the court may prescribe ; and that like opportunities shall be afforded to the claimant in cases where testimony is taken on behalf of the United States under like regulations." And the commissioner taking testi- mony to be used in this court is required to administer an oath or affirmation to the witnesses brought before him for examin- ation.'* Fees of the Commissioner and other Expenses; by Whom Paid. § 425. The fees of the commissioner before whom a deposi- tion is taken, and the costs of the commission and notices, shall be paid by the claimant, when the testimony is taken on his behalf; but when taken at the instance of the government such fees, together with all postage incurred by the Assistant Attor- ney-General, shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Con- gress for that purpose.* W^hen Claims will be Forfeited for Fraud, § 426. "Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, state- ment or establishment or allowance of any claim against the United States, shall ipso facto forfeit the same to the government; and it shall be the duty of the Court of Claims in such cases to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prosecuting the same."^ 1 Rev. Stat. \\ 1081, 1082. * Rev. Stat. I 1085. 2 Rev. Stat. I 1083. ^ Rev. Stat. \ 1086. 3 Rev. Stat. I 10S4. COURT OF CLAIMS. 463 The Judgment or Decree. § 427. The judgment or decree of the Court of Claims on a final hearing, if in favor of the claimant, must be for a certain specific sum.^ If the claim is made by an accounting officer, for a loss of the money or other property of the United States without his fault, the court should decree in his favor the amount thereof.^ A proceeding to recover the proceeds of captured or abandoned property is in the nature of a proceeding in rem, and is in effect an information against a fund in the possession of the United States, held for the parties interested in it. There can be no liability in such a case if there is no fund. If it has been con- sumed in expenses or other legitimate purposes, there is no ground for the claim. If only a part of the original fund re- mains, the balance having been paid out under a judgment, or been released to other claimants having an interest in it, by the Secretary of the Treasury, the claimant can only obtain judg- ment for the balance.^ When the Court may Grant a New Trial. § 428. "When the judgment is rendered against any claimant the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial." * The general principles of the law will be observed in granting new trials by this court. Thus, a new trial will not be granted on the ground of newly-discovered evidence, if it could have been discovered with due diligence before the trial. And even where due diligence has been used for this purpose, a new trial will not be granted unless it is made to appear that a different conclusion would probably be reached if the new evidence were before the court.^ Nor will a new trial be granted merely because the 1 United States z/. Anderson, 9 Wall. CI. 273; Sharp v. United States, 56; s. c, 4 Ct. CI. 467; Brown v. Ibid. 638; Seviere z/. United States, United States, 6 Ct. CI. 171. The 7 id. 388; Winchester v. United court does not lose jurisdiction with States, \i, id. 13; s. c, 99 U. S. the expiration of the term unless a 1372; United States z/. Villalonga, 23 final judgment has been rendered : Wall. 35. Book V. U. S., 31 id. 2-]2. * Rev. Stat. I 1087. ■•^ Rev. Stat. § 1062. ^ Garrison v. United States, 2 Ct. 3 Thomas v. United States, 12 Ct. CI. 382; Armstrong v. United States, 464 FEDERAL PLEADING, PRACTICE AND PROCEDURE. amount involved is too small to allow an appeal/ liut if the decision is founded upon a mistake of law, the claimant may have a review.^ So if the judgment is entered upon matters not properly in evidence, it will be vacated and a new trial granted.^ A new trial will not be granted on the ground that the Supreme Court has made some decisions since the judgment that might entitle the claimant to a judgment in his favor ;^ nor on the ground of a mistake in fact, unless one of the judges who joined in rendering the judgment desires a reargument after examining the grounds of mistake upon which it is asked.^ The mode of seeking a new trial would be the usual one, by motion in writing, stating specifically the particular grounds upon which it is based, accompanied by the usual affidavits of facts outside the record where it rests upon such facts. Where a case is not properly an examined and allowed case within the meaning of the Indian Depredations act, 189 1, the defendants cannot be compelled to assume the burden of proof by electing to reopen it.^ Otherwise where it is a preferred case. Any defence may be set up in such a case." When a New Trial will be Granted on the Motion of the United States. § 429. At any time while a claim is pending before the Court of Claims, or on appeal from it, or within two years next after the final disposition of it, the court may, on motion on behalf of the United States, grant a new trial and stay the payment of any judgment therein upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong or injustice in the premises has been done the United States; but until some order 6 id. 226; Deeson v. United States, CI. 193. Ibid. 227 ; Bramhall v. United States, ^ Alvord v. United States, 9 Ct. CI. Ibid. 238; Child v. United States, 133. Ibid. 44 ; Silvey v. United States, * Bramliall v. United States, 6 Ct. 7 id. 305. See as tore-opening cases; CI. 238. Wade V. U. S., 21 id. 141 ; Wynn v. 'Kendall v. United States, 12 Ct. U. S., 29 id. 15; Griffin v. U. S., 25 CI. 305. id. 293. " Mares v. U. S. & Jicarilla Apache ^ Deeson v. United States, 6 Ct. Indians, 29 Ct. CI. 197. CI. 227. ' Cox V. U. S. & Bannock Indians, ^ Calhoun v. United States, 14 Ct. 29 Ct. CI. 349. COURT OF CLAIMS. 465 is made staying the payment of the judgment, the same is pay- able as provided by law in other cases.^ The words " final disposition," used in the section last cited, have been construed to mean the final disposition on appeal, if an appeal is taken, and if none is taken, then the final decision of the Court of Claims; and that court may grant a new trial, in the case provided for, at any time within two years after a final disposition, even though it may have been affirmed on appeal in the Supreme Court.^ A mandate from the latter court does not affect that power.^ If after a "final disposition" of a claim a motion for a new trial is granted by the Court of Claims, after an appeal is taken and while it is pending, this vacates the former judgment, and the court resumes the control of the case and the parties, and the Supreme Court will not grant a certiorari to bring up the proceedings subsequent to the appeal ; but after a final judgment on the new trial the case may be taken to the Supreme Court for review.* The proper course to take in such a case would be to move to dismiss the appeal in the Supreme Court on a proper showing of the facts, or to have the cause continued in the Supreme Court. But the mere filing of a motion for a new trial would be no ground for dismissing the cause in that court,* although the cause may be continued to await the decision on the motion for a new trial. The term " evidence " in this section includes testimony taken in the form of question and answer. Under the statute, if the witness appears to be unwilling, the government is entitled to the most effective form of examination. The Court of Claims has power to enforce obedience to a subpoena and to compel a witness to appear and testify in regard to a motion for a new trial.^ One of the grounds for obtaining a new trial under the pro- visions of the section of the Revised Statute last referred to is that some " injustice has been done to the United States." The injustice contemplated by this provision is not that resulting 1 Rev. Stat. \ 1088. 25S ; United States v. Ayers, 9 Wall. "^ Ex parte Russell, 13 Wall. 664; 608. Ex parte United States, 16 id. 699. '" United States v. Crusell, 12 Wall. 3 Belknap v. U. S., 150 U. S. 588. 175. * United States v. Young, 94 U. S. ^ In re McKay, 30 Ct. CI. i. 30 466 FEDERAL PLEADING, PRACTICE AND PROCEDURE. merely from judicial errors committed on the trial, but such as are discovered after the rendition of the judgment/ And a new trial will not be granted on the ground of newly-discovered evi- dence unless there was due diligence to discover it before the trial ; and the obligation to use diligence in such cases falls upon the officers whom the law requires to take official cognizance of the suit, or who are charged in law or in fact with its defence.^ Nor will it be granted in any case on the ground of newly- discovered evidence, if the new evidence would not change the result; or for an error in law, where there is ample remedy by appeal.' Final Judgments of the Court of Claims ; how Paid. § 430. Section 1089 of the Revised Statutes provides for the payment of all judgments in this court, or on appeal in' the Supreme Court in favor of claimants, as follows : " In all cases of final judgments in the Court of Claims, or on appeal, by the Supreme Court, where the same are affirmed in favor of the claim- ants, the sum due thereby shall be paid out of any general appro- priation made by law for the payment or satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment certified by the clerk of the Court of Claims and signed by the Chief Justice, or in his absence by the presiding judge of said court." The act of March 3, iS/S,"* restricts the provisions of the fore- going section, and makes it the duty of the Secretary of the Treasury in such cases, if the plaintiff or claimant is indebted to the United States in any manner, to withhold payment of an amount of such judgment or claim equal to the debt due to the United States. If the claimant assents to this, then it is the duty of the Secretary to execute a discharge of the debt due from the plain- tiff or claimant to the United States. But if he denies the indebt- 1 Child V. United States, 6 Ct. CI. preme Court by appeal : Young v. 44. United States, 99 U. S. 641. ^Silvey v. United States, 6 Ct. CI. * Act of March 3, 1875, ch. 149, 18 305. Stat. L. 481. All accounts and judg- » Ealer v. United States, 5 Ct. CI. ments of the Court of Claims are to 708 ; Child V. United States, 7 id. 305. go to the Auditor for the State and A decision on a motion for a new other Departments, by act of July 31, trial cannot be taken to the Su- 1894, ch. 174, § 7, 28 Stat. L. 162, 2 Supp. R. S. 214. COURT OF CLAIMS. 467 edness to the United States, or refuses to consent to the set-off, then the Secretary is required to withhold such further amount of such judgment or claim as in his opinion will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to a final judgment. If such is not already in suit, it is made the duty of the Secretary to cause legal proceedings to be immediately commenced to enforce the same, and to cause the same to be prosecuted to final judgment with all reasonable dispatch. If in such action judgment shall be rendered against the United States, or the amount recovered for the debt and costs shall be less than the amount withheld, he is required to pay over the balance to the plaintiff, with six per cent, interest thereon for the time it has been so withheld from him. This provision requires the amount of any debt due from the claimant to the United States to be withheld by the Secretary of the Treasury, although this might have been set up as a defence to the claim. The statute conferring jurisdiction on the court gives it jurisdiction to hear and determine "all set-offs, counter-claims, claims for damages, whether liquidated or un- liquidated, 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." As a general rule, in suits between private parties, such a defence should be made in the original suit ; but, as the allowance of such suits against the government is a mere matter of grace, it has a legal right to impose such conditions and restrictions in the premises as it thinks proper. Experience has probably shown that legal defences on the part of the government are frequently overlooked, or, through negligence of officers or otherwise, not made. The term general appropriation for private claims, used in the statute, has been held to mean appropriations made for the pay- ment of debts which were not paid out of the specific appropria- tions.^ If the claimant consents to take the balance due him after deducting the set-off claimed by the Secretary, and dis- charges the judgment, he thereby waives the right to have the validity of the debt tested by legal proceedings.^ ^ Sweeny v. United States, 5 Ct. CI. ^ Bonnafon v. United States, 14 Ct. 285. CI. 484. 468 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Interest on Judgments of the Court of Claims Affirmed in the Supreme Court. §431. Where a judgment is afifirmed in the Supreme Court in favor of the claimant, on an appeal from the Court of Claims, interest thereon at the rate of four per centum must be allowed from the date of filinor the transcript of judgment in the Treasury- Department up to and including the date of the mandate of affirmance by the Supreme Court; but in no case is it allowed after the term of the Supreme Court at which the judgment was affirmed.^ Where a judgment is affirmed, so far as it is in favor of a claimant and reversed so far as it is adverse to him, he is en- titled to have interest added by the Court of Claims on the former and incorporated into the final judgment rendered under the mandate.^ No interest can be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating therefor.^ But where a factor filed a claim against the proceeds of captured property, which exceeded his claim, he was allowed interest from the time his claim accrued up to the time of the rendition of the judgment.* And where a claim was referred to the Court of Claims under a special act of Congress, to be determined ^ Act of Sept. 30, 1S90, ch. 1126, the determination of the latter court : par. 4, 26 Stat. L. 504, i Siipp. R. S. Walton v. U. S., 61 Fed. Rep. 486; 811. Bunton v. U. S., 62 id. 171. Where ^ State of New York v. U. S., 31 Ct. the Government is sued as trustee of CI. 276. an Indian tribe and the judgment will 3 Rev. Stat. ? 1091 ; Todd v. United be satisfied out of a trust fund, inter- States, Dev. (C. C.) 175; Tilson v. est in the nature of damages cannot United States, 100 U. S. 43. And be recovered: Citizen Indians of the. see U. S. V. Bayard, 127 id. 251; Weas z'. U. S., 26Ct. CI. 323. Though Western Cherokee Indians v. U. S., interest prior to the judgment cannot 27 Ct. CI. I. Section 10 of the Tucker be allowed to claimants against the Act refers only to the judgments of United States, the provisions of Rev. circuit and district courts and does Stat, § 966 peremptorily require it to not repeal or modify Rev. Stat. §§ 1090 be allowed to the United States, and 1091 : U. S. V. Barber, 74 Fed. against claimants, under all circum- Rep. 483. A circuit court has no stances to which the statute applies jurisdiction to award interest on a and without regard to equities which judgment rendered by the Court of might be considered between private Claims without making provision for parties: U. S. v. Verdier, 164 U. S- 213. interest which has been paid. Such * Villalonga v. United States, 10 interest is merely an incident to the Ct. CI. 428; s. c, 23 Wall. 35, judgment and its allowance was for COURT OF CIvAIMS. 469 according to " rules and regulations heretofore adopted by the United States in the settlement of like cases," it was held that interest might be allowed on the claim before the rendition of the judgment, if interest had been allowed by Congress in the adjustment of similar cases.^ Where Congress appropriated in payment of a judgment against the United States the full amount thereof, with a provision in the appropriation law that the sum thus appropriated should be in full satisfaction of the judgment, and the judgment debtor accepted the sum in payment of the judgment debt, it was held that the debtor was estopped from claiming interest under section 1090 of the Revised Statutes? Payment of the Judgment a Full Discharge. §432. The payment of the amount due upon any judgment of the Court of Claims and of any interest thereon allowed by law is a full discharge of the United States from all claim and demand touching any of the matters involved in the controversy.^ To constitute a bar to a future action the judgment must be one rendered on the merits;^ and although the judgment may be erroneous, it is a bar to a second suit for the same cause of action.^ But a judgment in one suit will not bar an action in another if the causes of action are different.® So an action for a breach of one covenant and a judgment therefor for the claimant will not bar another action for the breach of another covenant, even when both covenants are contained in the same instrument and both were broken at the time of the institution of the first suit/ So a judgment for rent upon one petition will not bar another suit to recover rent that was not due at the time of com- mencing the first suit.'^ Appeals from the Court of Claims to the Supreme Court. § 433. Section 707 of the Revised Statutes provides for an appeal from the Court of Claims to the Supreme Court of the 1 United States v. McKee, 91 U. S. ^ Osborne v. United States, 9 Ct. 442 ; s. c, 10 Ct. CI. 231. CI. 153. 2Pac. R. Co. V. U. S., 158 U. S. "Shrewsbury v. United States, 9 118. Ct. CI. 263. ^ Rev. Stat. \ 1092. See Michot v. ' Shrewsbury v. United States, 9 U. S., 31 Ct. CI. 299. Ct. CI. 263. * Spicer v. United States, 5 Ct. CI. * Cross v. United States, 14 Wall. 34- 479 ; s. c, 5 Ct. CI. 88. 470 FEDERAL PLEADING, PRACTICE AND PROCEDURE. United States, as follows: "An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judg- ments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in contro- versy exceeds three thousand dollars, or where his claim is for- feited to the United States by the judgment of said court as provided in section 1089 [1086?]." There is an absolute right of appeal on behalf of the United States and also on behalf of the claimant where the amount in con- troversy exceeds the sum of three thousand dollars, or where his claim is forfeited to the United States by the judgment of the Court of Claims, as provided by the statute. The right to an appeal exists in all cases except where it is withheld, and it is not withheld from the government in any case where there is a judgment against them, nor from the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim has been forfeited.^ The conclusion of law in a departmental case, whether it came into court under the Bowman or the Tucker act, is not a judgment, so no appeal therefrom lies to the Supreme Court.^ Right to Appeal, not to Writ of Error. § 434. The statute gives the right to an appeal, but makes no provision for a writ of error, and hence the Supreme Court can- not proceed on a writ of error to review a decision of the Court of Claims.^ Time and Manner of Taking Appeals. § 435. Appeals from the Court of Claims must be taken within ninety days after the judgment or decree is rendered, and are allowed under such regulations as are or may be prescribed by the Supreme Court.^ Regulations Prescribed by the Supreme Court of the United States relating to Appeals from the Court of Claims. § 436. The Supreme Court of the United States has prescribed rules regulating appeals from the Court of Claims. One rule ' United States v. Adams, 6 Wall, act of 1891 is not a judgment: Adams 103 ; Klein's Cases, 7 Ct. CI. 240. v. U. S. , 26 id. 290. ^ Sanborn v. U. S., 27 Ct. CI. 485. * United States v. Young, 94 U. S. The order of court that a certificate 258; Latham's Appeal, 9 Wall. 145. issue under the French Spoliations * Rev. Stat. \ 708. I COURT OF CLAIMS. 471 provides that where appeals are allowable they shall be heard in the Supreme Court upon the following record: " I. A transcript of the pleadings in the case, of the final judg- ment or decree of the court, and of such interlocutory orders, rulings, judgments and decrees as may be necessary to a proper review of the case. " 2. A finding by the Court of Claims of the facts in the case established by the evidence in the nature of a special verdict, but not the evidence establishing them ; and a separate statement of the conclusions of hiw upon said facts upon which the court founds its judgment or decree. The finding of facts and conclu- sions of law to be certified to this court as apart of the record."* If a statute confers on the Court of Claims jurisdiction over a new subject, an appeal lies from a decision relating thereto the same as in other cases.^ Application for Allowance of Appeals; Within what Time to be Made. § 437. Rule 3 provides that " in all cases an order for the allowance of appeal by the Court of Claims, or the Chief Justice in vacation, is essential, and the limitation of the time of grant- ing such appeal shall cea.se to run from the time an application is made for the allowance."^ An order for the allowance of an appeal does not absolutely and of itself remove the cause from the jurisdiction of the court ; but an order revoking such an allow- ance may still be made.* Findings of Fact and Conclusions of Law Filed in Open Court. § 438. Where either party is entitled to appeal, the Court of Claims is required to make and file their finding of facts and conclusions of law thereon in open court, before or at the time they enter the judgment in the case.^ ^ Rule I Ct. CI, prescribed by the Where an appeal has been allowed Supreme Court. See />oj/. Rules for and the record filed in the Supreme the Court of Claims. Court, the Court of Claims has lost * Ex parte Zellner, 9 Wall. 244. jurisdiction and cannot set aside the ^ Rule 3 Ct. CI., prescribed by the allowance of the appeal: Kirk v. U. Supreme Court; United States v. S., 28 Ct. CI. 276. Adams, 6 Wall. loi. ^ Rule 4 Ct. CI., prescribed by the *" Ex parte Roberts, 15 Wall. 384. Supreme Court. 472 FEDERAL PLEADING, PRACTICE AND PROCEDURE. If a proper finding of facts is not sent up with the record, the Supreme Court will, on a motion duly made therefor, make an order directed to the Court of Claims, requiring it to make a proper return as to the existence of such facts. But it cannot direct the Court of Claims as to what finding it shall make, or how it shall proceed to make its findings on the points required to be certified.^ In the case provided for by the rule last cited each party, at such time before the trial and in such form as the court shall prescribe, shall submit to it a request to find all the facts which the party considers proven, and deems material to the due pre- sentment of the case, in the finding of facts.^ The fourth and fifth rules we have just cited were undoubtedly designed to enable a party to secure a finding of fact upon any point material to the decision of the court; but the failure of the court to find the fact as a party alleges it to be will not justify the bringing of all the evidence on that subject before the Supreme Court. If the court refuses to make any finding on the point, the Supreme Court may order it to make a finding.^ If the Court of Claims refers a case pending therein to a special commissioner to state an account and find the facts, and his report has been heard upon exceptions filed thereto, and the court finds the facts found sustained by the evidence, they will be returned to the Supreme Court, in case of an appeal of the case, as the finding of the court. And as to facts requested to be found by either party, and not found by the court, they should be certified up to the Supreme Court, with the reasons for the refusal.^ The record on appeals should be prepared strictly in accord- ance with the rules prescribed by the Supreme Court in relation thereto. Only such statement of facts should be sent up to the Supreme Court as may be necessary to enable it to decide upon the correctness of the rulings in the court below on propositions of law. The facts found by the court must be in such form as to raise the question of law decided by the court, and no evidence 1 United States v. Adams, 9 Wall. ' Mahan v. United States, 14 Wall. 661. 109. ^ Rule 5 Ct. CI., prescribed by the * Lawrence v. United States, 8 Ct. Supreme Court. CI. 252. COURT OF CLAIMS. 473 should be included.^ Even a written agreement entered into by both parties that the evidence may be sent up to the Supreme Court with the required record of the case will not authorize the court to certify up such evidence.^ The finding of facts by the Court of Claims in the nature of a special verdict is conclusive in the Supreme Court on appeal, unless it is impeached for some error in law appearing in the record.^ But where the Court of Claims certified up on appeal, as a part of its findings, all of the evidence on which a fact mate- rial to the judgment rendered was found, from which it appeared that there was no legal -evidence to establish such fact, the Supreme Court reversed the judgment.* When the finding does not disclose the testimony, but only describes its character and, without questioning its competency, simply declares its insuffi- ciency, the Supreme Court is not at liberty to refer to the opinion for the purpose of eking out, controlling or modifying the scope of the findings.* Where a Request is Made to Find Facts. § 439. If a party entitled to appeal requests the finding of a material fact, which is refused by the court, although there is sufficient evidence to sustain it, the party aggrieved thereby may except to the ruling and have the matter reviewed on appeal.^ The request for the finding of particular facts must be in writing and made at the trial, and embrace all the material facts in the case; and if it be for an additional finding of facts, it should set forth specifically, distinctly and concisely the facts as to which a finding is desired, and a reference should be made in the margin of the pages where the evidence to prove the facts may be found; but it should not ask that the finding be an amendment or alter- ^ De Groot z^. United States, sWall. 214; United States v. Pugh, 99 id. 419. 265. 2 Hubbel V. United States, 6 Ct. CI. * United States v. Clark, 96 U. S. 53. It is only the ultimate facts or 37. propositions which can be certified ^ Stone v. U. S., 164 U. S. 380. up, and not the evidence of facts : * United States v. Adams, 9 Wall. Ibid. 661. ^ United States v. Smith, 94 U. S. 474 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ation of the finding already made.^ Decisions upon the admissi- bility of evidence, and orders made relating to the conducting of the trial, cannot be incorporated into the finding of the facts.^ But if the Court of Claims admits questionable evidence, the sufficiency of the evidence, as we have seen, to sustain the find- ing may be reviewed on a proi)er statement of the focts.^ If the report of the commissioner appointed by the Court of Claims is adopted by the court, the finding of facts by him, together with such additional findings as the court may make, should be transmitted to the Supreme Court as the findings of the Court of Claims.* If an ultimate fact can only be inferred from circumstantial facts, and there is any doubt as to the legal effect of these facts, the findings should set forth these circumstantial facts.^ But the findings need not state the items of the amount of damages." If all the evidence on which a fact is found is certified up with the record as a part of the finding, the evidence and the finding may both be examined to determine whether the evidence is compe- tent and whether it establishes the fact found.' But if the court, upon request, states that a particular item of damages is included in its estimate of damages, the claimant may except to the find- ing on this point, and thus present, on appeal to the Supreme Court, the question whether the item is legally a matter for which damages can be recovered.^ And if the finding of facts does not set forth the amount the claimant is entitled to recover, the judgment will be reversed.^ Court of Private Land Claims. § 440. By the act of March 3, 1891, this court was established and its proceedings regulated. ^'^ The act was amended by the ^ Raines t'. United States, II Ct. CI. 265; Calhoun v. United States, 14 648 ; Neal v. United States, 14 id. Ct. CI. 193. 477 ; Bright v. United States, 12 id. * United States v. Smith, 94 U. S. 646. 214. ■■^ Blewett V. United States, 10 Ct. ' United States f. Clark, 96 U.S. 37. CI. 235. ^ United States v. Smith, 94 U. S. ^ McKeever v. United States, 14 Ct. 214. CI. 396. ■•• United States v. Clark, 96 U. S. 37. * Lawrence z>. United States, 8 Ct. ^^Act of March 3, 1891, ch. 539, 26 CI. 252. Stat. L. 854, I Supp. R. S. 917. ^ United States v. Pugh, 99 U. S. COURT OF CLAIMS. 475 act of February 21, 1893.* It is unnecessary to set out the details of these statutes, for by the act of March 2, 1895, it is provided that "the powers and functions of the court . . . shall cease and determine on the thirty-first day of December, eighteen hundred and ninety-seven, and all papers, files and records in the possession of said court belonging to any other public office of the United States shall be returned to such office, and all other papers, files and records in the possession of or appertain- ing to said court shall be returned to and filed in the Department of the Interior."^ An inchoate claim which could not have been asserted as an absolute right and was subject to the uncontrolled discretion of Congress was held not to come within the juris- diction of this court. The duty of protecting such imperfect rights of property rests upon the political department of the gov- ernment.^ And the fact that Congress may have confirmed simi- lar grants cannot operate to justify this court in the adjudication of a case not coming within the terms of the law of its creation. We here insert the whole of Chief Justice Richardson's pam- phlet entitled "History, Jurisdiction and Practice of the Court of Claims." History. — Previous to the year eighteen hundred and fifty-four the accumulation of private claims against the Government of the United States presented to Congress for examination and relief had, at various times, engaged the attention of Senators and Representatives. It was seen and acknowledged by them all that it was beyond the power of Congress or its committees to make a thorough investigation of those claims, or to act intel- ligently upon the large and constantly increasing number of petitions introduced at each session in behalf of persons having claims of various kinds for which they sought relief. Claimants ^ Act of Feb. 21, 1893, ch. 149, 27 manded should be made perfect by Stat. L. 470, 2 Supp. R. S. 88. the former government had the terri- ^ Act of March 2, 1895, ch. 177, par. tory not been acquired by the United 22, 28 Stat. L. 744, 2 Supp. R. S. 417. States: Bergere v. U. S., U. S. Sup. »U. S. z'. Santa F6, 165 U. S. 675. Ct. Advance Sheets, Nov. 15, '97, An imperfect grant which can be p. 11. confirmed by this court must be one * Rio Arriba L. & C. Co. v. U. S., which the complainant could by 167 U. S. 298. right, and not by grace, have de- 476 FEDERAL PLEADING, PRACTICE AND PROCEDURE. had gone to Congress, and would continue to go there, as a matter of right secured to them by the first artPcle of the amend- ments to the Constitution of the United States, guaranteeing to the people the privilege to petition the Government for redress of grievances. It was seriously felt both in and out of Congress that the con- stitutional guaranty was of little value, and was substantially violated if private claimants against the government were al- lowed merely the naked right to have their petitions presented, without any further investigation and consideration. To neglect to hear petitioners, or not to act upon their com- plaints when heard, was practically the same to them as would be the effect of a law expressly abridging the right of petition in direct and flagrant violation of the Constitution. And yet such was the extent of these claims, and the diffi- culty of reaching the real facts in each case, that few of them were ever acted upon, and many honest creditors of the United States were turned away without a hearing, and others were deterred from presenting their petitions for redress by the diffi- culties in the way of ever reaching a final determination, while it was occasionally found that, upon hasty consideration or im- perfect ex parte evidence, a claim was allowed and paid which was, to say the least, of doubtful validity. Committees could not constitute themselves courts for the trial of facts. They had not the time to devote to that kind of investigation, to the interruption or exclusion of their duties to the country on the great national questions which were always pending in Congress. They could not effectively examine the claimants' witnesses to any great extent before themselves, and they were not sufficiently familiar with the matters in contro- versy to be able to procure witnesses for the Government. Claimants, in fact, presented only ex parte cases, supported by affidavits and the influence of such friends as they could induce to appear before the committees in open session, or to see the members in private. No counsel appeared to watch and defend the interest of the Government. Committees were, therefore, perplexed beyond measure with this class of business, and most frequently found it more convenient and more safe not to act at all upon those claims which called for much investigation, espe- COURT OF CLAIMS. 477 cially when the amounts involved seemed large. Moreover, when bills for relief in meritorious cases were reported, few of them were acted upon by either House, or, if passed by one, were not brought to a vote in the other House, and so fell at the final adjournment, and if ever revived, had to be begun again before a new Congress and a new committee, and so on year after year and Congress after Congress. Several plans for relief were from time to time proposed by bills, resolutions, or motions, or were suggested by Senators and Representatives in the course of debate. But no measure was carefully and fully considered until the second session of the Thirty-third Congress, in the year eighteen hundred and fifty-four. On the sixth of December of that year Senator Brodhead, of Pennsylvania, in pursuance of previous notice, asked and ob- tained leave to introduce a bill establishing a commission for the examination and adjustment of private claims, which was read a first and second time by its title and referred to the Committee on Claims. This was a carefully drawn and well- prepared bill. It had evidently been considered by members of the committee and had their concurrence before its introduc- tion, for it was soon reported back without amendment. When the bill came up for discussion in the Senate, it soon became apparent that the prevailing opinion of members was that something more was needed than a mere commission, with its members appointed for a term of years, or removable at the pleasure of the Executive. It was seen that there would be frequent changes of commissioners with the change of parties or the incoming of new administrations, and that with the con- stant liability of removal the independence of the commissioners would be greatly weakened and their usefulness much impaired. Besides, men of ability and learning in the law would not give up their position and practice to accept such semi-judicial offices, subject to removal at any time. The desire expressed was to have an independent and permanent tribunal, which should pass upon the claims made against the Government with all the formalities, safeguards, and judicial learning which dis- tinguish courts of justice established for the trial of causes between individuals. 478 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Senator Hunter, of Virginia, suggested some amendments and proposed the appointment of judges with life tenure, instead of commissioners, as the best means of securing that complete independence which it was important to establish, and of obtain- ing the best men to fill the positions. He said: " When these safeguards are provided, I think we should establish the most admirable tribunal for doing justice to private claimants, and, at the same time, for throwing proper checks about the Treasury of the United States, that could be estab- lished." After this discussion the bill was referred on the i8th of December, 1854, to a select committee composed of Senators Brodhead, of Pennsylvania, Jones, of Tennessee, Hunter, of Virginia. Clayton, of Delaware, and Clay, of Alabama. On the 20th of December this committee reported a substitute entitled "An act to establish a Court for the investigation of claims against the United States." This bill differed from the former one very little, except in the important feature of establishing a permanent and independent court instead of a commission. The bill thus drawn met the approval of the Senate, and on the 2 1st of December it passed that body, without a vote recorded against it. The bill reached the House of Representatives on the 24th of December, and was referred first to the Judiciary Committee, but this reference was changed and it was sent to the Committee on Claims. It was soon reported back with some amendments which did not alter the main features of the bill, and was passed by the House on the 23d of February, 1855, by a vote of 150 to 46. Two days after, February 25, the bill was signed by the President and became a law.^ The act required the appointment of three judges by the Pres- ident, by and with the advice and consent of the Senate, to hold their offices during good behavior. President Pierce appointed two of them on the 3d of March, and the other on the 8th of May, 1855. They organized on the nth of May, 1855, making choice of Judge Gilchrist as Presiding Judge, and immediately entered upon the discharge of their duties. The magnitude and difficulties of the business of the court, ^ ic Stat. L. 612. I I COURT OF CLAIMS. 479 with its peculiar jurisdiction, are well presented in a report made to Congress by Judge Gilchrist, for himself and his associates, bearing date June 23, 1856, from which the following extracts are taken : " As to the business of the court, we are convinced that no one who has not had personal experience on the subject can have any correct idea of its diversity, its intricacy, its perplexity, the exhausting labor necessary for its investigation, or the large sum of money it involves. Until the institution of this court, there had never been anything like a systematic inquiry into the modes of action by the Government through the Executive Departments, or the relation in regard to contracts and the lia- bilities arising therefrom which the Government bore to the citizens. It was inevitable, and it is astonishing that it should not have been sooner perceived, that among twenty-five millions of people, inhabiting the almost boundless territory compre- hended by the Union, innumerable questions of the most difficult and delicate nature must have arisen, delays in the decision of which were alike discreditable to the moral sense of the people and the public faith of the Government, of which the people were the foundation. It has been often asserted, and proved by the experience of the British Parliament, that legislative bodies are unfitted, by the pressure of great public interests, from care- ful judicial investigation into private rights. The consequence has been in our country that claims accumulated* until their mag- nitude repressed all willingness to investigate them, and a state of things arose which made it hopeless almost to present a claim against the United States with any prospect of a decision. Such was the condition of affairs when we entered upon the discharge of our duties. Our field of action was entirely new. We had no precedents to guide us. It was necessary at once to adopt some system of rules for the transaction of business. The ordi- nary rules of practice in courts of law were obviously inap- plicable. We were forced to adopt rules in advance of any experience upon the subject, conscious that we should be forced often to modify and sometimes to abrogate them. We found numerous cases involving questions entirely out of the path of ordinary legal investigation, requiring a degree of care and study rarely necessary in courts of justice. Cases of contracts, intricate 480 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in their details, imperfectly defined by the evidence, reducible with difficulty to any legal principles, and enormous in amount, met us at the threshold. Cases involving the proper construc- tion of treaties, important questions of public law, and that most difficult and delicate of all questions, the responsibility of the United States to their citizens, were laid before us. The con- struction of acts of Congress, the legitimate powers of the Exec- utive Departments, the duties and liabilities of Government officers, the constitutional powers of the General Government, the duties of neutral nations, and questions arising out of a state of war, were all, directly or incidentally, to be inquired into. It cannot be presumed that, with a due regard to our own reputa- tion or to our official oaths, we were disposed to pass lightly upon questions of such momentous importance. Our object has been to give each case such a degree of care and patient atten- tion as would enable us to use it as a precedent in subsequent cases of a like character. Our desire has been, not to get rid of the cases, but to decide them; and in order to do that they must be carefully examined." The original act provided that at the commencement of each session of Congress, and at the commencement of each month during the session, the court should report the cases upon which they had finally acted, stating in each the material facts which they found established by the evidence, with their opinion in the case, and the reasons upon which such opinion was founded, and the opinion of any judge who should dissent from the majority. It also directed the court to prepare a bill or bills in those cases which received the favorable decision thereof in such form as, if enacted, would carry the same into effect. These provisions might perhaps have accomplished the desired result, and have proved satisfactory, had they not been accompanied with others which delayed and embarrassed the proceedings thereon in Con- gress, and, to a large extent, actually prevented any final action whatever. It required the court to transmit, with the reports, the briefs of the solicitor for the Government and of the claimant, and the testimony in each case. The claims reported upon adversely were, by t' e terms of the act, to be placed on the calendar ; and all reports and bills from the court were to be continued from session to session, and from COURT OF CLAIMS. 481 Congress to Congress, until finally acted upon. But claims reported favorably upon, and the accompanying bills, were not required to be placed upon the calendar. At the very outset, when the first report came in, the question arose as to what was to be done with the favorable reports and bills. It was decided to refer them to the Committee on Claims, and that course was ever after followed while the system of reporting to Congress continued. The Committee on Claims finding a mass of evidence, with the briefs in each case, referred to them, very naturally felt it to be their duty to go carefully over the whole matter, to read all the evidence, and examine the briefs of the claimant and of the solicitor for the Government. Claimants were uneasy and press- ing, and the troubles and perplexities of the members of the committee were numerous. To hear the cases anew, or to examine all the papers in each case and submit the questions which were raised on the facts and the law to the decision of the committee, would require more time and labor of the mem- bers than it was possible to devote to such duty. If the work which the court had done was thus to be all gone over again in committee, little was gained by reference to the court at all. In fact it was a positive loss and injury to the claimants, because they were forced to try their cases twice, while neither Congress nor claimants obtained relief. Favorable reports were often not concurred in or not acted upon at all, and were finally lost altogether. This was not what the friends of the act establishing the court intended, nor what they hoped and expected to accomplish. In discussing the original bill in the Senate in December, 1854, Senator Hunter, of Virginia, had said: "I take it for granted that there would scarcely be a case in which Congress would not concur in the decision of a court thus established." It was no doubt supposed, as was said at a later date by a member of the House from Pennsylvania, that the bills reported by the court would be read over by the committee simply to " see whether there was anything contained in them which might be considered as trenching on the privileges or rights of the House, and if there were not, that they might be reported back for the House to act on them." 31 482 FEDERAL PLEADING, PRACTICE AND PROCEDURE- It was not foreseen that the committee would feel reluctant to take the responsibility of reporting back the bills without examination of the evidence upon which they were founded, evidence which the law required should be submitted to Con- gress, and which had been referred to them by vote of the House. Such was the inevitable consequence of laying the whole record in each case before Congress, and it defeated one great object of the act establishing the court, that of relieving Congress from the consideration of private claims upon the evidence. When this became apparent from actual experience, Congress, ever ready as it has been to sustain and increase the usefulness of the court, made important and radical changes and improvements in the organic act. On the 3d of March, 1863, an amendatory act was passed,^ of which the most material alterations were these : Two additional judges were added to the court, making the number five. An appeal was allowed to the Supreme Court by either party where the amount should exceed three thousand dollars, and by the defendants in other cases. Every judgment was to be paid " out of any general appropriation made by law for the payment and satisfaction of private claims, on presenta- tion to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the Court of Claims, and signed by the chief justice, or in his absence by the presiding judge." Interest was to be alowed upon judgments in certain cases in favor of claimants, when on appeal to the Supreme Court the same should be affirmed. The former requirement that the court should send to Congress the records, evidence, judgments, and bills was done away with. These provisions still stand as the existing law.^ Some other amendments were made by the act relating to jurisdiction which we shall refer to hereafter, and others in rela- tion to details of less consequence. The last section of the act led to some difficulty. It provided that no money should be paid out of the Treasury for any claim passed upon by the court till after an appropriation therefor should be estimated for by the Secretary of the Treasury. The Supreme Court held that this authority given to the head of an 1 12 Stat. L. 765. ^ Rev. Stat. ?§ 1059, 1093. COURT OF CLAIMS. 483 Executive Department, by necessary implication, to revise the decision of the Court of Claims requiring the payment of money, denied to it the judicial power from the exercise of which appeals could be taken to that court, and they refused to take jurisdiction of any appeals from the Court of Claims.^ When that decision was promulgated, Congress, in March, 1 866, repealed the section referred to,^ and the Supreme Court has ever since entertained jurisdiction of such appeals. From that time the business of the court has gone on smoothly, with no other difficulties than those incident to the trial and investigation of cases of such magnitude, and involving such intricate and peculiar questions as come before this court. The Supreme Court has held that the Court of Claims exer- cises all the functions of a court, and is one of those courts which Congress authorizes under the Constitution, having jurisdiction of contracts between the Government and the citizen, from which appeal lies to the Supreme Court; and that its judgments, where no appeal is taken, are absolutely cone usive of the rights of the parties, just as conclusive as are the judgments of the Supreme Court.^ It is held by the Supreme Court that the provisions authoriz- ing the Court of Claims to give judgment in favor of the United States against claimants without a trial by jury do not violate either the letter or spirit of the seventh amendment to the Con- stitution, which provides that " in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The court further says that : " Suits against the Government in the Court of Claims, whether reference be had to the claimant's demand or to the defense, or to any set-off or counter-claim which the Government may assert, are not controlled by the seventh amendment. They are not suits at common law within the true meaning."* The constitutional organization of the court and its pro- cedure without a jury are therefore authoritatively settled by the tribunal of last resort. Since the organization of the court to June i, 1885, the whole 1 Gordon v. United States, 7 Ct. CI. 13 Wall. 128 ; O'Grady's Case, 10 Ct. 2 14 Stat L. 9. CI. 134, and 22 Wall. 641. 8 Klein's Case, 7 Ct. CI. 241, and *McElrath's Case, 102 U. S. 440. 484 FEDERAL PLEADING, PRACTICE AND PROCEDURE. number of cases against the United States has been 14,602, besides 397 against the District of Columbia, exclusive of cases transmitted under the recent Bowman act, hereinafter men- tioned. This large number of claims has been withdrawn from Congress and has been judicially disposed of. To that extent, therefore, the legislative branch of the Government has obtained relief from what are really and properly judicial duties. In the first edition of this article it was said: "There are still numerous claims pressing upon Congress wherein the petitioners appeal for special relief which the strict rules of law cannot afford them. Claims of this class are increas- ing and are a source of much embarrassment to both Senators and Representatives. It is uncertainty as to the real facts that gives rise to most of the difficulty. These, Congress, by its committees, cannot investigate and ascertain as they are proved and established in courts of justice. It may and probably will soon become necessary, if it has not already become so, to send such cases to the Court of Claims for findings of fact, to be sub- mitted to Congress for its determination as to the law or the relief which should be applied to them. With the facts judicially determined, Congress would be able to act intelligently, safely, and readily upon the cases presented." The next succeeding Congress acted upon the suggestion thus made, and finally passed the act of March 3, 1883,^ commonly called the " Bowman Act," from Hon. S. Z. Bowman, a Repre- sentative from Massachussetts, who reported the bill from the Committee on Claims and had the charge of it in the House. It provides that when any claim or viattcr is pending before either House of Congress or any committee which involves the investi- gation and determination of facts, the same may be transmitted to the Court of Claims for hearing. When the facts are found, the same are reported to the House or to the committee from which the case was transmitted, for its consideration. No judg- ment is entered, no conclusions of law made, and no opinion is given, nor is the evidence returned. All that is reported back is the finding of facts.^ The same act authorizes the head of any Executive Depart- ' 22 Stat. L. 485, and 18 Ct. CI. xxv. ^ Ford's Case, 19 Ct. CI. 596. I COURT OF CLAIMS. 485 merit to transmit to the court any claim or matter involving contro- verted questions oifact or law, requiring the court to find the facts and its conclusions of law, and to render an opinion ; all of which is to be reported to the Department, /"^r its guidance and action. This act does not alter or affect the pre-existing judicial func- tions and j urisdiction of the court to hear, determine, and enter judg- ment in cases enumerated in Revised Statutes, § 1059. As no judg- ments are entered in cases under the Bowman act, there is no right of appeal, as in other cases within the jurisdiction of the court. As supplementary to the statutes conferring absolute juris- diction upon the court to hear, determine, and give judgment in cases founded upon contracts, express or implied, the laws of Congress, the regulations of the Executive Departments, and cases referred by either House of Congress where legal rights are claimed, all of which are well defined judicial powers, the provisions of the Bowman act, as aids to Congress and the Departments, perfect a complete system for the removal from the halls of legislation of all the troubles, vexation, and embar- rassment incident to the consideration and disposition of private claims and demands of every kind against the Government which are not or cannot be settled in tlie ordinary processes of accounting, or otherwise, by the executive officers, in the exer- cise of their prescribed power and duties. If parties have claims founded on contracts, laws, or regula- tions they can go to the court voluntarily with their petitions; if they have other legal rights, they may be referred there by either house of Congress under the general jurisdiction section. In all these cases the court determines the right of the parties judicially and conclusively by its final decision, and Congress is never-more troubled with them. In cases growing out of treaties with foreign nations or Indian tribes, not now within the jurisdiction of the court,^ and other like cases. Congress may refer the matters in controversy by special acts, as it frequently has done, for final adjudication and judgment. All other matters which address themselves particularly to the sound discretion and liberality of Congress, and seek special relief not as a legal right, but as a concession by the law-making power, the determination of which cannot be delegated by legis- ^ Rev. Stat. I 1066. 486 FEDERAL PLEADING, PRACTICE AND PROCEDURE. lators to others, but must be passed upon by themselves, may be transmitted to the court under the Bowman act, not for judicial determination and judgment, but for the finding of facts alone. When the facts are found, and clearly and concisely presented by the judges, it is not difficult for Congress to determine what measure of relief, if any, shall be accorded to the parties. The system, now well established and matured during thirty years of practice and experience, of having all litigation against the Government tried before a bench of five judges, sitting together at the capital, has great and manifest advantage over that of scattering the cases all over the country, to be tried each before a single judge. A great part of such litigation grows out of matter connected with the Executive Departments, where the documentary evi- dence is found. This fact is recognized and provided for in section 1076 of the Revised Statutes, which authorizes the court to call upon the Departments for information and papers, and such calls are constantly made. The practice and workings of all of the Departments are material for the judges to know and to become familiar with, in order correctly to understand and rightly to determine the issues involved. Necessarily, five judges holding court in Washington and engaged constantly in the trial of such cases acquire a thorough knowledge of national legislation, national affairs, and the execu- tive customs, practice, and course of business in all branches of the Government, which could not be expected of judges at a distance from the capital, who might occasionally have a case involving such matters. Moreover, the trial of such cases before one court only insures uniformity of decisions, which is specially desirable as contribut- ing to greater certainty in the administration of the law and greater security to all parties concerned. Then, again, the whole business of defending the United States in suits at law, and in appHcations to Congress for special relief, is brought together in the Department of Justice, under the immediate and special supervision of the Attorney-General and within easy access to the records, documents, and evidence in all the other Departments. It is there systematized, thoroughly investigated, carefully attended to, and never neglected. The able assistants employed devote their entire time to this one class COURT OF CLAIMS. 487 of business, and thus become thoroughly conversant with all the ramifications of national litigation, and much better prepared for the defence of the United States than it would be possible for other counsel to become if the cases were distributed through- out the country, to be defended here and there by one of the sixty or seventy district attorneys, however able they may be. By the act of June 25, 1868/ it was made the duty of the clerk to transmit to Congress, at the commencement of every December session, a full and complete statement of all the judgments rendered by the court for the previous year, stating the amount thereof and the parties in whose favor rendered, together with a brief synopsis of the nature of the claims upon which the judgments were rendered. This was merely for the information of Congress. From these returns by the clerk the following table has been compiled, and it indicates the magnitude of the claims which the court has been called upon to investigate since 1867. As no such returns were made previous to that date, the amount of business transacted in the earlier years cannot be ascertained without considerable investigation, but it was no doubt about the same in proportion to that of subsequent years. December term. 1867 1868 1869 1870 1871 1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1S82 1883 1884 i88s Aggregate claimed. 12,848,140 26 3,335.803 24 6,073,163 55 5,981,314 84 3,716,724 69 7,079,608 29 6,274,157 41 9,064,061 85 6,065,513 53 6,848,492 46 3,622,624 34 13,939,912 08 1,681,732 80 3,784,279 86 4,241,011 39 3.454,377 I7 3,017,721 82 2,266,977 75 3,614,783 96 Aggregate re- covered. ^ 210,401 29 $810,628 38 1,228,643 31 953,597 27 1,224,757 20 2,354,852 18 3,884,973 06 2,418,510 85 2,997,374 23 1,138,678 58 251,728 89 256,267 31 1,017,182 32 331,332 86 902,014 54 854,354 50 178,016 48 468,998 13 217,341 88 339-603 36 $21,828,845 33 1 Now Rev. Stat. | 1057. 488 FEDERAL PLEADING, PRACTICE AND PROCEDURE. This table includes only the amounts claimed and allowed in cases where judgments against the United States payable in money were the objects of the suits. It does not include the amounts claimed in cases under the Bowman act nor in cases against the District of Columbia. Nor does it embrace those actions in which other remedies were prayed for, such as the cases of Hale, Rector, and others vs. United States, in which the parties claimed the whole of the Hot Springs Reservation, in Arkansas. The title to the Hot Springs had been in controversy and litigation for fifty years. It had been before the Supreme Court several times without reaching a result. There were five adverse parties, each claiming the property as against each other, while the United States asserted title to the whole as remaining in the government. The claimants also had been to Congress, and the General Land Office had been beseiged by them and their attorneys. In 1870 Con- gress passed the Hot Springs act, empowering the Court of Claims to sit as a court of equity and adjudicate the alleged titles both as between the government and the claimants and between the adverse claimants themselves. After a long trial and labori- ous investigation, the Court of Claims disposed of all the litigants by a single decree, and the Supreme Court affirmed the judg- ment. The value of the property involved in this controversy was reputed to be more than six million dollars.^ By the act of March 17, 1866,^ the clerk was required to trans- mit a copy of the decisions of the court to the heads of depart- ments; to the Solicitor, Comptrollers, and 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 adjusting claims against the United States, in order that the executive officers of the government might have the benefit of the judicial opinions and decisions of the court as precedents to guide them in other like cases.^ To carry into eff ct this provision in the manner most useful to those officers, and at the same time to afford persons dealing with the government, and others interested, the means of ascer- taining the rules of law applicable to contracts and obligations 1 10 Ct. CI. 289, 433; II id. 238; 2]sjo^v Rev. Stat. ? 1057. 92 U. S. 698. ^ Meigs' Case, 20 Ct. CI. 181. COURT OF CLAIMS. 489 created by statute or otherwise on the part of the United States, and to present to Congress and the public the whole business and operations of the court whenever they should be sought for, Judge Nott, in connection with the clerk, commenced in the year 1867 the regular publication of reports, under the title of " Court of Claims Reports." This publication has ever since been continued annually, until it now numbers twenty volumes. Although published by government, these reports are also kept for sale by Mr. Wm. H. Morrison, the law bookseller of Wash- ington, so that they may be had by persons interested who are not among the public officers to whom they are distributed by law. Congress has always made ample provisions for the necessities and convenience of the court and of parties having business with it. The organic act made it the duty of the Speaker of the House of Representatives to appropriate such rooms in the Capitol at Washington for the use of the court as might be necessary for its accommodation, unless it should appear to the Speaker that such rooms could not be appropriated without interfering with the business of Congress ; and in that event the court was authorized to procure in the city of Washington such rooms as might be necessary for the convenient transaction of its business. In July, 1855, the court occupied the then Supreme Court room, now used for the Law Library of Congress, and remained there until the Supreme Court assembled in the autumn of that year, when it moved into the three rooms in the western projec- tion of the main building of the Capitol. Thence it went into the six rooms in the west front of the basement of the north wing of the Capitol, then building, the roof not then having been put on. It was not until March 2, 1859, that any formal assign- ment, as contemplated by the act of Congress, was made, the unfinished condition of the work on the Capitol extension, then going on, having delayed it. On that day, James L. Orr, of South Carolina, Speaker of the House of Representatives, assigned to the court the rooms numbered 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50, in the basement of the western projection of the main'building. These twelve rooms thus assigned were six front and six inner rooms. Two of those in front were made 490 FEDERAL PLEADING, PRACTICE AND PROCEDURE. into one for a court room, and it was occupied for that purpose until June, 1879, The wants of Congress for more room and greater convenience for committees having become apparent, the court surrendered at different times two of its front and two of its inner rooms. But in course of time more room was required to meet the increased and increasing necessities of Congress, and a provision was inserted in an act of July i, 1879, making an appropriation for suitable and necessary rooms for the use and accommodation of the Court of Claims, which the Secretary of the Interior was authorized and directed to procure, and for arranging and furnishing as committee rooms for the use of the Senate and House the rooms in the Capitol occupied by the court. In pursuance of this direction, the Secretary of the Interior provided the whole ground floor of the building on Pennsyl- vania avenue opposite the north front of the Treasury, all the upper stories of which had previously been occupied by the Department of Justice. Since then this building has been pur- chased by the United States, and is known as the Department of Justice Building. The premises are admirably adapted for the convenience of the court. There are six rooms, three on each side of the center wall. On one side is a room for attor- neys, a large court-room, and the chambers of the court, or room for hearing motions and doing other chamber business. On the other side of the partition is the spacious clerk's office, in the rear the conference room of the judges, and an intermediate room, with safes for the preservation of the most important and valuable papers. These rooms were taken possession of by the court in November, 1879^ The court has an excellent library of law books, which have been collected from time to time since its organization, and for the increase of which Congress appropriated twenty-five hundred dollars in June, 1880. Besides, the judges and attorne)'s prac- ticing in the court have the benefit of the library of the Depart- ment of Justice, in the upper story of the same building. The names of the Judges who have been appointed and held office are as follows : John J. Gilchrist, of New Hampshire; appointed March 3, 1 14 Ct. CI. I. \ COURT OF CLAIMS. 491 1855 ; died April, 1858. At the time of his appointment he was holding the highest judicial office in his State, by a tenure of good behavior, terminabfe at the age of seventy years — that of chief justice of the Superior Court of Judicature — resigning to accept this position tendered him by President Pierce. Isaac Blackford, of Indiana; appointed March 3, 1855; died December 31, 1859. He had been a judge of the Supreme Court of Indiana and reporter of it^ decisions for more than thirty-five years. George P. Scarburgh, of Virginia; appointed May 8, 1855; resigned April, 1861. He was a lawyer of eminence in his State. Edward G. Loring, of Massachusetts; appointed May 6, 1858; resigned in December, 1877, having passed the age of seventy years. Previous to his appointment he had been a judge in his State for many years. James Hughes, of Indiana; appointed January 20, i860, and resigned in February, 1865. He had been a circuit judge in his State, professor of law in the University of Indiana, and a mem- ber of Congress. Joseph Casey, of Pennsylvania; appointed judge May 23, 1 86 1, and on the reorganization of the court by which the num- ber of the judges was increased to five, one of whom was to be the chief justice, he was appointed the first Chief Justice of the court, March 13, 1863. Resigned in November, 1870. He had been reporter of the Supreme Court of his State and a mem- ber of Congress. David Wilmot, of Pennsylvania; appointed March 7, 1863, and died in office March, 1868. He had been a State Judge, and was for some time a Representative in Congress and a Sen- ator of the United States. Ebenezer Peck, of Illinois; appointed March 10, 1863, and, having passed the age of seventy years, he resigned in 1878. At the time of his appointment he was reporter of the Supreme Court of Illinois, and had held that position for sixteen years. Charles C. Nott, of New York; appointed February 22, 1865. He had been engaged in the active practice of the law in the city of New York, where he was for several years Commissioner of Loans. Author of the standard work on Mechanics' Liens. Samuel Milligan, of Tennessee; appointed July 25, 1868, and 492 FEDERAL PLEADING, PRACTICE AND PROCEDURE. died in office in April, 1874. He was a judge of the Supreme Court of Tennessee when called to this bench, and had pre- viously been appointed by President Lincoln a judge of the United States Court for the Territory of Nebraska. Charles D. Drake, of Missouri ; appointed Chief Justice De- cember 12, 1870, while representing the State of Missouri in the Senate of the United States, which position he resigned to accept the chief justiceship. He is the author of the well-known standard work on Attachment. Resigned January 12, 1885, in the seventy-fourth year of his age. William A. Richardson, of Massachusetts; appointed judge June 2, 1874, Chief Justice January 20, 1885. He was judge of probate, and judge of probate and insolvency in his State, in all more than sixteen years ; was one of the commissioners who revised the General Statutes of the State, a. d. i860, and one of the commissioners to edit the same and the second edition of 1873 ; and one of the editors for twenty-two years of the annual statutes supplementary thereto. At the time of his appointment to this court he was Secretary of the Treasury of the United States. By authority of an act of Congress ^ he prepared and edited the Supplement to the Revised Statutes of the United States, A. D. 1 88 1. J. C. Bancroft Davis, of New York ; appointed December 14, 1877. Besides the practice of the law in New York City he had been much in the service of the Government, having been secretary of legation at London ; Assistant Secretary of State ; secretary of the joint high commission v/hich concluded the treaty of Washington ; agent for the United States before the tribunal of arbitration, at Geneva, on the Alabama claims, and envoy extraordinary and minister plenipotentiary to the German Empire. Resigned December 9, 188 [, to accept the office of First Assistant Secretary of State. Was re-appointed Decem- ber 20, 1882. Resigned in November, 1883, upon being ap- pointed Reporter of the Supreme Court of the United States. William H. Hunt, of New Orleans, who had long been one of the leaders of the bar there, was appointed May 15, 1878, and resigned in March, 1 881, on being appointed Secretary of the Navy in the cabinet of President Garfield. 1 Act of June 7, 1S80, 21 Stat. L. 308. COURT OF CLAIMS. 493 Glenni W. Scofield, of Pennsylvania; appointed May 20, i88i. He had been a judge in that State, and many years a Repre- sentative in Congress, and at the time of his appointment was Register of the Treasury of the United States. Lawrence Weldon, of Illinois ; appointed November 24, 1883. He had been twenty-five years in the extensive practice of the law, and had served as United States district attorney for the southern district of Illinois during the administration of Presi- dent Lincoln and part of that of President Johnson. John Davis, of the District of Columbia ; appointed January 20, 1885. He had practiced law in New York City and in the District of Columbia, and was assistant counsel for the United States before the French-American Claims Commission. He had been in the diplomatic service of the United States in different positions and at the time of his appointment was First Assistant Secretary of State. Jurisdiction. — The organic act of 1855 gave to the court jurisdiction to hear and determine "all claims founded upon any law of Congress or upon any regulation of an Executive Depart- ment, or upon any contract, express or implied, with the Gov- ernment of the United States, and all claims which may be referred to it by either House of Congress." ^ That jurisdiction continues to the present time, except as it is affected by a statute of limitations inserted in the act of March 3, 1863,^ by which it was provided that "every claim against the United States cognizable by the Court of Claims shall be forever barred unless the petition setting forth a state- ment of the claim be filed in the court or transmitted to it under the provisions of this act within six years after the claim first accrues;" saving the right upon claims then already accrued to file the petition within three years after the passage of the act, and also the rights of certain persons under disability. The consequence of this limitation is that claimants now go to Congress with their petitions for redress in matters of claims to which this exclusion from the Court of Claims applies, and in some special cases Congress has waived the statute in their behalf The same act of 1863 gave to the court jurisdiction of "all ^ Now Rev. Stat. § 1059. " Now Rev. Stat, g 1069. 494 FEDERAL PLEADING, PRACTICE AND PROCEDURE. set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatever on the part of the government against any person making claims against the gov- ernment in said court." Under this provision the United States have obtained judgment against individuals in several cases, and in certain railroad cases they have recovered more than a million of dollars. By the act of May 9, 1866,^ the jurisdiction was extended " to hear and determine the claim o( any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of losses, by capture or otherwise, while in the line of his duty, of government funds, vouchers, records, and papers in his charge, and for which such officer was and is held responsible;" with authority to enter a decree for his relief, to be certified to and allowed by the accounting officers of the Treasury as a credit whenever the court " ascer- tained the facts of any such loss to have been without fault or neglect on the part of any such officer." The jurisdiction of the court was further extended by the act of June 25, 1868,^ so as to authorize the head of any Executive Department, or the Secretary of the Treasury, on the certificate of any auditor or comptroller, to transmit to the court for hear- ing and adjudication any claim belonging to one of the classes of which the court might take jurisdiction, on the voluntary action of the claimant, " whenever the same involves disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the de- cision 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 in controversy in the particular case; or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States." It has been decided by the Supreme Court that the six years' limitation imposed by the statute in other cases does not apply in this court to cases thus referred, where the claimant had pre- ^ Now Rev. Stat. ? 1059. '^ Now Rev. Stat. §1063. COURT OF CLAIMS. 495 sented his claim to the Department within six years after it had accrued.^ Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, have the privilege of prosecuting claims against the United States in the Court of Claims, whereof the court, by reason of their subject-matter and character, might take jurisdiction. It has been judicially deter- mined by decisions already made, that under this provision the right to sue in this court is accorded to citizens of Prussia, Han- over, Bavaria, Switzerland, the Netherlands, the Hanseatic Pro- vinces, the free city of Hamburg, Spain, Belgium, Italy and Great Britain, and it no doubt belongs to the citizens of other countries. The jurisdiction of the court is restricted as to certain claims for or in respect to which the claimants have pending in other courts suits against persons who at the time the causes of action occurred were acting, or professing to act, under the authority of the United States, and certain claims growing out of treaties. These provisions confer the general, continuing, and perma- nent jurisdiction of the court. They may be found, with their incidental regulations and details, in chapter 21 of the Revised Statutes of the United States, §§ 1059-1093. But Congress has, from time to time, given to the court juris- diction, for a limited period, in particular classes of cases, and has, by special acts, referred many single claims to the court for adjudication. By the act of March 12, 1863,^ entitled "An act to provide for the collection of abandoned and captured property, and for the prevention of frauds in insurrectionary districts within the United States," the Secretary of the Treasury was authorized to appoint agents to receive and collect all abandoned or captured property in any state or territory, or any portion of any state or territory of the United States designated as insurrectionary against the lawful government of the United States by proclamation of the President of July i, 1862. The property collected was required ^Lippitt's Case, 100 U. S, 663, ^12 Stat, L. 820. and Green's Case, iS Ct. CI. 93. 496 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to be appropriated to public use, or sold, and the proceeds paid into the Treasury of the United States. The third section of the act provides that " any person claim- ing to have been the owner of any such abandoned or captured property, may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof, in the Court of Claims, and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given aid or comfort to the pre- sent rebellion, to receive the residue of such proceeds, after the deduction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof." It was decided by the Supreme Court that, in accordance with the President's proclamation, the suppression of the rebellion must be recognized as having taken effect on the 2d of April, 1866, in the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and on the 20th of August, 1866, "throughout the whole of the United States." The right to file petitions under this act therefore expired on the 20th of August, 1868. The Supreme Court decided, in 1 871, that the President's pro- clamation of December 25, 1868, granting " unconditionally and without reservation to all and every person who directly or indi- rectly participated in the late insurrection or rebellion a full pardon and amnesty for the offence of treason against the United States, etc., with restoration of all rights, privileges, and immuni- ties under the Constitution and laws which have been made in pursuance thereof," enabled claimants under this act to recover in the Court of Claims without proof or allegation in their peti- tions that they never gave aid or comfort to the rebellion.^ This decision having been made after the time for bringing actions allowed by the act, it came too late for those who had previously been deterred from presenting their petitions by reason of their participation in the rebellion. The court has disposed of all the cases filed under this act, though many of them were dismissed because presented after the 1 Armstrong & Pargoud's Cases, 7 Ct. CI. 280, 289, and 13 Wall. 154, 156. COURT OF CLAIMS. 497 time limited in the act had expired. The whole number of cases was 1578, and the whole amount demanded, according to the petitions, was ;^77, 585,962. 10. The amount actually recovered by the claimants and paid outof the Treasury on judgments rendered was ^9,833,423.16. The balance of money arising from captured and abandoned property still in the Treasury is ;^ 10,5 12,007.96.^ By the act of June 16, 1880, Congress gave to this court juris- diction of certain claims against the District of Columbia, limit- ing parties to six months from the passage of the act in which to file their petitions. Under this authority 394 cases have been instituted, all of which but 39 have been disposed of. The amount claimed in all the cases was about six and a half riillion dollars, and the amount recovered by claimants is about ;$400,- 000. The District has had judgment in its favor in many cases upon set-off and counter-claims. In 1873, by special act. Congress granted jurisdiction to the Court of Claims to hear and determine the case of the city of Carondelet, brought to recover against the United States the value of a tract of land of about 1700 acres, formerly a military reservation, and near which had grown up the settlement, village, and city of Carondelet, subsequently merged in the city of Saint Louis. The court held that the title was in the United States, and its decision was affirmed by the Supreme Court on appeal.^ Several cases have been referred to the court by Congress in which the owners of vessels claimed damages on account of col- lisions with vessels of the navy of the United States, occurring, as alleged, by reason of the fault and negligence of the naval officers in command of the latter. In 1873, and previously, there arose a controversy between the United States and the Pacific railroad companies as to the right of the former to withhold payment for freight and transpor- tation for the government until those companies had reimbursed the United States for interest paid on the bonds issued for the aid and benefit of the companies, which were made payable in thirty years; the companies claiming that the interest paid by the United States was not to be reimbursed until the maturity of the bonds. There were some other questions also involved. 1 Hodges' Case, 18 Ct. CI. 700. ^ 9 Ct. CI. 456 ; n id. 367 ; 92 U. S. 462. 32 498 FEDERAL PLEADING, PRACTICE AND PROCEDURE. A section in the appropriation act of March 3, 1873, provided that the Secretary of the Treasury should withhold all payments to said companies, but giving the companies the right to bring suit in the Court of Claims therefor. Actions were brought, and were prosecuted and defended with great ability; the Attorney- General himself appearing for the government, and Mr. Sidney Bartlett, of Boston, and Mr. E. W. Stoughton, of New York, for the claimants. In the first or leading case judgment was ren- dered for the claimants, and on appeal to the Supreme Court the rulings of the Court of Claims were affirmed. In a subsequent case some changes were made by the Supreme Court in the method of computing the amount allowed. Other cases have since been tried between the government and the railroad companies, with equally distinguished counsel, and judgments have been rendered for several million dollars. In the latest case, the court awarded to the United States on counter- claims ^4,487,807.39, and to the company on its demand ;^2,9io,- 124.08, and gave judgment in favor of the government for the difference, ;^ 1,577,683 31. Many questions of law and fact of much intricacy and great difficulty were involved in these controversies. So in 1874 and 1875 Congress prohibited the payment of any money from the public Treasury for the transportation of any property or troops of the United States, or of any officers of the army traveling under military orders, over any railroad which, in whole or part, was constructed by the a;id of a grant of public land on condition that such railroad should be a public highway for the use of the government free of toll or other charge, or upon any other conditions for the use of such road for such transportation, reserving the right to the companies to bring suit in the Court of Claims, and recovering for the same if found entitled thereto by virtue of the laws in force prior to the pas- sage of the act of prohibition, and waiving the statute of limita- tions. In pursuance of this provision suits were brought, and the rights of the United States and of the railroad companies under the land-grant acts were adjudicated and settled, and Con- gress was relieved from further trouble in the matter. For many years there was pending in Congress a claim of the trustees of Albert G. Sloo for carrying the mail between New COURT OF CLAIMS. 499 York and Chagres and New Orleans and Chagjres, in addition to the regular service required under a contract made in 1847. "Application was persistently made," say the Supreme Court, "to Congress for an equitable allowance," but for some reason or other the subject was always postponed or delayed, until finally, on the 14th of July, 1870, Congress passed an act "referring the case to the Court of Claims." The case involved the rights of the parties and the liabilities of the government growing out of correspondence with the Postmaster-General at the time the service was performed, and the amount in controversy was more than a million dollars. The case was tried before four judges of the Court of Claims, and they were equally divided upon the question of the liability of the United States. A pro forma judgment was entered for the defendants, and the case was taken to the Supreme Court on appeal. A majority of that court held the United States liable, and a mandate was issued accordingly and judgment entered thereon for the claimants for $1,031,000, three judges of the Supreme Court dissenting. By the act of June 19, 1878, Congress authorized any persons or body corporate holding or making any claim upon the bal- ance of the fund usually designated and known as "the Chinese indemnity fund," under the control of the Department of State of the United States, for loss sustained by the plunder and de- struction, in the year 1854, of the bark Caldera, and property on board of said vessel, at any time within twelve months after the passage of the act to commence proceedings in the Court of Claims, and conferred jurisdiction on the court to hear and determine such claims "according to principles of justice and international law." Suits were brought and thoroughly and exhaustively tried by able counsel. The Court of Claims gave judgment for the claimants, two of the five judges dissenting. On appeal, the judges of the Supreme Court were equally divided in opinion, and the judgment was affirmed for that reason. In this connection it may be mentioned that another case of an earlier date, La Peyre v. The United States, even more singu- larly divided the two courts. The question involved was the novel one, whether a proclamation of the Executive takes effect from the day of its date or from the time of its promulgation. In the Court of Claims the point was argued before four judges, 500 FEDERAL PLEADING, PRACTICE AND PROCEDURE. a reargument was ordered, and the court then stood equally divided, judgment pro foniia being given against the claimant. In the Supreme Court the point was again argued, a reargument was likewise ordered, and the court then stood five for reversal and four for affirmance, with one of the majority merely concur- ring in the judgment. On the 3d of March, 1881, Congress passed an act which authorized the Court of Claims to take jurisdiction of and try all questions of difference arising out of treaty stipulations with the Choctaw Nation and to render judgment thereon, with power to review the entire question of differences de novo, without being estopped by any action had or award made by the Senate of the United States in pursuance of the treaty of 1855. These "ques- tions of difference" grew out of treaties made in 1820, 1825, 1830, 1855, and 1856. They had been in controversy in Con- gress and the Departments for many years, and involved a claim of more than fifteen millions of dollars. Suit has been instituted, and the printed record of the case covers more than three thou- sand printed pages. It has not yet been brougiit to a termina- tion. By act of March 3, 1883, Congress authorized the Eastern band of Cherokee Indians to bring a suit in equity against the United States, as trustees, and the Cherokee Nation, to deter- mine the claim of the former to a share of certain funds held in trust for the Cherokees. The case involved the construction of numerous treaties and statutes, and made necessary a careful examination of the whole history of the Cherokee Indians since 1783. After a long trial the case was disposed of by a decree in favor of the Cherokee Nation.^ Numerous other important cases specially referred to the court might be cited, but a sufficient number has been men- tioned to convey a correct idea of its jurisdiction, and to show the magnitude and intricacies of its business, as well as the relief which is afforded to Congress by removing such controversies from the halls of legislation. The referring of peculiar cases to the court by special acts of Congress seems to be on the increase at each succeeding session. The most recent act is that of January 20, 1885, referring the ^ Eastern Band of Cherokee Indians v. The United States et al., 20 Ct. CI. 449. COURT OF CLAIMS. 501 French Spoliation Claims, "arising out of illegal captures, deten- tions, seizures, condemnations, and confiscations, prior to the ratification of the convention between the United States and the French Republic concluded on the thirtieth of September, eighteen hundred." The time for presenting such claims is limited to two years from the passage of the act. The court is to find the facts and the law in each case and report the same to Congress.^ Practice, — All cases are tried in the Court of Claims with the same formalities as are cases between individual litigants in the courts of common law as to the admissibility of evidence, the examination and cross-examination of witnesses, and the application of legal principles, and the rights of the United States and of claimants are guarded and protected by the estab- lished rules of law as administered in other courts. The procedure and practice have been improved and simplified by Congressional enactments, and by the rules adopted by the court from time to time, as suggested in the course of its expe- rience of more than thirty years, until a system has grown up and become established of the utmost convenience to parties and counsel, wherever they may reside. Claimants must file petitions properly setting out their cases, and must prove their claims by competent evidence. But as the court is held at Washington, and has jurisdiction of cases which arise in distant and different parts of the country. Congress has provided that "the testimony shall be taken in the county where the witness resides, when the same can conveniently be done."^ When, therefore, a claimant had filed his petition, which he may do by sending it to the clerk of the court by mail or other- wise, he may, at his leisure and convenience, go on taking the depositions of witnesses whenever and wherever he can find them, first giving notice to the Attorney-General that he may be present himself, or by an assistant, to cross-examine them. The court is authorized by law to call upon any of the Depart- ments for any information or papers it may deem necessary, and it always does so in proper cases on motion of claimants; and thus they can readily obtain whatever information and evidence ^ 23 Stat L. 283. 2 j^gy Stat. § 1081. 502 FEDERAL PLEADING, PRACTICE AND PROCEDURE. affecting the issues involved are contained in the archives of the government.^ Parties filing petitions, pleadings, and motions, except motions for calls on the Departments, are required by the rules to leave with the clerk at the same time written notice thereof, addressed to the attorney of the adverse party, with postpage prepaid, and the clerk is required to mail the same, and to note the fact on the general docket; and all notices may be served in the same manner. Printed blanks are furnished to parties for this pur- pose. Upon the receipt by the clerk of an answer to a call upon a Department, he is required also to notify the claimant's counsel and Attorney-General of the fact by mail. By these rules, attorneys in any place, however distant from Washington, are informed at once, and therefore always know of every paper filed in their cases without being obliged to watch the state of the clerk's docket. When the claimant has closed his proof, he may give notice to the Attorney-General to that effect by an entry in the notice book, in the clerk's office. In two months thereafter, unless the Attorney-General asks for further time, the claimant may have his case placed on the trial list. Before a case is placed on the trial list, however, the claimant must file in the clerk's office twenty-five printed copies of his brief and his proposed findings of fact, and the Attorney- General has one month thereafter in which to file a brief and request for findings of fact on his part. If counsel live at a distance, the court will, on application, assign a certain day for the hearing of his case, so that he need not be detained, as he may be in other courts, awaiting his turn ; or he may file his request for findings of facts, briefs and argument, by forwarding them to the clerk by mail, and thus he may be relieved from going to Washington at all during the pro- gress of the case, from beginning to end of the proceedings. No fees or costs are taxed or allowed by the court, and if the claimant loses his case he is not subjected to a bill of costs, except that a statute requires the losing party to pay the cost of printing the records.^ Of course, a party must pay for the taking of the ' Rev. Stat. § 1076. ment to Rev. Stat. 288, and 18 Stat. ^Act of March 31, 1877. Supple- L. 344. COURT OF CLAIMS. 503 depositions which he himself requires in establishing his claims, but if defeated he is not required to pay for taking the depositions of his adversary. The evidence is printed at the Government Printing Office, and that and all other documents in each case are made into records for the use of the court and the parties. The court has no jury. All questions of law and of fact ai-e submitted to the five judges, and each judge reads over the whole record, so that there is not the same necessity for oral arguments as in the common law courts. There is a provision still standing in the Revised Statutes,* in terms applying to all cases in the court, requiring claimants to set forth in their petitions, and to prove affirmatively, that they have at all times borne true faith and allegiance to the government, and have not voluntarily aided, abetted or given encouragement to rebellion. Since the decision of the Supreme Court in relation to a similar clause in the captured and aban- doned property act, which has been hereinbefore referred to, declaring the constitutional effect of the proclamation of general pardon and amnesty issued by the President in December, 1868, to be the relief of all persons from such a restriction upon their rights, the practice has been not to require an allegation of loy- alty in the petition or proof of it at the trial.^ But this relief does not apply to cases in which loyalty is required to be proved under section 4 of the Bowman act. The defence of all claims is confided by law to the Attorney- General, who assigns one of the Assistant Attorneys-General, with an adequate number of assistants, to that special duty, under his own supervision, but he occasionally makes the argument him- self in cases of unusual importance and magnitude. The rights and interests of the United States are therefore ably and amply protected. Indeed, in two particulars the United States are greatly favored in their defences by provisions of law which do not apply in any other courts. No claimant, nor any persons from or through whom any such claimant derives his alleged title, claim or right, nor any person interested in any such title, claim or right, is a competent witness in supporting the same, while 1 Rev. Stat J 1072. 7 Ct. CI. 2S0, 289; 13 Wall. 154, ^Armstrong and Pargoud Cases, 156. 504 FEDERAL PLEADING, PRACTICE AND PROCEDURE. all such persons maybe witnesses to defeat them. Cases against the District of Columbia and some cases specially referred to the court are expressly exempted by law from this provision. At any time within two years next after the final disposition of any claim, on motion made in behalf of the United States, the court may grant a new trial and stay the payment of any judg- ment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States ; and this may be done while an appeal is pending in the Supreme Court, or after the judgment has been affirmed by that court, or even after it has been paid at the Treasury. But new trials on motion of claimants can only be granted for the same reasons which, by the rules of common law or chancery, in suits between individ- uals, would furnish sufficient ground for new trials, and every such motion must be made at the term in which judgment is rendered and before the commencement of the summer vacation. Moreover, it is expressly provided by statute that any person who corruptly practices or attempts to practice any fraud against the United States, in the proof, statement, establishment, or allowance of any claim, or any part of any claim, shall ipso facto , forfeit the same to the government; and it is made the duty of the court, in such cases, to find specifically that such fraud was practiced or attempted, and to give judgment that the claim is forfeited, and that the claimant be forever barred from presecuting the same. The first appeal case which went to the Supreme Court was sent up with a full copy of the whole record, evidence and all, just as all cases had been previously reported to Congress under the former law. But that case was dismissed for want of juris- diction in that court to hear appeals from the Court of Claims, by reason of the section which gave a revisory power to the Sec- retary of the Treasury to review its judgments, as has been already stated. When that section was repealed, and the Supreme Court sustained the appellate jurisdiction conferred by other provisions of the act, they foresaw that with the whole records sent up they would encounter the same difficulty which Congress had experienced — the utter impossibility of devoting sufficient time to the consideration of such a mass of evidence, and of under- COURT OF CLAIMS. 505 taking- to review the findings of fact thereon. Therefore, in the year 1866, under the act of March 3, 1863, they wisely made rules requiring the Court of Claims to find the facts, and con- fining the hearing on appeal to the questions of law raised thereon. These rules, as subsequently modified, now stand as follows: " In all cases hereafter decided in the Court of Claims, in which, by the act of Congress, such appeals are allowable, they shall be heard in the Supreme Court upon the following record, and none other : " I. A transcript of the pleadings in the case, of the final judg- ment or decree of the court, and of such interlocutory orders, rulings, judgments, and decrees as may be necessary to a proper review of the case. " 2. A finding by the Court of Claims of the facts in the case, established by the evidence, in the nature of a special verdict, but not the evidence establishing them ; and a separate state- ment of the conclusions of law upon said facts on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as part of the record. "3. In all cases an order of allowance of appeal by the Court of Claims, or the Chief Justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal. "4. In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims shall make and file their findings of facts and their conclusions of law therein, in open court, before or at the time they enter judgment in the case. "5. In every such case, each party, at such time before trial and in such form as the court may prescribe, shall submit to it a request to find all the facts which the party considers proven and deems material to the due presentation of the case in the findings of fact." The practice now is for the Court of Claims, after hearing or reading, as the case may be, the arguments of counsel on both sides, and after each judge has thoroughly read over the whole 506 FEDERAL PLEADING, PRACTICE AND PROCEDURE. record by himself, and considered the requests of the opposite parties, to draw up findings of fact.^ It is easy to see that the duties of the judges in this respect, and in coming to an agree- ment on each one of the facts which are considered material, often very numerous, as well as in reducing to concise written statements the facts agreed upon by them, are laborious, diffi- cult and perplexing. But all that has to be done, and is done. Upon the findings of fact thus drawn up the court applies the law, delivers opinions, and enters judgments in accordance therewith. The concurrence of three judges is made necessary by statute to the rendition of any judgment. If judgment is against a claimant in any case where the amount in controversy exceeds three thousand dollars, he may, within ninety days thereafter, appeal to the Supreme Court on the law. The United States may appeal in like manner from any judgment adverse to the government, without reference to the amount in controversy. Before the passage of the Revised Statutes the United States could not appeal in cases involving less than three thousand dollars, unless the Chief Justice certified that the judg- ment or decree would affect a class of cases, or furnish a prece- dent for the future action of an executive department of the government in the adjustment of such class of cases, or a consti- tutional question. But this restriction on the right of appeal by the defendants was omitted from the Revised Statutes, appar- ently by mistake, and since then several appeals have been taken on the part of the United States in cases involving small amounts, without such certificate, although probably they did, in fact, belong to a class of cases pending in the departments. There are other provisions in the law and the rules of the court in relation to the details of practice, which do not require particular mention here. Printed copies of the Rules, as well as of the laws of Congress relating to the court, may be had by members of the bar of the court, on application to the clerk, and from them all necessary information may be obtained as to instituting and conducting suits against the United States. Conclusion. — In bringing this article to a close, the follow- ing remarks in relation to the court made by the late Hon. ^ Union Pacific Railway Motion, 20 Ct. CI. 200. COURT OF CLAIMS. 507 Charles O'Conor, the well-known and eminent lawyer of New York, in an argument reported in full in a volume recently pub- lished by Baker, Voorhis & Co., of New York City, entitled " Great Speeches by Great Lawyers," seem peculiarly appro- priate : "The court itself is the first-born of a new judicial era. As a judicial tribunal, it is not only new in the instance; it is also new in principle. So far as concerns the power of courts to afford redress, it has heretofore been fundamental that the sov- ereign can do no wrong. This court was erected as a practical negative upon that vicious maxim. Henceforth our Govern- ment repudiates the arrogant assumption, and consents to meet at the bar of enlightened justice every rightful claimant, how lowly soever his condition may be. " Prior to the institution of this court, all rights as against the nation were imperfect in the legal sense of the term ; every duty of the nation was a duty of imperfect obligation. There was no judicial power capable of declaring either; no private person possessed the means of enforcing the one or coercing the other. But effectual progress has been made towards giv- ing form and method to the administration of justice between the nation and the individual. This court enables the latter to obtain an authoritative recognition of his rights. No more is needed ; for in no case can a state, after such a recognition, withhold payment and yet retain its place in the great family of civilized nations. "The ordinary jurisdiction of the court bears a strong resem- blance to the narrow cognizance at common law; but its extra- ordinary jurisdiction over all claims which may be referred to it by either house of Congress extends its power to the utmost limits attainable by juridical science in its fullest development. In this aspect, its dignity and importance as a governmental institution cannot be too highly appreciated. As a means by which rightful claims against the government may be readily established, and those not founded in justice promptly driven from the portals of Congress, it must exercise a most healthful influence. " But we are authorized to look higher than the mere con- venience of suitors and the dispatch of public business. En- 508 FEDERAL PLEADING, PRACTICE AND PROCEDURE. lightened patriotism will contemplate other and more important consequences. Caprice can no longer control. Here equity, morality, honor, and good conscience must be practically applied to the determination of claims, and the actual authority of these principles over governmental action ascertained, declared, and illustrated in permanent and abiding forms. As step by step, in successive decisions, you shall have ascertained the duties of government toward the citizen, fixed their precise limits upon sound principles, and armed the claimant with means of securing their enforcement, a code will grow up giving effect to many rights not heretofore practically acknowledged. " In it will be found enshrined for the admiration of succeed- ing ages an honorable portraiture of our national morality, and a full vindication of the eulogium recently pronounced upon our people by the highest authority in the parent state. 'Juris- prudence,' says Lord Campbell, in the Queen v. Millis, ' is the department of human knowledge to which our brothers in the United States of America have chiefly devoted themselves, and in which they have chiefly excelled.' " COURTS OF THE DISTRICT OF COLUMBIA. 509 CHAPTER XVII. COURTS OF THE DISTRICT OF COLUMBIA— TERRITORIAL COURTS— THE INTERSTATE COMMERCE COMMISSION. The Supreme Court of the District of Columbia. § 441. It is hardly within the scope of the present volume to treat at large questions of jurisdiction of and procedure in courts that are purely local. Owing to the importance of some of these courts, however, it is necessary that some notice should betaken of them.^ The provisions of the Revised Statutes relating to the Dis- trict of Columbia and of subsequent statutes with reference to the organization, terms and jurisdiction of the Supreme Court of the District are as follows : Sec. 750. There shall be a Supreme Court of the District, which shall consist of a chief justice and four associate justices, who shall severally be appointed by the President, by and with the advice and consent of the Senate, and shall hold their offices during good behavior. By the act of February 25, 1879," there shall be appointed by the President, by and with the consent of the Senate, one additional associate justice of the Supreme Court of the District of Columbia. The said additional associate jus- tice shall have the same power, authority and jurisdiction as now or hereafter may be exercised by any of the associate justices of the said Supreme Court, and shall be entitled to receive the same salary, payable in the same manner. Sec. 751, as amended by the act of February 9, 1893.^ The justices of the Supreme Court of the District of Columbia shall ^ For a full discussion of the prac- ^ Act of Feb. 25, 1879, ch. 99, § i, tice and procedure of the Supreme 20 Stat. L. 320. Court of the District of Columbia, the ^ Act of Feb. 9, 1S93, ch. 74, § 14, reader is referred to Mr. Franklin H. 27 Stat. L. 434. Mackey's work on that subject. 510 FEDERAL PLEADING, PRACTICE AND PROCEDURE. hereafter receive an annual salary of five thousand dollars each, payable quarterly at the Treasury of the United States. Sec. 752. Each justice, before he enters upon the duties of his office, shall take the oath prescribed to be taken by judges of the courts of the United States, Sec. 753. The several general terms and special terms of the circuit courts, district courts and criminal courts authorized by law, are declared to be, severally, terms of the Supreme Court of the District of Columbia; and the judgments, decrees, sentences, orders, proceedings and acts of the general terms, special terms, circuit courts, district courts, and criminal courts rendered, made or had, are and shall be deemed judgments, decrees, sentences, proceedings and acts of the Supreme Court; but nothing con- tained in this section shall affect the right of appeal as provided by law. By the act of June 23, 1874,^ the justice of the Supreme Court of the District of Columbia, holding a criminal term for said District, may, when not engaged in the proper business of the criminal term, hold sittings of the circuit court, and employ the petit juries drawn for the criminal term in the trial of such cases depending in said circuit court as the justice presiding therein may assign to him for that purpose; and the business done at such sittings shall be recorded in the minutes of the cir- cuit court. By the act of June 8, 1880,^ any justice of the Supreme Court of the District of Columbia, holding a term of the circuit court for said District (whenever the condition of the business in such circuit court and in the criminal court, in the opinion of the gen- eral term of said Supreme Court, may render it proper and ex- pedient so to do), may hold sittings for the trial of such criminal cases depending in the criminal court as the justice presiding therein may assign for that purpose, and may employ the petit juries drawn for such circuit court for such trials ; and such sit- tings may be held during the regular sessions of the criminal court or, in the recess thereof, during the term of such circuit court ; and the business done at such sittings shall be recorded in the minutes of the criminal court. By the act of March 3, ^Act of June 23, 1874, ch. 454, 18 ^ Act of June 8, 1880, ch. 137, ^ i, Stat. L. 204. 21 Stat. L. 166. COURTS OF THE DISTRICT OF COLUMBIA. 511 1893,^ hereafter the general term of the Supreme Court of the District of Columbia may order two terms of the criminal court to be held at the same time, whenever' in their judgment busi- ness requires it; and they shall designate the time and place of holding the same, and the justices by whom such terms shall re- spectively be held, and shall make orders for a division of the criminal docket between the judges holding such terms. Sec. 754, as amended by the act of February 27, 1877.^ Any three of the justices of the Supreme Court may hold a general term, and any one of them may hold a special term. Whenever at a general term, held by four justices, the court shall be equally divided, such divisions shall be noted on the minutes ; and within four days either party may file with the clerk a motion to have the cause re- argued before five justices; and such re-argument shall be as soon as conveniently may be. By the act of February 25, i879,Hwo of the justices, sitting at general term, shall constitute a quorum for the transaction of business; but when the two justices shall be divided in opinion, the same shall be noted upon the minutes of the court, and there- upon and within four days thereafter either party in such cause may file with the clerk of the court a motion in writing to have such cause re-argued before three or more justices; but no jus- tice shall sit in general term to hear an appeal from any judgment or decree or order which he may have rendered at the special term. Sec. 755, as amended by the act of March i, 1889."' The Supreme Court in general term shall have power by rule of court to regulate the period of holding its terms, as also the periods of all the special terms, and to fix the number of such terms, and to alter the same from time to time as public convenience may require. Sec. 756. At least three terms of the Supreme Court shall be held annually. Sec. 757. The special terms shall be held by one of the justices of the Supreme Court at such time as the court in general term shall appoint. 1 Act of March 3, 1893, ch. 208, par. ^ Act of Feb. 25, 1879, ch. 99, 2 2, 20, 27 Stat. L. 572, etc. 20 Stat. L. 320. 2 Act of Feb. 27, 1877, ch. 69, § 2, * Act of March i, 1889, ch. 308, § 2, par. 10, 19 Stat. L, 240. 25 Stat. L. 749. 512 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Sec. 758. Repealed. Sec. 759. Repealed. Sec. 760. The Supreme Court shall possess the same powers and exercise the same jurisdiction as the circuit courts of the United States. Sec 761. The justices of the Supreme Court shall severally possess the powers and exercise the jurisdiction possessed and exercised by the judo^es of the circuit courts. Sec. 762. Any one of the justices may hold a special term, with the same powers and jurisdiction possessed and exercised by district courts of the United States. Sec. 763, as amended by the act of February 27, 1877.^ Said courts shall have cognizance of all crimes and offences com- mitted within said district and of all cases in law and equity between parties, both or either of which shall be resident or be found within said district, and also of all actions or suits of a civil nature at common law or in equity, in which the United States shall be plaintiffs or complainants; and of all seizures on land or water, and all penalties and forfeitures made, arising or accruing under the laws of the United States ; and any one of the justices may hold a criminal court for the trial of all crimes and offences arising within the district. By the act of June 22, 1874,^ the criminal court of the District of Columbia shall have jurisdiction of all crimes and misde- meanors committed in said District, not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information. Sec. 764, as amended by the act of February 27, 1877.^ The Supreme Court has jurisdiction of actions, suits, controversies and cases, as well in equity as at law, arising under the copy- right and patent laws, and for damages for the infringement of any patent, by action on the case, in accordance with the provi- sions of sections 4919-492 1, of chapter one, title Ix. of the Revised Statutes of the United States, " Patents, Trade-marks, and Copyrights." Sec. 765 relates to the bankrupt law, since repealed. ^ Act of Feb. 27, 1877, ch. 69, ? 2, 18 Stat. L. 193. par. II, 19 Stat. L. 240. ^ Act of Feb. 27, 1877, ch. 69, § 2, ^ Act of June 22, 1874, ch. 396, I i, par. 12, 19 Stat. L. 240. COURTS OF THE DISTRICT OF COLUMBIA. 513 Sec. 766. The Supreme Court shall have jurisdiction of all applications for divorce. Sec. 'j6']. No action or suit shall be brought in the Supreme Court by original process against any person who shall not be an inhabitant of, or found within, the District, except as other- wise specially provided. Sec. 768. The Supreme Court has power to proceed in all common law and chancery causes instituted before it, in which either of the parties reside without the District, in the same way that non-residents were proceeded against in the general court or in the Supreme Court of Chancery in the State of Maryland on the third day of May, 1802. Sec. 769. The justices of the Supreme Court shall not hold original plea of any debt or damage in cases within the jurisdic- tion given to justices of the peace, which shall not exceed fifty dollars, exclusive of costs. By the act of Feb. 19, 1895,^ the jurisdiction of justices of the peace of the District of Columbia shall be exclusive of original jurisdiction where the amount claimed to be due or the value of the property sought to be recovered shall not exceed one hun- dred dollars, and original and concurrent with the Supreme Court of the District of Columbia where the amount claimed to be due or the value of the property sought to be recovered is more than one hundred dollars, but does not exceed three hundred dollars. Sec. 770. The Supreme Court, in general term, shall adopt such rules as it may think proper to regulate the time and man- ner of making appeals from the special term to the general term, and may prescribe the terms and conditions upon which such appeals may be made, and .may also establish such other rules as it may deem necessary for regulating the practice of the court, and from time to time revise and alter such rules. It may also determine by rule what motions shall be heard at a special term, as non-enumerated motions, and what motions shall be heard at a general term in the first instance. Sec. 771. All official oaths required by law to betaken by officers of the United States may, in the District, be administered and certified by any one of the justices of the Supreme Court of the District. 1 Act of Feb. 19, 1895, ch. 100, ? 2, 28 Stat. L. 668. 33 514 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Secs. 772-780 deal with the appellate jurisdiction of the Supreme Court. By the act of February 9, 1893/ the appellate power and jur- isdiction of the general term of the Supreme Court is abrogated and abolished, and no causes shall hereafter be heard in the said general term. Such jurisdiction is conferred on the Court of Appeals created by the act. The act of March 2, 1893,^ conferred on the Supreme Court in general term appellate jurisdiction over final orders or decrees of said court in special term in highway proceedings regulated by the act.^ This section was amended, however, by the act of January 21, 1896,* conferring such appel- late jurisdiction on the Court of Appeals. The Supreme Court of the District is a court of the United States, and its judgment, when suit is brought thereon in any state, is conclusive upon the defendant, except for such cause as would be sufficient to set it aside in the courts of the District.^ But whether an act of Congress using the words " court of the United States " applies to it as well as to the circuit courts, is a question of intention.® Section 725 of the Revised Statutes of the United States giving the courts of the United States power to punish for contempt of court by fine and imprisonment applies to this court/ The court has no power to admit a will or codicil to probate as a devise of real estate.^ Nor to grant letters of ancillary administration unless there be local assets within the District; and a claim against the United States which may be prosecuted in the Court of Claims is not such a local asset.^ The court has jurisdiction to pass an order requiring payment of alimony and to enforce it by committing the party to jail, if he refuses to obey it.^" , 1 Act of Feb. 9, 1893, ch. 74, § 7, 27 ^ Ex parte Norvell, 20 D. C. 34S. Stat. L. 434. ^ Hovey v. Elliott, 145 N. Y. 126. '^Act of March 2, 1893, ch. 197, \ ^Campbell v. Porter, 162 U. S. 478. 17, 27 Stat. L. 532, etc. ' Rutherford v. U. S., 27 Ct. CI. 539. 3 This act was held constitutional in ^^ Tolman v. Leonard, 6 App. D. C. Bauman v. Ross, 167 U. S. 548. 224. As to deposidons in the Dis- *Act of Jan. 21, 1896, ch. 5, Stat, trict in suits pending elsewhere, see 1895-96, 2. Rev. Stat, of U. S., l\ S71-874. * Embry v. Palmer, 107 U. S. 3. COURTS OF THE DISTRICT OF COLUMBIA. 515 Inferior Courts of the District. § 442. It has already been stated that justices of the Supreme Court of the District may hold criminal courts under certain regulations. It is provided by the Revised Statutes relating to the District that there shall be a police court consisting of one judge learned in the law, who shall be appointed by the Presi- dent, by and with the advice and consent of the Senate, for the term of six years, at a salary of three thousand dollars per annum.^ By the act of March 3, 1891,^ the President is author- ized to appoint an additional judge at the same salary and with the same powers. The business of the court may be carried on by each of the judges sitting separately and simultaneously. They are to hold separate sessions, and are empowered to make rules for the apportionment of business. By section i of the above act, the police court shall have original jurisdiction concurrently with the Supreme Court of the District of all crimes and offences hereafter committed against the United States, not capital or otherwise infamous, and not punishable by imprisonment in a penitentiary, committed within the District, except libel, conspiracy and violations of the post- office and pension laws of the United States; and also of all offences hereafter committed against the laws, ordinances and regulations of the District, and shall have power to examine and commit or hold to bail, either for trial or further examination, in all cases whether cognizable therein or in the Supreme Court of the District. By the act of July 23, 1892,^ prosecutions in the police court shall be on information by the proper prosecuting officer. In all prosecutions within the jurisdiction of the court in which, according to the Constitution of the United States, the accused would be entitled to a jury trial, the trial shall be by jury, unless the accused shall in open court expressly waive such trial, and request to be tried by the judge, in which case the trial shall be by such judge and the judgment and sentence shall have the same force and effect in all respects as if the same had iRev. Stat. D. C, U 1041-1042. ^ Act of March 3, 1891, ch. 536, § 6, See, with regard to the jurisdiction of 26 Stat. L. 848, etc. this court, Ransdell v. Patterson, i ^ Act of July 23, 1892, ch. 236, § i, App. D. C. 165 ; Gassenheimer v. 27 Stat. L. 261. Dist. of Col., 6 id. 108. 516 FEDERAL PLEADING, PRACTICE AND PROCEDURE. been entered and pronounced upon the verdict of a jury. In all cases where the accused would not by force of the Constitution of the United States be entitled to a trial by jury, the trial shall be by the court without a jury, unless in such of said last named cases wherein the fine or penalty may be fifty dollars or more, or imprisonment as punishment for the offence may be thirty days or more, the accused shall demand a trial by jury, in which case the trial shall be by jury. In all cases where the court shall impose a fine it may, in default of the payment of the fine im- posed, commit the defendant for such a term as it thinks right and proper, not to exceed one year. By the act of March 2, 1897, exceptions and writs of error in this court are regulated.^ There are other minor statutory regulations with regard to this court which it is not our purpose here to consider. The provisions of chapter thirty-one of the Revised Statutes relating to the District of Columbia have been considerably modified by later statutes affecting the appointment and powers of justices of the peace. By the act of June 7, 1878,^ the President shall nominate and, by and with the advice and consent of the Senate, appoint fifteen justices of the peace within and for the District of Columbia. Said justices shall be assigned as follows: two in the city of Georgetown, one in Tennallytown, one in Brightwood, one in Uniontown and ten in the city of Washington. Their term of office shall be four years, subject to removal for cause. By the act of February 19, 1895,^ th^se justices shall have jurisdiction to hear, try and determine all civil pleas and actions, including attachment and replevin, when the amount claimed to be due or the value of the property sought to be recovered shall not exceed three hundred dollars, except in cases where the title to real estate is in issue, actions for malicious prosecution, ac- tions against justices of the peace or other officers for miscon- duct in office, and actions for slander, verbal or written, and actions for damages for breaches of promise to marry. Such jurisdiction shall be exclusive original jurisdiction where the 1 Act of March 2, 1897, ch. 360, 29 '^ Act of June 7, 1878, ch. 162, § i, Stat. L. 607, amending: ? 4 of the act 20 Stat. L. 100. of March 3, 1891, ch. 536. ^ Act of Feb. 19, 1895, ch. 100, U 1-3, 28 Stat. L. 668. COURTS OF THE DISTRICT OF COLUMBIA. 517 amount claimed to be due or the value of the property sought to be recovered shall not exceed one hundred dollars, and origi- nal and concurrent with the Supreme Court of the District where the amount claimed to be due or the value of the property sought to be recovered is more than one hundred dollars, but does not exceed three hundred dollars ; and where the sum claimed exceeds twenty dollars either party shall be entitled to a trial by jury. No appeal shall be allowed from the judgment of a justice of the peace in any common law action unless the matter in demand in such action or pleaded in set-off thereto, shall exceed the sum of five dollars, nor unless the appellant, with sufficient surety, approved by the justice, enters into an undertaking to pay and satisfy whatever final judgment may be recovered in the appellate court. For other provisions affecting justices, the reader is referred to chapter thirty-one of the Revised Statutes relating to the District, and to the statutes above quoted from. The probate jurisdiction for the District is in the Supreme Court holding a special term for Orphans' Court business.^ Court of Appeals of the District. § 443. The act of February 9, 1893,^ as amended by the act of July 30, 1894,* provides : Sec. I. That there shall be, and there is hereby, established in the District of Columbia a court, to be known as the Court of Appeals of the District of Columbia, which shall consist of one chief justice and two associate justices, who shall be appointed by the President, by and with the advice and consent of the Sen- ate, and shall hold office during good behavior. Sec. 2. That the said justices shall each receive an annual sal- ary of six thousand dollars, payable quarterly at the Treasury of the United States, except the chief justice, who shall receive six thousand five hundred dollars. Sec. 3. That each of said justices, before he enters upon the duties of his office, shall take the oath prescribed by law to be taken by the judges of the courts of the United States. ^ See Rev. Stat. D. C. I 930 ; Mid- L. 434. dleton V. Parke, 3 App. D. C. 149. ^ Act of July 30, 1S94, ch. 172, 28 ^ Act of Feb. 9, 1893, ch. 74, 27 Stat. Stat. L. 160. 518 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Sec. 4. That there shall be a clerk of said Court of Appeals, to be appointed by the court, who shall receive as compensation for his services in the discretion of the court, an annual salary not to exceed the sum of three thousand dollars, payable monthly at the Treasury of the United States, and who shall give bond, such as the court may determine to be satisfactory, for the faith- ful performance of his duties, and his duties shall be such as the court may from time to time prescribe. That the said clerk of the Court of Appeals shall, with the approval of the court, appoint one assistant or deputy clerk, who shall receive as compensation for his services, in the discretion of the court, an annual salary not to exceed the sum of two thousand dollars, payable monthly at the Treasury of the United States, and who may sign the name of the clerk to any official act required by law, or by the prac- tice of the court, to be performed by the clerk, and may authen- ticate said signature by affixing the seal of the court thereto, when the impress of the seal is necessary to its authentication. In such cases the signature shall be , Clerk. By , Assistant Clerk. The court shall regulate from time to time the fees to be charged by the said clerk, which shall be accounted for at least once in each quarter, and paid into the Treasury of the United States, and said clerk shall receive such allowance for necessary expenditures in the conduct of his office as the court may deter- mine by special or general order in the premises, but not to ex- ceed the sum of five hundred dollars in any one year, payable as aforesaid at the Treasury of the United States. Sec, 5. That said Court of Appeals may appoint a crier at a compensation not to exceed one hundred dollars a month, and a messenger at a compensation not to exceed sixty dollars a month, both payable at the Treasury of the United States, who shall perform such duties as may be assigned them by the court. Sec. 6. That said Court of Appeals shall establish by rule of court such terms of the court in each year as to it may deem necessary : Provided, hozvever, That there shall be at least three terms in each year, and it shall make such rules and regulations as may be necessary and proper, for the transaction of its busi- COURTS OF THE DISTRICT OF COLUMBIA. 519 ness and the taking of appeals to said court. And said Court of Appeals shall have power to prescribe what part or parts of the proceedings in the court below shall constitute the record on appeal and the form of bills of exception, and to require that the original papers shall be sent to it instead of copies thereof, and generally to regulate all matters relating to appeals whether in the court below or in said Court of Appeals. If any member of the court shall be absent on account of illness or other cause during the session thereof, or shall be disqualified from hearing and determining any particular cause by having been of counsel therein, or by having as justice of the Supreme Court of the District of Columbia previously passed upon the merits thereof, or if for any reason whatever it shall be impracticable to obtain a full court of three justices, the member or members of the court who shall be present shall designate the justice or justices of the Supreme Court of the District of Columbia to temporarily fill the vacancy or vacancies so created, and the justice or justices so designated shall sit in said Court of Appeals and perform the duties of a member thereof while such vacancy or vacancies shall exist: Provided, That no justice of the Supreme Court of the District of Columbia shall, while on the bench of said Court of Appeals, sit in review of any judgment, decree, or order which he shall have himself entered or made : Provided also, That if the parties to any cause shall so stipulate in writing by their attorneys and solicitors, such cause may be heard and determined by two justices of the court without calling in any of the justices of the Supreme Court of the District of Columbia: And provided also, That all motions to dismiss appeals and other motions may be heard by two justices, in the event of the absence or disquali- fication of any one of the justices as aforesaid: And provided furtJier, That if in any cause heard before two justices as afore- said the court shall be divided in its opinion, then the judgment of the lower court shall stand affirmed. Sec. 7. That any party aggrieved by any final order, judgment or decree of the Supreme Court of the District of Columbia, or of any justice thereof, may appeal therefrom to the Court of Ap- peals hereby created ; and upon such appeal the Court of Appeals shall review such order, judgment or decree, and affirm, reverse, or modify the same as shall be just : Provided, hotvever, That all 520 FEDERAL PLEADING, PRACTICE AND PROCEDURE. causes now pending before the said Supreme Court in general term, together with the original papers and record entries duly- certified, shall by appropriate orders duly entered of record be transferred and delivered to the Court of Appeals hereby created, which said Court of Appeals is hereby vested with authority and jurisdiction to hear and determine the causes so transferred. The appellate power and jurisdiction of said general term is hereby abrogated and abolished, and no causes shall hereafter be heard in the said general term. Appeals shall also be allowed to said Court of Appeals from all interlocutory orders of the Supreme Court of the District of Columbia, or by any justice thereof, whereby the possession of property is changed or af- fected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discretion of said Court of Appeals, whenever it is made to appear to said court upon petition that it will be in the interest of justice to allow such appeal. Sec. 8. That any final judgment or decree of the said Court of Appeals 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 causes in which the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner and under the same regulations as heretofore pro- vided for in cases of writs of error on judgment or appeals from decrees rendered in the Supreme Court of the District of Colum- bia : 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 drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States. Sec. 9. That the determination of appeals from the decision of the Commissioner of Patents, now vested in the general term of the Supreme Court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Re- vised Statutes of the United States, relating to the District of Columbia, shall hereafter be and the same is hereby vested in the Court of Appeals created by this act; and in addition, any party aggrieved by a decision of the Commissioner of Patents in COURTS OF THE DISTRICT OF COLUMBIA. 521 any interference case may appeal therefrom to the said Court of Appeals. Sec. id. That the opinion of the said Court of Appeals in every case shall be rendered in writing, and shall be filed in such case as a part of the record thereof, and that the said Court of Appeals is hereby authorized to appoint a reporter, who shall serve during the pleasure of the court and without compensation and whose duty shall be to report, edit and publish, in form to be prescribed by the court, its opinions. Sec. II. That the said Court of Appeals shall have power to issue all necessary and proper remedial prerogative writs in aid of its appellate jurisdiction. Sec. 12. That the Attorney-General is hereby empowered and directed to provide suitable rooms and accommodations in the city of Washington for the Court of Appeals hereby created and for the transaction of its business. Sec. 13. That the marshal of the United States for the Dis- trict of Columbia shall execute the orders and processes of the Court of Appeals hereby created in the same manner as he now executes those of the Supreme Court of the District of Columbia. Sec. 14. That the justices of the Supreme Court of the Dis- trict of Columbia shall hereafter receive an annual salary of five thousand dollars each payable quarterly at the Treasury of the United States. Sec. 15. That hereafter one-half of the amounts paid on account of salary to the justices of the Court of Appeals hereby created, and to the justices of the Supreme Court of the District of Col- umbia, shall be paid from the revenues of the District of Columbia. Sec. 16. That this act shall take effect on the third day of April, eighteen hundred and ninety-three, said day being the first day of the April term of the Supreme Court of the District of Columbia in general term. Sec. 17. That all acts and parts of acts inconsistent herewith are hereby repealed. The Court of Appeals has no appellate jurisdiction over the police court ;^ and no power to review a judgment of the Supreme Court of the District rendered on an appeal from a justice of the ^ Ex parte Dries, 3 App. D. C. 165. 522 FEDERAL PLEADING, PRACTICE AND PROCEDURE. peace ;^ except upon the question of the jurisdiction of that court to render the judgment.^ As to appealable orders from the Supreme Court, the reader is referred to the cases cited in the note.^ An appeal, in general, will not be allowed from an interlocutory order unless a strong case showing the necessity of an immediate appeal is made out.'' The court was duly authorized by section 6 of the act creating it to make rules limiting the time of taking appeals thereto from the decisions of the Commissioner of Patents, and there was no restriction on this power by reason of section 4894 of the Revised Statutes of the United States, limiting the time of completing applications.® Under section 9 of the act, the defeated party in an interference case cannot maintain a suit in equity to revise the decision of the Commissioner of Patents under section 4915 of the Revised Statutes of the United States until he has first taken an appeal to the Court of Appeals,® The latter court has no juris- diction to award costs or execute any judgment therefor that may be entered in cases of appeals from the Commisioner of Patents.^ The Supreme Court of the District has power to hear and determine causes pending on the date of the act in the general term upon certification from its special terms to be heard there in the first instance.^ From the judgment of that court entered in accordance with the opinion of the general term, reversing the judgment of the special term, an appeal lies to the Court of Appeals where such judgment was entered after the appellate jurisdiction of the general term was abolished by the act.^ ^ Ex parte Redmond, 3 App. D. C. Ibid. 2-17; U. S. Electric Lighting 317. Co. V. Metropolitan Club, 6 id. 536 ; ^ Sturges V. Hancock, 4 App. D. C. Cropper v. McLane, /bid. 119 ; Brown 289. z'. Bradley, /bid. 207; Clark v. Brad- ^ See Edelin v. Lyon, i App. D. C. ley Co., /bid. 437. 87; /« re Walter, 3id. 189; Morris * Morris v. Washington & G. R. V. Wheat, /bid. 237 ; Hayward v. Co., 6 App. D. C. 513. Holman, /bid. 322 ; Murphy v. Till- * /n re Hien, 166 U. S. 432. ing, 2 id. 130 ; Westinghouse v. Dun- ^ Smith v. Muller, 75 Fed. Rep. 612. can, /bid. 131; Plumb v. Bateman, ' Wells z^. Reynolds, 5 App. D. C. 20. /bid. 156; Shoemaker v. Entwisle, 3 ^ Ambler z/. Archer, i App.D. C. 94. id. 252 ; Spalding v. Crawford, /bid. ^ Arkansas v. Bowen, 3 App. D. C 361 ; Hurst v. Saunders, 5 id. 66 ; /« 537. See also as to the Court of Ap- re Howgate, /bid. 74 ; Olmstead v. peals, Feck v. Henrich, 167 U. S. 624. Webb, /bid. 38 ; Thomas v. Presbey, TERRITORIAI^ COURTS. 523 Territorial Courts. § 444. It was provided in sections 1907 and 1908 of the Re- vised Statutes of the United States that the judicial power in all the territories except Arizona should be vested in a Supreme Court, district courts, probate courts, and in justices of the peace, and that in Arizona it should be vested in a Supreme Court and such inferior courts as the legislative council might by law pre- scribe. By section 1864, the chief and associate justices of the Supreme Court shall hold their offices for four years, and until their successors are appointed and qualified. They shall hold a term annually at the scat of government of the territory. By sections 1866-1868 the jurisdiction of the courts shall be lim- ited by law. The Supreme Court and the district courts respec- tively of every territory shall possess chancery as well as common law jurisdiction. No justices of the peace shall have any juris- diction of any case in which the title to land, or the boundary thereof, in anywise comes in question. By section 1910 each of the district courts shall have and exercise the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the circuit and district courts of the United States, This, it has been held, extends, to all cases where juris- diction is conferred upon the latter courts by subsequent laws.^ The act of April 7, 1874,^ reads as follows : " Whereas, by the organic acts establishing several of the terri- tories of the United States, it is provided that certain courts thereof shall have common-law and chancery jurisdiction, and doubts have been entertained whether said jurisdictions must be exercised separately, or whether they may be exercised together in the same proceeding, and whether the codes and rules of practice adopted in said territories which have authorized a min- gling of said jurisdictions in the same proceeding, or a uniform course of proceeding in all cases legal and equitable, are repug- nant to the said organic acts respectively : Therefore, Be it enacted, etc.. That it shall not be necessary in any of the courts of the several territories of the United States to exercise separately the common-law and chancery jurisdictions vested in said courts ; ^Johnson z/. U. S., 6 Utah 403. See ^Act of April 7, 1874, ch. 80, 18 also, as to this section, U. S. v. Fal- Stat. L. 27. shaw (Ariz.), 40 Pac. Rep. 209. 524 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and that the several codes and rules of practice adopted in said territories respectively, in so far as they authorize a mingling of said jurisdictions or a uniform course of proceeding in all cases whether legal or equitable, be confirmed ; and that all proceed- ings heretofore had or taken in said courts in conformity with said respective codes and rules of practice, so far as relates to the form and mode of proceeding, be, and the same are hereby, validated and confirmed; Provided, That no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law. "Sec. 2. That the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said territorial courts in cases of trial by jury shall be exercised by writ of error, and in all other cases by appeal according to such rules and regulations as to form and modes of proceeding as the said Supreme Court have prescribed or may hereafter prescribe: Provided, That on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special ver- dict, and also the rulings of the court on the admission or rejec- tion of evidence when excepted to, shall be made and certified by the court below, and transmitted to the Supreme Court together with the transcript of the proceedings and judgment or decree; but no appellate proceedings in said Supreme Court, heretofore taken upon any such judgment or decree, shall be invalidated by reason of being instituted by writ of error or by appeal." ^ By the act of March 3, 1885," no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the Supreme Court of the District of Col- umbia, or in the Supreme Court of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars. Sec. 2. The preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all ' See, as to the effect of this act, v. Fisher, 166 id. 464. Walker v. New Mex. & So. Pac. R. '' Act of March 3, 1885, ch. 355, 23 Co., 165 U. S. 593 ; Amer. Fubg. Co. Stat. L. 443. TERRITORIAL COURTS. 525 such cases an appeal or writ of error may be brought without regard to the sum or value in dispute. By the act of March 3, 1891/ the circuit courts of appeals, in cases in which the judgments of the circuit courts of appeals are made final by this act, shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders and decrees of the Supreme Courts of the several territories as by this act they may have to review the judgments, orders and decrees of the district court and circuit courts; and for that pur- pose the several territories shall, by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits. By section 1874 of the Revised Statutes the judges of the Supreme Court of each territory are authorized to hold court within their respective districts in the counties wherein by the laws of the territory courts have been or may be established, for the purpose of hearing and determining all matters and causes, except those in which the United States is a party; but the expense of holding such courts shall be paid by the terri- tory, or by the counties in which the courts are held, and the United States shall in no case be chargeable therewith. By the act of March 3, 1885,^ an Indian committing certain crimes against the person or property of another Indian or other person within any territory of the United States and either within or without an Indian reservation, shall be subject there- for to the laws of such territory relating to those crimes, and shall be tried therefor in the same courts and in the same man- ner and shall be subject to the same penalties as are all persons charged with the commission of such crimes, and jurisdiction is given to those courts in all such cases.^ But by the act of May 2, 1890,^ the judicial tribunals of the Indian nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties.^ When the enabling act, ^ Act of March 3, 1891, ch. 517, g * Act of May 2, 1890, ch. 182, ^ 30, 15, 26 Stat. L. 826, etc. 26 Stat. L. 81, etc. ^Act of March 3, 1885, ch. 341, 23 ^See, as to the jurisdiction of Indian Stat. L. 385. tribunals, Nofire v. U. S., 104 U. S. ^ See Pablo v. Peo. (Colo.), 46 Pac. 657 ; In re Mayfield, 141 id. 107 ; Cor- Rep. 636. nells v. Shannon, 27 U. S. App. 329 ; 526 FEDERAL PLEADING, PRACTICE AND PROCEDURE. admitting a State into the Union, contains no exclusion of juris- diction as to crimes committed on an Indian reservation by others than Indians or against Indians, the state courts are vested with jurisdiction to try and punish such crimes.^ On the trial in a territorial court of an offence against the laws of the United States, the question whether such offence is a felony or a misdemeanor is to be determined by reference to the laws of the United States and not those of the territory.^ The provisions of Title XXIII. of the Revised Statutes have been largely superseded by subsequent statutes establishing courts in particular territories. A brief review of these will not be out of place here. In Alaska, by the act of May 17, 1884,^ a district court is estab- lished with the civil and criminal jurisdiction of district courts of the United States and of such courts exercising the jurisdic- tion of circuit courts, and such other jurisdiction, not inconsist- ent with this act, as may be established by law. A district judge is to be appointed for the district and the terms and sessions of the court are regulated. By section 5, four commissioners are to be appointed by the President with the powers of Oregon justices of the peace, probate jurisdiction and power to grant writs of habeas corpus and act as notaries public. By section 7, the district court shall have exclusive jurisdiction in all cases in equity or those involving a question of title to land, or mining rights, or the con- stitutionality of a law, and in all capital offences. The general laws of Oregon are to prevail. In all civil cases at common law any issue of fact shall be determined by a jury at the instance of either party; and an appeal shall lie in any case, civil or criminal, from the judgment of the commissioners to the district court Standley v. Roberts, 19 id. 407 ; Meh- 419 ; Fraser v. Trent, Ibid. 423 ; Sar- lin V. Ice, 12 id. 305 ; Ex parte Kyle, gent v. Kindred, 49 id. 485; Braith- 67 Fed. Rep. 306; McCurtain v. waite v. Jordan (N. D.), 65 N. W. Grady (Ind.Ty. Ct. Apps.), 38 S.W. Rep. 701; Sargent v. Kindred (N. Rep. 65. D.), 63 id. 151 ; Thompson v. Schaet- 1 Draper v. U. S., 164 U. S. 240 ; zel, 2 S. D. 395 ; Wing v. Chic. & N. U. S. V. McBratney, 104 id. 621. See R. Co., i id. 455. as to the transfer of actions from ter- ^ U. S. v. Vigil (New Mex.), 34 Pac. ritorial to state courts, Koenigsberger Rep. 530. V. Richmond Silver Min. Co., 158 U. '^ Act of May 17, 1884, ch. 53, I 3, S, 41 ; Crown Point Min. Co. v. On- 23 Stat. L. 24. tario Silver Min. Co., 74 Fed. Rep. TERRITORIAL COURTS. 527 where the amount involved in any civil case is two hundred dollars or more, and in any criminal case where a fine of more than one hundred dollars or imprisonment is imposed, upon the filing of a sufficient appeal bond by the party appealing, to be approved by the court or commissioner. Alaska has been assigned to the ninth judicial circuit. In Arizona, by the act of February ii, 1891,^ the Supreme Court is to consist of a chief justice and three associate justices, any three of whom shall constitute a quorum; but no justice shall act as a member of the Supreme Court in any action or pro- ceeding brought to such court by writ of error, bill of exception, or appeal from a decision, judgment or decree rendered by him as judge of a district court, unless one of the other justices is disqualified to sit in such action. The territor>^ is divided into four judicial districts, and a district court is to be held in each district by one of the justices of the Supreme Court, at such time and place as is or may be prescribed by law. Arizona has been assigned to the ninth judicial circuit. In Indian Territory, by the act of March i, 1889,^ a United States court is established, to consist of a judge, appointed by the President of the United States, by and with the advice and consent of the Senate, who shall hold his office for a term of four years and until his successor is appointed and qualified. The court shall have exclusive original jurisdiction over all offences against the laws of the United States committed within Indian Territory, not punishable by death or by imprisonment at hard labor, and not committed by one Indian upon the person or property of an- other Indian, and shall have jurisdiction in all civil cases between citizens of the United States who are residents of Indian Terri- tory, or between citizens of the United States, or of any state or territory therein, and any citizen of or person or persons resid- ing or found in Indian Territory, and when the value of the thing in controversy or damages or money claimed shall amount to one hundred dollars or more, but not over controversies between persons of Indian blood only. Laws having the effect to prevent the Cherokee, Choctaw, Creek, Chickasaw and Seminole nations, or either of them, from lawfully entering into leases or contracts 1 Act of Feb. II, 1891, ch. 131, 26 ^ ^ct of March i, 1889, ch. 333, 25 Stat. L. 747. Stat. L. 783. 528 FEDERAL PLEADING, PRACTICE AND PROCEDURE. for mining coal for a period not exceeding ten years, are repealed, and the court is given jurisdiction over all controversies arising out of said mining leases or contracts, and of all questions of mining rights or invasions thereof, where the amount involved exceeds the sum of one hundred dollars. The laws of the United States as to procedure are to govern the court, so far as applicable, but the practice, pleadings and forms of proceeding in civil causes shall conform, as near as may be, to those exist- ing at the time in like causes in the courts of Arkansas. By the act of May 2, 1890,^ the jurisdiction conferred by the above act is extended to all civil cases in Indian Territory, except cases over which the tribal courts have exclusive jurisdiction, to all cases on contracts entered into by citizens of any tribe or na- tion with citizens of the United States in good faith and for val- uable consideration, and in accordance with the laws of such tribe or nation, which contracts are to be deemed valid and en- forceable, and to all cases over which jurisdiction is conferred by this act or may hereafter be conferred by act of Congress. But the judicial tribunals of the Indian nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties, and as to all such cases the laws of Arkansas put in force by this act shall not apply. The Constitution and criminal laws of the United States are applicable, as well as all laws relating to national banking associations, but nothing in the act shall be so construed as to deprive any of the courts of the civilized nations of exclusive jurisdiction over all cases aris- ing wherein members of said nations, whether by treaty, blood or adoption, are the sole parties, nor so as to interfere with the right and powers of such nations to punish said members for violation of the statutes and laws enacted by their national coun- cils where such laws are not contrary to the treaties and laws of the United States. Original jurisdiction is conferred in certain cases relating to the government and protection of Indians, and exclusive original jurisdiction of certain crimes against justice committed in Indian Territory. Jurisdiction is also conferred over all controversies arising between members or citizens of one tribe or nation of Indians and the members or citizens of other ^Act of May 2 1S90, ch. 1S2, U 29, etc., 26 Stat. L. 81, etc. TERRITORIAL COURTS. 529 tribes or nations in Indian Territory; and any citizen or member of one tribe or nation who may commit any offence or crime against the person or property of a citizen or member of another tribe or nation shall be subject to the same punishment as he would be if both parties were citizens of the United States. And any member or citizen of any Indian tribe or nation in Indian Territory shall have the same right to invoke the aid of the court for the protection of his person or property as against any per- son not a member of the same tribe or nation, as though he were a citizen of the United States. By the Act of March i, 1895/ Indian Territory is divided into three judicial districts, to be known as the northern, central and southern districts, and at least two terms of the United States court are to be held each year at each place of holding court in each district at such regular times as the judge for such district shall fix and determine. The President, by and with the advice and consent of the Senate, is to appoint two additional judges of this court who shall hold their offices for the term of four years from the date of their appointment, one of whom shall be judge of the northern, the other of the southern district, while the judge already in office shall be judge of the central district during the remainder of his term. Each judge is to be paid a salary of five thousand dollars per annum, and each of the addi- tional judges is to have the same powers as the former judge or as a judge in the circuit and district courts of the United States. Attorneys and marshals are to be appointed by the President, and clerks are to be appointed by the judges. Each judge may appoint commissioners, not exceeding six in number, within his district, who shall be ex officio notaries public and justices of the peace and have the power to solemnize marriages.^ The Arkansas criminal law and procedure are to be in force, provided that in all cases where they conflict with the laws of the United States with regard to the punishment of offences, the latter shall govern as to such offences, except for the crime of larceny, the punishment of which shall be according to the Arkansas law. The original jurisdiction of the commissioners as justices of the peace in civil cases shall, in all those classes of 1 Act of March i, 1895, ch. 145, 28 ^ See Hardy v. U. S., 36 U. S. App. Stat. L. 693. 225. 34 530 FEDERAL PLEADING, PRACTICE AND PROCEDURE. cases where jurisdiction is by the act conferred upon the United States court, be exclusive where the amount or value of the demand or of the property or thing in controversy does not exceed one hundred dollars. The commissioners, acting as jus- tices of the peace in criminal cases, shall have jurisdiction to hold preliminary examinations and discharge, hold to bail, or commit in cases of offences which, under the laws applicable to the Territory, amount to felonies. Appeals may be taken to the United States court from the final judgment of the commis- sioners, acting as justices of the peace, in all cases, but no appeal shall be allowed in civil cases where the amount of the judgment, exclusive of costs, does not exceed twenty dollars. By section 1 1 of the same act it is provided that the judges of this court shall constitute a Court of Appeals, to be presided over by the judge oldest in commission as chief justice of said court. This court shall have similar jurisdiction and powers to those of the Supreme Court of Arkansas, and the procedure in that state with regard to appeals and writs of error is to be followed. Writs of error and appeals from the final decision of the appellate court shall be allowed, and may be taken to the circuit court of appeals for the eighth judicial cir- cuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States. This jurisdiction of the circuit court of appeals is extended by the act of February 8, 1896,^ to cases pending therein upon writ of error to or appeal from the United States court in Indian Territory, where the former court would have had jurisdiction but for the act of March i, 1895.^ The above acts regulate the proceedings in the courts described, but it is not necessary here to go into the details of such pro- ceedings. Though in general, it is not presumed that the English common law is in force in Indian Territory or in an Indian nation,^ yet when Congress by the act of March i, 1889, supra, with the assent of the Indians created the United States court in Indian Territory, it gave that court authority and imposed ^ Act of Feb. 8, 1896, ch. 14, Stat. 543; Scott v. Hamner, Ibid. 547. 1895-96, 6. » Davison v. Gibson, 12 U. S. App. ^ See Gowen v. Bush, 36 U. S. App. 362. TERRITORIAI. COURTS. 531 upon it the duty, to apply the established rules and principles of the common law to the cases within its jurisdiction, where no proof is made of the laws, rules or customs obtaining in that territory/ The acts of 1889 and 1890 do not confer on that court jurisdiction of an action against the Choctaw Nation or its chief executive officers, when sued in their capacity as such, for an alleged debt or liability of the Nation, against which the judgment will operate.^ Nor have Congress granted to the court authority to entertain and determine actions brought by a tribe of Indians in the territory to collect a tax imposed by the tribe upon a citizen of the United States residing therein.^ The court has jurisdiction in civil actions where the aggregate of the damages or money claimed amounts to one hundred dollars, although the value of each of several articles sued for may be less than that sum.* In New Mexico, by the act of July 10, 1890,^ the Supreme Court shall hereafter consist of a chief justice and four associate justices, any three of whom shall constitute a quorum; but the judge who presided at the trial of a cause in the court below shall not sit at the hearing of the same case on appeal or writ of error, in the Supreme Court. The territory is divided into five judicial districts and a district court is to be held in each district by one of the justices of the Supreme Court, at such time and place as is or may be prescribed by law.^ Each judge, after assignment, shall reside in the district to which he is assigned. A trial judge, in New Mexico, may continue any special term ^Pyeatt v. Powell, 10 U. S. App. 520. As to Arkansas statutes in force, 200. And see Ark. City Bk. v. Swift see Leak Glove Manufg. Co. v. Nee- (Kan.), 46 Pac. Rep. 950. dies, 69 Fed. Rep. 68. As to the 2 Thebo V. Choctaw Tribe, 27 U. S. Court of Appeals of the territorj-, see App. 657. See, as to controversies Grady v. Newman, 37 S. W. Rep. 54 ; between the Choctaw Coal and Rail- Kearney v. Liverpool & L. & G. Ins. way Co. and Indians through whose Co., Ibid. 143. territory the railway runs: Gowen *Act of July 10, 1S90, ch. 665, 26 V. Harley, 12 id. 574. Stat. L. 226. 3 Crabtree v. Madden, 12 U. S. App. * As to the jurisdiction of the dis- 159, trict courts, see Schofield v. Stephens *Gulf, Colo. & S. F. R. Co. V. (N. M.), 38 Pac. Rep. 319; Lincoln- Washington, 4 U. S. App. 121. As Lucky & Lee Min. Co. v. Distr. Ct. to actions z« forma pauperis, see St. (N. M.), Ibid. 5S0, Louis & S. F. R. Co. v. Farr, 12 id. 532 FEDERAL PLEADING, PRACTICE AND PROCEDURE. he is holding until a pending case is concluded, even if the pro- ceedings of the special terms are thereby prolonged beyond the day fixed for the regular term.* New Mexico has been assigned to the eighth judicial circuit. In Oklahoma, by the act of May 2, 1890,^ as amended by the act of December 21, 1893,'' the judicial power of the territory is vested in a Supreme Court, district courts, probate courts and justices of the peace. The Supreme Court consists of a chief justice and four associate justices, any three of whom constitute a quorum; but three judges must concur to render an opinion reversing a judgment or other determination of the district court. They shall hold their offices for four years and until their suc- cessors are appointed and qualified, and they shall hold a term annually at the seat of government of the territory. The juris- diction of these courts shall be as limited by law, but justices of the peace shall not have jurisdiction of any matter in controversy where the title or boundaries of land maybe in dispute, or where the debt or sum claimed shall exceed one hundred dollars. And the Supreme and district courts, respectively, shall possess chan- cery as well as common law jurisdiction and authority for redress of all wrongs committed against the Constitution or laws of the United States or of the territory affecting persons or property. The territory shall be divided into five judicial districts, and a district court shall be held in each county by one of the justices of the Supreme Court. The Supreme Court shall define the judi- cial districts and fix the times and places at each county seat in each district where the district court shall be held, and designate the judge who shall preside therein, and each judge, after assign- ment, shall reside in the district to which he is assigned. The Supreme Court, or the chief justice thereof, may designate any judge to try a particular case or cases in any district when the judge of that district has been of counsel or is of kin to either party to the action, or interested, or is biased or prejudiced in the cause, or if for any other reason he is unable to hold court ; and no justice of the Supreme Court shall sit as a member thereof in the trial or hearing of any case decided by him in the district ^Gonzales v. Cunningham, 164 U. etc., 26 Stat. L. 81, etc. S. 612. 3 Act of Dec. 21, 1893, ch. 5, 28 '^ Act of May 2, 1890, ch. 182, \\ 9, Stat. L. 164. TERRITORIAL COURTS. 533 court, or wherein he has any interest. Writs of error, bills of exception and appeals shall be allowed in all cases from the final decisions of the district courts under such regulations as may be prescribed by law, but in no case removed to the Supreme Court shall trial by jury be allowed in that court. Each of the district courts shall have and exercise, exclusive of any court heretofore established, the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States. The district courts have also jurisdiction over all controversies arising between members or citizens of one tribe or nation of Indians and the members or citizens of other tribes or nations in the territory, and any citizen or member of one tribe or nation who may com- mit any offence or crime in the territory against the person or property of a citizen or member of another tribe or nation, shall be subject to the same punishment as he would be if both parties were citizens of the United States; and any person residing in the territory shall have the right to invoke the aid of courts therein for the protection of his person or property, as though he were a citizen of the United States ; but nothing in the act shall be so construed as to give jurisdiction to the courts estab- lished in the territory in controversies arising between Indians of the same tribe, while sustaining their tribal relations. Many of the provisions of the laws of Nebraska are extended to and put in force in the territory, and the Supreme and di'strict courts have the same power to enforce these laws as courts of like juris- diction have in that state; but county courts and justices of the peace shall have and exercise the jurisdiction which is authorized by said laws of Nebraska, provided, that the jurisdiction of jus- tices of the peace shall not exceed the sum of one hundred dollars, and county courts shall have jurisdiction in all cases where the sum or matter in demand exceeds the sum of one hundred dollars.^ Greer county is excepted from these provi- sions, but the act of May 4, 1896,^ regulates judicial proceedings in that county. By the act of March 3, 1891,^ it is provided that in addition to the jurisdiction granted to the probate courts ^ See Allison v. Berger, i Okla. i. ' Act of March 3, 1891, ch. 543, \ 17, =* Act of May, 4, 1896, ch. 155, Stat. 26 Stat. L 989, etc. 1895-96, 113. 534 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in Oklahoma by legislative enactments, the probate judges of that territory are granted such jurisdiction in town site matters, and under such regulations as are provided by the laws of the state of Kansas. Oklahoma has been assigned to the eighth judicial circuit. Interstate Commerce Commission ; Statutes. § 445. The creation and organization of this commission was a great stride made by Congress toward the regulation of com- merce among the states. The amount of business within its jurisdiction is immense, and while it is not, strictly speaking, a court, yet it has certain judicial powers and functions that entitle it to at least a brief notice in a work like this.^ In the present section the statutes dealing with the subject will be briefly out- lined, and in the following section some of the more important decisions on the jurisdiction, powers and procedure of the com- mission will be considered. The original " act to regulate commerce " of February 4, 1 887,^ was amended by the acts of March 2, 1889,^ February 10, 1891,* and February 8, 1895.® It will be unnecessary to go into the details of the act and its amendments, A brief summary of their provisions will suffice for our present purpose. These provisions apply " to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management or arrangement, for a continuous carriage or shipment, from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from anyplace in the United States to a foreign country and carried from such ^ For an account of the history of ^ Act of March 2, 1SS9, ch. 382, 25 the act to regulate commerce, see i, Stat. L. 855. C. C. Rep. 74, 256. * Act of Feb. 10, 1891, ch. 128, 26 *Act of Feb. 4, 1887, ch. 104, 24 Stat. L. 743. Stat. L. 379. 5 Act of Feb, 8, 1S95, ch. 61, 28 Stat. L. 643. THE INTERSTATE COMMERCE COMMISSION. 535 place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country ; Provided, hozvever. That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly within one state, and not shipped to or from a foreign country from or to any state or territory as aforesaid." The act goes on to provide that charges shall be reasonable and just, and, if not so, they shall be unlawful. Special rates, rebates, drawbacks, etc., as well as undue preferences, are prohibited. Equal facilities are to be afforded connecting lines. The charge for short haul must not, with certain exceptions, be more than for long haul. The pooling of freights or earnings is prohibited, as are combinations to prevent the continuous carriage of freight to its destination. Persons damaged by a violation of these pro- visions may complain to the commission established by the act or sue personally in any district or circuit court of the United States of competent jurisdiction, but must elect which of these methods to adopt. A commission is created and established to be known as the Inter-State Commerce Commission, which shall be composed of five commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. The commissioners first appointed shall continue in office for the term of two, three, four, five and six years respectively, but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. Any commissioner may be removed by the President for inefifi- ciency, neglect of duty or malfeasance in office, and not more than three of them shall be appointed from the same political party. Persons in the employ of, or holding official relations with, or owning the stock or bonds of, or in any matter pecuniarily interested in any common carrier subject to the provisions of the act are not eligible for the office of commissioner, and no com- missioner shall engage in any other business, vocation or employ- ment. The commission shall have authority to inquire into the management of the business of all common carriers subject to the provisions of the act, and shall keep itself informed as to the 536 FEDERAL PLEADING, PRACTICE AND PROCEDURE. manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable it to perform the duties and carry out the objects for which it was created, and it is authorized and required to execute and enforce the provisions of the act. It is made the duty of any district attorney to institute suit on the application of the commission, and the latter may require by subpccna the attendance and testimony of witnesses and the production of books, papers, etc., and, if such subpoena is disobeyed, invoke the aid of court for its enforcement. Testi- mony may also be taken by deposition, under certain regulations. Complaints of violations of the provisions of the act may be made by petition to the commission, stating briefly the facts, and a statement of the charges made shall thereupon be forwarded by the commission to the common carrier, who shall be called upon to satisfy the complaint or answer the same in writing within a reasonable time, to be specified by the com- mission. If reparation is made within that time, the carrier is relieved of liability only for the particular violation complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating the complaint, it is the duty of the commission to investigate the matters complained of in such manner and by such means as it shall deem proper. It shall in like manner investigate any complaint forwarded by the railroad commissioner or commission of any state or territory, at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. Whenever an investigation shall be made by the commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which its conclu- sions are based, together with its recommendation as to what reparation, if any, should be made by the common carrier to any party or parties who maybe found to have been injured; and such findings are thereafter, in all judicial proceedings, to be deemed prima facie evidence as to each and every fact found. THE INTERSTATE COMMERCE COMMISSION. 537 All reports of investigations made by the commission shall be entered of record, and a copy thereof furnished to the complain- ant, and to any common carrier that may have been complained of. The publication of its reports and decisions may be provided for by the commission. Where on investigation it appears to the satisfaction of the commission that the provisions of the act have been violated, it shall be the duty of the commission forthwith to cause a copy of its report in respect thereto to be delivered to the common carrier, together with a notice to such carrier, to cease and desist from such violation, or to make reparation for the injury, or both, within a reasonable time, to be specified by the commission. If, within that time, it shall be made to appear to the commission that the injury has ceased or reparation has been made, a state- ment to that effect shall be entered of record by the commission and the common carrier shall thereupon be relieved from further liability or penalty for that particular violation. Whenever the common carrier has refused to obey the lawful order or require- ment of the commission, not founded upon a controversy re- quiring a trial by jury, the commission, or any person interested, may apply in a summary way by petition to the circuit court of the United States sitting in equity in the proper district, which may hear and determine the matter on short notice as a court of equity without formal pleadings, and on such hearing the report of the commission is to be prima facie evidence of the facts therein stated. If it appears that the lawful order or requirement of the commission has been violated, the court may issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such violation and enjoin obedience, and, in case of disobedience to such writ, may issue writs of attachment or other process applicable to writs of injunction, etc., and, if it shall think fit, impose a fine, if the injunction, etc., is not obeyed. It is made the duty of the Attorney-General of the United States to prosecute any such petition filed or presented by the commission. If the matters involved in any such order or requirement of the commission are founded upon a controversy requiring a trial by jury, it shall be lawful for any company or person interested in such order or requirement to apply in a summary way to the circuit court of the United States sitting as a court of law in 538 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the proper district, alleging the violation or disobedience, and the court shall fix a time and place for the trial of the cause, and at the trial the findings of fact by the commission are to be prima facie evidence. But if all the parties shall waive a jury- in writing, the court shall try the issues and render its judg- ment thereon. If the judgment of the circuit court shall be in favor of the party complaining, he or they shall be entitled to recover a reasonable counsel or attorney's fee, to be fixed by the court, which shall be collected as part of the costs in the case. The commission may conduct its proceedings in such manner as will best conduce to the proper despatch of business and to the ends of justice. A majority shall constitute a quorum for the transaction of business, but no commissioner shall par- ticipate in any hearing or proceeding in which he has any pecuniary interest. It may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before it and be heard in person or by attorney. Every vote and official act of the commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. It shall have an official seal, and any of its members may administer oaths and affirma- tions and sign subpoenas. Each commissioner is to receive an annual salary of ^7,500, and provision is made for the appoint- ment of a secretary and other employees. The principal office is in the city of Washington, where the general sessions are to be held, but, whenever more convenient, special sessions may be held in any part of the United States ; so any inquiry may be prosecuted by one or more of the commissioners in any part of the country. Annual reports may be required to be made by all common carriers, and the commission may prescribe a uni- form system of accounts. The commission must also make an annual report. Nothing in the act is to prevent reduced rates of personal conveyance or carriage, etc., of goods for govern- ment purposes, charity, fairs, destitute persons, ministers, in- mates of Soldiers' Homes, etc., officers and employees of the rail- THE INTERSTATE COMMERCE COMMISSION. 539 road, or the issue of joint interchangeable five-thousand-mile tickets with special privileges, under certain circumstances. The act of August 7, 1888/ compels all subsidized railroad and telegraph companies to construct, maintain or operate tele- graph lines, and give equal facilities to connecting lines. It is made the duty of the interstate commerce commission, on proper application,^ to ascertain the fact of violation of these provisions, and determine and order what arrangement shall be made and, if necessary, enforce the same by writ of mandamus in the courts of the United States, in the name of the United States, at the relation of any one of the commissioners ; but the commis- sioners may institute any inquiry upon their own motion in the same manner and to the same effect as though complaint had been made. Contracts between the companies are to be filed with the commission and annual reports are to be made to it. The act of February ii, 1893,^ provides "that no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the interstate commerce commission, or in obedience to the subpoena of the commission, whether such subpoena be signed or issued by one or more commissioners, or in any cause or pro- ceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress entitled, ' An act to regulate commerce,' .... or of any amendment thereof, on the ground or for the reason that the testimony or evidence, docu- mentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its sub- poena, or the subpoena of either of them, or in any such case or proceeding; Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce 1 Act of Aug. 7, 1888, ch. 772, 25 Fed. Rep. 813. Stat. L. 382. ''^^ct of Feb. 11, 1S93, ch. S3, 27 '' See Un. Pac. R. Co. v. U. S., 59 Stat. L. 443. 540 FEDERAL PLEADING, PRACTICE AND PROCEDURE. books, papers, tariffs, contracts, agreements and documents, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense, and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment." By the act of March 2, 1893/ supervision is given to the com- mission of railway safety appliances used in interstate commerce. By the act of July 31, 1894,^ the Auditor for the State and other Departments is to receive and examine all accounts relating to the Interstate Commerce Commission. There are other statutory provisions relating to the commis- sion which are not of sufficient importance to warrant mention here. Jurisdiction, Powers and Procedure of the Commission. § 40. Several important cases have been recently decided by the Supreme Court of the United States on the nature and powers of the commission. In one of them it was held that the com- mission is a body corporate, with legal capacity to be a party plaintiff or defendant in the Federal courts; that in enacting the interstate commerce acts Congress had in view, and intended to make a provision for commerce between states and territories, commerce going to and coming from foreign countries, and the whole field of commerce except that wholly within a state, and conferred upon the commission the power of determining whether, in given cases, the services rendered were like and con- temporaneous, whether the respective traffic was of a like kind and whether the transportation was under substantially similar circumstances and conditions. The court said : " The conclu- sions that we draw from the history and language of the act, and from the decisions of our own and the English courts, are mainly these : That the purpose of the act is to promote and facilitate commerce by the adoption of regulations to make charges for transportation just and reasonable, and to forbid undue and un- reasonable preferences or discriminations : That, in passing ^ Act of March 2, 1893, ch. 196, 27 - Act of July 31, 1894, ch. 174, § 7, Stat. L. 531. 28 Stat. L. 162, etc. THE INTERSTATE COMMERCE COMMISSION. 541 upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the commission or the courts, is empowered to fully consider all the circumstances and condi- tions that reasonably apply to the situation, and that, in the exer- cise of its jurisdiction, the tribunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers, and in considering whether any particular locality is subjected to an undue preference or disadvantage the welfare of the communities occupying the localities where the goods are delivered is to be considered as well as that of the communities which are in the locality of the place of shipment : That among the circumstances and conditions to be considered, as well in the case of traffic originating in foreign ports as in the case of traffic originating within the limits of the United States, competition that affects rates should be considered, and in de- ciding whether rates and charges made at a low rate to secure foreign freights which would otherwise go by other competitive routes are or are not undue and unreasonable, the fair interests of the carrier companies and the welfare of the community which is to receive and consume the commodities are to be considered. That if the commission, instead of confining its action to redress- ing, on complaint made by some particular person, firm, cor- poration or locality, some specific disregard by common carriers of provisions of the act, proposes to promulgate general orders, which thereby become rules of action to the carrying companies, the spirit and letter of the act require that such orders should have in view the purpose of promoting and facilitating com- merce, and the welfare of all to be affected, as well the carriers as the traders and consumers of the country."^ In another case it was held that the commission is not em- powered either expressly or by implication to fix rates; but, sub- ject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly dis- criminate, so as to give undue preference or disadvantage to per- sons or traffic similarly circumstanced, the act leaves common carriers as they were at common law, free to make special con- tracts looking to the increase of their business, to classify their 1 Tex. & Pac. R. Co. v. Insterst. Three of the justices dissented : see Com. Comn., 162 U. S. 197, 233. the 10th Ann. Rep. of the Comn., p. 6. 542 FEDERAL PLEADING, PRACTICE AND PROCEDURE- traffic, to adjust and apportion their rates so as to meet the neces- sities of commerce and, generally, to manage their important in- terests upon the same principles which are regarded as sound, and adopted in other trades and pursuits.^ The orders of the commission should always have in view the purpose of promoting commerce and the welfare of carriers, traders and consumers.^ An order which rests upon an erro- neous principle and is unreliable cannot be sustained and is not enforceable.^ The commission is authorized to determine whether the practices of the carrier complained of are unlawful, and to what extent, and to require such carrier by suitable order to desist not only from doing what is ascertained to be unlawful, but from omitting to do what is found to be lawful.* The power to " regulate " the accessorial service facilities must be confined to the existing state of things in regard to the use of its prop- erty by each carrier : the commission and the courts have no authority to invade rights of property to carry out the proposed regulation.^ The commission has no authority to order or sanc- tion the giving of special privileges.^ Nor can it compel car- riers to provide any particular kind of cars or other special equipment/ The fact that the property and affairs of a carrier ^Cinc, N. O. & Tex. Pac. R. Co. 508, where the original decision is V. Interst. Com. Comn., 162 U. S. 184. followed and further developed. See This case was followed in Interst. also Interst. Com. Comn. v. Ala. Mid- Corn. Comn. V. Cine, N. O. & Tex. land R. Co., infra. Pac. R. Co. 76 Fed. Rep. 183 ; Same ^ Interst. Com. Comn. v. Ala. Mid- V. Ala. Midland R. Co., 74 id. 715; land R. Co., 74 Fed. Rep. 715, af- Same v. Lehigh Val. R. Co., Ibid, firmed in 18 Sup. Ct. Rep. 45. And 784; Same v. Northeastern R. Co., see Interst. Com. Comn. v. Detroit, Ibid. 70. See Perry v. Fla. Cent. & G. H. & M. R. Co., 167 U. S. 633. P. R. Co., 5 I. C.C. Rep. 97; Murphy, ^Interst. Com. Comn. v. Lehigh Wasey & Co. v. Wabash R. Co., Ibid. Val. R. Co., 74 Fed. Rep. 784. 122 ; Coxe Bros. & Co. v. Lehigh * Page v. Del., Lack. & W. R. Co., Val. R. Co., 4 I. C. C. Rep. 535. The 6 I. C. C. Rep. 548. commission, however, contended that * Detroit, G. H. & M. R. Co. v. the language of the Supreme Court Interst. Com. Comn., 74 Fed. Rep. had reference only to a fixing of rates 803. in the first instance without notice or * In re The St. Louis Millers' Assn., hearing: see loth Ann. Rep. of the i I. C. C. Rep. 20; In re The Iowa Comn., p. 22. But this was denied Barb Steel Wire Co., Ibid. 17. in Interst. Com. Comn. v. Cine, N. ' Rice v. Cine, Wash. & B. R. Co., O. & Tex. Pac. R. Co., 167 U. S. 479, 5 I. C. C. Rep. 193- THE INTERSTATE COMMERCE COMMISSION. 543 have been placed by a United States court in the hands of a receiver does not affect the jurisdiction of the commission.^ When an investigation by the commission to inquire into the business of a common carrier has been fully concluded as to some matters, and not as to others, an order may be made pendente lite as to the former and the cause retained for further consideration and order as to the latter.^ The commission has authority to institute investigations and deal with violations of the law independently of a formal complaint or of direct damage to a complainant.* Thus when one makes complaint under the act and sets up a personal grievance which he fails to prove, the commission may, nevertheless, if a violation of law by the de- fendant appears, retain the case and take the necessary steps to bring such violation to an end.* When a carrier fails to answer a complaint filed under Section 13 of the act, the commission will take such proof of facts as may be deemed proper and rea- sonable and make such order thereon as the circumstances of the case appear to require.^ When a question of general public interest is involved, the commission in its own discretion and in furtherance of justice may open a case to give parties the benefit of a more extended investigation of the same subject matter in other pending cases.^ It will promptly and carefully examine an application for a re- hearing with a view to the immediate correction of any error of law or fact found to exist; but will not direct a rehearing in- volving expense to the parties unless satisfied that the re-argu- ment will have the effect of changing the result of what the commission has already done/ But the commission is not pre- cluded from rehearing a particular case and amending or modi- fying its original order therein by the refusal of the circuit court ^Bd. of Trade of Troy, Ala., z'. Ala. C. C. Rep. 208. And see Page v. Midland R. Co., 6 I. C. C. Rep. i. Del., Lack. & W. R. Co., 6 id. 148. And pi ior leave of the court appoint- ^ The Tecumseh Celery Co. v. Chic, ing the receiver is not necessary : J. & M. R. Co., 5 I. C. C. Rep. 663. Evans v. Un. Pac. R. Co., Ibid. 520. « Rice v. West. N. Y. & Pa. R. Co., 2 hi re Boston & Me. R. Co., 5 I. C. 3 I- C. C. Rep. 87. C. Rep. 69. ' Riddle, Dean & Co. v. Pittsb. & ^ In re Grand Tmnk R. Co. of L. E. R. Co., i I. C. C. Rep. 490. Canada, 3 I. C. C Rep. 89. See also In re Produce Exchange of ^ Smith V. North. Pac. R. Co., i I. Toledo, 2 id. 588. 544 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to enforce such order against the carriers affected thereby, espe- cially when the reasons assigned for such refusal do not relate to the principal question in controversy and are consistent with an approval of the amended or modified order/ The commission will not express opinions on abstract ques- tions, nor on questions presented by ex parte statements of fact, nor on questions of construction of the statute presented for its advice but without any controversy pending before it on com- plaint of violation of law.^ In a case instituted by complaint and strictly inter partes, matter not expressly put in issue by the pleadings or necessarily involved in issues so presented, cannot be authoritatively determined by the commission.^ Its report and findings upon the evidence relate only to the ascertainment and presentation of all the material facts necessary fairly and justly to present the merits of the controversy, and it does not report evidence which is only cumulative or which is immaterial or irrelevant or mere details of evidence already embraced in substantial facts stated, upon which its findings and conclusions are made.* But it is not sufficient that the report should be made up of mere conclusions with respect to either law or fact. Suitable reference to the evidence should be made where there is a dispute, and the failure to receive and account for it or to dispose of an issue of fact is an error in law.^ A procedure for the enforcement of lawful orders of the commission founded upon controversies requiring trial by jury having been provided by the statute, it is the duty of the commission to pass upon the question of reparation for past damages whenever a claim is made therefor.^ It is not authorized to award the counsel and attorneys' fees which may by the statute be given by a court.'' The commission will not make an order for relief under the fourth section of the act except upon verified petition and ^ Page V. Del., Lack. & \V. R. Co., * Riddle, Dean & Co. v. Pittsb. & 6 L C. C. Rep. 548. L. E. R. Co., i I. C. C. Rep. 490- ■■' l7i re the Order of Railway Con- ^ Interst. Com. Comn. v. Louisv. & ductors, I I. C. C. Rep. 8 ; Pa. Co. v. N- R. Co., 73 Fed. Rep. 409. Louisv., N. A. & C. R. Co., 3 id. 223. «Macloon v. Chic. & N. R. Co., 5 L 3 Commercial Club of Omaha v. C. C. Rep. 84. Chic, R. L & Pac. R. Co., 6 L C. C. " Councill v. Western & Atl. R. Co., Rep. 647. I L C. C. Rep. 339. THE INTERSTATE COMMERCE COMMISSION. 545 after investigation into the facts. ^ But under the amendments to the original statute, the formal preliminary investigation authorized by that act is unnecessary.^ In laying down rules upon the subject of what an application shall contain for the compulsory production of books, papers, etc., the commission is governed by the provisions of the act and its objects and pur- poses, but will also consider the practice in the United States courts and the rules prescribed by Federal statutes in analogous proceedings.^ The provision authorizing the circuit courts to use their process in aid of inquiries before the commission is not unconstitutional as imposing on judicial tribunals duties not judicial in their nature.^ Nor is the act of February li, 1893,^ unconstitutional. It affords a witness before the commission absolute immunity against prosecution, Federal or state, for the offence to which the question relates and deprives him of his constitutional right to refuse to answer.^ An order made by the commission is essentially an adminis- trative order, and is not final or conclusive in the sense that the judgment or decree of a court is. And an order of a United States court enforcing an order of the commission does not change its character or make it a final judgment."^ The functions of the commission are those of referees or special commissioners, appointed to make preliminary investigation and report. In respect to interstate commerce matters covered by the law, the commission may be regarded as the general referee of each and every circuit court of the United States upon which the jurisdic- tion is conferred of enforcing the rights, duties and obligations recognized by the statute. The circuit court is not the mere executioner of the commission's order. The suit therein is an original and independent proceeding in which the commission's report is made prima facie evidence. The court is not confined to a mere re-examination of the case as heard and reported by the commission, but hears and determines causes de ?iovo, upon ^ In re South. Pac. R. Co., i I. C. *Interst. Com. Comn. v. Brimson, C. Rep. 6. 154 U. S. 447. "^ U. S. V. Mo. Pac. R. Co., 65 Fed. ^ Act of Feb. 11, 1893, ch. 83, supra. Rep. 903. 6 Brown v. Walker, 161 U. S. 591. ^Rice V. Cine, W. & B. R. Co., 3 Mnterst. Com. Comn. v. Louisv. & I. C. C. Rep. 186. N. R. Co., 73 Fed. Rep. 409. 35 546 FEDERAI. PLEADING, PRACTICE AND PROCEDURE. proper pleadings and proofs, the latter including not only the prima facie facts reported by the commission, but all such other and further testimony as either party may introduce, bearing upon the matter in controversy.^ Thus the rule of estoppel by record which is at all times technical in character and applies to the records of courts and proceedings before Federal officials whose acts are final is not applicable to a complaint before the commission.- But the power given to the courts to compel obedience to the " lawful order " of the commission, does not give them authority to modify or change it.' It cannot substi- tute for an order actually made one such as the commission might or should have made, or such as it intended, but failed, to make.* No appeal lies to the Supreme Court from decisions of the commission.^ ^Kentucky & I. Bridge Co. v. i56. Louisv. & N. R. Co., 37 Fed. Rep. » Detroit, G. H. & M. R. Co. v, 567. And see Interst. Com. Comn. Interst. Com. Comn., 74 Fed. Rep. V. Atchison, T. & S. F. R. Co., 50 803. id. 295; In re Alleged Excessive * Interst. Com. Comn. zv. Del., Lack. Freight Rates, 4 I. C. C. Rep. 116. & W. R. Co., 64 Fed. Rep. 723. ^ Toledo Produce Exchange z'. Lake ^Interst. Com. Comn. v. Atchison, Shore & M. S. R. Co., 5 I. C. C. Rep. T. & S. F. R. Co., 149 U. S. 264. I COMMISSIONERS. 547 CHAPTER XVIII. UNITED STATES COMMISSIONERS. Commissioners of the Circuit Courts Abolished. § 447. By the act of May 28, 1896, it is provided : " Sec. 19. That the terms of office of all commissioners of the circuit courts heretofore appointed shall expire on the thirtieth day of June, eighteen hundred and ninety-seven; and such office shall on that day cease to exist, and said commissioners shall then 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. All proceedings pending, return- able, unexecuted or unfinished at said date before any such com- missioner shall be continued and disposed of according to law by such commissioner appointed as herein provided, as may be designated by the district court for that purpose. 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 com- missioners, at such places in the district as may be designated by the district court, which United States commissioners shall have the same powers and perform the same duties as are now imposed upon commissioners of the circuit courts. The appoint- ment of such United States commissioners shall be entered of record in the district courts, and notice thereof at once given by the clerk to the Attorney-General. That such United States commissioners shall hold their offices, 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 a United States court and a United States commissioner without the approval of the Attorney-General: Provided, That all acts and parts of acts applicable to com- missioners of the circuit courts, except as to appointment and 548 FEDERAL TLEADING, PRACTICE AND PROCEDURE. fees, shall be applicable to United States commissioners ap- pointed under this act. Warrants of arrest for violations of internal revenue laws may be issued by United States com- missioners upon the sworn complaint of a United States district attorney, assistant United States district attorney, collector or deputy collector of internal revenue, or revenue agent or private citizen, but no such warrant of arrest shall be issued upon the sworn complaint of a private citizen unless first approved in writing by a United States district attorney. That United States commissioners and all clerks of United States courts are hereby authorized to administer oaths. "Sec. 20. That no marshal or deputy marshal, attorney or assistant attorney of any district, jury commissioner, clerk of marshal, no bailiff, crier, juror, janitor of any government build- ing, nor any civil or military employee of the government, except as in this act provided, and no clerk or employee of any United States justice or judge shall have, hold or exercise the duties of the United States commissioner. And it shall not be lawful to appoint any of the officers named in this section receiver or receivers in any case or cases now pending or that may be hereafter brought in the courts of the United States."^ As the commissioners appointed under this act have the same powers and perform the same duties as the commissioners of the circuit courts whom they superseded, the two kinds of com- missioners will, for convenience, be treated in the present chapter as identical. The office of United States commissioner is quite an important one, as he has the authority in some cases to exercise functions which also belong to the highest judicial officers of the country. We have already noticed that any district judge may appoint commissioners, before whom appraisers of vessels or goods and merchandise seized for breaches of any law of the United States may be sworn.^ This seems to be the limit of their authority. But each circuit court could appoint, in the different districts in which it v/as held, as many discreet persons as it might deem necessary, to be called "commissioners of the circuit courts," who might exercise such powers as were or might be expressly 1 Act of May 28, 1S96, ch. 252, Stat. ^j^ev. Stat. §2 57°, 938. 1895-96, 184. COMMISSIONERS. 549 conferred upon them.^ But no marshal or deputy marshal of any of the courts of the United States was eligible to the office of commissioner of any of said courts.^ And now, under the act of 1896, as has been said, United States commissioners are ■ to be appointed by the district court of each judicial district. By section 24 of the above act its provisions with reference to commissioners, etc., do not apply to Indian Territory or Alaska.' Under the provisions of the statutes the commissioners have various powers conferred upon them. They have equal author- ity with the judges of the Supreme Court and of the circuit and district courts to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States;* and they have power to enforce the awards or decrees of foreign consuls, vice-consuls or commercial agents, in cases where the latter lawfully sit as arbitrators of differences that arise between the captains and the crews of vessels belong- ing to the nation whose interests are committed to their charge.^ They may also hear the applications of poor convicts, to be relieved from imprisonment in certain cases, and determine the same ; ^ and arrest foreign seamen upon the application of con- sular officers in certain cases/ They may also summon the master of a vessel to show cause why process should not issue against her to answer for the wages of seamen, upon a proper application therefor ; ^ take depositions dc betie esse in any civil cause depending in the circuit or district courts ; ^ take bail affidavits when required in civil cases in said courts, and ac- knowledgments of the same ; ^^ administer oaths and take ac- knowledgments in certain cases, and certify the same ; ^^ issue search warrants to search premises, where there is the proper evidence that a fraud is being perpetrated against the revenue,^^ and warrants of arrest for violation of internal revenue laws.^^ They have also further powers, which we will hereafter more 1 Rev. Stat. \ 627. TRg^. Stat. W 4080, 40S1, 5280. 2 Rev. Stat. \ 628. SRev. Stat. \'i 4546, 4547. 3 And see Act of Feb. 19, 1897, ch. »Rev. Stat. § 863. 265, 29 Stat. L. 538, 2 Supp. R. S. 557. i» Rev. ^^at. I 945. *Rev. Stat. I 727. "Rev. Stat. \ 177S. ° Rev. Stat. I 728. 12 ^^^ stat. \ 3462. 8 Rev. Stat. H 1042, 5296. ^^ Act of May 28, 1896, supra. 550 FEDERAL PLEADING, PRACTICE AND PROCEDURE. particularly notice, such as to hear and determine the claim made for a fugitive from justice under an extradition treaty, but not until they are authorized so to do by some court of the United States. Besides this, bonds and stipulations may be taken in admiralty before any commissioner in certain cases provided for by Rule 5 in admiralty. The statute conferring the power of appointing commissioners of the circuit courts made no provision for their removal ; but the practice was for the courts to remove as well as appoint. It has, however, been held that a commissioner is not an officer of the court, and that the court in making the appointment only exercises an agency imposed on it, and does not acquire thereby a right to supervise his proceedings as an officer.^ Now the United States commissioners are appointed for a term of four years, but are subject to removal at any time by the district court.^ Power of Commissioners to Require Security to Keep the Peace and for Good Behavior. § 448. Having referred in a general way to the powers of the commissioners, it will be appropriate to consider these powers more particularly, and furnish forms for their convenience. In reference to the power of commissioners to hold to security to keep the peace and for good behavior the statute provides: "The judges of the Supreme Court and of the circuit and dis- trict courts, the commissioners of the circuit courts and the judges and other magistrates of the several states, who are or may be authorized by law to make arrests for offences against the United States, shall have the like authority to hold to secu- rity of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them," ^ ^ Ex parte John Van Orden, 3 are not reviewable on habeas corpus Blatch. 166. Commissioners are in in the circuit or Supreme courts : legal effect magistrates and in no Stevens v. Fuller, 136 U. S. 468 ; hi re sense administrative officials or as- Luis Oteiza y Cortes, Ibid. 330. sistants of the court: Dennison v. ^Actof May 26, 1896, ch. 252, \ 19. U. S., 25 Ct. CI. 304. Their deci- ^ Rev. Stat. §727. sions, where they have jurisdiction. COMMISSIONERS. 551 Similar provisions are to be found in the statutes of most if not all of the states, which is perhaps sufficient evidence of their importance and wisdom. They are particularly efficacious in restraining treasonable attempts against the government.^ The commissioner has under these provisions the same power in respect to the taking of bail or security that a state magistrate would have in similar cases, and no more. Thus, where a com- missioner, at the request of a prisoner, adjourned his examina- tion for nineteen days, in a case where the latter was charged with a violation of the revenue laws, and took bail for his appear- ance at the end of that time, when the magistrate of the state could under such circumstances adjourn the case only ten days, in a suit against his sureties on the bond for a breach of it, it was held that the prisoner could not by consent confer the right to adjourn for that time, nor estop the sureties from setting up the invalidity of it.^ There Must be an Information or Complaint. § 449. The general practice in the several states where cogni- zance is given the state courts or officers in such cases is followed in cases presented to commissioners and the federal judges. This must necessarily be by information or complaint under oath, or by a personal examination of the complaining party, and such others as may be produced, showing that some one threatens to commit or is about to commit some offence arising under the Constitution or laws of the United States. In such cases it must appear that there is at least probable cause to believe that the offence will be committed unless the party charged is restrained by the action of the magistrate ; and it would not be proper for him to issue a warrant for the arrest on the mere motion of the commissioner or other officer.^ Proceedings on Examination. § 450. The usual proceeding on examination of similar cases before state magistrates is followed when they are before federal 1 United States v. Greiner, 4 Phila. Securities, 2 Dill. 94 ; United States 396. V. Goldstein, i Dill. 413. 2 United States v. Case, 8 Blatch. =* Johnson 2^. Tompkins, Bald. 571; 250; United States v. Rundlet, 2 United States v. Shepherd, i Abb. Curt. 44; United States v. Horton's 431. 552 FEDERAL PLEADING, PRACTICE AND PROCEDURE. magistrates. When the party charged is brought before him, the witnesses may be examined both on the part of tlic govern- ment and of the party accused. If from the evidence the magistrate believes that there is good reason to fear the commis- sion of the offence by the accused, and that it arises under the Constitution and laws of the United States, he should be held to answer before the proper tribunal, and give a proper recognizance therefor, with sureties to be approved by tlie commissioner, and further that he will in the meantime keep the peace and be of good behavior toward all citizens of the United States, and parti- cularly towards the one complaining in that behalf. Recognizance of "Witnesses. § 451. "^ Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offence against the United States may, at the hearing of any such charge, require of any witness produced against the prisoner, on pain of imprisonment, a recognizance with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or offence is charged to have been committed upon the high seas or elsewhere within the admiralty and mari- time jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused whose testimony in his opinion is important, and is in danger of being otherwise lost."^ When the Prisoner must be Committed; Duty of the Com- missioner to make a Return. § 452. If a recognizance is required and given by the prisoner he should be discharged, but if not he should be committed to prison until he furnishes the same, and the mittimus or warrant of commitment should, as is usually required in such cases in proceedings before state officers, show the cause of the commit- ment and the amount of security necessary for his discharge. It would be the duty of the commissioner to make a return of the recognizance if one is given, and of all the papers and pro- ^ Rev. Stat. ?§ 848, 879, 1014. In must be to the next term of the cir- Vermont all recognizances for the cuit court to be held in the district : appearance of witnesses in such cases Rev. Stat. ^ 880. COMMISSIONERS. 553 cess, to the proper court, where the prisoner is required to appear on or before the first day of the next term of the same. Commissioners may Enforce Awards of Consuls, etc., in Certain Cases. § 453. The statute provides for the enforcement of the awards or decrees of consuls and other agents of foreign countries. It is as follows: "The district and circuit courts and the commis- sioners of circuit courts shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice-consul or commercial agent of any foreign nation, made or rendered by virtue of any authority conferred upon him as such consul, vice-consul or commercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of vessels belonging to the nation whose interests are committed to his charge ; appli- cation for the exercise of such power being first made to such court or commissioner by petition of such consul, vice-consul or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration or decree, and to enforce obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the authority of the United States until such award, arbitration or decree is complied with, or the parties are otherwise discharged therefrom, by the consent in writing of such consul, vice-consul or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice-consul or commercial agent: Pro- vided, however, that the expenses of the said imprisonment and maintenance of the prisoners and the cost of the proceedings shall be borne by such foreign government or by its consul, vice-consul or commercial agent requiring such imprisonment. The mar- shals of the United States shall serve all such process and do all other acts necessary and proper to carry into effect the premises under the authority of said courts and commissioners."^ 1 Rev. Stat. I 72S. 554 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Offenders Against the United States ; When Arrested by Commissioners. § 454. Section 1014 provides : " For any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, the chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate of any state where he may be found, and agreeably to the usual mode of pro- cess against such offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offence is to be tried, it shall be the duty of the judge of the dis- trict where such offender or witness is imprisoned seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had."^ By later statutes it is made the duty of the marshal, his deputy or other officer who may arrest a person charged with any crime or offence, to take the defendant before the nearest circuit court commissioner or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the com- plaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating these provisions.^ ^ See also Rev. Stat. \\ 848, 879. tion of the Indian Territory liquor ^ Act of Aug. 18, 1894, ch. 301, par. law are to be made before the near- 21, 28 Stat. L. 372, etc., 2 Supp. R. S. est commissioner: act of July 23, 259 ; act of March 3, 1893, ch. 208, 1892, ch. 234, 27 Stat. L. 260, 2 Supp. par. 19, 27 Stat. L. 572, etc., 2 Supp. R. S. 45. R. S. 123. So complaints for viola- COMMISSIONERS. 555 Usual Mode of Procedure Against Offenders in the State Courts Pursued. § 455. The words " usual mode of process against offenders," used in the statutes, are synonymous with usual mode of pro- ceedings ; and the mode of proceedings should in all cases con- form to the usual practice and procedure in like cases in the courts of the state where the proceedings shall take place.^ The authority granted to the judicial officer in these cases is not one which can be exercised in any arbitrary manner which he may see fit to prescribe or adopt, but it must be exercised in the same manner as that pursued against offenders in similar cases under the laws of the state where the prosecution is instituted.^ Information or Complaint Under Oath. § 456. The mode of procedure in the state courts on prelimi- nary examinations is generally, if not universally, prescribed by the statutes of the various states. There must be at least a probable cause to believe that an offence has been committed against the United States, before the magistrate can properly issue a warrant for the arrest of an offender, and the requisite proof on which to base his conclusion must be an information or complaint, setting forth the necessary facts to constitute the offence charged, supported by oath.^ But it is not necessary that the application for the warrant should be made by the dis- trict attorney. Any person may make the complaint under oath.^ A warrant for the arrest should not, however, be issued upon the affidavit of a person who has no personal knowledge of the commission of the offence, and who only states that he has been informed of it, and believes the information to be true.^ ^ United States z'. Rundlet, 2 Curt, by him: Stair v. U. S., 153 U. S. 41 ; United States v. Horton's Secur- 614. ities, 2 Dill. 94. This provision is, ^ Bagnall v. Ableman, 4 Wis. 163 ; however, subordinate to the declara- United States v. Clark, i Gallis. 497 ; tion of the Constitution that all war- In re Robert M. INIartin, 5 Blatch. rants must particularly describe the 303. person to be seized : West v. Cabell, ^ United States v. Bollman, i Cr. 153 U. S. 78, 87. But a warrant issued (C. C.) 373. by a commissioner is not void for the * United States v. Skinner, 2 Wheel, want of a seal, the commissioner hav- Cr. Cas. 232. ing no seal and not being required by ° In re Commissioners, 3 Woods statute to affix one to warrants issued 502 ; United States v. Burr, 2 Wheel. Cr. Cas. 573. 556 FEDERAL PLEADING, PRACTICE AND PROCEDURE. It is not essential that the complaint be signed and verified be- fore the commissioner, but it should be verified before some one authorized to administer oaths/ Nor need it follow the exact lan- guage of the statute in charging the offence.^ This is in conformity with the current of decisions of the state courts upon the same point. The form of the complaint should be that required by the statutes of the state for similar cases under state laws, if any, or, in the absence of this, such as may have been approved by the general practice in the state.^ The warrant of arrest, if issued, should, with the necessary subpoenas on behalf of the United States, be placed in the hands of the United States marshal of the proper district or his deputy, who should serve and return them in the usual manner provided by the state law.^ Notice to the District Attorney. § 457, It is not imperatively required to give notice of such proceedings to the district attorney, but it is very proper to do so after the filing of the complaint, where it is convenient or practicable, as the government is the party interested in the prosecution. If he appears it can be only as counsel for the gov- ernment ; and he cannot direct the commissioner what course he shall pursue or what finding he shall make, nor can he dismiss the proceedings.^ Preliminary Hearing ; "Witnesses. § 458. At the hearing of the cause the course of procedure would be the same as in a like case under the practice of the state, and similar to that suggested in case of a prosecution to require security to keep the peace and for good behavior.'' The ^ £";r/>ar/^Bollman,4 Cr. 75; Burr's ^United States v. Schumann, 2 Trial 14. Abb. (C. C.) 523. In some of the ^ United States v. Hand, 6 McLean circuits there is a rule requiring no- 274. tice to be given the district attorney ^United States v. Rundlet, 2 Curt, in revenue cases: Rules 13 and 61, 41 ; United States v. Horton's Secur- 8th circuit, ities, 2 Dill. 94. ^See ante, \ 451. A preliminary * Rev. Stat. \\ 787, 788. It is a examination before a commissioner common practice to insert the names is not a case pending in any court of of all the witnesses in one subpoena, the United States, v/ithin the meaning and this is the most convenient of Rev. Stat. \ 5406: Todd v. U. S., way. 158 U. S. 278. COMMISSIONERS. 557 accused may be represented by counsel and examine witnesses in his own behalf; ^ but the magistrate cannot issue process to summon witnesses for him in another state. ^ The statute provides that in no case shall the fees of more than four witnesses be taxed against the United States in the examin- tion of a criminal case before a commissioner of a circuit court, unless their materiality and importance are first approved and certified to by the district attorney for the district in which the examination is had, and such taxation is subject to revision as in other cases,^ If the magistrate adjourns a cause to a future time it must be in accordance with the state law and practice on that subject, and it cannot be for an indefinite time.* If the statutes of the state provide for giving bail in such cases, bail may be taken for the appearance of the accused at the time fixed ;^ but if no bail is given he should be committed. The accused maybe committed by the commissioner although the grand jury of the trial court in such cases is in session, and even although an indictment found against the accused for the offence charged has been quashed.^ It may further be observed that whether the commissioner commits or discharges the accused it is not a final bar to further proceedings. If he is discharged he may be again arrested for the same offence, and may be held to bail or committed on sufficient evidence. If committed, as we shall hereafter more fully notice, he may apply to the proper court for a reduction of the bail fixed by the commissioner, or the prosecuting officer may apply to the court to have it increased, or even to discharge the prisoner altogether. The prisoner may also procure a discharge in a proper case on habeas corpus, » United States v. BoUman, i Cr. ties, 2 Dill. 94; United States v. (C. C.)373. Rundlet, 2 Curt. 41. The form of 2 United States v. White, 2 Wash, the bail-bond should conform as far 29. The power to hear implies the as possible to that required by state power to adjourn, both as to time law: U. S. v. Sauer, 73 Fed. Rep. and place: United States v, Rundlet, 671. 2 Curt. 41. 8 United States v. Burr, x Burr's 3 Rev. Stat. \ 981. Trial 79 ; United States v. Town- * United States v. Worms, 4 Blatch. maker, Hemp. 299 ; United States v. 332. Smith, 2 Cr. (C. C.) iii. * United States v. Horton's Securi- 558 FEDERAL PI,EADING, PRACTICE AND PROCEDURE. The commissioner's order in such a case is not in the nature of a final judgment.^ Witness Fees; How Paid. § 459. Witnesses are allowed for each day's attendance in court or before any officer pursuant to law one dollar and fifty cents, and five cents a mile each way in going from his place of resi- dence to the place of trial or examination and in returning to his place of residence. An affidavit of his attendance and a statement of his claim therefor should be made out and sworn to before the commissioner, who should certify to the attendance^ and order the proper marshal of the district to pay the claim.^ Decision of the Magistrate ; Commitment. § 460. If after hearing the evidence the commissioner believes that an offence against the United States has been committed, and that the accused is guilty thereof, he should so find, and by an order commit him to prison to await any indictment which maybe found in the proper court against him, unless the offence is bailable and he furnish good and sufficient bail for his appear- ance at said court; and if he fails at the time of the decision to furnish a proper recognizance in such cases, in a sum to be fixed by the commissioner, the commissioner should issue a warrant of commitment.^ We shall hereafter notice what causes are and what are not bailable before a commissioner. • W^aiver of Examination. § 461. The accused can of course appear before the commis- sioner at any time after complaint is filed and waive an examina- tion, and give a recognizance the same as if he had been held to ^ United States v. Burr, i Burr's v. Bloomgart, 2 Ben. 356 ; hi re Sam- Trial 11,79; In re Robert M. Mar- uel R. Van Campen, Ibid. 419; tin, 5 Blatch. 303. In re Robert M. Martin, 5 Blatch. 2 Rev. Stat. \ 848. If a witness is 303 ; United States v. Burr, i Burr's detained in prison for want of secur- Trial 11. The commissioner has no ity for his appearance, he is entitled power to hear and determine any to a compensation of one dollar a matter : he has only to decide wliether day : Rev. Stat. \ 848. The marshal there is probable cause to believe is required to pay witness on behalf that an offence has been committed of the United States, on the order of and cannot pass upon the credibility the court: Rev. Stat. \ 855. of testimony or find any fact : U. S. ^ Anon., I Wool. 422 ; United States v. Hughes, 70 Fed. Rep. 972. COMMISSIONERS. 559 bail for his appearance after an examination. This is the prac- tice in the state courts; and of course it could not be construed into any confession of guilt of the accused. The warrant of commitment should in all cases show on its face a sufficient cause of commitment.^ If it does not set forth an act that is made an offence against the United States it would be void,^ and the prisoner discharged on habeas corpus. Removal of Prisoner to Another District. § 462. The section under consideration provides that, where any offender is committed in any district other than that where the offence is to be tried, it is the duty of the judge of the dis- trict where such offender is imprisoned seasonably to issue, and of the marshal to execute, a warrant for his removal to the dis- trict where the trial is to be had.^ Under this provision a party who has committed an offence against the United States in the District of Columbia may be arrested and examined elsewhere, and, if held for trial, may be removed to said district for trial.* But it does not apply to an arrest made for the purpose of extra- dition to a foreign country,^ The removable offences under this section are the same as under section 33 of the Judiciary Act, including only federal offences, created by the general legislation of Congress, and not such an offence as libel.^ Significance of the Word " Seasonably." § 463. The accused is entitled to a reasonable opportunity to procure bail, and the statute does not authorize his removal under the last clause of the section until he has been imprisoned for the want of bail ; that is, for his failure to enter into a recog- nizance for his appearance at the proper court. After this it is the duty of the judge of the district where the offender is im- ^ Ex parte Thomas Williams, 4 Cr. entitled to notice and, if he desires it, (C. C.) 343 ; Ex parte N. V. H. Ben- to be brought before the judge for nett, 2 id. 612 ; Ex parte Burford, 3 the purpose of presenting any objec- Cr. 448 ; Ex parte Robert Sprout, i tions he may have to the making of Cr. (C. C.) 424; United States v. the order of removal : /« r^ Beshears, Brown, 4 id. ^.n. 79 Fed. Rep. 70. ^Bagnallz'. Ableman, 4 Wis. 163. ^ In re Augustus C. Buel, 3 Dill. ^See also Rev. Stat. \ S79, as to the 116. recognizance which may be required ^ In re Philip Henrich, 5 Blatch. of witnesses: United States v. Has- 414. kins, 3 Saw. 262. The prisoner is « In re Dana, 68 Fed. Rep. 886. 560 FEDERAL PLEADING, PRACTICE AND PROCEDURE. prisoned, and where he must be tried in another district, to sea- so7iably issue his warrant for his removal to the district where the trial is to be had. " Nothing is to be done rashly or in haste or malice. A man is not to be snatched from his home on the instant and carried into a distant state. But a season is to be allowed at least to procure bail if not to arrange for his depar- ture, and this season is to be allowed after his arrest, examina- tion, the fixing of the amount of bail, and imprisonment for delinquency in not giving it."^ The commissioner has the same power to take bail as a state magistrate in a similar case ; and although the prisoner is in the hands of a marshal awaiting a warrant for his removal to another district from the district judge, it appears that the commissioner may still release him at any time before the issuing of the war- rant, on his entering into a proper recognizance for his appear- ance as required by the order of the commissioner.^ Amount of Bail; ^Al^hat the Recognizance Should Contain. § 464. The word bail, in the statutes, means the taking of security for the appearance of the accused party at the proper court and at the proper time ; and this must not be excessive. What would be large bail in one case would perhaps not be large in another. The judgment of the court or magistrate in fixing the amount of bail should be guided by a. reasonable considera- tion of the ability of the prisoner to give bail and the atrocity of the offence ; always bearing in mind that the object in requiring bail is to secure the personal attendance of the accused at the proper court, to answer to any indictment which may be found against him for the offence charged.^ The bail to be given is a recognizance or bond with sureties. This should recite the act or offence with which the principal is charged ; and if from the recital of the act or offence charged it appears that it does not in fact show any offence against the United States, or any violation of an act of Congress, it is void and the sureties are not bound thereby. But it is sufficient if it ^ Bagnall v. Ableman, 4 Wis. 163. ^ United States v. Lawrence, 4 Cr. 2 United States v, Horton, 2 Dill. (C. C.) 518; United States v. Case, 8 94 ; United States v. Voltz, 14 Blatch. Blatch. 250 ; Ex parte George Mil- 15. bum, 9 Pet. 704. COMMISSIONERS. 561 sets forth an act punishable by a statute of the United States, although without any particulars.^ Extent of Liability of Sureties. § 465. A recognizance which requires the accused to appear in the proper court and attend from day to day to answer the charge made against him is not discharged by the quashing of an indictment which may be found against him ; for another in- dictment may still be found during the term, for the same offence, and free from the objections to the former one; but if the court finally adjourns without taking any action against him on the charge, he and his sureties are discharged,^ If the recognizance stipulates for the appearance of the accused at the next term of the proper trial court and at any subsequent term of said court to be thereafter held, this means only such subsequent term as may follow in regular succession in the course of business of the court, and an agreement at any term to continue the case for an indefinite period would dis- charge the sureties.^ But if the accused, after giving the recog- nizance, should be arrested, convicted and imprisoned under the state laws, such proceeding and imprisonment would be no excuse for his non-appearance, nor exonerate the bail from their obliga- tion to produce him ; nor would the death of the accused after default and forfeiture of the recognizance relieve them from their liability.* Copies of Process to be Returned to the Proper Court. •§ 466. Whenever a court of the United States in the district where the examination takes place, or in some other district, within or without the state, has by law cognizance of the offense charged, and for which the accused is held to bail or committed, it becomes the duty of the commissioner to return, as speedily ^United States v. Hand, 6 McLean punishment may be death, cannot be 274 ; United States v. Dennis, i Bond taken by a commissioner : Rev. Stat. 103. \ 1016. A party accused and admit- 2 United States v. White, 5 Cr, (C. ted to bail may be arrested by his C.) 368 ; United States v. Burr, i bail at any time and delivered to the Burr's Trial 79. marshal or his deputy, before the ^Reesez'. United States, 9 Wall. 13. commissioner, and be exonerated: * United States v. Van Fossen, i Rev. Stat. § loiS. So better security Dill. 406. Bail, in cases where the may be required : Ibid. \ 1019. 36 562 FEDERAL PLEADING, PRACTICE AND PROCEDURE. as may be, copies of the process, together with the recognizances taken, to the clerk of the proper court. The word process, as here used, undoubtedly means proceed- ings in the case until the determination of it by the order or judgment of the magistrate. This, then, would embrace the information or complaint, with its verification, and a statement of the proceedings before the commissioner and his action thereon, and the recognizance of the accused or the warrant of commitment, as the case may be, and the original recognizances of the witnesses for their appearance to testify in the case. These should be duly certified by the commissioner.^ The mode and scope of the return in such cases has been the subject of regulation by rule of some of the circuit courts, per- haps most of them. Provisions for the Discharge of Poor Convicts. § 467. Provision is made by the Revised Statutes for the dis- charge from prison of poor convicts who have been sentenced to pay a fine, or fine and costs. Section 1042 provides as follows : " When a poor convict, sentenced by any court of the United States to pay a fine, or fine and costs, whether with or without imprisonment, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and costs, he may make apolication in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence and be heard, the commissioner shall proceed to hear and determine the matter, and if on examination it shall appear ^The state laws control under Rev. the commissioner will be presumed, Stat. ? 1014, only as to all questions of in the absence of evidence to the procedure before a commissioner up contrary, to have been properly filed to the time when the proceedings in the clerk's office of the court be- are certified to the court having juris- low: Hunt v. U. S., 19 id. 683. diction of the offence. In enforcing His findings are prima facie cor- a bond or recognizance duly returned rect and, when they are sustained by a commissioner or other commit- by the circuit court, will not be over- ting magistrate, the United States ruled unless they are without testi- courts may resort to common law mony to support them or the pre- remedies, such as a sci. fa. or an ponderance of evidence is greatly original action: U. S. v. Insley, 12 against his conclusion: Gay Manufg. U. S. App. 125. The transcript of Co. v. Camp, 25 id. 134. COMMISSIONERS. 563 to him that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath : ' I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil pre- cept for debt by the laws of [state where the oath is administered] ; and that I have no property in any way covered or concealed, or in any way disposed of, for future use and benefit. So help me God.' And thereupon such convict shall be discharged, the commissioner giving to the jailor or keeper of the jail a certifi- cate setting forth the facts." ^ In construing this section it has been held that a poor con- vict is entitled to be released under its provisions, although he has been given a pardon on condition that he pay a fine and costs. ^ Commissioners' Power to Arrest Foreign Seamen, in Case of Controversies, etc., at Sea. § 468. Section 4079 of the Revised Statutes provides that "whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul-general, consuls, vice-consuls or consular or commercial agents of each nation shall have exclusive jurisdiction of controversies, diffi- culties or disorders arising at sea or in the waters or ports of other nations, between the master or officers and any of the crew, or between any of the crew themselves, of any vessel belonging to the nation represented by such consular officer, such stipulation shall be executed and enforced within the juris- diction of the United States as hereinafter declared. But before this section shall take effect as to the vessels of any particular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, and shall issue his proclamation to that effect, declaring this section to be in force as to such nation." Section 4080 provides : " In all cases within the purview of the 1 See also §§ 847, 5296. ^ In re Manual Rulil, 5 Saw. 1S6. 564 FEDERAL PLEADING, PRACTICE AND PROCEDURE. preceding section, the consul-general, consul or other consular or commercial authority of such foreign nation, charged with the appropriate duty in the particular case, may make application to any court of record of the United States, or to any judge thereof, or to any commissioner of a circuit court, setting forth that such controversy, difficulty or disorder has arisen, briefly stating the nature thereof and when and where the same occurred, and exhibiting a certified copy, extract of the shipping articles, roll or other proper paper of the vessel, to the effect that the person in question is of the crew or ship's company of said vessel ; and further stating and certifying that such person has withdrawn himself, or is believed to be about to withdraw himself, from the control and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of consular or commercial authority in the premises ; and further stating and certifying that, to the best of the knowledge and belief of the officer certifying, such person is not a citizen of the Untited States. Thereupon such court, judge or commissioner shall issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district, or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring the person to be brought before him for examination at a certain time and place." Section 408 1 provides: " If on such examination it is made to appear that the person so arrested is a citizen of the United States, he shall be forthwith discharged from arrest and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge or commissioner finds, upon the papers hereto- fore referred to, a sufficient /r/w^l/czrzV case that the matter con- cerns only the internal order and diciplineof such foreign vessel, or, whether in its nature civil or criminal, does not affect directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthwith, by his warrant, commit such person to prison, where prisoners under sentence of a court of the United States may be lawfully com- mitted, or, in his discretion, to the master or chief officer of such foreign vessel, to be subject to the lawful orders, control and dis- cipline of such master or chief officer, and to the jurisdiction of COMMISSIONERS. 565 the consular or commercial authority of the nation to which such vessel belongs, to the exclusion of any authority or jurisdiction in the premises of the United States or of any state thereof. No person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty, and shall not again be arrested for the same cause. The expenses of the arrest and detention of the person so arrested shall be paid by the consular officers making the application." For forms required under the provisions of the foregoing sec- tion, the forms furnished in connection with the treatment of other powers and duties of commissioners may be consulted. The application, warrant of arrest and warrant of commitment are all similar in their formal parts. Commissioners' Authority in Certain Cases to Arrest Deserting Foreign Seamen. § 469. Authority is conferred upon commissioners of the cir- cuit courts, as well as other officers, in certain cases to arrest seamen deserting from foreign vessels. Section 5280 of the Revised Statutes provides as follows: " On application of a consul or vice-consul of any foreign gov- ernment having a treaty with the United States, stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of an\' such government while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll or other official document, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice or other magistrate having competent power to issue warrants to cause such person to be arrested for examination. If on examination the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the consul or vice-consul, to be sent back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offence, his surrender may be delayed 566 FEDERAL PLEADING, PRACTICE AND PROCEDURE. until the tribunal before which the case shall be dependin^^ or may be cognizable shall have pronounced its sentence, and such sentence shall have been carried into effect." ^ Commissioners may Summon Masters of Vessels in Cer- tain Cases, for Non-Payment of W^ages. § 470. The statutes provide that whenever the wages of any merchant seaman are not paid within ten days after the time when the same ought to be paid, or any dispute arises between the master of a vessel and the seamen of the same touching wages, the district judge of the judicial district where the vessel is, or in case his residence be more than three miles from the place, or he be absent from the place of his residence, then any judge or justice of the peace, or any commissioner of a circuit court, may summon the master of such vessel to appear before him, to show cause why process should not be issued against such vessel, her tackle, apparel and furniture, according to the course of admiralty courts, to answer for the wages.^ It follows from the foregoing that some written application should be made by the party or parties seeking the recovery of wages, who should set forth therein the facts and circumstances which would give the commissioner jurisdiction of the case, including either the absence of the district judge from the place of his residence, if he resides where the vessel is, or if he resides more than three miles from that place, that fact should appear to give the commissioner jurisdiction. The application should be signed by the applicant and sworn to before the commissioner or other person authorized to administer oaths? The summons may be in the usual form. If the master against whom the summons is issued neglects to appear, or if appearing he does not show that the wages are paid, or other- wise satisfied or forfeited, and if the matter in dispute is not forthwith settled, it is the duty of the commissioner to forthwith ^ See also Rev. Stat. §§ 4079, 40S1. Schooner David Faust, i Ben. 183; * Rev. Stat. ^ 4546. Whitman v. The Siiip Neptune, i ^ For construction of this provision Pet. Ad. 183; Collins v. Nickerson, and the following section, see Steam- Sprague 126; Kief & Lang v. The boat Thomas Jefferson, 10 Wh. 428 ; Steamboat London, Newb. 6 ; The The Cypress, Blatch. & H. S3 ; Schooner Eagle, OIc. 232. Freeman v. Baker, Ibid. 372; The COMMISSIONERS. 567 certify to the clerk of the district court that there is sufficient cause of complaint whereon to found admiralty process ; and thereupon it becomes the duty of the clerk of such court to issue process against the vessel, and the suit will proceed in the court and a final judgment be given according to the usual course of admiralty practice in such cases.^ If the master makes a defence to the application, the magis- trate is required to hear it. He may make and verify, under oath, statements in opposition to the claims and demands of the seamen ; and the commissioner may, for good cause shown, adjourn the cause for a reasonable time. But it is not expected that a commissioner will enter into any very critical or pro- tracted examination of such cases, nor is he required to decide difficult questions.^ It seems that his certificate should show that either the district judge was absent or resided more than three miles from the vessel.^ Commissioners ; Appointment and Powers Under Statutes Relating to Equal Civil Rights. § 471. Chapter 7 of Title 70 of the Revised Statutes makes provision for securing the elective franchise and civil rights to citizens. The more effectually to secure these rights and to punish offenders, and those guilty of violating the rights of per- sons secured by these provisions, section 1982 of the Revised Statutes provides that the district attorneys, marshals and deputy marshals, the commissioners appointed by the circuit and terri- torial courts, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of said chapter, and to cause such persons to be prosecuted.^ Another section further provides that the circuit courts of the United States and the district courts of the territories, from time to time, shall increase the number of commissioners so as to afford a speedy and convenient means for the arrest and examin- ation of persons charged with the crimes above referred to ; and 1 Rev. Stat. ^ 4547. * Rev. Stat. Tit. 24, p. 347, U 1977 ^5 Conk. Ad., Pr. 56. See also to 1991, inclusive. See also Act of Oliver v. Alexander, 6 Pet. 143; The March i, 1875, ch. 114, | 3, 18 Slat. Trial, Blatcli. & H. 94. L. 335, i Supp. R. S. 68. ^ The Steamboat London, Newb. 6. 5G8 FEDERAL PLEADING, PRACTICE AND PROCEDURE. they are authorized and required to exercise all the powers con- ferred in reference thereto in the same manner as they are authorized to exercise them in reference to other offences against the laws of the United States/ They are further authorized to appoint in writing one or more suitable persons, from time to time, to execute all such warrants or other process as the commissioners may issue in the lawful performance of their duties, and have power to call to their aid the bystanders or posse comitatus of the proper county, or so much of the land or naval force of the United States or of the militia as may be necessary to the performance of the duty with which they are charged.^ The power of the circuit court to ap- point one of its commissioners supervisor of elections has been abolished.^ Bail and Affidavits in Civil Causes May be Taken by Com- missioners, and Stipulations in Admiralty. § 4/2. Section 945 provides that bail and affidavits, when re- quired in any civil cause in any circuit or district court, may be taken by a commissioner of the circuit court for the district; and such acknowledgments of bail and affidavits have the same effect as if taken before any judge of such courts.* Rule 5 in admir- alty also provides that bonds or stipulations in admiralty suits may be given and taken before any commissioner of the court who is authorized by the court to take affidavits of bail and de- positions in cases pending before the court, or any commissioner of the United States authorized by law to take bail and affidavits in civil cases.^ ^ Rev. Stat. \ 1983. under this provision to take affidavits ^ Rev. Stat. \ 1984. See also Rev. to papers in civil proceedings for the Stat. \ 5516. Section 1987 provides arrest of a debtor in conformity with for an allowance of fees bj^ the com- state laws : Fulton v. Gilmore, 10 C. missioners to persons executing pro- L. N. 108. cess. ^ But he cannot authenticate a bond ^ See Act of Feb. 8, 1894, ch. 25, 28 or stipulation in admiralty by reciting Stat. L. 36, 2 Supp. R. S. 171, repeal- that the sureties appeared before him ing all statutes relating to supervisors and bound themselves, etc., when in of elections and special deputy mar- fact they never signed the obligation: shals. Sawyer v. Oakman, 11 Blatch. 65. * A commissioner has authority COMMISSIONERS. 569 Commissioners May Take Depositions de Bene Esse. § 473. The testimony of any witness maybe taken in any civil cause depending in any district or circuit court by deposition de bene esse before any commissioner of a circuit court when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial before the time of trial, or when he is ancient and infirm.^ The conditions which must exist in order to authorize the taking of the ^o.y^osx'ixow de bene esse 2iXit\ ist, that the witness lives at a greater distance from the place of trial than one hundred niiles ; 2d, or that he is bound on a voyage to sea; 3d, or about to go out of the United States ; 4th, or about to go out of such district to a greater distance from the place of trial than one hundred miles before the time of trial ; 5th, or is ancient and infirm.^ The taking of depositions de bene esse is in derogation of the rules of common law, and, therefore, the statutory provisions authorizing it are strictly construed. Hence, before such deposi- tions can be used it is necessary to show that the statutory pro- visions have been strictly complied with.^ If one deposition has been taken, yet another may be taken of the same witness ;* and they may be taken outside the limits of the district as well as within the district where the trial is had.^ But the mere fact that a witness is about to depart from the state, or liable to be ordered out of the reach of a subpoena, is no reason for taking his deposi- tion de bene esse.^ Now, by the Act of March 9, 1892, it is pro- vided that in addition to the mode of taking the depositions of witnesses in causes pending at law or equity in the district and circuit courts of the United States, it shall be lawful to take the 1 Rev. Stat. ? 863. ris v. Wall, 7 How. 693 ; Evans v. 2 Harris v. Wall, 7 How. 693 ; Whit- Eaton, 7 Wh. 356. ney v. Hunt, 5 Cr. (C C.) 120. The * Cornell v. Williams, 20 Wall. 226. statute does not apply to cases pend- ^ Patapsco Ins. Co. v. Southgate, 5 ing in the Supreme Court : The ^go, Pet. 604. 2 \vh. 287 ; The. London Packet, "The Samuel, i Wh. 9 ; Harris v. Ibid. 371. Wall, 7 How. 693. ^ Bell z'. Morrison, I Pet. 351; Har- 570 FEDERAL PLEADING, PRACTICE AND PROCEDURE. depositions or testimony of witnesses in the mode prescribed by the laws of the state in which the courts are held/ Reasonable Notice Must be Given. § 474. The statute further provides that reasonable notice must be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, which notice must state the name of the witness and the time and place of the taking of his deposition. In cases in rem the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be law- ful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and shall direct.^ The service of the notice, whether on the party or his attorney, should be personal, and a service by leaving a copy at his dwell- ing-house or usual place of business is not authorized.^ A Party may Waive his Rights, § 475. Although as a general rule the statute providing for the taking of depositions must be strictly pursued, yet if there should be a failure so to do, a party for whose benefit the provi- sions were intended may waive his right to the same. Thus, if he should appear and cross-examine witnesses at the taking of depositions, or should consent that depositions might be taken at a certain time and place, this would be a waiver of the notice required by the provisions of the statute, and he could not object to the depositions thus taken without a formal notice.* ^Act of March 9, 1892, ch. 14, 27 Bickley, Ibid. 29; Bowie v. Talbot, Stat. L. 7, 2 Supp. R. S. 4. And see Ibid. 247. notes to Rev. Stat. \\ 863, etc., in *Shutte v. Thompson, 15 Wall. chapter on evidence infra. 151 ; York Company v. Central Rail- ^Rev. Stat. \ 863. road Co., 3 id. 113; United States ' Carrington z/. Stimpson, I Curt. 437. v. One Case of Hair Pins, i Paine If the notice is not reasonable the de- 400 ; Sage v. Tauszky, 6 Cent. L. J. position cannot be read ; but an hour's 7. Motions to suppress depositions notice may be sufficient : Jameson v. for irregularities should be made be- Willis, I Cr. (C. C.) 566; Leiper v. fore the case is called for trial so that COMMISSIONERS. 571 The notice should contain the title of the cause and the name or names of the witnesses proposed to be examined;' and if a deposition should be taken without the required notice, it may- be taken again on the required notice,^ Mode of taking Depositions de Bene Esse. § 476. The statute further provides as to the mode of taking depositions de bene esse, that the person deposing shall be cau- tioned and sworn to testify the whole truth, and be carefully examined; that his testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person ; and that it shall after it has been reduced to writing be subscribed by the deponent.^ The witness should be sworn to tell the whole truth as far as he knows it respecting the matter in controversy;* and if he is properly sworn it is not necessary that he should be otherwise cautioned.^ If there is a statutory form of oath at the place where the deposition is taken, that may be followed ; but if the witness has scruples against the usual form of oath, he may take that form which he regards as binding on his conscience, which the commissioner can duly certify.^ Transmission of Depositions to the Court. § 477. The statute further provides for the transmission of the deposition to the proper court. The magistrate taking it is required to retain it until he shall deliver it with his own hand into the court for which it was taken, or until it shall be sealed up by him and directed to such court; and it must remain under his seal until opened in court/ opportunity may be afforded to cor- ^ Rev. Stat. | S64. rect the defects or to retake the testi- * Wilson Sew. Mach. Co. v. Jack- mony. A slight variance between son, i Hugh. 295 ; Shutte v. Thomp- the notice and the commission will son, 15 Wall. 151; United States v. not be fatal : Bibb v. Allen, 149 U. S. Smith, 4 Day 121 ; Garrett v. Wood- 481. ward, 2 Cr. (C. C.) 190. 'Claxton V. Adams, i McArthur ^ Moore 27. Nelson, 3 McLean 383 ; 496; Carrington v. Stimpson, i Curt. Brown v. Piatt, 2 Cr. (C. C.) 253. 437- ^Wilson Sewing Machine Co. v. ^Goodhue v. Bartlett, 5 McLean Jackson, i Hugh. 295. 186. ' Rev. Stat. I 865. 572 FEDERAL PLEADING, PRACTICE AND PROCEDURE. "What must Appear before the Deposition can be Used. § 478. Unless it appears to the satisfaction of the court at the time it is proposed to use the deposition that the witness is dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment he is unable to travel and appear at court, such deposition cannot be used in the cause.^ The Deposition must be Reduced to Writing by the Com- missioner or the Witness. § 479. A deposition cannot be read in evidence unless it be shown that it was reduced to writing by the commissioner him- self, or by the witness in his presence.^ It would be good, however, if the commissioner should certify that it was reduced to writing by himself and the witness in his presence.^ But the magistrate cannot authorize any one but the witness to reduce the testimony to writing ; * it must be signed by the witness, or it cannot be read in evidence.^ Each interrogatory should be at least substantially answered, otherwise it may be fatal to the deposition ; ^ and the same rule prevails which governs on the oral examination of a witness on a trial, in reference to compel- ling the answer of witnesses.^ Certificate of the Commissioner to Deposition. § 480. The commissioner or other magistrate should attach to the deposition his certificate of the reasons for taking it, and the notice, if any, given to the adverse party. The certificate will h& prima facie evidence of the official char- acter of the magistrate, if accompanied by the usual authentica- tion of such papers before him. The facts calling for the exercise of the authority should appear upon the face of the instrument, and not be left to parol proof. The return should show that he administered the oath to the witness, and where the deposition was taken, so that it may '^ Ibid. ^Thorpe v. Simmons, 2 Cr. (C. C.) 2 Cook V. Burnley, 11 Wall. 659; 195. Bell V. Morrison, i Pet. 351. "Hurst v. McNeil, i Wash. (C. C.) ^Bussard v. Catalino, 2 Cr. (C. C.) 70; Winthrop v. Ins. Co., 2 id. 7; 421. Dodge V. Israel, 4 id. 323. *Marston v. McRea, Hemp. 689. '/« ;r Judson, 3 Blatch. 148. COMMISSIONERS. 573 appear that the direction of the commissioner was complied with, and that it was taken in conformity with the notice given, if any; and that the witness lived more than one hundred miles from the place of trial, or some other ground for taking the deposition; and that he or the witness reduced the testimony to writing, and if the latter, that it was done in his presence; and any paper or document given in evidence or annexed to the deposition as a part of the testimony should be duly authenticated.^ The certificate of the officer who took the deposition that the witness lived more than one hundred miles from the place of trial is prima facie evidence of that fact.^ But the reasons for the taking of the deposition may be contained in the testimony of the witness, as all the grounds for taking the same might well be presumed to be known to him. He would be likely to know if he lived over one hundred miles from the place of trial, or if not, his residence being fixed the court might take judicial notice of the fact. So he would know whether or not he was bound on a voyage at sea, or about to go out of the United States, or out of the district to a greater distance than one hundred miles from the place of trial, and of his age and the extent of his infirmity. His evidence in relation to these matters ought to be considered of a higher character than the mere certificate of the magistrate, and more than prima facie evidence. Such testimony being returned as a part of the deposition, with the proper certificate of the magistrate as to other matters, ought to be satisfactory of the right of the party seeking the deposition to have the same taken, and of the right to have the same read in evidence, provided at the time of trial the witness is dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, he is unable to travel or appear at court. But it has been held that if the officer who takes the deposition does not in his certificate assign any reason for taking it, the deposition will be suppressed.^ 1 Harris v. Wall, 5 How. 693; Pet. 604; Merrill f. Dawson, 11 How. Rhoadsz'. Selin, 4Wash. (C.C.)7i5; 375; Tooker v. Thompson, 3 Mc- Patapsco Ins. Co. v. Southgate, 5 Lean 92. Pet. 604 ; Bell v. Morrison, i id. 356. ^ Shutte z/.Thompson, 15 Wall. 151 ; 2 Patapsco Ins. Co. v. Southgate, 5 Woodward v. Hull, 2 Cr. (C. C.) 235 ; 574 FEDERAL PLEADING, PRACTICE AND PROCEDURE. What must be Shown on the Trial to Warrant the Read- ing of a Deposition. § 481. The statute expressly provides that no deposition de bene esse shall be read in evidence on the trial of a cause unless it is shown — 1. That the witness is dead; 2. Or gone out of the United States ; 3. Or to a greater distance than one hundred miles from the place where the court is sitting; 4. Or that, by reason of age, sickness, bodily infirmity or imprisonment, he is unable to travel and appear at court.^ If at the time the deposition is taken he lives more than one hundred miles from the place of trial, but before the trial occurs he moves to a place less than that distance from the place of trial, his personal attendance would be required, unless other ground exists for reading the deposition, such as residence without the United States, or age, sickness or bodily infirmity unfitting him for travel or attendance upon the court.^ Compelling Witnesses to Appear and Testify. § 482. The statute provides that witnesses duly summoned to appear before the magistrate may be compelled to appear and testify. This compulsory power exists in the court of the district in which the examination is taken. The power to compel is by the means and instrumentalities in force in the courts of the state for compelling the attendance and the testimony of witnesses. These include the process of subpcsna duces tecum, the sidjp(£na ad testificandum, the writ of habeas corpus testificandum, and the writ of attachment. These writs must issue from a court of the district, on a proper application therefor.^ The application for compulsory process should show that the case is one in which a de bene esse examination is proper ; that Sage V. Tauszky, 6 Cent. L. J. 7; '^ Stein v. Bowman, 13 Pet. 209; Jones V. Knowles, i Cr. (C. C.) 523; Bamet v. Day, 3 Wash. (C. C.) 243; Dunkle v. Worcester, 5 Biss. 102. Pettibone v. Derringer, 4 Wash. (C. 1 Harris v. Wall. 7 How. 693 ; The C. ) 243. Patapsco Ins. Co. v. Southgate, 5 Pet. ^ Ex parte Wm. S. Humphreys, 2 604 ; The Samuel, i Wh. 9 ; Weed v. Blatch. 228 ; United States v. Tilden, Kellogg, 6 McLean 44; Bowie v. Tal- 25 L R. R. 352. bot, I Cr. (C. C.) 247. COMMISSIONERS. 575 the commissioner has jurisdiction of the matter; and other facts authorizing the issuing of process against the witness/ and espe- cially, if an attachment is asked, the party asking for it should file affidavits showing that the witness has been guilty of a con- tempt.^ Commissioners May Take Oaths and Acknowledgments in Certain Cases; also Depositions in Admiralty under Rule 49. §483. Section 1878 of the Revised Statutes provides: "In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any state or territory or in the District of Columbia, they may hereafter be also taken or made by or before any notary public duly appointed in any state, district or terri- tory, or any of the commissioners of the circuit court, and when certified under the hand and official seal of such notary or com- missioner, shall have the same force and effect as if taken or made by or before such justice of the peace." They may also take further proof on appeal of admiralty cases in the circuit court, by deposition, upon oral examination and cross-examination, or, when ordered by the court and a commission issues, upon written interrogatories and cross-inter- rogatories. In the former case not ce must be given as provided by the general rule, the time of which may be extended or diminished by the court.^ By the act of May 26, 1890, the applicant for the benefit of the homestead, pre-emption, timber culture or desert land law may, if prevented from personal attendance at the district land office, make the affidavit required before any commissioner of the United States circuit court or clerk of a county court and have it transmitted. The proof of settlement, residence, occu- pation, cultivation, irrigation or reclamation, the affidavit of non- alienation, the oath of allegiance and all other affidavits required to be made under the above laws may be made before a circuit ^ Ex parte Elisha Peck, 3 Blatch. to punish for contempt: Ex parte 113. Perkins, 29 Fed. Rep. 900. 2 Ex parte \Vm. Judson, 3 Blatch. ^ Admiralty Rule 49. 148. Commissioners have no power 576 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court commissioner or a judge of a court of record and have the same effect as if made before the register and receiver.^ Commissioners May Issue Warrants where Revenue Laws are Violated. § 484. The several judges of the circuit and district courts, and commissioners of the circuit courts, may within their respective jurisdictions issue a search warrant authorizing any internal revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that fraud upon the revenue has been or is being committed upon or by the use of said premises.^ United States commissioners may also issue warrants of arrest for violation of internal revenue laws, upon the sworn complaint of a United States district attorney, collector or deputy collector of internal revenue, or revenue agent or private citizen ; but no such warrant of arrest shall be issued upon the sworn complaint of a private citizen unless first approved in writing by a United States district attorney.^ Commissioners may issue Warrants for the Arrest of Fugi- tives for Extradition. § 485. In reference to the arrest and extradition of fugitives from justice the statute provides: ''Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner au- thorized so to do by any of the courts of the United States or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath charging any person ^ Act of May 26, 1890, ch. 355, 26 missioners having the above powers. Stat. L. 127, I Supp. R. S. 743. Affi- No commissioner shall be appointed davits made before United States who resides within thirty miles of any court commissioners instead of cir- local land office, or within thirty miles cuit court commissioners are vali- of any other commissioner. As to dated by act of Aug. 4, 1894, ch. 211, an oath to a deputy surveyor, see U. 28 Stat. L. 227, 2 Supp. R. S. 224. S. v. Reilly, 131 U. S. 58. And by act of IMarch 2, 1895, ch. 174, ^ Rev. Stat. § 3462. For form of 28 Stat. L. 744, 2 Supp. R. S. 410, the affidavit and search warrant in such chief justice of the court exercising cases, see post, " Forms in proceed- federal jurisdiction in the territories ings before commissioners." may appoint United States court com- ^ Act of May 28, 1896, ch. 252, \ 19. COMMISSIONERS. 577 found within the limits of any state, district or territory with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge or commissioner, to the end that the evidence of criminahty may be heard and considered. If on such hearing he deems the evidence sufficient to sustain the charge, under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requi- sition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the com- mitment of the person so charged to the proper jail, there to remain until such surrender shall be made." ^ The act of August 3, 1882, provides : "That all hearings in cases of extradition under treaty, stipu- lation or convention shall be held on land, publicly, and in a room or office easily accessible to the public. "Sec. 2. [Fees. Superseded by the act of 1896.] " Sec. 3. That on the hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged, setting forth that there are witnesses whose evidence is material to his defense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom such claim for extradition is heard, may order that such witnesses be subpoenaed; and in such cases the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States. " Sec. 4. That all witness fees and costs of every nature in cases of extradition, including the fees of the commissioner, shall be certified by the judge or commissioner before whom the hearing shall take place to the Secretary of State of the United States, who is hereby authorized to allow the payment thereof ^ Rev. Stat. § 5270. 37 578 FEDERAL PLEADING, PRACTICE AND PROCEDURE. out of the appropriation to defray the expenses of the judi- ciary; and the Secretary of State shall cause the amount of said fees and costs so allowed to be reimbursed to the government of the United States by the foreign government by whom the proceedings for extradition may have been insti- tuted. " Sec. 5. That in all cases where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under Title sixty-six of the Revised Statutes of the United States, such depositions, war- rants and other papers or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated} so as to entitle them to be received for similar purposes by the tribu- nals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States, resident in such foreign country, shall be proof that any deposition, warrant, or other paper or copies thereof, so offered, are authenticated in the man- ner required by this act." Sec. 6 repeals so much of section 5271 of the Revised Statutes as is inconsistent with the provisions of the act.^ So far as the duty of a commissioner, in connection with the extradition of foreign criminals, is concerned, it is indicated by the two foregoing sections of the Revised Statutes. It has been suggested that the better course would be to first make a demand for the fugitive, after ascertaining his residence within the United States from the executive department of the government, and to secure a mandate from the President, before the judiciary is called upon to act;^ but such a course of practice is not impera- tive."^ ^ Act of Aug. 3, 1882, ch. 378, 22 meaning of the Chinese Exclusion Stat. L. 215, I Supp. R. S. 371. As act of Mays, 1892, and has power to to the right of appeal to a district make an order of deportation under court given by statute to a Chinese that statute: In re Wong Fock, 81 person adjudged by a commissioner id. 558 ; Iti re Tsu Tse Mee, Ibid. to be unlawfully in the United States, 562, 702. see U. S. V. Wong Dep Ken, 57 Fed. "^ In re Kaine, 3 Blatch. 9. Rep. 203. The commissioner is a ^ In re McDonnell, 11 Blatch. 79; "United States judge" within the 6 Opinions of A. G. 91. COMMISSIONERS. 579 There must be a Complaint under Oath. § 486. The statute requires in such cases a complaint under oath, charging some person within the limits of the state with having committed some crime in a foreign country, between which and the United States there is a treaty or convention for extradition. The complaint should set forth these facts, and particularly the offence charged or the material features of it, so that the magistrate may determine whether the offence is among those enumerated in the treaty or convention of extradition ; ^ and the complaint should recite the treaty and the appointment of the commissioner by some circuit court of the United States.^ What the Warrant of Arrest should Contain. § 487. The warrant for the arrest of an alleged fugitive from justice should, in extradition cases, show on its face that the commissioner issuing it was duly authorized to do so ; and it should also recite the treaty under which the extradition is requested.^ What the Magistrate must Certify. § 488. Under the provisions of the statute it is also the duty of the commissioner or other acting magistrate to certify the proceedings before him, together with a copy of all the evidence, to the Secretary of State, if he deems the evidence sufficient to sustain the charge under the proper treaty or convention. Under this provision it would be necessary for the com- missioner or other magistrate to take down in writing all the oral testimony offered before him in a narrative form, and to preserve a record of all the objections made to the admissibility of evi- dence, whether oral or documentary, and his rulings thereon ; and it would be advisable to read over the evidence given by each witness to him, and to have him sign the same.^ Although the original documents in such cases may be in a foreign lan- guage, the parties seeking the extradition of the fugitive should furnish an accurate translation of the same by some competent witness, with the affidavit of the translator to the accurate trans- lation thereof, before they can be received in evidence. i/« r^Heinrich, 5 Blatch. 425; In "^ hi re Farey, 7 Blatch. 34; In re re Kaine, 3 id. 9. McDonnell, 11 id. 79. 2 In re McDonnell, 11 Blatch. 79. * In re Heinrich, 5 Blatch. 303. 580 FEDERAL PLEADING, PRACTICE AND PROCEDURE. There is another reason for requiring the commissioner to keep an accurate record of the proceedings, complaint, testimony, documents, etc., and that is, to enable the proper court to re- view the proceedings and finding on habeas corpus or certiorari on a proper application therefor.^ In criminal cases the com- missioner is now obliged by statute to keep in a well-bound book a record of all proceedings before him which on his death, resignation, removal, or the expiration of his term, is to be delivered to and preserved by the clerk of the district court. For this the commissioner is to receive no compensation,^ Commissioners' Fees ; Accounts ; Vouchers. § 489. By the act of May 28, 1896, it is provided : "Sec. 21. That each United States commissioner shall be entitled to the following-named fees, and none other: Drawing a complaint, with oath and jurat to same, fifty cents; copy of com- plaint, with certificate to same, thirty cents ; issuing warrant of arrest, seventy-five cents; issuing a commitment and making copy of same, one dollar; entering 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 sureties, taking acknowledgment of same and justification of sureties, seventy-five cents ; for administering an oath (except to witness as to attendance and travel), ten cents; recognizance of all witnesses in a case, when the defend- ant or defendants are held for court, fifty cents ; transcripts of proceedings, when required by order of court and transmission of original papers to court, sixty cents ; copy of warrant of ar- rest, with certificate to same, when defendant 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 ^ In re McDonnell, 11 Blatch. 79. 390; United States v. Lawrence, 13 See also for suggestions as to proper id. 295 ; In re Kaine, 14 How. 103 ; practice and expositions of the statutes Case of Jose Ferreirados Santos, 2 on this subject: The British Prisoners, Brock. 493; United States v. Davis, I Wood & AL 66 ; In re Joseph 2 Sum. 92 ; In re Francois Farez, 7 Stupp, II Blatch. 124; /«r^ Thomas, Blatch. 345. 12 id. 370; In re Giacomo, Ibid. ^ Act of May 28, 1896, zw/z-a. COMMISSIONERS. 581 hearing and deciding on criminal charges/ and reducing the tes- timony to writing when required by law or order of court, five dollars a day for the time necessarily employed : Provided, That not more than one per diem shall be allowed in a case, unless the account shall show that the hearing could not be completed in one day, when one additional per diem may be specially ap- proved and allowed by the court : Provided further^ That not more than one per diem shall be allowed for 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 recog- nizance 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 ar- rested 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 con- victs imprisoned for non-payment 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 equity or in admiralty, in pursuance of an order of the court, three dol- lars a day ; for taking and certifying depositions to file in civil cases, ten cents for each folio ; ^ for each copy of the same fur- nished to a party on request, ten cents for each folio ; for issuing any warrant under the tenth article of the treaty of August ninth, eighteen hundred and forty-two, between the United States and the Queen of the United Kingdom of Great Britain and Ireland, ^The decision of a commissioner words cannot be counted except upon a motion for bail and the suffi- when the whole statute, notice or ciency thereof and his decision upon order contains less than fifty words : a motion for a continuance of the Rev. Stat. I 854. The jurat attached hearing of a criminal charge are to a deposition is not a certificate to judicial acts in the " hearing and de- the deposition in the ordinary sense ciding on criminal charges:" U. S. of the term, but a certificate of the V. Jones, 134 U. S. 483. fact that the witness appeared before ^ Folio, in this connection, means the commissioner and was sworn to one hundred words, counting each the truth of what he had stated ; and figure as a word. Where there are the commissioner is entitled to a sep- over fifty and less than one hundred arate fee therefor : U. S. v. Julian, words, they must be counted as one 162 U. S. 324. folio ; but a less number than fifty 582 FEDERAL PLEADING, PRACTICE AND PROCEDURE. against any parties charged with any crime or offence set forth in said article, two dollars ; for issuing any warrant under the provision of the convention for the surrender of criminals be- tween the United States and the King of the French, concluded at Washington, November ninth, eighteen hundred and forty- three, two dollars ; for hearing and deciding upon the case of any person charged with any crime or offence, and arrested under the provisions of said treaty or of said convention, five dollars a day for the time necessarily employed. " Such commissioners shall keep a complete record of all pro- ceedings 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, resigna- tion, removal or expiration of term of the commissioner, for which record the commissioner shall receive no compensation »'i How to Obtain an Allowance and Payment of Commis- sioners' Fees. § 490. United States commissioners must forward their ac- counts, duly verified by oath, to the district attorneys of their respective districts, by whom they should be submitted for approval in open court, and in the presence of the district attor- ney or his sworn assistant, whose presence is required to be noted on the record, and prove in open court, to the satisfaction of the court, by his own oath or that of other persons having knowledge of the facts, that the services therein charged have been actually and necessarily performed as therein stated, and the court must thereupon cause to be entered of record an order approving or disapproving the account, as may be according to law and just. But the accounts thus approved or disapproved lAct of May 28, 1896, ch. 252, Alfred, 155 id. 591; Southworth v. Stat. L. 1895-96, 184, etc. It may be U. S., 151 id. 179; U. S. v. Clougli, convenient here to refer to a number 6 U. S. App. 377 ; U. S. v. Rand, 5 of the cases decided on the former id. 230; U- S. v. Dundy. 76 Fed. Rep. statute regulating the fees of commis- 355; Churchill v. U.S., 67 id. 529; sioners: Rev. Stat. § 847- See, on Hallett v. U.S., 62, id. Sit, Hirsch- this subject, U. S. v. Patterson, 150 beck v. U. S., Ibid. 949; Fuller v. U. U. S. 65; U. S. V. Hall, 147 id. 691 ; S., 58 id. 329. U, S. V. Ewing, 140 id. 142 ; U. S. v. COMMISSIONERS. 583 are still subject to revision by the accounting officers of the treasury.^ The Accounts of Commissioners and other Ministerial Officers Subject to Revision by the Accounting Offi- cers of the Treasury Department. §491. Section 846 of the Revised Statutes provides: "The accounts of district attorneys, clerks, marshals and commission- ers of the 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 Department for settlement. They shall then be subject to revis- ion upon their merits by said accounting officers, as in case of other public accounts." It will be manifest from the foregoing provisions that the cer- tificate of the judge is merely prima facie evidence of the cor- rectness of the account, and the accounting officers of the Treas- ury Department may reject the whole or any item or items of the account.^ By a later statute it is provided that the accounts of court officers (except of consular courts) shall, before trans- mission to the Department of the Treasury, be sent with their vouchers to the Attorney-General and examined under his supervision.^ The agents of the latter have the right to examine the records and dockets of these officers at any time.* The Practice and Procedure on Preliminary Examinations before Commissioners Applicable Generally. § 492. The statute provides not only for the arrest and pre- liminary examination of offenders against the United States by ^ Act of Feb. 22, 1875, ch. 95, \ i. made or other fees in prosecutions ^ United States v. Smith, i W. & under the internal revenue laws, un- M. 184; United States v. IngersoU, less said fees have been taxed against Crabbe 135. For form of account, and collected from the defendant or see post, " Forms in proceedings be- unless the prosecution has been com- fore commissioners." menced upon the afl5davit of a wit- * Act of July 31, 1894, ch. 174, \ 13, ness or a sworn complaint of a United 28 Stat. L. 162, etc., 2 Supp. R. S. 218. States ofi&cer, duly approved : Act of * Act of March 3, 189 1, ch. 542, par. Aug. 18, 1894, ch. 301, par. 21, 28 7, 26 Stat. L. 948, I Supp. R. S. 928. Stat. L. 372, etc. , 2 Supp. R. S. 258 ; No part of any money appropriated Act of March 3, 1893, ch. 208, par. 19, to pay fees to United States commis- 27 Stat. L. 572, etc., 2 Supp. R. S. sioners, marshals or clerks shall be 123. used for any warrant issued or arrest 584 FEDERAL PLEADING, PRACTICE AND PROCEDURE. a commissioner of a circuit court, but " by any chancellor, judge of the supreme or inferior court, chief or first judge of com- mon pleas, mayor of a city, justice of the peace or other magis- trate of any state where he may be found, and agreeable to the usual mode of process against offenders in such state." The general mode of procedure which we have indicated in this chapter, for commissioners, would be equally applicable to other magistrates in similar cases. Statutes Local in Their Operation. § 493. A few statutes, local in their operation, relating to commissioners, may be here briefly summarized. By the act of June 23, 1874, the Supreme Court of Utah Territory may appoint commissioners of said court to exercise the powers of circuit court commissioners, and take acknowl- edgments of bail and with the same authority as examining and committing magistrates under the laws of that Territory as is possessed by justices of the peace.^ By the act of May 17, 1884, the President is to appoint four commissioners for Alaska, who shall have the jurisdiction and powers of circuit court commissioners in any part of the district, as well as some other powers.^ By the act of May 2, 1890, the United States Court in Indian Territory may appoint commissioners to be known as United States commissioners, who shall have all the powers of circuit court commissioners, shall be notaries public, may solemnize marriages, etc.^ By a later statute additional judges of the court may also make such appointments.* By the act of May 7, 1894, the circuit court in the district of Wyoming shall appoint a commissioner to reside in Yellowstone Park, who shall have jurisdiction to hear and act upon all com- plaints of violations of the law or of the rules and regulations ^ Act of June 23, 1874, ch. 469, 1 6, ^ Act of May 2, 1890, ch. 182, § 39, 18 Stat. L. 253, I Supp. R. S. 51. 26 Stat. L. 81, etc., i Supp. R. S. 737. * Act of May 17, 1884, ch. 53, ^ 5, * Act of March i, 1895, ch. 145, g 4, 23 Stat. L. 24, I Supp. R. S. 431. 28 Stat. L. 693, 2 Supp. R. S. 394. Mandamus lies to compel the com- The commissioners are to hear com- missioner in Alaska to bring parties plaints of violations of the liquor law : before him : Finn v. Hoyt, 52 Fed. Act of July 23, 1892, ch. 234, 27 Stat. Rep. 83. L. 260, 2 Supp. R. S. 45. COMMISSIONERS. 585 of the Park, etc., with power to arrest, grant bail, try and im- pose punishment therein. Appeal lies from his judgment to the United States district court for Wyoming, but the circuit court may prescribe rules of procedure and practice for the commis- sioner in the trial of cases and for appeal to the district court. He has power to arrest for felony, to hear the evidence and cer- tify the transcript of the record and testimony to the district court which shall have jurisdiction. All process issued by him shall be directed to the United States marshal for the district of Wyoming.^ ^ Act of May 7, 1894, ch. 72, I 5, 28 Stat. L. 73, etc., 2 Supp. R. S. 185. 586 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XIX. WRITS OF PROHIBITION. Authority of the Court to Issue. § 494. The power of the Supreme Court to issue writs of pro- hibition and writs of mandamus is expressly conferred by a pro- vision of the Revised Statutes, which is as follows : " The Supreme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in cases war- ranted by the principles and usages of the law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or ambassador or other public minister, or consul or vice- consul, is a party." ^ The writ of prohibition is an ancient common law writ, and commands the person or tribunal to whom it is directed not to do some act which the court is advised, at the suggestion of the relator, is about to be done contrary to law.^ The English practice and precedents are gen- erally followed in this country on applications for this writ. The ground therefor is that the district court, proceeding as a court of admiralty and maritime jurisdiction, has no cognizance of the cause, and that the proper jurisdiction thereof belongs to some 1 Rev. Stat. | 688. court of the territory : Ibid. By act ^ If the act is already done the writ of March i, 1895, ch. 145, § 2, 2 Supp. cannot undo it. The only effect of R. S. 393, the judges of the United the writ is to suspend and prevent States Court in Indian Territory are further action: United States v. HofF- given power to issue writs of prohibi- man, 4 Wall. 158. For history of tion. As to the power of the circuit writ see Lincoln-Lucky & Lee Min. court of appeals to issue the writ, Co. V. District Court (New Mex.), 38 see U. S. v. Williams, 32 U. S. App. Pac Rep. 580. A territorial Supreme 126. Court may issue the writ to a district PROHIBITION". 587 other court.^ The general English practice prescribed by stat- ute provided for an application for the writ by motion supported by affidavits ; but if the question was complicated, doubtful and uncertain, the party applying therefor was required to make a declaration in prohibition, and to set forth a concise statement of the proceedings in respect to which he prayed for the writ to issue. ^ The practice in this court is to file a motion supported by a petition duly verified, setting forth facts upon which the petitioner relies for the issuance of the writ.^ The jurisdiction of this court in such cases is in effect appellate, as it is required to review the proposed action of the district court and determine whether such action is legal, and if not, to prohibit the same. The statute limits the issuance of the writ " to the district courts when proceeding as courts of admiralty and maritime jurisdiction."* Under this provision, application was made, in 1795, for a writ of prohibition to the *' judge of the district court of the United States in and for the district of Pennsylvania, to be directed to prohibit him from holding" further jurisdiction of a case pend- ing before him. The proceedings in the suit, sought to be prohibited, were by libel and process of arrest against the commander of an armed vessel of the French Republic, for an alleged illegal capture on the high seas of a neutral merchant vessel, the property of a citizen of the state of Pennsylvania, and carried into Port de Paix, within the French Republic, the commander of the armed vessel being then in the port of Philadelphia. The suggestion was filed by the commander, in the Supreme Court, in which it was claimed that by the laws of nations and by treaties subsist- ing between the United States and the French Republic, trials of captures on the high seas of vessels brought within the dominion ^ The ground for issuing the writ is dorf Ab., word Pi'ohibitio7i ; Plead- that the court has no jurisdiction of ings and Forms, 6 Wentworth's PI. the parties or the subject matter : In 242 ; Crouch v. Collins, i Saund. 136; re Fassett, 142 U. S. 479, 486 ; fol- 2 Chit. Gen. Pr. 355 ; 2 Sell's Pr. 425. lowed in In re Engles, 146 id. 357 ; ' Ex parte Gordon, i Black. 503 ; In re Morrison, 147 id. 14. Ex parte Easton, 95 U. S. 6S. 2 I Wm. IV., ch. 21 ; 2 Bl. Com. * Sec. 13 of the Judiciary Act of 113. For general practice in England, 1789; Rev. Stat. ^688. see Cases in Prohibition, 14 Peters- 588 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and jurisdiction of the Republic, and all questions incidental thereto, belonged exclusively to the judiciary of the Republic, and to no other tribunals ; that by the law of nations and the aforesaid treaties, the vessels of war of the Republic and the officers commanding them cannot be sued or arrested in ports of the United States for captures on the high seas, and taken for legal adjudication into the ports of the Republic ; and that the district court of the United States ought not to maintain juris- diction or hold pleas of such captures. The motion for the prohibition was opposed on the ground that the district court had jurisdiction; that if this point were doubtful the prohibition ought not to issue until after sentence ; and that on a plea to jurisdiction the injured party had an adequate remedy by appeal. But the court sustained the motion.^ This case settled the construction of the statute as to the functions of the writ, and established substantially the common law practice as to its appropriate use in restraining the illegal cognizance of proceedings where there is a want of jurisdiction, even when there is another adequate remedy.^ The Writ will Issue only in the Cases Expressly Provided for by Statute. § 495. Under the 14th section of the Judiciary Act (now sec- tion 716 of the Revised Statutes), it was provided that the Supreme, circuit and district courts shall " have power to issue writs not specifically provided for by statute, which may be ' United States v. Peters, 3 Dall. tection of the country whose ports 121. they must enter. And in the case of 2 In the case of The Exchange v. The Alecta, 9 Cr. 264, it was laid McFadden, 7 Cr. 116, it was held that down as a general rule as to prize a public vessel of war belonging to a jurisdiction, that the trial of captures foreign sovereign at peace with the made on the high seas, jure belli, by United States, when visiting our ports a duly commissioned vessel of war, in a friendly manner, is exempt from whether from an enemy or a neutral, the jurisdiction of our courts ; that belongs exclusively to that nation to unless there is some prohibition, the which the captor belongs, ports of a friendly nation are consid- A party is entitled to a writ of pro- ered as open to the public ships of hibition as a matter of right where it all nations with whom it is at peace ; clearly appears that the court had no and that they are entitled to the pro- jurisdiction, and there is no other PROHIBITION. '589 necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." ^ In 1845 a niotion was made to the Supreme Court for a writ of prohibition, to be issued to the district court of the United States for the district of Louisiana, sitting in bankruptcy. It was claimed in support of the motion that it was a proper case for the issuance of the writ; for although there was no special provision made by statute therefor in cases at law or in equity, it was necessary for the appropriate exercise of the appellate powers of the Supreme Court under the provision last referred to. But Judge Story, in an elaborate opinion, disposed of the case by holding that the district court had jurisdiction, and thereby made it unnecessary to decide the question of the power of this court to issue the writ. On this question he observed: "As the district court has not exceeded its jurisdistion, it is not absolutely necessary to be decided. But it may be proper to say, as the point has been fully argued, that we possess no revis- ing power over the decrees of the district court sitting in bank- ruptcy ; .... that we know of no case where this court is authorized to issue a writ of prohibition to the district court except in the cases expressly provided for, . . . that is to say, where the district courts are proceeding as courts of admiralty and maritime jurisdiction."^ The same doctrine was recognized in a subsequent case where application was made for a writ of prohibition to the judges of the circuit court of the United States for the southern district of New York, and its officers and the marshal, to restrain them from further proceeding in a case where the applicant had been found guilty of piracy and sentenced to death. But the court refused the motion for the writ, holding that it could not issue remedy. Where there is another tice. This case also discusses the remedy, or where the jurisdiction is jurisdiction of the district court of in doubt, the granting of the writ is Alaska and the jurisdiction of courts in the discretion of the court : In re over political questions. Rice, 155 U. S. 396 ; In re New York ^ By ? 12 of the act of March 3, & P. R. Stp. Co.. Ibid. 523; and see 1S91, the circuit court of appeals is In re Alix, 166 id. 136. See hi re given the powers specified in this Cooper, 143 id. 472, where the en- section. See U. S. v. Williams, 32 tire subject is reviewed in a very clear U. S. App. 126. and cogent opinion by the chief jus- - In re Christy, 3 How. 292. 590 FEDERAL PLEADING, PRACTICE AND PROCEDURE- in cases where there is no appellate power or authority of law so to do; and that it would not lie to a circuit court in a criminal case.^ In Ex parte Graham ^ the application was for a writ to restrain a district judge from proceeding under the act entitled "An act to suppress insurrection and punish treason and rebellion ; to seize and confiscate the property of rebels," etc. The act pro- vided that the proceedings should be in rem, " and conform as near as may be to the proceedings in admiralty or revenue cases." But the court held that, as it had power to issue the writ only in cases of admiralty and maritime jurisdiction, and the proceedings sought to be prohibited were not of these cases, it could not issue the writ;'' It was further suggested by the court that if there should be error in the proceedings of the dis- trict court, there would be a remedy for the petitioners by a writ of error from the circuit to the district court, and finally from that court to the Supreme Court. Power is vested in the Supreme Court to issue writs of pro- hibition to the district courts only where said courts are assum- ing to take cognizance of cases of admiralty and maritime juris- diction when they have no jurisdiction; * and they can exercise this power in no other case. If the act is done the writ cannot undo it. The only effect of the writ is to suspend action.^ "Where it will not Issue. § 496. The writ of prohibition will not issue to stop the action of the district court or revise its decrees in bankruptcy, nor in any case to that court except the one mentioned in section 688 of the Revised Statutes; as the particular provision there made for its issuance to the district court in certain cases excludes all authority to issue it under the general provisions of section 716 of the Revised Statutes.^ And whether the district court has trans- ^ ^r parte Gordon, i Black 503 * Ex parte Easton, 95 U. S. 68 ; (1861). See also Ex parte War- United States z/. Peters, 3 Dall. 121. mouth, 17 Wall. 64. ^ United States v. Hoffman, 4 Wall. ^ ID Wall. 541. 158 ; In re Christy, 3 How 292. ^ The Union Insurance Co. v. United * Ex parte Gordon, i Black 503 ; States, 6 Wall. 759 ; United States v. In re Christy, 3 How. 292 ; Ex parte Armstrong's Foundry, Ibid. 766 ; Warniouth, 17 Wall. 64, The Sarah, 8 Wh. 391. PROHIBITION. 591 cended its jurisdiction depends upon the facts stated in the record upon which the district court is called upon to act, and upon which only it can act, and this court will not, upon an applica- tion for the writ, look into matters dehors the record.^ Application for the Writ. § 497. We have briefly considered the office and functions of the writ of prohibition. The formal application for the writ is called a suggestion, and it should be entitled in the court from which it proceeds, but not in any case or matter, as there is no cause in court.^ The suggestion, as we have before observed, maybe in the form of a petition or motion, supported by affidavits.^ 1 Ex parte Easton, 95 U. S. 68. ing its issuance will be found in High ^ Lloyd on Proh. 56. on Extraordinary Remedies (2d ed.), 3 A further discussion of the juris- \ 786 et seq. See U. S. v. Williams, diction to issue this writ, its offices 67 Fed. Rep. 384 ; s. c, 32 U. S. App. and purpose, and the practice touch- 126. 592 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XX. WRITS OF MANDAMUS. A Common Law Prerogative Writ. § 498. The writ of mandamus is an ancient common law pre- rogative writ, which issued from the Court of King's Bench and was directed to some person, corporation or inferior court, com- manding some particular act or acts to be done which it was their clear duty to do or which had been adjudged should be done or performed by them. It was instituted to prevent a failure of justice, as where the law enjoined a duty upon a judge or court or corporation which they refused to perform, and in the per- formance of which the party claiming the writ was interested, and by the non-performance of which he would be injured, and the law afforded no other specific or adequate remedy. These general doctrines and principles are applicable to the practice in the federal courts. If the act required is impossible of perform- ance or the right to insist upon its performance is doubtful, or if there is a speedy, adequate and complete remedy by other pro- ceedings at law, the writ will be refused.^ Provisions of the Revised Statutes Relating to Writs of Mandamus. § 499. The Revised Statutes provide that the Supreme Court shall have power to issue " writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or an ambassador or other public minister, or a consul or vice- 1 Add. on Torts (Wood's ed.), | erf. 272 ; Commonwealth v. Denison, 1505; Reg. V. Chichester, etc., 29 L. 24 How. 66. J., Q. B. 23; Ex parte Briggs, 28 MANDAMUS. 593 consul, is a party."* This provision limits the authority of the Supreme Court to certain cases. But another section of the statutes provides as follows : " The Supreme Court and the cir- cuit and district courts, shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifi- cally provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law."^ The latter provision confers upon this court, and upon the circuit and district courts, authority to issue this writ, when it becomes necessary for the proper exercise of their jurisdiction;^ In the former case the writ will issue from the Supreme Court in cases warranted by the principles and usages of the common law, only against federal courts or officers, where a state, or ambassador or other public minister, or a consul or vice-consul, is a party. Under the general principles of the common law the writ will not issue where there is any other appropriate remedy.* Thus, it will not be issued if the party aggrieved may have a remedy by writ of error or appeal,^ as to compel an inferior court to reverse its judgment,^ or to re-examine a judgment or decree,'' or to compel the issuance of a mandamus which has been refused,* or to compel the reversal of any order, although it may 1 Rev. Stat. \ 688. The act of 487^.626; /« r,? Forsyth, 78 z^. 296 ; March i, 1895, ch. 145, ? 2, 2 Supp. following Rosenbaum v. Bauer, 120 R- S. 393, gives the judges of the U. U. S. 450; In re Vintschger, 50 Fed. S. Court in Indian Territor>^ power to Rep. 459. issue writs of mandamus. * Crawford v. Addison, 22 How. * Rev. Stat, g 716. By § 12 of the act 174. In re Morrison, 147 U. S. 14, of March 3, 1891, these powers are 26; In re Atlantic City R. Co., 164 given to tlie circuit court of appeals, id. 633 ; Amer. Constr. Co. v. Jack- but are incidental to its other powers, sonville, &c., R. Co., 148 id. 2,72. and not to be exercised except when ^ Ex parte Newman, 14 Wall. 152 ; incidental : /« re Iron County, 37 U. Ex parte Schwaub, 98 U. S. 240 ; Ex S. App. 622. parte Loring, 94 id. 418 ; Ex parte ^The circuit and district courts have Flippin, Ibid. 348. no power to issue a writ of mandamus * Ex parte Taylor, 14 How. 3 ; Ex as an original and independent pro- parte William Many, Ibid. 24. ceeding, but only where the writ is ' -£'.r/ar/^ Kaine, 3 Blatch. (C. C.) charged: In re Neilson, 131 U. S.- i; Ex parte Partington, 13 Mee. & 116; Cuddy's Case, Ibid. 280; In te W. 679; Canadian Prisoners' Case, 5 Ayers, 123 id. 443; In re Sawyer, 124 id. 32 ; The King v. Luddis, i East. id. 200. 306; Burdett v. Abbott, 14 id. 91; ^ Ex parte Lange, 18 Wall. 163; Walson's Case, 9 A. & E. 731. Ex parte Siebold, 100 U. S. 371; Ex 608 FEDERAL PLEADING, PRACTICE AND PROCEDURE. dismissed the writ and remanded the prisoner, it was held that this was no bar to an inquiry by a justice of the Supreme Court of the United States upon a writ of habeas corpus issued by him, to inquire into the legality of the detention of the prisoner under such commitment.^ The Court cannot Inquire into the Facts of the Case. § 512. Under the provisions of the Revised Statutes relating to the writ, it was urged in a certain case that, whatever may have been the law or the practice prior to its enactment, the courts now have power, on a return to the writ, to inquire into the merits of the case; that, taking into consideration all these provisions, it was the duty of the court to ascertain the facts on which the party is held, and to decide as an original question whether the prisoner ought to be held in custody, without regard to the previous decision of the court or magistrate by whose order he was committed. But the court decided that where a party was held on process issued on a final judgment of a court or on the order of an examining magistrate, it had no authority to inquire into the evidence which led to the conviction or deten- tion of the party; that in determining upon habeas corpus the " facts " of the case, the court could not inquire into the facts which constitute the crime for which the party is convicted or detained ; that it could not retry the case, but only consider whether the court or magistrate acquired jurisdiction of the matter, or whether they exceeded their jurisdiction, and whether they had any legal or competent evidence of facts before them on which to base a judgment as to the guilt of the accused.^ ^ j5";r/>i7;-/'^Kaine, 3 Blatch. (CC.) I. of. If not, he should be discharged : ^ In r^ Joseph Stupp, 12 Blatch. (C. U. S. v. Fowkes, 3 U. S. App. 247. C.) 501 (1875); In re Frazer, 7 id. If sufficient ground for holding the 34 ; In re Macdonnell, 11 id. 170 ; In prisoner be shown he will not be re- r^ Stupp, Ibid. 124; Ex parte Q€\s?,- leased on account of defects in the ler, 4 Fed. Rep. 188 ; In re Doig, original arrest or commitment : Nish- Ibid. 193; Ornelas v. Ruiz, 161 U. S. imurer Etcin v. U. S., 142 U. S. 651 ; 502; Bryant v. U. S., 167 id. 104. lasigi v. Van De Carr, 166 id. 391. In inquiring "into the cause of Where a U. S. commissioner com- restraint of liberty," the district court mits a person for trial in another dis- may inquire whether the prisoner has trict, the question of his identity can- committed a crime against the United not be reviewed on habeas corpus: States, and whether the court in which Horner v. U. S., 143 U. S. 207. he was indicted had jurisdiction there- HABEAS CORPUS. 609 Questions of this character have most frequently been pre- sented in the execution of judicial duties under extradition treaties, where the person is held in custody under a commit- ment by a commissioner. The decision in the case last cited followed the current of previous decisions on this subject. Thus in Ex parte Van Aernam ^ it was held that the circuit court could not sit in review on the merits of the decision made by a commissioner in an extradition case, in respect to either the facts or the law.^ But the decisions on this question have not been entirely clear or harmonious.^ In a case just cited/ Judge Blatchford reviewed the decisions and furnished an able exposi- tion of the law on this subject. He observes: "The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction of the matter by conforming to the requirements of the treaty and the statute; whether he exceeded his jurisdiction, and whether he had any legal or competent evidence of facts before him on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was sufficient or insufficient to warrant his conclusions."^ Under this decision error in law in the admission or exclusion of evidence before the commissioner would not be considered, provided there was any legal or competent evidence of facts on which to base the judg- ment. Appeals. § 513. Section 763 of the Revised Statutes provided for appeals, in certain cases, to the circuit courts as follows : " From the final decisions of any court, justice or judge inferior to the circuit court for the district in which the cause is heard : " I. In the case of any person alleged to be restrained of his i3Blatch. (C. C.) 160. */« re Joseph Stupp, 12 Blatch. * See also In re Ventremaitre, 9 N. (C. C.) 501. While in custody under Y. Leg. Obs. 137 ; In re Heilbron, 12 a writ of habeas corpus he cannot be id- 65. arrested on a second warrant: /;/ re ^ In re Heinrich, 5 Blatch. (C. C.) Francois Farez, 7 Blatch. 345. 414, where it was held that in such ^ Tliis doctrine was afHrmed by the cases the court could not only look Supreme Court in In re Cortes, 136 into and pass upon the competency U. S. 330 ; Stevens v. Fuller, Ibid. of evidence, but also its vveiglit. See 468; Horner v. U. S. 143 id. 570; Ex also In re Kaine, 14 How. 142. parte Rickelt, 6i Fed. Rep. 203. 39 GIO FEDERAL PLEADING, PRACTICE AND PROCEDURE. liberty in violation of the Constitution or of any law or treaty of the United States. " 2. In the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed, or con- fined, or in custody by or under the authority or law of the United States, or of any state, or process founded thereon, for or on account of any act done or omitted under an alleged right, title, authority, privilege, protection or exemption set up or claimed under the commission, order or sanction of any for- eign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof." Except in the cases provided therein, no appeal lay to a circuit court from a decision of the district court on an application for a habeas corpus} By the act of March 3, 1891, the appellate jurisdiction of the circuit court was abolished, and all appeals are taken to the Supreme Court or the circuit court of appeals. The right to appeal directly to the Supreme Court was taken away by this act, except in the cases mentioned in section 5, as amended by the act of January 20, 1897, which gave an appeal direct in cases of conviction of a capital crime only ; cases of infamous crimes not capital are appealed to the circuit court of appeals.^ Where a per- son is restrained in violation of the Constitution, or a law or treaty of the United States an appeal lies direct to the Supreme Court.^ § 514. It was further provided by section 764 of the Revised Statutes, as amended by the act of March 3, 1885, that an appeal might be taken from the final decision of a circuit court, in the cases described in the preceding section.^ ' Seavy v. Seymour, 3 CliflF. 439. Court has no jurisdiction over judg- "^ In re Lennon, 150 U. S. 393 ; Mc- ments on habeas corpus of the Su- Knight V. James, 155 id. 685. preme Court of the District of Co- ^ An appeal to the Supreme Court lumbia: Cross v. Burke, 146 U. S. 82 ; direct does not lie from the decision /// re Schneider, 148 id. 157. Other- of a district judge in chambers, re- wise with respect to judgments of the fusing a writ of habeas corpus : In re Supreme Court of New Mexico : Buchanan, 146 N. Y. 264; McKane Gonzales v. Cunningham, 164 id. V. Durston, 153 U. S. 684. 612. But where the Supreme Court * Act of March 3, 1885, ch. 353, i of the District of Columbia is with- Supp. R. S. 485. Appeals under this out jurisdiction and a writ of error amendment bring up the whole case, does not lie, the Supreme Court of law and facts, for re-examination : the U. S. may issue a writ of habeas Neagle's Case, 135 U. S. i ; Homer's corpus: In re Chapman, 156 id. 211. Case, 143 id. 570. The Supreme HABEAS CORPUS. 611 Under the provisions of former acts of Congress, substantially embodied in the foregoing sections, it has been held that, notwith- standing the provision made for appeal to the Supreme Court from the final decision of the circuit court, on habeas corpus, brought to such court by appeal from the decision of a" court, justice or judge inferior to the circuit court," they did not exclude the appellate jurisdiction of the Supreme Court in cases where the circuit court exercised original jurisdiction on habeas corpus) Although the limitation made by section 764 of the Revised Statutes would cut off any right of appeal of the cases described in the first clause of the preceding section, it would not affect the right of appeal in those cases where the circuit court exercised original jurisdiction. They would fall within the reason and the prin- ciple of the cases last cited, and the right to an appeal would be clear. In Ex parte McCardle, Chase, C. J., who gave the opin- ion of" the court, observed : "From decisions of a judge or a district court appeals lie to the circuit court, and from the circuit court to this court. But each circuit court, as well as each dis- trict court and each judge, may exercise the original jurisdiction ; and no satisfactory reason can be assigned for giving appeals to this court from the circuit court rendered on appeal, and not giving like appeals from judgments of circuit courts rendered in the exercise of original jurisdiction. If any class of cases was to be excluded from the right of appeal, the exclusion would naturally apply to cases brought into the circuit court by appeal rather than to cases originating there. In the former descrip- tion of cases the petitioner for the writ, without appeal to this court, would have the advantage of at least two hearings, while in the latter, upon the hypothesis of no appeal, the petitioner would have but one." ^ This interpretation of the statutes was followed in Ex parte Yerger,^ where the broad proposition was maintained that the appellate jurisdiction of the Supreme Court in such cases was 1 Ex parte McCardle, 6 Wall. 318 thereof, to issue writs of habeas cor- (1867); Ex parte Yerger, 8 id. 85 piis'm the exercise of original juris- (1868). diction, see Rev. Stat. \\ 751, 752; ''■ As to the power of the Supreme ante, \ 508. Court and of district and circuit ^ 8 Wall. 85. courts, and the justices and judges 612 FEDERAL PLEADING, PRACTICE AND PROCEDURE. conferred by the Constitution, except such as come within some limitations of the jurisdiction by acts of Congress; and there being no such limitation applicable to appeals from the original cognizance of the circuit court in habeas corpus cases, that court could entertain jurisdiction of such appeals. In this case the court further held that on appeals it had jurisdiction to inquire into the lawfulness of the detention and relieve from it if found unlawful, even where the detention complained of was not by virtue of civil authority nor under the order of an inferior court, but by military officers for a trial before a military tribunal, and after an examination into the cause of the detention by the inferior court, resulting in an order remanding the prisoner to custody. In Cases Involving the Law of Nations. § 515. It is further provided that "when a writ of habeas corpus is issued in the case of any prisoner who, being a sub- ject or citizen of a foreign state and domiciled therein, is com- mitted or confined or in custody by or under the authority or law of any one of the United States, or process founded thereon, on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, notice of the said proceedings, to be prescribed by the court or justice or judge at the time of granting said writ, shall be served on the Attorney-General or other officer prose- cuting the pleas of said state, and due proof of such service shall be made to the court or judge before the hearing."^ Appeals, How Taken. § 516. Appeals on habeas corpus can only be taken on "such terms and under such regulations and orders, as well as for the custody and appearance of the person alleged to be in prison, or confined, or restrained from his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be pre- scribed by the Supreme Court, or, in default thereof, by the court or judge hearing the cause." ^ And pending the proceedings or appeal, "and until final judgment therein, and after final judg- 1 Rev. Stat. I 762. ^ Rev. Stat. I 765. HABEAS CORPUS. 613 ment of discharge, any proceeding against the person so impris- oned or confined or restrained of his liberty, in any state court, or by or under the authority of any state court, or by or under the authority of any state, for any matter so heard and deter- mined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void : provided, that no such appeal shall be had or allowed after six months from the date of the judgment or order complained of." ^ Custody of Prisoners on Habeas Corpus. § 517. The Supreme Court ordered that the following regula- tions be established under section 765 of the Revised Statutes : 1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed.^ 2. Pending an appeal from the final decision of any court or judge, discharging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as here- inafter provided. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recog- nizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required.^ ^ Rev. Stat. \ 766, as amended by plains Rule 34, Supreme Court as act of March 3, 1893, ch. 226, 27 Stat, applying to proceedings on appeals L. 751, 2 Supp. R. S. 135. under section 763 from the decision ^ The fact that the prisoner is re- of the judge to the circuit court of quired to perform hard labor pend- the district, as well as under section ing the appeal does not authorize 764 as amended by the act of March any intervention ; In re McKane, 61 3, 1885, from the circuit court to the Fed. Rep. 205. Supreme Court. ^Rule 34, promulgated March 29, A district judge who has denied a 1886; and, as amended, May 10, writ of habeas corpus to release a 1886, 117 U. S. 708; Carper v. Fitz- foreign consul imprisoned under state gerald, 121 id. 87, denies the right authority has no power under Rev. of appeal to the Supreme Court in a Stat. \ 765 and Sup. Ct. Rule 34, to habeas corpus case from an order of admit the prisoner to bail pending a circuit judge of the U. S. sitting as an appeal from the order denying the a judge and not as a court and ex- writ: //>/ ;r lasigi, 79 Fed. Rep. 755. 614 FEDriRAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XXII. PROCEDURE IN CRIMINAL CASES. Practice in Criminal Cases. § 518. We have in the preceding chapter pointed out the practice and procedure in certain cases where the offenders against the United States may be brought before United States commissioners and other magistrates designated for this pur- pose, for a prehminary examination into the charges preferred against them, under section 1014 of the Revised Statutes, which authorizes an arrest, examination and discharge or imprison- ment or bail of such offenders by such magistrates, as the case may require, for their appearance for trial before such court of the United States as bylaw has cognizance of the offence;^ and we now proceed to consider the practice and procedure in such courts in criminal cases.^ Provisions of the Statutes for Criminal, Procedure. § 519. The statutes of the United States provide : Indictments.^ — Sec. 1821. No indictment shall be found, nor ^ As to issuing process to a marshal judge or a judge of a district court, of another district under Rev. Stat. ? who may exercise their discretion 725 and '!> 1014, see In re Manning, 44 therein, having regard to the nature Fed. Rep. 275. and circumstances of the offence, and ''We have already considered the of the evidence and the usages of the jurisdiction of the circuit and district law: Rev. Stat. I 1016; United States courts in such cases. It may be ob- v. Burr, Burr's Trial 310; United served that, although bail cannot be States v. Hamilton, 3 Dall. 17. taken by a United States commis- * An indictment is the presentation sioner, or the magistrates provided to the proper court, under oath by a by I 1014 of the Revised Statutes, grand jury duly empanelled, of a where the punishment may be death, charge describing an offence against yet in such cases it may be taken by the law for which the party charged the Supreme Court of the United may be punished : In re Hart, 25 U. States, or a circuit court, or by a jus- S. App. 22. lice of the Supreme Court, a circuit CRIMINAL CASES. 615 shall any presentment be made, without the concurrence of at least twelve grand jurors. Offences against the elective franchise. — Sec. 1022. All crimes and offences committed against the provisions of chapter 7, title " Crimes," which are not infamous, may be prosecuted either by indictment or by information filed by a district attorney. Perjury before a court-martial. — Sec. 1023. In prosecu- tions for perjury committed on examination before a naval gen- eral court-martial, or for the subornation thereof, it shall be suffi- cient to set forth the offence charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before, said court. Charges joined in one indictment. — Sec. 1024. When there are several charges against any person for the same act or trans- action, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offences, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts;^ and if two or more indictments are found in such cases, the court may order them to be con- solidated.^ Indictments; defects of form. — Sec. 1025. No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.^ 1 See McEIroy v. U. S., 164 U. S. Turner v. U. S., 66 id. 280; U. S. v. 76; Pointer v. U. S., 151 id. 396; In- Cadwallader, 59 id. 677. If the court graham z/ U. S., 155 za'. 434. A single consolidates the indictments its action act or transaction may be charged in cannot be attacked on habeas corpus a count, although it may involve sim- proceedings : Howard v. U. S., 75 ilar violations of law by other persons: Fed. Rep. 9S6. An objection to con- U. S. V. Scott, 74 Fed. Rep. 213. solidation should be made at the time; ^ If all the counts might originally it is too late after verdict : Logan v. have been included in one indictment, U. S., 144 U. S. 263. the indictments may be consolidated : * See Frisbie v. U. S., 157 U. S. 160 ; Turner v. U. S., 30 U. S. App. 90. Moore v. U. S., 160 id. 268; Markham See also Logan f. U. S. 144 U. S. 263 ; v.U. S., Ibid 319; U. S. v. Potter, U. S. V. Jones, 69 Fed. Rep. 973 ; 56 Fed. Rep. 83. A general judg- 616 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Judgment on demurrer to an indictment. — Sec. 1026. In every case in any court of the United States where a demurrer is interposed to an indictment, or to any count or counts thereof, or to any information, and the demurrer is overruled, the judg- ment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered, as justice may require. Several indictments against the same person; one writ SUFFICIENT. — Sec. 1027. When two or more charges are made or two or more indictments are found against any person, only one writ or warrant shall be necessary to commit him for trial ; and it shall be sufficient to state in the writ the name or general char- acter of the offences, or to refer to them only in very general terms. Copy of writ to be jailor's authority. — Sec. 1028. When- ever a prisoner is committed to a sheriff or jailor by virtue of a writ, warrant or mittimus, a copy thereof shall be delivered to such sheriff or jailor as his authority to hold the prisoner, and the original writ, warrant or mittimus shall be returned to the proper court or officer, with the officer's return thereon.^ Writ for removal of a prisoner from one district to another. — Sec, 1029. Only one writ or warrant is necessary to remove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailor from whose cus- tody the prisoner is taken, and another to the sheriff or jailor to whose custody he is committed, and the original writs, with the marshal's return thereon, shall be returned to the clerk of the district to which he is removed. No writ necessary to bring into court a person in cus- tody. — Sec. 1030. No writ is neces.sary to bring into court any prisoner or person in custody, or for remanding him from the court into custody; but the same shall be done on the order of the court or district attorney, for which no fees shall be charged by the clerk or marshal. Peremptory challenges. — Sec. 103 1. If, in the trial of a cap- ital offence, the party indicted peremptorily challenges jurors ment upon an indictment containing cient to support the judgment: Claas- several counts and a verdict of guilty sen v. U. S., 142 U. S. 140. on each count cannot be reversed in ^ See U. S. v. Van Duzee, 10 U. S. error if any count is good and suffi- App. 395. CRIMINAL CASES. 617 above the number allowed him by law, such excess of challenges shall be disallowed by the court, and the cause shall proceed for trial in the same manner as if they had not been made. Prisoners standing mute, etc. — Sec. 1032. When any person indicted for any offence against the United States, whether capi- tal or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury.^ Copy of indictment, etc., delivered to prisoner. — Sec. 1033. When any person is indicted of treason, a copy of the indictment and a list of the jury, and of the witnesses to be pro- duced on the trial for proving the indictment, stating the place of abode of each juror and witness, shall be delivered to him at least three entire days before he is tried for the same. When any person is indicted of any other capital offence, such copy of the indictment and list of the jurors and witnesses shall be deliv- ered to him at least two entire days before the trial.^ Counsel and witnesses for defendant. — Sec. 1034. Every person who is indicted of treason, or other capital crime, shall be allowed to make his full defence by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have access to him at all seasonable hours. He shall be allowed in his defence to make any proof that he can produce by lawful witnesses, and ^ In trials for felonies it is not in the based upon the fact that he was power of the prisoner, either by him- called upon to challenge jurors not self or his counsel, to waive the right before him, a general exception, to be personally present during the taken to the action of the court in trial ; the making of challenges is an prescribing the method of procedure, essential part of the trial of a person was held sufficient: Lewis v. U. S., accused of crime, and it is one of his 146 U. S. 370. substantial rights to be brought face ^ See Logan v. U. S., 144 U. S. 263. to face with the jurors when the chal- Notice need not be given of the lenges are made ; though no specific names of witnesses called in rebuttal: exception was taken by the prisoner Goldsby v. U. S., 160 id- 70. 618 FEDERAL PLEADING, PRACTICE AND PROCEDURE. shall have the like process of the court to compel his witnesses to appear at his trial as is usually granted to compel witnesses to appear on behalf of the prosecution. Verdict of less offence than charged. — Sec. 1035. In all criminal causes the defendant may be found guilty of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged ; provided, that such attempt be it -elf a separate offence/ Verdict against part of several joint defendants. — Sec. 1036. On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly ; and the cause as to the other defendants may be tried by another jury.^ Indictments remitted by circuit and district courts to each other. — Sec. 1037. Whenever the district attorney deems it necessary, any circuit court may, by order entered on its min- utes, remit any indictment pending therein to the next session of ^ The jury may convict the defend- a capital offence have not a right by ant of a lesser crime, which is neces- law to be tried separately, without sarily included in the one charged, the consent of the prosecutor, but but the evidence must justify such such separate trial is a matter to be conviction: Snarf z'. U. S., 156 U.S. allowed in the discretion of the court: 51. U. S. V. Marchant and Colson, 12 ^ See Logan v. U. S., 144 U. S. 263, Wh. 480 ; and when a severance in and Simmons v. U. S., 142 id. 148, as such case is ordered, one of the ac- to discharging jury and putting party cused, whose case is undisposed of, on trial by another jury ; and see may be called and examined as a latter case as to the right of the pre- witness on behalf of the government siding judge at a trial, civil or crim- against his co-defendant: Benson v. inal, to express his opinion to the U. S., 146 U. S. 325. jury upon the question of fact sub- The act of March 16, 1878, ch. 37, mitted to them. 20 Stat. L. 30, i Supp. R. S. 155, bav- in Mattox V. U. S., 146 U. S. 140, ing provided that a person charged is a discussion as to the trial court with the commission of crime may, excluding affidavits in support of a at his own request, be a competent motion for a new trial, and reversal witness on the trial, but that "his of the case for that; and also as to failure to make such request shall not. receiving testimony of jurors to set create any presumption against him," aside their verdict. all comment upon such failure must Two or more persons jointly be excluded from the jury: Wilson charged in the same indictment with v. U. S., 149 U. S. 60. CRIMINAL CASES. 619 the district court of the same district, where the offence charged in the indictment is cognizable by the said district court. And in Hke manner any district court may remit to the next session of the circuit court of the same district any indictment pending in the said district court. And such remission shall carry with it all recognizances, processes and proceedings pending in the case in the court from which the remission is made ; and the court to which such remission is made shall, after the order of remission is filed therein, act in the case as if the indictment, and all other proceedings in the same, had been originated in said court. Remission from district to circuit court of difficult CASES. — Sec. 1038. Any district court may, by order entered on its minutes, remit any indictment pending there into the next session of the circuit court for the same district, when, in the opinion of such district court, difficult and important questions of law are involved in the case ; and thereupon the proceedings in such case shall be the same in the circuit court as if such in- dictment had been originally found and presented therein. All capital cases remitted from district to circuit courts. — Sec. 1039. Every indictment of a capital offence, pre- sented to a district court, together with the recognizances taken therein, shall, by order entered on its minutes, be remitted to the next session of the circuit court for the same district; and, on the filing of such order and indictment with the clerk of such circuit court, that court shall proceed thereon in tbe same manner as if said indictment had been originally found and presented therein. Capital case carried to the Supreme Court. — Sec. 1040. Whenever a judgment of death is rendered in any court of the United States, and the case is carried to the Supreme Court in pursuance of law, the court rendering such judgment shall, by its order, postpone the execution thereof from time to time and from term to term, until the mandate of the Supreme Court in the case is received and entered upon the record of such lower court. In case of affirmance by the Supreme Court, the court rendering the original judgment shall appoint a day for execution thereof; and in case of reversal, such further proceedings shall be had in the lower court as the Supreme Court may direct. 620 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Judgments for fines, how collected. — Sec. 1041. In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be en- forced by execution against the property of the defendant in like manner as judgments in civil cases are enforced; provided, that where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid. What Crimes are Infamous. § 520. It will be observed that by the provisions of section 1022 of the statutes, crimes " which are not infamous may be prosecuted by indictment or by information filed by a district attorney." This term has received a construction derived from the doc- trines of the common law, by which a person was made infamous by the crimes of treason, felony and the crime?! falsi, in which latter case it was not infamous unless it not only involved the charge of falsehood, but also injuriously affected the public administration of justice by the introduction therein of falsehood and fraud.^ It does not necessarily follow that crimes that may be punished by imprisonment in the penitentiary are infamous;^ as it is the nature of the act and not the character of the punish- ment which makes the crime infamous.^ And offences which are merely misdemeanors cannot by any construction of the statute be considered infamous."* Consolidation where there are Two or More Offences. § 521. Section 1024 of the statutes provides for consolidation of various charges against a defendant and of two or more indict- ments in certain cases. ^ United States z/. Block, 4 Saw. 211. J. 205; United States v. Waller, i ^ United States v. Maxwell, 3 Dill. Saw. 701 ; United States v. Baugh, i 275. Fed. Rep. 784. As to what consti- ' United States v. Sawyer, 4 Saw. tutes an infamous crime, see Martin 211. V. U. S., 117 U- S. 348; In re Claasen, * United States v. Ebert, i Cent. L. 140 id. 200. I CRIMINAL CASES. 621 Under this provision several offences arising out of one trans- action may be charged in one indictment in different counts, although some of them are declared to be felonies, while others are not so designated;^ and separate counts charging distinct and different felonies alleged to have been committed at different times and places may be joined in one indictment.^ The same offence may also be charged in different ways in several counts in the same indictment to meet the facts of the case, as well as several distinct felonies of the same degree where they were committed at different times.^ In an indictment for passing counterfeit coin several counts may be inserted charging the passing of counterfeit coin at dif- ferent times and on different occasions ;^ and a count for making false coins may be joined with a count for aiding and assisting some other person in such making, and causing and procuring some other person to make such coins/ So a count for an assault and battery may be joined with a count for a riot in the same indictment, if the transactions were the same or connected together;'' but a count for a conspiracy cannot be joined with one for murder in the same indictment, unless it is shown that they refer to "the same act or transaction," or that they all are "acts or transactions connected together."'' If the offence charged is in its nature several only, several per- sons cannot be jointly charged in the indictment with it ;^ and if there are several offences charged in one indictment and a gen- eral verdict or plea of guilty is entered, a judgment can only be entered for a single offence.^ 1 United States v. Jacoby, 12 Blatch. Lean 23. 491 ; United States v. Dickinson, 2 " United States v. McFarlane, i Cr. McLean 325. (C. C.) 163. 2 United States v. Young, 4 C L. N. '' United States v. Scott, 4 Biss. 29. 10; United States v. Burnes, 5 Mc- * United States v. Kazinski, 2 Lean 23. Sprague 7. By the act of May 17, 1879, 3 United States v. Pirates, 5 Wh. ch. 8, 21 Stat. L. 4, i Supp. R. S. 184; United States v. O'Callalian, 6 264, all parties to conspiracies to de- McLean 596; United States v. Brent, fraud the United States are liable if 17 L R. R. 54. one does an act. * United States v. O'Callahan, 6 " United States z'. Maguire, 3 Cent. McLean 596. L. J. 273 ; United States v. Blaisdell, ^ United States v. Burnes, 5 Mc- 3 Ben. 132. 622 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Defects of Form in Indictments. § 522. Imperfection and defects in matters of form in an in- dictment which do not tend to the prejudice of the defendant will not make it insufficient or affect the trial, judgment or other proceeding thereon.' If the meaning of the language of an indictment can be understood as charging a crime, it will be good although there may be a mistake in expressing the sub- stance of it.^ But an omission to state in the indictment any- thing which is a part of the description of the crime is a mate- rial and substantial, and not a mere formal matter, and such an indictment is defective;^ and an indictment which merely sets forth a paper upon which the crime charged is based, by a de- scription of its contents instead of in hcec verba, would be held bad on a motion in arrest of judgment.* It is sufficient as a general rule if the indictment charges the offence in the language of the statute,^ but not sufficient unless the words of the statute fully and clearly set forth all the elements necessary to consti- tute the offence.^ If the court amends an indictment after it has been found and returned by the grand jury there can be no con- viction on it.'^ Copy of Indictment in Treason and Other Capital Cases, with a List of the Jurors and Witnesses, to be Deliv- ered to the Defendant. § 523. It will be observed that the statute requires that when a person is indicted for treason, a copy of the indictment and a list of the jury and of the witnesses to be produced on the trial for proving the indictment, stating the abode of each juror and witness, shall be delivered to him at least three days before he is tried for the same ; and when indicted for any other capital offence, such copy of the indictment and list of jurors and wit- iRev. Stat. ? 1025 ; United States See also United States y. Kruikshank, V. Tuska, 14 Blatch. 5. 92 U. S. 542 ; United States v. Jacoby, -United States v. Jackson, 2 Fed. 12 Bhtch. 491. Rep. 522. See also United States v. '"Ex parte Yarbrough, no U. S. Noelke, i id. 426. 651 ; U. S. v. Hess, 124 id. 483. 3 United States v. Conant, 9 Cent. " U. S. v. Carll, 105 U. S. 611. L. J. 129. '' Ex parte Bain, 121 U. S. i. * United States v. Noelke, supra. CRIMINAL CASES. 623 nesses shall be delivered to him at least two entire days before the trial.^ It is not sufficient under this provision that, in case of an in- dictment for treason, the notice contain a mere statement of the counties where the jurors and witnesses reside, but the particu- lar place in the county and state of their residence should be stated, that the accused may prepare for his defence and be en- abled to identify the jurors who are to try and the witnesses who are to prove the indictment against him.^ In other capital causes the copy of the indictment must be de- livered at least two days before the cause is tried by a jury, but not two days before he is arraigned on the indictment. The arraignment of a prisoner is no part of the trial, but only a pre- liminary proceeding, and until the arraignment and plea it can- not be ascertained whether there will be a trial or not.^ Offences Not Capital. § 524. In the case of the indictment of persons for offences not capital, it is not required that the prisoners be furnished with a copy of the indictment at the expense of the government.* As the right to claim a copy of the indictment is not a common law right, and rests wholly upon the statute, the construction given to the statute could well rest upon the familiar maxim, expressio utiius exclusio alterius. But in such cases a copy may, in the discretion of the court, be ordered to be delivered to the prisoner where it is shown to be important to his pleading or defence;^ and the court may also order a list of the witnesses sworn before the grand jury to be furnished to the accused.^ Defendant May be Found Guilty of a Less Offence. § 525. In all criminal cases the defendant maybe found guilty of any offence which is necessarily included in that with which 1 Rev. Stat. \ 1033 ; Hickory v. U. ^ Rev. Stat. § 1033 ; United States S., 151 U. S. 303. This section does v. Curtis, 4 Mas. 232. not control the practice in the local * United States v. Blackford, 4 courts of a territory : Thiede v. Utah Blatch. 337 ; United States v. Hare, Ty., 159 id. 510. 2 Wheel. Cr. Cas. 2S3. '^UnitedStatesz'. Insurgents, 2 Dall. » United States v. Curtis, 4 Mas. 335 ; s. c, Whart. St. Tr. 102 ; United 232 ; United States v. Williams, supra. States V. Stuart, 2 Dall. 343. " United States v. Southmayd, 6 Biss. 321. 624 FEDERAL PLEADING, PRACTICE AND PROCEDURE. he is charged in the indictment, or of an attempt to commit the offence charged in it.^ Therefore, upon the trial of an indict- ment for murder a verdict of manslaughter will be good, as the crime of murder necessarily includes the crime of manslaughter.^ Indictments Remitted from the Circuit and District Courts to Each Other. § 526. Indictments may be remitted from the circuit to the district courts, and vice versa, from the district to the circuit courts, in certain cases.^ Under the provision of the section last cited a cause may be remitted on a proper motion of the district attorney from the circuit court to the district court, and after- wards back to the circuit court. Thus, where an indictment was found in the circuit court, and was on motion of the district attorney remitted to the district court under the provisions of this section, and after a demurrer to the indictment was filed by the defendant it was, on a similar motion of the district attorney, remitted back to the circuit court from whence it originally came, and the United States there joined in the demurrer, and on the question as to the jurisdiction of the circuit court the judges were divided in opinion, and the point was certified to the Supreme Court, it was there held that the transfer of the in- dictment as aforesaid was authorized, and that the circuit court had jurisdiction.* But the circuit court has no authority under the statute to remit a cause to the district court on its own motion or on the motion of the defendant ; it can only be remitted on motion of the district attorney.'^ The statute provides for the transmission of criminal causes, with the proceedings therein, but does not prescribe the particular form in which the record should be sent, and it has been held that a certified copy of it was sufficient for this purpose.^ ^ Rev. Stat. ? 1035. ' Rev. Stat. § 1037. 2 United States v. Leonard, 2 Fed. * United States v. Murphy, 3 Wall. Rep. 669. And by the act of Jan. 649. See also United States v. Mor- 15. i897> ch. 29, 29 Stat. L. 487, 2 ris, i Curt. 23. Supp. R. S. 538, the jury, in certain ^ United States z/. Burnett, 16 Blatch. murder and rape cases, may qualify 338. a verdict of guilty by adding thereto * United States v. McKee, 4 Dill. i. "without capital punishment." CRIMINAL CASES. 625 Remission from District to Circuit Court of Difficult Cases. § 527. The statute provides for the remission of criminal cases from the district to the circuit court for the same district when, in the opinion of the district court, difficult and important ques- tions of law are involved in the case.^ Under this provision it seems to be left for the district court to decide whether or not there are important questions of law involved in the case, and whether the court will enter an order for the remission. To authorize a remission on this ground the question of law should be of manifest grave importance, and the mere fact that the dis- trict judge may have given a particular exposition of a statute on which the question rests should not control the court in its action, when it is not made to appear that his exposition is in conflict with the views of any other court.^ The district court may, in a proper case, remit an indictment, even after the adjourn- ment of the term at which the indictment was found.^ Judgments for Fines; how Collected. § 528. The statute provides that a judgment for a fine or pen- alty, whether alone or with any other kind of punishment, may be enforced by execution against the property of the defendant in the same manner as judgments in civil cases are enforced.* If the judgment provides that the defendant shall stand com- mitted until the fine is paid, a capias pro fine may be issued; and if nothing is said in the judgment concerning the mode of exe- cuting it, the district attorney may elect to issue a fi. fa. or a capias pro fine.^ If the defendant is sentenced to pay a fine he may be committed to jail until the fine is paid,*' ^ Rev. Stat. \ 1038. * Ex parte Louis Feuscher, 23 I. 2 United States v. O'SulHvan, 9 N. R. R. 202. Y. Leg. Obs. 193. '^United States v. Robins, 15 L R. * United Slates v. Morris, i Curt. 23. R. 155. * Rev. Stat. I 1041. 40 626 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XXIII. PROVISIONS OF THE REVISED STATUTES REGULATING PRO- CEDURE IN THE FEDERAL COURTS. § 529. We have considered the subject of procedure in treat- ing of the Supreme Court and the circuit and district courts; but for convenience of reference we insert the provisions of the statutes relating to this subject : Sealing and testing of writs.. — Sec. 911. All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof Those issuing from the Supreme Court or a circuit court shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence; and those issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof. The seals of the said courts shall be pro- vided at the expense of the United States:^ Teste of process, day of. — Sec. 912. All process issued from the courts of the United States shall bear teste from the day of such issue.^ Mesne process, and proceedings in equity and admiralty. — Sec. 913. The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit and district courts shall be according to the principles, rules and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pur- suance thereof; but the same shall be subject to alteration and ^A notice to a garnishee is not ^ Atherton z'. Fowler, 91 U. S. 143; " process " under this section : Wile Kitchen v. Randolph, 93 id. 87; V. Cohn, 63 Fed. Rep. 759. Wentz v. Hoagland, 105 id. 702. PROCEDURE IN FEDERAL COURTS. 627 addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States. Other than equity and admiralty causes. — Sec. 914. The practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the prac- tice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.^ Attachments. — Sec. 915. In common law causes in the cir- cuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, v/hich are now provided by the laws of the state in which such court is held for the courts thereof; and such circuit or district courts may from time to time, by general rules, adopt such state laws as may be in force in the states where they are held in relation to attachments and other process : pro- vided, that similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party seeking such attachment or other remedy.^ Executions in common law causes and sale of real estate. — Sec. 916. The party recovering a judgment in any common law cause in any circuit or district court shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise. ^ Conditions may arise in removed ^ See Citizens' Bk. of Wichita z'. causes which render the state prac- Farwell, 12 U. S. App. 409; Kern v. tice inapplicable: Phoenix his. Co. v. H. B. Claflin Co., 13 id. 707; Centr. Charleston Bridge Co., 25 U. S. App. Trust Co. v. Chattanooga, R. & C. R. 190. Co., 68 Fed. Rep. 685. 628 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The act of March 3, 1 893,' provides : " That all real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish or city in which the property, or the greater part thereof, is located or upon the premises, as the court rendering such order or decree of sale may direct. " Sec. 2. That all personal property sold under any order or decree of any court of the United States shall be sold as pro- vided in the first section of this act, unless in the opinion of the court rendering such order or decree it would be best to sell it in some other manner. " Sec. 3. That hereafter no sale of real estate under any order, judgment or decree of any United States court shall be had without previous publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued and having a general circulation in the county and state where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said property is situated as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, direct the publication of the notice of sale herein provided for to be made in such other papers as may seem proper." Power of the Supreme Court to regulate the practice of CIRCUIT AND DISTRICT COURTS — Se'cgi^. The Supreme Court shall have power to prescribe from time to time, and in any man- ner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing pro- ceedings and pleadings, of taking and obtaining evidence, of ob- taining 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 courts. Practice in the several courts to be regulated by their OWN rules.— 5r^. 918. The several circuit and district courts 1 Act of March 3, 1893, ch. 225, 27 Stat. L. 751, 2 Supp. R. S. 135- PROCEDURE IN FEDERAL COURTS. 629 may from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and other- wise regulate their own practice as may be necessary or con- venient for the advancement of justice and the prevention of de- lays in proceedings. Suits for duties, imposts, taxes, penalties or forfeitures. — Sec. 919. All suits for the recovery of any duties, imposts or taxes, or for the enforcement of any penalty or forfeiture pro- vided by any act respecting imports or tonnage, or the register- ing and recording or enrolling and licensing of vessels, or the internal revenue, or direct taxes, and all suits arising under the postal laws, shall be brought in the name of the United States. Consolidation of revenue seizures. — Sec. 920. Whenever two or more things belonging to the same person are seized for an alleged violation of the revenue laws, the whole must be in- cluded in one suit; and if separate actions are prosecuted in such cases, the court shall consolidate them. Orders to save costs. — Sec. 921. When causes of a like na- ture or relative to the same question are pending before a court of the United States, or of any territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consoli- date said causes when it appears reasonable to do so.^ When the marshal or his deputy is a party in a cause. — Sec. 922, When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them. Seizures for forfeiture in certain cases. — Sec. 923. When any vessel, goods, wares or merchandise are seized by any officer of the customs, and prosecuted for forfeiture by virtue of any ^ As to suits by poor persons with- 1S92, ch. 209, 27 Stat. L. 252, 2 Supp. out paying costs, see act of July 20, R. S. 41. 630 FEDERAL PLEADING, PRACTICE AND PROCEDURE. law respecting the revenue, or the registering and recording, or the enrolling and licensing of vessels, the court shall cause four- teen days' notice to be given of such seizure and libel, by caus- ing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published near the place of seiz- ure, and by posting up the same in the most public manner for the space of fourteen days, at or near the place of trial ; and proclamation shall be made in such manner as the court shall direct. And if no person appears and claims such vessel, goods, wares or merchandise, and gives bond to defend the prosecution thereof, and to respond the cost in case he shall not support his claim, the court shall proceed to hear and determine the cause according to law. Attachment in postal suits. — Sec. 924. In all cases where debts are due from defaulting or delinquent postmasters, con- tractors or other officers, agents or employees of the Post- Office Department, a warrant of attachment may issue against all real and personal property and legal and equitable rights belonging to such officer, agent or employee and his sureties, or either of them, in the following cases : First. — When such officer, agent or employee and his sureties, or either of them, is a non-resident of the district where such officer, agent or employee was appointed, or has departed from such district for the purpose of permanently residing out of the same, or of defrauding the United States, or of avoiding the ser- vice of civil process. Second. — When such officer, agent or employee and his sure- ties, or either of them, has conveyed away or is about to con- vey away his property, or any part thereof, or has removed or is about to remove the same, or any part thereof, from the district wherein it is situate, with intent to defraud the United States. And when any such property has been removed, certified copies of the warrant may be sent to the marshal of the district into which the same has been removed, under which certified copies he may seize said property and convey it to some con- venient point within the jurisdiction of the court from which the warrant originally issued. And alias warrants may be issued in PROCEDURE IN FEDERAI, COURTS. 631 such cases upon due application, and the validity of the warrant first issued shall continue until the return day thereof. Application for warrant. — Sec. 925. Application for such warrant of attachment may be made by any district or assistant district attorney, or any other person authorized by the Postmas- ter-General, before tlie judge, or, in his absence, before the clerk of any court of the United States having original jurisdiction of the cause of action. And such application shall be made upon an affidavit of the applicant, or of some other credible person stating the existence of either of the grounds of attachment enumerated in the preceding section, and upon production of legal evidence of the debt. Issuing warrant ; duty of clerk and marshal. — Sec. 926. Upon any such application and upon due order of any judge of the court, or, in his absence, without such order, the clerk shall issue a warrant for the attachment of all the property of any kind belonging to the person specified in the affidavit, which warrant shall be executed with all possible dispatch by the mar- shal, who shall take the property attached, if personal, into his custody, and hold the same subject to all interlocutory or final orders of the court. Ownership of attached property; trial; other reme- dies. — Sec. 927, At any time within twenty days before the re- turn day of such warrant the party whose property is attached may, on giving notice to the district attorney of his intention, file a plea in abatement, traversing the allegations of the affi- davit, or denying the ownership of the property attached to be in the defendants or either of them ; in which case the court may, upon application of either party, order an immediate trial by jury of the issues raised by the affidavit and plea; but the parties may, by consent, waive a trial by jury, in which case the court shall decide the issues raised. And any party claiming ownership of the property attached and a specific return thereof shall be confined to the remedy herein afforded, but his right to an action of trespass, or other action for damages, shall not be impaired hereby. Proceeds of attached property to be invested. — Sec. 928. When the property attached is sold on any interlocutory order of the court, or is producing any revenue, the money arising 632 FKDERAI. PLEADING, PRACTICE AND PROCEDURE. from such sale or revenue shall be invested in securities of the United States, under the order of the court, and all accretions shall be held subject to the orders of the same. Publication of attachment. — Sec. 929. Immediately upon the execution of any such warrant of attachment, the marshal shall cause due publication thereof to be made, in the case of absconding debtors for two months and of non-residents for four months. The publication shall be made in some newspaper published in the district where the property is situate, and the details thereof shall be regulated by the order under which the warrant is issued. Persons having property of defendants to account for it; sales void; personal notice. — Sec. 930. After the first publication of such notice of attachment as required by law, every person indebted to or having possession of any property belonging to the said defendants, or either of them, and having knowledge of said notice, shall account and answer for the amount of such debt and the value of such property; and any disposal orattempttodisposeof any such property, to the injury of the United States, shall be illegal and void. And when the per- son indebted to or having possession of the property of such defendants, or either of them, is known to the district attorney or marshal, such officer shall see that personal notice of the attach- ment is served upon such person, but the want of such notice shall not invalidate the attachment. Discharge of attachment ; bond. — Sec. 931. Upon applica- tion of the party whose property has been attached, the court, or any judge thereof, may discharge the warrant of attachment as to the property of the applicant, provided such applicant shall execute to the United States a good and sufficient penal bond, in double the value of the property attached, to be approved by a judge of the court, and with condition for the return of said property, or to answer any judgment which may be rendered by the court in the premises. Accrued rights not to be abridged. — Sec. 932. Nothing contained in the preceding eight sections shall be construed to limit or abridge, in any manner, such rights of the United States as have accrued or been allowed in any district under the former practice of or the adoption of state laws by the United States courts. procedure in federal courts. 633 Attachments dissolved in conformity with state laws. — Sec. 933. An attachment of property, upon process instituted in any court of the United States, to satisfy such judgment as may be recovered by the plaintiff therein, except in the cases mentioned in the preceding nine sections, shall be dissolved when any con- tingency occurs by which, according to the laws of the state where said court is held, such attachment would be dissolved upon like process instituted in the courts of said state ; provided, that nothing herein contained shall interfere with any priority of the United States in the payment of debts. ^ Property taken under revenue laws irrepleviable. — Sec. 934. All property taken or detained by any officer or other per- son, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.^ Garnishees in suits by the United States on notes, etc. — Sec. 935. In any suit by the United States against a corporation for the recovery of money upon a bill, note or other security, the debtors of the corporation may be summoned as garnishees ; and it shall be the duty of any person so summoned to appear in open court and to depose, in writing, to the amount which he was indebted to the said corporation at the time of the service of the summons and at the time of making such deposition; and judgment may be entered in favor of the United States for the sum admitted by such garnishee to be due to the said corpora- tion, in the same manner as if it had been due to the United States; provided, that no judgment shall be entered against any garnishee until after judgment has been rendered against the corporation defendant to the said action, or until the sum in which the garnishee stands indebted is actually due. Issue tendered when garnishee denies indebtedness. — Sec. 936. When any person summoned as garnishee deposes in open court that he is not, and was not at the time of the service of the summons, indebted to such corporation, an issue may be tendered by the United States upon such demand, and if, upon the trial of that issue, a verdict is rendered against the garnishee, ^See Shwartz v. H. B. Claflin Co., ^See Pollard v. Reardon, 65 Fed. 60 Fed. Rep. 676. Rep. 848. 634 FEDERAL PLEADING, PRACTICE AND PROCEDURE. judgment shall be entered in favor of the United States, pursuant to such verdict, with costs of suit. Garnishee failing to appear. — Scr. 937. If any person sum- moned as garnishee, as aforesaid, fails to appear at the term of the court to which he is summoned, he shall be subject to attach- ment for contempt of the court. Bailing of property seized under customs laws. — Sec. 938. Upon the prayer of any claimant to the court, that any vessel, goods, wares or merchandise, seized and prosecuted under any law respecting the revenue from imports or tonnage, or the registering and recording or the enrolling and licensing of ves- sels, or any part thereof, should be delivered to him, the court shall appoint three proper persons to appraise such property, who shall be sworn in open court, or before a commissioner appointed by the district court to administer oaths to appraisers, for the faithful discharge of their duty; and the appraisement shall be made at the expense of the party on whose prayer it is granted. If, on the return of the appraisement, the claimant, with one or more sureties, to be approved by the court, shall execute a bond to the United States for the payment of a sum equal to the sum at which the property prayed to be delivered is appraised, and produce a certificate from the collector of the district where the trial is had, and of the naval officer thereof, if any there be, that the duties on the goods, wares and merchan- dise, or tonnage-duty on the vessel so claimed, have been paid or secured in like manner as if the same had been legally entered, the court shall, by rule, order such vessel, goods, wares or mer- chandise to be delivered to such claimant; and the said bond shall be lodged with the proper officer of the court. If judg- ment passes in favor of the claimant, the court shall cause the said bond to be cancelled; but if judgment passes against the claimant as to the whole or any part of such vessel, goods, wares or merchandise, and the claimant does not within twenty days thereafter pay into the court, or to the proper officer thereof, the amount of the appraised value of such vessel, goods, wares or mer- chandise so condemned, with the costs, judgment shall be granted upon the bond, on motion in open court, without further delay.^ 1 See Rev. Stat. § 570. What is a see The Haytian Republic, 57 Fed. valid bond release under section 938, Rep. 508. PROCEDURE IN FEDERAL COURTS. 635 Sale after condemnation. — Ser. 939. All vessels, goods, wares or merchandise which shall be condemned by virtue of any law respecting the revenue from imports or tonnage, or the registering and recording or the enrolling and licensing of ves- sels, and for which bonds shall not have been given by the claimant, shall be sold by the marshal or other proper officer of the court in which condemnation shall be had, to the highest bidder, at public auction, by order of such court, and at such place as the court may appoint, giving at least fifteen days' notice (except in cases of perishable merchandise) in one or more of the public newspapers of the place where such sale shall be; or if no paper is published in such place, in one or more of the papers published in the nearest place thereto; for which advertising a sum not exceeding five dollars shall be paid. And the amount of such sales, deducting all proper charges, shall be paid within ten days after such sale by the person selling the same to the clerk or other proper officer of the court directing such sale, to be by him, after deducting the charges allowed by the court, paid to the collector of the district in which such seizure or forfeiture has taken place, as hereinbefore directed. In cases of seizure, bailing of property in vacation. — Sec. 940. In any cause of admiralty and maritime jurisdiction, or other case of seizure, depending in any court of the United States, any judge of the said court, in vacation, shall have the same authority to order any vessel or cargo or other property to be delivered to the claimants, upon bail or bond, or to be sold when necessary, as the said court has in term time, and to ap- point appraisers and exercise every other incidental power neces- sary to the complete execution of the authority herein granted ; and the recognizance of bail or bond, under such order, may be exe- cuted before the clerk upon the party's producing the certificate of the collector of the district, of the sufficiency of the security offered ; and the same proceedings shall be had in case of said order of delivery or of sale as are had in like cases when ordered in term time ; provided, that upon every such applica- tion, either for an order of delivery or of sale, the collector and the attorney of the district shall have reasonable notice in cases of the United States, and the party or counsel in all other cases. I 636 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Delivery bond in admiralty proceedings. — Sec. 941. When a warrant of arrest or other process in rem is issued in any cause of admiralty jurisdiction, except the cases of seizure for forfeit- ure under any law of the United States, the marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on receiving from the claimant of the property a bond or stipulation in double the amount claimed by the libellant, with sufficient surety, to be approved by the judge of the court where the cause is pending, or, in his ab- sence, by the collector of the port, conditioned to answer the decree of the court in such cause. Such bond or stipulation shall be returned to the court, and judgment thereon, against both the principal and sureties, may be recovered at the time of rendering the decree in the original cause.^ Special bail required in suits for duties and penalties. — Sec. 942. In all suits or prosecutions for the recovery of duties or pecuniary penalties prescribed by the laws of the United States, commenced in any state where, by the laws thereof, imprisonment for debt shall not have been abolished, the person against whom process is issued shall be held to spec- ial bail, subject to the rules which prevail in civil suits in which special bail is required. When defendant giving bail in one district is committed IN another. — Sec. 943. When a defendant who has procured bail to respond to the judgment in a suit in any court of the United States in any district is afterward arrested in any other district and is committed to a jail the use of which has been ceded to the United States for the custody of prisoners, the judge of the court wherein the suit in which the defendant has so procured bail is depending shall, at the request of the bail, order that such defendant be held in said jail, in the custody of the marshal of the district in which it is. The said marshal, upon the delivery of such order, duly authenticated, shall re- ceive such person into his custody, and thereupon be chargeable for an escape, and shall forthwith make a certificate, under his 1 See Munks v. Jackson, 66 Fed. ercise the right he cannot require the Rep. 571. The right of the vessel libellant to give security for such owner to protect himself extends to damages : The Poconoket, 61 Fed. possessory actions ; if he fails to ex- Rep. 106. PROCEDURE IN FEDERAL COURTS. 637 hand and seal, of such commitment, and transmit the same to the court from which the order issued, and, if required, shall make and deliver to such bail or his attorney a duplicate thereof. Upon the return of said certificate, the court which made the said order, or any judge thereof, may direct that an exo7ieretur be entered upon the bail-piece, where special bail shall have been found, or otherwise discharge such bail. Defendant held until judgment in the first suit. — Sec. 944. When a defendant is committed by virtue of the order provided in the preceding section, he shall, unless sooner dis- charged by lav/, be holden in jail until final judgment is rendered in the suit in which he procured bail as aforesaid, and sixty days thereafter if such judgment is rendered against him, in order that he may be charged in execution, which may in such cases be di- rected to and served by the marshal in whose custody he is. Bail and affidavits may be taken by commissioners of cir- cuit COURTS. — Sec. 945. Bail and affidavits, when required or allowed in any civil cause in any circuit or district court, may be taken by a commissioner of the circuit court for the district ; and such acknowledgments of bail and affidavits shall have the same effect as if taken before any judge of such courts. Calling of bail in Kentucky. — Sec. 946. When a bail-bond is given for the appearance of any person to answer in the dis- trict or circuit court for the district of Kentucky, the clerk of such court shall call the party at the time he is bound to appear. If the party fails, the clerk shall enter such failure on his min- utes, and on said entry judgment may afterward be made of rec- ord by the court ; but if the party appears, the clerk shall take another bond, with sureties similar to the first, for further ap- pearance at the next succeeding term of the court, and if the party fails to give such other bond and surety, he shall stand committed by order of the clerk until he complies. When clerks may take bail de bene esse, — Sec. 947. Re- cognizances of special bail may be taken de bene esse by the clerks of the circuit and district courts, in the absence or in case of the disability of the judges, in any action depending in either of the said courts, where special bail is demandable. Amendment of process. — Sec. 948. Any circuit or district court may at any time, in its discretion and upon such terms as 638 FEDERAL PLEADING, PRACTICE AND PROCEDURE. it may deem just, allow an amendment of any process return- able to or before it, where the defect has not prejudiced and the amendment will not injure the party against whom such process issues. Priority of gases in which a state is a party. — Sec. 949. When a state is a party, or the execution of the revenue laws of a state is enjoined or stayed, in any suit in a court of the United States, such state or the party claiming under the revenue laws of a state, the 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 pending in such court between private parties. Notice of case for trial. — Sec. 950. In all civil actions in the courts of the United States either party may notice the same for trial. Suits of United States against individuals, what credits ALLOWED. — Sec. 951. In suits brought by the United States against individuals, no claim for a credit shall be admitted, upon trial, except such as appear to have been presented to the ac- counting officers of the treasury, for their examination, and to have been by them disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury by absence from the United States or by some unavoidable accident.^ In suits under postal laws, what credits allowed. — Sec. 952. No claim for a credit shall be allowed upon the trial of any suit for delinquency against a postmaster, contractor or other officer, agent or employee of the Post-Office Department, unless the same has been presented to the Sixth Auditor and by him disallowed, in whole or in part, or unless it is proved to the satis- faction of the court that the defendant is, at the time of trial, in possession of vouchers not before in his power to procure, and ^This section applies to a suit Alexander v. U. S., 15 U.S. App. against one who failed to account for 158; U. S. v. North Amer. Com. Co., money received during tiie war as 74 Fed. Rep. 145 ; U. S. v. Patrick, acting regimental quartermaster: U. 73 id. 800; s. c, 36 U. S. App. 645. S. V. Wade, 75 Fed. Rep. 261. See PROCEDURE IN FEDERAL COURTS. 639 that he was prevented from exhibiting to the said Auditor a claim for such credit by some unavoidable accident.^ Bill of exceptions. — Sec. 953. A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto.^ Defects of form; amendments. — Sec. 954. No summons, writ, declaration, return, process, judgment or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed or reversed for any defect or want of form ; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses ; and may at any time permit either of the parties to amend any defect in the pro- cess or pleadings, upon such conditions as it shall, in its discre- tion and by its rules, prescribe.^ Death of parties. — Sec. 955. When either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the execu- tor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly ; and the court shall hear and determine the cause and render iWarez'. U. S., 4 Wall. 617; U. S. exercised at any stage of the pro V. Roberts, 9 How. 501. ceedings ; it extends to verdict and 2 In Croke v. Aveny, 147 U. S. 375, it judgment; it is applicable to attach- isheld, that where a bill of exceptions ment suits: Bowden z-. Burnham, 19 is certified by a district judge holding U. S. App. 448. See Rladdox v. circuit court it is presumed that the Thorn, 23 id. 189. It includes au- circuit justice and circuit judge were thority to amend in garnishment pro- not present at the trial unless the ceedings : Booth v. Denike, 65 Fed. record clearly and affirmatively shows Rep. 43. See McVeigh v. U.S., 8 the contrary. Wall. 640 ; Railroad, etc. v. Lindsay, ''The right to amend exists inde- 4/^.650; Porter v. Foley, 21 How. pendently of state statutes ; it may be 393. 640 FEDERAL PLEADING, PRACTICE AND PROCEDURE. judgment for or against the executor or administrator, as the case may require. And if such executor or administrator, hav- ing been duly served with a scire facias from the office of the clerk of the court where the suit is depending, twenty days be- forehand, 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 ad- ministrator who becomes a party as aforesaid shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court. When one of several plaintiffs or defendants dies. — Sec. 956. If there are two or more plaintiffs or defendants in a suit where the cause of action survives to the surviving plaintiff or against the surviving defendant, and one or more of them dies, the writ or action shall not be thereby abated ; but, such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff against the surviving defen- dant. Delinquents for public money; judgment at return term, UNLESS, etc. — Sec. 957, When suit is brought by the United States against any revenue officer or other person accountable for public money, who neglects or refuses to pay into the treasury the sum or balance reported to be due to the United States, upon the adjustment of his account it shall be the duty of the court to grant judgment at the return term, upon motion, unless the defendant, in open court (the United States attorney being present), makes and subscribes an oath that he is equitably en- titled to credits which had been, previous to the commencement of the suit, submitted to the accounting officers of the treasury and rejected ; specifying in the affidavit each particular claim so rejected, and that he cannot then safely come to trial. If the court, when such oath is made, subscribed and filed, is thereupon satisfied, a continuance until the next succeeding term may be granted. Such continuance may also be granted when the suit is brought upon a bond or other sealed instrument and the defendant pleads non est factum, or makes a motion to the court, verifying such plea or motion by his oath, and the court there- upon requires the production of the original bond, contract or PROCEDURE IN FEDERAL COURTS. 641 other paper specified in the affidavit. And no continuance shall be granted except as herein provided. Judgment in suits under postal laws. — Sec. 958. In suits arising under the postal laws the court shall proceed to trial, and render judgment at the return term; but whenever service of process is not made at least twenty days before the return day of such term, the defendant is entitled to one continuance, if, on his statement, the court deems it expedient ; and if he makes affidavit that he has a claim against the Post-Office Department, which has been submitted to and disallowed by the Sixth Auditor, specifying such claim in his affidavit, and that he could not be prepared for trial at such term for want of evidence, the court, if satisfied thereof, may grant a continuance until the next term. Judgment in suits on debentures. — Sec. 959. In all suits for the recovery of money upon debentures issued by the collectors of customs, under any act for the collection of duties, it shall be the duty of the court to grant judgment at the return term, unless the defendant, in open court, exhibits some plea, on oath, by which the court is satisfied that a continuance is necessary to the attainment of justice; in which case, and not otherwise, a continuance until the next term may be granted. Suits on bonds for recovery of duties. — Sec. 960. When suit is brought on any bond for the recovery of duties due to the United States, it shall be the duty of the court to grant judg- ment at the return term, upon motion, unless the defendant, in open court (the United States attorney being present), makes oath that an error has been committed in the liquidation of the duties demanded upon such bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector of the district before the said return term ; whereupon a continuance may be granted until the next term, and no longer, if the court is satisfied that such continuance is necessary for the attainment of justice. Judgment for sum due in equity on bonds, etc. — Sec. 961. In all suits brought to recover the forfeiture annexed to any articles of agreement, covenant, bond or other specialty, where the forfeiture, breach or non-performance appears by the default or confession of the defendant, or upon demurrer, the court shall 41 G42 FEDERAL TLEADING, PRACTICE AND PROCEDURE. render judgment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, it shall, if either of the parties request it, be assessed by a jury. Judgment for duties, etc. — Sec. 962. In all suits by the United States for the recovery of duties upon imports, or of penalties for the non payment thereof, the judgment shall recite that it is rendered for duties, and such judgment, with interest thereon, and cgsts, shall be payable in the coin by law receivable for duties ; and the execution issued thereon shall set forth that the recovery is for duties, and shall require the marshal to sat- isfy the same in the coin by law receivable for duties ; and in case of levy upon and sale of the property of the judgment debtor, the marshal shall refuse payment from any purchaser at such sale in any other money than that specified in the execu- tion.^ Interest on bonds for duties. — Sec. 963. Upon all bonds on which suits are brought for the recovery of duties, interest shall be allowed, at the rate of six per centum a year, from the time when said bonds became due. Interest on balances due Post Office Department. — Sec. 964. In all suits for balances due to the Post Office Department, interest thereon shall be recovered from the time of the default, at the rate of six per centum a year. Interest on debentures. — Sec. 965. In suits upon debentures, issued by the collectors of the customs under any act for the collection of duties, interest shall be allowed, at the rate of six per centum per annum, from the time when such debenture be- came due and payable. Interest on judgments. — Sec. 966. Interest shall be allowed on all judgments in civil causes, recovered in a circuit or district court, and may be levied by the marshal under process of execu- tion issued thereon, in all cases where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such state; and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judgments recovered in the courts of such state.^ 1 See Rev. Stat. § 3014. Hagerman, 69 id. 427 ; Perkins v. 2 See People's Bank v. yEtna Ins. Fourniquet, 14 How. 328 ; National Co., 76 Fed. Rep. 548; Moran v. Bk. z^. Mechanics' Nat. Bk., 94 U.S. 437 PROCEDURE IN FEDERAL COURTS. 643 ,LlENS OF JUDGMENTS OF UNITED STATES CoURTS. Str, 967. Judgments and decrees rendered in a circuit or district court, within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and de- crees of the courts of such state cease, by law, to be liens thereon/ The act of August i, 1888, as amended by the act of March 2, 1895,^ provides : " That judgments and decrees rendered in a circuit or district court of the United States, within any state, shall be liens on property throughout such state in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state: Provided, That when- ever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed or any other thing to be done in a particular manner, or in a certain ofifice or county, or parish in the state of Louisiana, before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the state. " Sec. 2. That the clerks of the several courts of the United States shall prepare and keep in their respective offices indices and cross-indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspec- tion and examination of the public. " Sec. 3. That nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any state office within the same county, or the same parish in the state of Louisiana, in which the judgm.ent or decree is rendered, in order that such judgment or decree may be a lien on any property within such county, if the clerk of the United States court be required by law to have a permanent office and a judgment record open at all times for public inspection in such county or parish." ^See Massingill v. Downs, 7 How. Stat. L. 357, i Supp. R. S. 602; act 760. of March 2, 1895, ch. 180, 28 Stat. L. 2 Act of Aug. I, 1888, ch. 729, 25 814, 2 Supp. R. S. 425. 644 FEDERAL PLEADING, PRACTICE AND PROCEDURE. No COSTS ON RECOVERY OF LESS THAN ^500. Scc. 968. When, in a circuit court, a plaintiff in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; or a libellant, upon his own appeal, recovers less than the sum or value of three hundred dollars, exclusive of costs, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs.^ Costs in internal revenue suits upon information. — Sec. 969. When a suit for recovery of any penalty or forfeiture ac- cruing under any law providing internal revenue is brought upon information received from any person other than a collector, deputy collector or inspector of internal revenue, the United States shall not be subjected to any costs of suit.^ Claimant not entitled to costs when reasonable cause OF seizure, — Scc. 970. When, in any prosecution commenced on account of the seizure of any vessel, goods, wares or mer- chandise, made by any collector or other officer, under any act of Congress authorizing such seizure, judgment is rendered for the claimant, but it appears to the court that there was reason- able cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution ; provided, that the vessel, goods, wares or merchandise be, after judgment, forthwith returned to such claimant or his agent.^ Double costs, when plaintiff is nonsuited in action against officer making seizure, etc. — Sec. 971. If, in any suit against an officer or other person executing or aiding or assist- 1 Poor persons may sue without Ellis v. Jarvis, 3 Mas. 457 ; Field v. paying costs and counsel may be as- Schell, 4 Blatch. 435. signed, etc., by act of July 20, 1892, 5SeeGelstenz'.Hoyt,3Wh.246; The ch. 209, 27 Stat. L. 252, 2 Supp. R. S. ApoUon, 9 id. 362 ; Averill v. Smith, 41. 17 Wall. 82 ; The Ship Recorder, 2 ^'See Leeds v. Cameron, 3 Sumn. Blatch. 120. 488 ; Cattle v. Payne, 3 Day 289 ; PROCEDURE IN FEDERAL COURTS. G45 ing in the seizure of goods, under any act providing for or regu- lating the collection of duties on imports or tonnage, the plain- tiff is nonsuited, or judgment passed against him, the defendant shall recover double costs. In copyright suits, costs — Sec. 972. In all recoveries under the copyright laws, either for damages, forfeitures or penalties, full costs shall be allowed thereon. Costs, infringement of patent. — Sec. 973. When judgment or decree is rendered for the plaintiff or complainant, in any suit at law or in equity, for the infringement of a part of a patent, in which it appears that the patentee, in his specification, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor, no costs shall be recovered unless the proper disclaimer, as provided by the patent-laws, has been entered at the Patent-Office before the suit was brought. When costs of prosecution to be paid by defendant. — Sec. 974. When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs ; and on every conviction for any other offence not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution. When costs are recovered by defendant in a prosecution. — Sec. 975. If any informer or plaintiff on a penal statute, to whom the penalty or any part thereof, if recovered, is directed to accrue, discontinues his suit or prosecution, or is nonsuited therein, or if upon trial judgment is rendered in favor of the de- fendant, the court shall award to the defendant his costs, unless such informer or plaintiff is an officer of the United States specially authorized to commence such prosecution, and the court, at the trial in open court, certifies upon the record that there was reasonable cause for commencing the same; in which case no costs shall be adjudged to the defendant. Fees of clerk, marshal, etc.; by whom payable. — Sec. 976. 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 646 FEDERAL PLEADING, PRACTICE AND PROCEDURE. be alone liable to the clerk, marshal and attorney for the fees of such prosecution, unless he is an officer of the United States whose duty it is to 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. Costs ; nonjoinder of action. — Sec. 977. If several actions or processes are instituted, in a court of the United States or one of the territories, against persons who might legally be joined in one action or process touching the matter in dispute, the party pursuing the same shall not recover, on all of the judgments therein which may be rendered in his favor, the costs of more than one action or process, unless special cause for said several actions or processes is satisfactorily shown on motion in open court. Costs in libels against vessel and cargo. — Sec. 978. When proceedings are had before a court of the United States or of the territories, on several libels against any vessel and cargo, which might legally be joined in one libel, there shall not be allowed thereon more costs than on one libel, unless special cause for libelling the vessel and cargo separately is satisfactorily shown on motion in open court. And in proceedings on several libels or informations against any cargo, or parts of cargo, or merchan- dise seized as forfeited for the same cause, there shall not be allowed more costs than would be lawful on one libel or informa- tion, whatever may be the number of owners or consignees therein concerned. But allowance may be made on one libel or information for the costs incidental to several claims. Claimant's costs to be paid before possession, when, etc. — Sec. 979. When judgment is rendered in favor of the claim- ant of any vessel or other property seized on behalf of the United States, and libelled or informed against as forfeited under any law thereof, he shall be entitled to possession of the same when his own costs are paid. District Attorney's Costs. — Sec. 980. When a district at- torney prosecutes two or more indictments, suits or proceedings which should be joined, he shall be paid but one bill of costs for all of them. Taxation of fees of witness before a commissioner. — Sec. PROCEDURE IN FEDERAL COURTS. 647 981. In no case shall the fees of more than four witnesses be taxed against the United States, in the examination of any crim- inal case before a commissioner of a circuit court, unless their materiality and importance are first approved and certified to by the district attorney for the district in which the examination is had ; and such taxation shall be subject to revision, as in other cases. Attorney liable for costs vexatiously increased by him. Sec. 982. If any attorney, proctor or other person admitted to conduct causes in any court of the United States, or of any ter- ritory, appears to have multiplied the proceedings in any cause before such court, so as to increase costs unreasonably and vex- atiously, he shall be required, by order of the court, to satisfy any excess of costs so increased. Bill of costs ; how taxed. — Sec. 983. The bill of fees of the clerk, marshal and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials in cases where by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause.^ Bill of costs to be sworn to. — Sec. 984. Before any bill of costs shall be taxed by any judge or other officer, or allowed by any officer of the treasury, in favor of clerks, marshals, com- missioners or district attorneys, the party claiming such bill shall prove by his own oath or that of some other person having a knowledge of the facts, to be attached to such bill and filed therewith, that the services charged therein have been actually and necessarily performed, as therein stated. Executions to run in all the districts of the state. — Sec. 985. All Avrits of execution upon judgments or decrees ob- tained in a circuit or district court, in any state which is divided into two or more districts, may run and be executed in any part of such state ; but shall be issued from and made returnable to the court wherein the judgment was obtained.^ ^ See The Liverpool Packet, 2 Spr. ^ See Lyman v. Smithard, 12 Blatch. 37 ; Lyell v. Miller, 6 McLean 422. 405. 648 FEDERAL PLEADING, rRACTlCE AND PROCEDURE. Executions in favor of United States to run in every STATE. — Sec. gS6. All writs of execution upon judf^ments ob- tained for the use of the United States, in any court thereof, in one state, may run and be executed in any other state or in any territory, but shall be issued from and made returnable to the court wherein the judgment was obtained. Execution stayed on conditions. — Sec. 987. When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such find- ing is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. If such petition is filed within said term of forty-two days, with a 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 ses- sion of said court. If a new trial be granted, the former judg- ment shall be thereby rendered void.^ Judgment-debtor ; continuance. — Sec. 988. In any state where judgments are liens upon the property of the defendant, and where, by the laws of such state, defendants are entitled, in the courts thereof, to a stay of execution for one term or more, defendants in actions in the courts of the United States held therein shall be entitled to a stay of execution for one term. Execution against officers of revenue. — Sec. 989. When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him or for the recovery of any money exacted by or paid to him, and by him paid into the treasury in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judg- ^ See Jessup v. U. S., 106 U. S. 150 ; time, see Edmanson v. Best, 18 U. S. Martinton v. Fairbanks, 112 id. 673. App. 288. Petition for new trial, when filed in PROCEDURE IN FEDERAI. COURTS. 649 ment, be provided for and paid out of the proper appropriation from the treasury.^ Imprisonment for debt. — Sec. 990. No person shall be im- prisoned for debt in any state, on process issuing from a court of the United States, where, by the laws of such state, imprisonment for debt has been or shall be abolished. And all modifications, conditions and restrictions upon imprisonment for debt, provided by the laws of any state, shall be applicable to the process issuing from the courts of the United States to be executed therein; and the same course of proceedings shall be adopted therein as may be adopted in the courts of such state.^ Discharge FROM ARREST OR imprisonment. — Sec. 991. When any person is arrested or imprisoned in any state, on mesne pro- cess or execution issued from any court of the United States, in any civil action, he shall be entitled to discharge from such arrest or imprisonment in the same manner as if he were so arrested and imprisoned on like process from the courts of such state. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such state, and the same course of proceedings shall be adopted as may be adopted in the courts thereof. But all such proceedings shall be had before any one of the commissioners of the circuit court for the district where the defendant is so held. Privileges of jail limits. — Sec. 992. Persons imprisoned on process issuing from any court of the United States in civil actions, as well at the suit of the United States as at the suit of any person, shall be entitled to the same privileges of the yards of the respective jails as persons confined in like cases on process from the courts of the respective states are entitled to, and under the like regulations and restrictions.^ Goods taken on a fieri facias, how appraised. — Sec. 993. iSee Hendricks v. Gonzalez, 35 in a case of personal injuries and U. S. App. 127. cruelty to a seaman : Bolden v. Jen- 2 See Stroheim v. Deimel, 73 Fed. sen, 69 Fed. Rep. 745- The section Rep. 430. This section and amended applies only to civil cases; a fine im- Admiralty Rule 47 are not applica- posed under federal criminal laws is ble to cases involving claims for un- not a "debt :" In re Sanborn, 52 id. liquidated damages, and do not affect 583. the power of the courts, sitting in ad- * See Ex parte Wilson, 6 Cr. 52 ; miralty, to issue a warrant of arrest U. S. v. Knight, 14 Pet. 314. 650 FEDERAL PLEADING, PRACTICE AND PROCEDURE. When it is required by the laws of any state that goods taken in execution on a writ of fieri facias shall be appraised before the sale thereof, the appraisers appointed under the authority of the state may appraise goods taken in execution on 2. fieri facias issued out of any court of the United States, in the same manner as if such writ had issued out of a court of such state. And the marshal in whose custody such goods maybe shall summon the appraisers, in the same manner as the sheriff is, by the laws of such state, required to summon them; and if the appraisers, being duly summoned, fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement. When such appraisers attend they shall be entitled to the like fees as in cases of appraisements under the laws of the state. Death of marshal after levy or sale. — Sec. 994. When a marshal dies or is removed from office, or the term of his com- mission expires, after he has taken in execution, under process from a court of the United States, any lands, tenements or hereditaments, and before sale or other final disposition thereof, the like process shall issue to the succeeding marshal, and the same proceeding shall be had as if such marshal had not died or been removed or the term of his commission had not expired. And when a marshal dies or is removed from office, or the term of his commission expires, after he has sold any lands, tenements or hereditaments, under process from a court of the United States, and before a deed for the same is executed by him to the purchaser, such court may, on application by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the marshal for the time being to perfect the title and execute a deed to the purchaser upon his paying the purchase-money and costs remaining unpaid.' MoNEVS paid into court. — Sec. 995. 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 assistant treasurer or a designated depository of the United States, in the name and to the credit of such court ; provided, that nothing herein shall ^See Doolittle v. Bryan, 14 How. 563. PROCEDURE IN FEDERAL COURTS. 651 be construed to prevent the delivery of any such money upon security according to agreement of parties, under the direction of the court.^ Moneys deposited, how withdrawn. — Sec. 996. No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said courts respectively, in term or in vaca- tion, 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. ^ The depositaries are exempt from in the personal custody of the offi- the process of the litigants in all re- cials of the court : Jones v. Merch. spects as if the money had remained Nat. Bk., 76 Fed. Rep. 683. 652 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XXIV. PROVISIONS OF THE STATUTES COMMON TO MORE THAN ONE COURT OR JUDGE. Exclusive Jurisdiction of Courts of the United States. § 530. The exclusive jurisdiction of the courts of the United States in certain cases and proceedings is estabhshed by the fol- lowing provisions : Exclusive jurisdiction of courts of United States. — Sec. 711. The jurisdiction vested in the courts of the United States, in the cases and proceedings hereinafter mentioned, shall be ex- clusive of the courts of the several States : First. Of all crimes and offenses cognizable under the author- ity of the United States.^ ^ We have already considered he subject of the jurisdiction of the dis trict and circuit courts in criminal causes. See a?ite, ch. xxii. We may here observe, however, that under the provisions of paragraph i of this section a state court cannot enter- tain an indictment for perjury com- mitted in a proceeding before a United States commissioner on a pre- liminary examination of a party on the charge of having violated a penal law of the United States: Ross v. State of Georgia, 55 Ga. 192 ; Ex parte Dock Bridges, 2 Woods 428. See also State v. Kirkpatrick, 32 Ark. 117. And it may be said generally that a state court can take no cogni- zance of a crime against the laws of the United States : Martin v. Hunter, I Wh. 304 ; State v. Adams, 4 Black 146; State V. McBride, Rice 400; Commonwealth v. Feely, i Va. Cas. 321 ; Huber v. Reiley, 53 Penn. 112 ; State V. Pike, 15 N. H. 83. See In re Loney, 134 U. S. 372 ; In re Green, Ibid. 377. A state is not deprived of jurisdiction over one who violates its law, because he follows up that of- fence by another against the laws of the United States: Cross v. North Carolina, 132 id. 131. We have noticed that a party may be amenable for infractions of both state and national statutes, and liable to prosecution for the same offence in either or both courts. See ante, \\ 139-142. The exclusion applies only to state courts and not to pre- liminary proceedings before a magis- trate: In re lasigi, 79 Fed. Rep. 751. COMMON PROVISIONS. G53 Second. Of all suits for penalties and forfeitures incurred under the laws of the United States.^ Third. Of all civil causes of admiralty and maritime jurisdic- tion ; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. Foiirtli. Of all seizures under the laws of the United States on land or on waters not within admiralty and maritime jurisdic- tion.2 Fifth. Of all cases arising under the patent-right or copyright laws of the United States.^ ^ The state courts not only have no jurisdiction of offences against the laws of the United States, but they cannot entertain a civil suit brought by the government of the United States or any person in its behalf for a forfeiture or penalty incurred under the laws of the United States, as this provision gives the federal courts ex- clusive jurisdiction of such causes: Hanley v. Sharp, i Dana 442 ; Jack- son V. Rose, 2 Va. Cas. 34 ; United States V. Lathrop, 17 Johns. 4. But it has been held that a state court could entertain jurisdiction of a suit brought by a person for a penalty to which he was entitled by an act of Congress : Blitz v. Columbia Nat. Bk., 87 Penn. 87 ; Ordway v. Central Nat. Bk., 47 Md. 217. But see Mis- souri River Tel. Co. v. First Nat. Bk., 74 111. 217 ; Ely v. Peck, 7 Conn. 239- ^ A collector who has the proceeds arising from the condemnation of a vessel for a violation of the revenue laws may be sued in a state court by a party who is entitled to a portion thereof as informer, notwithstanding this provision: Lapham v. Almy, 95 Mass. 301. And if he seizes a vessel for a violation of the revenue law and neglects to proceed for a condemna- tion of it within the time prescribed by law, he may be sued in a state court for an unlawful seizure : Stough- ton V. Mott, 13 Vt. 175. ^ Under this provision the jurisdic- tion of the federal courts is exclusive in all cases arising under the patent- right or copyright laws of the United States. But this exclusive jurisdic- tion is limited to those cases arising under the laws of the United States, such as controversies about infringe- ments or between parties claiming the same exclusive right under differ- ent patents, and the like : Brown v. Shannon, 20 How. 56 ; Day v. Wood- ward, Ibid. 208 ; Burr v. Duryee, I Wall. 531 ; O' Riley v. Morse, 15 How. 112 ; Batlien v. Taggart, 17 id. 83 ; Goodyear v. Providence Rub. Co., 2 Fish. Pat. Cas. 499. But if the matter in dispute rests upon a contract between the parties even in relation to a patent-right or copy- right, as on an assignment of it or a use in it, or the suit is to compel the specific performance of a contract for the transfer of an interest in a patent- right or copyright, or in any other case based upon a contract, which shows the right of the parties relat- ing to it, and there is no question raised about the validity of the patent or infringements of it, the state courts may take cognizance of the suit : Hartzel v. Tilghman, 99 U. S. 547 ; Wilson v. Sanford, 10 How. 99 ; 654 FEDERAL PLEADING, PRACTICE AND PROCEDt'RE. Sixth. Of all matters and proceedings in bankruptcy.^ Seventh. Of all controversies of a civil nature, where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens.^ Oath OF United States JUDGES. — Sec.'j\2. The justices of the Supreme Court, the circuit judges and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices : " I, , do solemnly swear (or affirm) that I will ad- minister justice without respect to persons, and do equal right to the poor and to the rich, and that 1 will faithfully and impar- tially discharge and perform all the duties incumbent on me as , according to the best of my abilities and understand- ing, agreeably to the Constitution and laws of the United States : so help me God." Judges prohibited from practicing law. — Sec, 713. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law. Hartshorn v. Da}^, 19 How. 211; upon in Pearsall z/. Smith, 149 U. S. Good j'ear y. The Union Rubber Co., 231. As to illegal preference dis- 4 Blatch. 63 ; Burr v. Gregory, 2 charging an endorser of a note, see Paine C. C. 426 ; Bourcicault v. Hart, Streeter v. Jefferson Co. Nat. Bk., 13 Blatch. 47 ; Palte v. Derby, 5 Mc- 147 id 36. As to discharge o! Lean 328; Bourcicault z/. ^ Fox, 5 husband on' his liability to his wife Blatch. 97. See also a;;/^, § 161. for her paraphernal property in Louis- ^ The Bankrupt Act of 1867 was iana, see Fleitas v. Richardson (No. repealed by the act of June 7, 1878, 2), Ibid. 550. And as to relieving a which took effect Sept i, 1878, except bankrupt from obligations to third as to matters then pending in court : parties, touching property he pur- Act 45 Cong., Stat. L. 19. As to ex- chases from his assignee, to which elusive jurisdiction in matters of bank- he himself held the legal title at the ruptcy and effect of repeal of bank- time of the assignment, see Roby v. nipt act on state insolvent law, etc., Colehour, 146 id. 153; and this is see Sargent v. Helton, 115 U. S. not a federal question : Ibid. 348; Tua V. Carriere, 117 id. 201; ^ Sec. 711 was amended by the act of Graham v. Boston, etc., R. Co., 118 February 18, 1875, by striking out id. 161; Winchesters. Heiskell, 119 the eighth paragraph, which read as 2^.450; s. c, 120 id. 273; Brown t-. follows: "Of all suits against am- Smart, 145 ii. 454. bassadors or other public ministers, Questions of interest as to the or their domestics or domestic ser- statute of limitations to suits by as- vants, or against consuls or vice-con- signees in bankruptcy are passed suls." COMMON PROVISIONS. 655 And any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. Judges resigning entitled, in certain cases, to salary for LJFE — Sec. 714. 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. Criers of the courts, attendants on juries. — Sec. 715. The circuit and district courts may appoint criers for their courts, to be allowed the sum of two dollars per day, and the marshals may appoint such a number of persons, not exceed- ing five, as the judges of their respective courts may deter- mine, to attend upon the grand and other juries, and for other necessary purposes, who shall be allowed for their services the sum of two dollars per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands. Such compensation shall be paid only for actual attendance, and when both courts are in session at the same time, only for attendance on one court. By the act of March 2, 1895,^ it is enacted that all persons employed under Revised Statutes, section 715, " shall be deemed to be in actual attendance when they attend upon the order of the courts ; and, provided further, Xh-aX. no such person shall be employed during vacation.'' Power to issue writs.— 5^^. 716. The Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law.^ 1 Act of March 2, 1895, ch. 189, par. are given to the circuit court of ap- 14, 28 Stat. L. 910, etc., 2 Supp. R. S. peals: Act of March 3, 1891, I 12. 432. And to the judges of the U. S. Court ■■'We have already considered the in Indian Territory by act of March power of federal courts to grant writs i, 1895, ch. 145, § 2, 2 Supp. R. S. of prohibition, mandamus and habeas 393. District courts have power under corpus. See ante, ch. xix, xx, xxi. this section to issue writs of tie exeat: The powers granted in this section Lewis v. Shainwald, 48 Fed. Rep. 492. 653 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Writs of ne exeat. — Sec. 717. Writs of ne exeat may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court; and by any cir- cuit 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 Scire facias is a judicial writ to en- force the execution of a judgment, and founded upon some matter of record in tlie cause in which it issues ; and it should state the facts on which it is founded. It is in the nature of a declaration, to which the defendant may properly plead or answer : Win- der V. Caldwell, 14 How. 434 ; Bently V. Sevier, Hemp. 250 ; Ex parte Wood, 9 Wh. 603 ; Wayman v. South- ard, 10 id. I ; Beers v. Haughton, 9 Pet. 329; Insley v. U. S., 150 U. S. 512; Brown v. Wygant, 163 id. 6i8; Hunt v. U. S., 19 U. S. App. 683. Capias ad satisfaciendum : see U. S. V. Arnold, 69 Fed. Rep. 987. The phrase "usages and principles of the law " has been interpreted as not limiting the power of the court to issue writs to the principles and usages of the common law, but as ex- tending in such cases to the princi- ples and usages of law as recognized in the state courts at the time of its enactment : Riggs v. Johnson, 6 Wall. 166; Bank v. Halstead, 10 Wh. 51. Writs of Certiorari. — The power to issue "all other writs not specially provided for by statute which may be necessary for the ex- ercise of their respective jurisdic- tions, and agreeable to the usages and principles of law," embraces the power to issue the writ of certiorari ; Ex parte Van Orden, 5 Blatch. 303 ; Russell V. Thomas, 31 Leg. Int. 189. The writ of certiorari can only be issued as auxiliary to the exercise of judicial authority over the case or subject-matter to which it is applica- ble: Ex parte Van Arnam, 3 Blatch. 166. But a circuit court cannot issue the writ to remove a cause from the district court before a final judgment is there pronounced: Patterson v. United States, 2 Wh. 221. It may be used in the Supreme Court only as an ancillary process to enable that court to obtain further information in respect to some matter already before it for adjudication: United States v. Young, 94 U. S. 258; s. c, 12 Ct. CI. 129. But it cannot be used to bring up a record of the proceedings that have taken place in the inferior court since an appeal: United States v. Adams, 9 Wall. 661. The Supreme Court cannot issue the writ to revise the proceedings of a military commission: Ex parte Vallandigham, i Wall. 243 ; or to re- move a cause in an inferior court because it has no jurisdiction over it: Fowler v. Lindsey, 3 Dall. 411 ; or to compel the inferior court to make a finding of facts which has been omit- ted : United States v. Adams, 9 Wall. 661 ; or to compel the clerk of an in- ferior court to append to the trans- script his certificate that the transcript contains the whole record: Hodges V. Vaugh, 19 Wall. 12; or to correct any omissions that may have been made in the circuit court in framing a bill of exceptions : Stimpson v. Westchester R. Co., 3 How. 553; or to bring up the proceedings in the Court of Claims, after a new trial has been granted therein : United States V. Young, 94 U. S. 258; Collie v. United States, 12 Ct. CI. 129. But it COMMON PROVISIONS. 657 exeat can 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.^ Temporary restraining orders. — Sec. 718. Whenever notice will issue from the Supreme Court to the Court of Claims, directing it to make return as to the existence or non-existence of some particular and material fact: United States v. Adams, 9 Wall. 661 ; United States v. Gomez, I id. 690 ; The Rio Grande, 19 id. 178 ; and it may be issued to bring up a citation which was not transmitted to the Supreme Court with a writ of error : Field v. Milton, 3 Cr. 514 ; Innerarity v. Byrne, 5 How. 295 ; or to supply an omission of a paper from a bill of exceptions and which is referred to therein: Morgan v. Curtenius, 19 id. 8 ; or to compel evidence which has been omitted from a transcript to be certi- fied: Holmes v. Trout, 7 Pet. 171. A return to a writ of certiorari is sufficient if made by the clerk and not by the judge : Stewart v. Ingle, 9 Wh. 526 ; but it should be made under his hand and the seal of the court: Fenemore v. United States, 3 Dall 360. See, in general, American Con- struction Co. V. Jacksonville T. & K. W. R. Co., 148 U. S. 372; Columbus Watch Co. V. Robbins, Ibid. 266 ; Iti re Schneider, Ibid. 162. Supersedeas. — The provision of this section also authorizes the use of the writ of supersedeas, where it is necessary to the exercise of the proper jurisdiction of the court: French v. Shoemaker, 12 Wall. 86 ; Slaughter- house Cases, 10 id. 273; Green v. Buskirk, 3 id. 448. But the Su- preme Court cannot issue a writ of supersedeas to stay proceedings on the judgment of an inferior court upon 42 the ground that a writ of error is pend- ing, unless the writ was sued out within the time prescribed by law after the entry of the j udgment : Adams v. Law, 16 How. 144; Saltmarsh z'. Tuthill, 12 id. 387; Hogan v. Ross, 11 id. 294 ; Wallen v. Williams, 7 Cr. 278. The form of the writ must depend upon the particular circumstances of the case : Goddard v. Ordway, 94 U. S. 672. Other writs. —Under the provi- sions of the statute under considera- tion writs of injunction, subpoena, subpoena ^/;c^.? tecum, attachment, as- sistance, inhibition and execution, may be issued from the Supreme Court, or district or circuit courts, where it may be necessary for the ex- ercise of their respective jurisdictions and agreeable to the principles and usages of law : Fisk v. Union Pac. R. Co., 10 Blatch. 518 ; United States v. Williams, 4 Cr. 372; In re Shephard, 3 Fed. Rep. 12; Ferrell v. Allison, 21 Wall. 289; Penhallow v. Doaue, 3 Dall. 54; Wyman v. Southard, 10 Wh. i; Bank t/. Halstead, /(5i/a?. 51. ^ The foundation of the claim must be an equitable debt or pecuniary claim, and be certain or capable of being reduced to a certainty : Graham z--. Stucken, 4 Biatch. 50; Gernon v. Boecaline, 2 Wash. 130. And it is not sufficient that the defendant is about to leave the district, but it must appear that he intends to leave the United States: Union Insurance Co. v. Kel- logg, 5 W. N. 477 ; Patterson v. Mc- Laughlin, I Cr. C. C. 352. See in gen- eral, Griswold v. Hazard, 141 U. S. 260. 658 FEDERAL PLEADING, PRACTICE AND PROCEDURE. is given of a motion for an injunction out of a circuit or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restrain- ing the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without secur- ity, in the discretion of the court or judge.^ In'junctions. — Sec. 719. Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court ; and by any judge of a circuit court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any applica- tion for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the cir- cuit judge of the circuit or the district judge of the district. And an injunction shall not be issued by a district judge, as one of the judges of the circuit court, in any case where a party has had a reasonable time to apply to the circuit court for the writ ; nor shall any injunction so issued by a district judge continue longer than to the circuit court next ensuing, unless so ordered by the circuit court.^ ^ An injunction should not be where they are all absent from the granted without a reasonable notice, district and circuit it may be allowed either by the court or a judge: New by a justice allotted to another cir- York z;. Connecticut, 4 Dall. I ; Mow- cuit: United States v. Canal Co., 4 rey v. Indianapolis & C. R. Co., 4 Dill. 600. Biss. 78. And what is a reasonable The circuit court, when held by a notice will depend upon the circum- district judge, has authority to issue stances of the case. If, however, a the writ in all respects the same as party voluntarily appears to the appli- though held by a circuit judge ; but a cation for an injunction without ob- district judge cannot in vacation allow jection, it is a waiver of proof of no- the writ when the circuit court can be tice : Marsh v. Bennett, 5 McLean applied to : Goodyear v. Folsom, 3 117; Bradley v. Reed, 12 Pitts. L. J. Fed. Rep. 509; 26 I. R. R. 251. And 65. But see Yungling v. Johnson, i if issued by him it ceases to be in Hughes 607. force at the succeeding term of the ^ A justice of the Supreme Court circuit court unless an order is then may hear an application for an in- made for its continuance : Parker v. junction in case of the absence or dis- Judges, 12 Wh. 561; Gray v. Rail- ability of the circuit and districtjudges: road, I Wool. 63. Searle v. Railroad, 2 Woods ; and In an injunction suit tlie jurisdic- COMMON PROVISIONS. 659 Injunction to stay proceedings in state courts. — Sec. 720. 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 tnay be authorized by any law relating to proceedings in bankruptcy.^ tional amount is not determined by that which the complainant might re- cover in an action at law for the acts complained of, but by the value of the right to be protected or the ex- tent of the injury to be prevented by the injunction: Nashville, C. & St. L. R. Co. V. McConnell, 82 Fed. Rep. 65. ^ See § 5106. As the bankrupt law has been repealed by the act of Jan. 7, 1878, ch. 160, 20 Stat. L. 99, I Supp. R. S. 170, it will be unnecessary to refer to the decisions bearing upon the exceptions contained in tiiis sec- tion, as that is virtually obsolete. The restraint of the federal courts in such cases is not confined to the " writ of injunction" in its technical sense, but the statute is an inhibition against staying proceedings in the state courts, either by the writ of in- junction, mandamus or prohibition, or in any other manner: Fisk v- Union Pac. R. Co., 6 Blatch. 362. The term "proceedings" in the statute covers all proceedings in the state court or by its officers under its process; hence, if a sheriff has possession of property under process issued from a state court, it cannot be displaced by a writ issued from a federal court : Watson V. Jones, 13 Wall. 679; United States V. Collins, 4 Blatch. 142; Evans v. Pack, 7 Cent. L. J. 409 ; Ruggles v Simonton, 3 Biss. 325 ; Amer. Assn. V. Hurst, 16 U. S. App. 325. See also under § 720, Baker v. Ault, 78 Fed. Rep. 394; Southern Bank & Trust Co. V. Folsom, 75 id. 929 ; Trust Co. V. Cincinnati, 73 id. 716 ; Fenwick Hall Co. v. Old Saybrook, 66 id. 389; Amer. Assn. v. Hurst, 59 id. i; Chic. Trust & Sav. Bk. V. Bentz, /did. 645 ; Reinach v. Atlantic & G. W. R. Co., 58 id^ 33 ; Garner v. Second Nat. Bk., 67 2d. 833. Nor can a circuit court enjoin pro- ceedings removed from a state to a circuit court : Fisk v. Union Pac. R. Co., 6 Blatch. 362 ; Diggs z\ Walcott, 4 Cr. 179. Nor can the Supreme Court enjoin proceedings in a subordinate state court, although it has allowed a writ of error to the judgment of the ap- pellate court: Slaughter-iiouse Cases, 10 Wall. 273. Nor can a federal court interfere with property that is in the possession of a receiver ap- pointed by a state court : Mercantile Trust Co. V. Railroad Co., 16 Blatch. 324. But if after the removal of a cause from the state court into the circuit court the plaintiff brings an action in the state court to recover on a judgment rendered in the cause before the removal, an injunction will be issued from the circuit court to re- strain such suit : French v. Hay, 22 Wall. 250; Lanning v. Osborne, 79 Fed. Rep. 657. Where the U. S. courts have con- current jurisdiction with state courts, they cannot enjoin a suit first begun in the state court ; but where such suit is first brought in the U. S. court, it may enjoin the bringing of a similar suit in the state court: Tex. & Pac. RCo. v. Kuteman, 13 U. S. App. 99; Presi- dent, etc., of Bowdoin College v. 660 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Laws of the states; rules of decision, — Sec. 721. The laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.^ Merritt, 59 Fed. Rep. 6. The prohi- bition extends to injunctions against the court's officers and parties and litigants in the court: Gaines's Admr. V. Wilder, 13 U. S. App. 180. In proceedings under Rev. .Stat. ? 4282, to limit liability of ship owner, a court of admiralty may enjoin suits against such ship owner : /« re Whitelaw, 71 Fed. Rep. 733. The United States courts have complete jurisdiction of property taken into possession by them, and no subsequent proceedings of the state courts will affect the action of the United States courts as to it : Leadville Coal Co. v. McCreery, 141 U. S. 475. See Lawrence v. Nel- son, 143 id. 215, as to jurisdiction in equity over assets of an estate in cer- tain cases notwithstanding state laws. No injunction can be issued by U. S. courts against officers of a state to restrain or control the use of property already in the possession of the state, or money in its treasury when the suit is commenced ; or to compel the state to perform its obligations; or where the state has otherwise such an interest in the object of the suit as to be a necessary party. And the same rule applies to officers of the United States: Belknap v. Schild, 161 U. S. 10. There is no jurisdiction to entertain a bill for injunction as to payment of a tax after it is paid : Singer, etc , V. Wright, 141 id. 696 ; /did. 547. 'Rules of decisions. — The state laws do not confer jurisdiction on the federal courts, but furnish rules of decisions in trials at common law ; Orleans v. Phoebus, 11 Pet. 175; United States v. Reid, 12 How. 361 ; Golden v. Prince, 3 Wash. 313 ; United States v. Dunham, 21 L. R. 591. Construction by the state COURTS. — In the construction of the statutes and laws of a state, the gen- eral principle is that the judicial de- partment of the state is the appropri- ate organ for this purpose, and that decisions of the highest court of a state construing the statutes thereof are binding upon the federal courts, although the federal courts may have previously put a different construc- tion upon them ; but this doctrine does not apply where these come in conflict with the Constitution, laws, or treaties of the United States : State V. Grand Trunk R. Co. , 3 Fed. Rep. 887 ; . Supervisors v. United States, 18 Wall. 71 ; United States v. Morrison, 4 Pet. 124; Van Rensselaer V. Kearney, 11 How. 297; Coates v. Muse, I Brock. 529 ; Richmond v. Smith, 15 Wall. 429 ; Walker c>. Com- missioners, 17 id. 648; Webster £». Cooper, 14 How. 488; Elmondorf V. Taylor, 10 Wh. 152 ; United States V. Knight, 14 Pet. 301. Where the doctrine applies. — The construction of the statute of limitations of a state, by the highest court of a state, will be followed by the federal courts: Henderson v. Griffin, 5 Pet. 151 ; Shelby v. Guy, II Wh. 361 ; Bell v. Morrison, i Pet. 351 ; Baker v. Jackson, i Paine 559; Bauserman v.. Blunt, 147 U. S. 647 ; Balkam v. Woodstock Iron Co., 154 COMMON PROVISIONS. 661 id. iT] ; Fearing v. Glenn, 73 Fed. Rep. 116. And the construction by the state courts of statutes in relation to the validity of voluntary assign- ments to creditors will be followed : Lloyd V. Fulton, 91 U. S. 479 ; South Branch Lumber Co. v. Ott, 142 id. 622 ; also in relation to fraudulent conveyances: Allen v. Massey, 17 Wall. 351 ; Brashear v. West, 7 Pet. 608 ; Sumner v. Hicks, 2 Black 532 ; also relating to executors : United States V. Morrison, 4 Pet. 124; also affecting the title to real property: Williams v. Kirkland, 13 Wall. 306 ; Nichols V. Levy, 5 id. 433 ; Van Rensselaer v. Kearney, 11 How. 297; Barber v. Pittsburg, F. W. & C. R. Co., 166 U. S. 83; also relating to the power of a corporation under a statute to issue bonds : Thomas v. Scotland, 2 Dill. 7 ; and generally in construing the charters of municipal corporations: Goodrich v. Chicago, 4 Biss. 18; Stone v. Wisconsin, 94 U. S. 181 ; and construing the constitu- tion of the state, as where the state court decides that a statute is void unless it appears on the legislative journals, as provided by the Consti- tution : South Ottawa v. Perkins, 94 U. S. 260; Taylor v. Secor, 92 id. 575 ; Kimbal v. Mobile, 3 Woods 555 ; Leavenworth v. Barnes, 94 U. S. 70; Boyd V. Alabama, Ibid. 645. So the decision of the highest state court construing a statute relat- ing to the assessment or collection of taxes is binding upon the federal courts: Paine v. Wright, 6 McLean 395 ; Woodman v. Latimer, 2 Fed. Rep. 842. So a construction given by the highest state court to the statute of frauds of the state will be followed ; and the construction by such state courts of statutes relating to the solemnization of marriages : Meister v. Moore, 96 U. S. 76 ; and as to the right of a corporation to condemn land : Secomb v. Railroad Co., 23 Wall. 108; and as to the character and extent of the jurisdic- tion of state tribunals : Williamson v. Berry, 8 How. 495 ; Jetter v. Hewitt, 22 id. 352. The section does not apply to pro- ceedings to condemn land for public purposes : Carlisle v. Cooper, 26 U. S. App. 240. Where the state decisions will NOT be followed. — The federal courts are not bound to follow the decisions of inferior state courts : Patapsco Guano Co. v. Morrison, 2 Woods 395 ; Von Brocklen v. Brook- lyn City R. Co., 5 Blatch. 379. The con- struction of the state constitution and laws by the highest state court is ac- cepted by the Supreme Court of the United States, unless they conflict with some provision of the federal con- stitution or a statute or rule of general commercial law: Louisville, etc., R. Co. V. Mississippi, 133 U. S. 587 ; Gormley v. Clark, 134 id. 338; Union Bk, V. Kansas Bk., 136 id. 223; Nor- ton 27. Shelby Co., 118 z^/. 425; Bucher V. Cheshire, etc., R. Co., 125 id. 555 ; Amy V. Watertown, 130 id. 301 ; /« re Duncan, 139 id. 449 ; Leeper v. Texas, Ibid. 462 ; Cross v. Allan, 141 id. 528; Mcllvaine v. Brush, 142 id. 155 ; Miller v. Ammon, 145 id. 421 ; Pickett V. Foster, 149 id. 505; Aber- deen Bank v. Chehalis County, 166 id. 440; Rhodes v. U. S. Nat. Bk., 24 U. S. App. 607. A mortgage held invalid by the highest court of a state must be held invalid in the federal courts: Smith, etc., Co. v. Mc- Groarty, 136 U. S. 237; see Peters v. Bain, 133 id. 670; and as to chattel mortgages, see Etheridge v. Sperry, 139 id. 266 ; as to failure to comply with tax laws by a resident of a state, see Palmer v. McMahon, 133 id. 660; as to recoveries against municipal corporations, see Detroit 6G2 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The act of June i, 1874/ provides: That when an occupant of land, having color of title, in good faith has nuide valuable improvements thereon, and is, in the proper action, found not to be the rightful owner thereof, such occupant shall be entitled in V. Osborne, 135 id. 492 ; and as to weight of state decisions on validity of municipal bonds issued on the au- thority of state laws, see Rich v. Mentz, 139 id. 632. In case of an appeal from a judg- ment of a Supreme Court of a terri- tory, which was admitted as a state after the appeal was taken, a subse- quent judgment of the highest court of the state upon the construction of a territorial law involved in the ap- peal is entitled to be followed by the Supreme Court, in preference to its construction by the Supreme Court of the territory: Stutsman Co. v. Wallace 142 U. S. 293 ; Capital Bank v. School District, No. 26, 27 U. S. App. 479. If the decision of the highest state court, construing a state constitution, differs from a previous construction, the federal courts will not follow the last decision where rights have been accjuired under former ones: Fair- field V. Gallatin, 100 U. S. 47; Doug- las V. Pike, loi id- 677 ; Roberts v. Bolles, loi id. 119; Pacific Rolling Mill Co. V. James St. Const. Co., 29 U. S. App. 698. Laws of the several states. — The language of the section, " laws of the several states " does not limit the application of the provision to laws enacted by the legislative au- thority of the state only, but it em- braces long-established local customs having the force of laws : Swift v. Tyson, 16 Pet. i. But the decisions of the state courts on questions of a general nature, and not based upon a statute of the state or long-estab- lished custom or usage, are not within the provision, and therefore not conclusive autliority: Hough v. Railway Co., 100 U. S. 213; Olcott V. Supervisors, 16 Wall. 678; Boyce V. Tabb, 18 id. 546. Thus' the deci- sions of the state courts of highest authority upon the general principles of the commercial law are not bind- ing upon the federal courts : Oats v. National Bk., 100 U. S. 239; Swift v. Tyson, 16 Pet i ; Williams v. Suffolk Ins. Co., 3 Sum. 270; 13 Pet. 415; Jewett V. Hone, i Woods 530; Aus- tiu V. Miller, 5 McLean 153; 13 How. 218; Wood V. Lutzinger, 2 Fed. Rep. 285. The federal courts have maintained the integrity of commercial paper, and as far as was possible protected the interests of parties thereto from the unjust and frequently fluctuating decisions of the state courts. Thus the Supreme Court of the United States has frequently held that if a contract when made is valid by the laws of the state at the time, as con- strued by the court of highest author- ity in the state, and a subsequent de- cision of such court would invalidate such contract, such decision is not binding upon the federal courts : Gelpcke v. Dubuque, i Wall. 175 ; Havermeyer v. Iowa County, 2 id. 204; Thompson v- Lee County, 3 id. 327 ; Mitchell v. Burlington, 4 id. 270; Chicago V. Sheldon, 9 id. 50; Lee V. Rogers, 8 id. 181 ; City v. Lamson, 9 id. 477 ; Olcott v. Super- visors, 16 id. 678 ; Ohio Trust Co. v. Debolt, 16 How. 416 ; Pine Grove v. Talcott, 19 Wall. 666; Louisville, etc., Co. V. Gaines, 12 C. L. N. 407. ^Act of June i, 1874, ch. 200, 18 Stat. L. 50. COMMON PROVISIONS. 6G3 the federal courts to all the rights and remedies, and, upon insti- tuting the proper proceedings, such relief as may be given or secured to him by the statutes of the state or territory where the land lies, although the title of the plaintiff in the action may have been granted by the United States after said improvements were so made. Proceedings in vindication of civil rights. — Sec. 722. The jurisdiction in civil and criminal matters conferred on the dis- trict and circuit courts by the provisions of this title, 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 offences 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 in- consistent with the Constitution and laws of the United 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. When suits in equity may be maintained. — Sec. 723. Suits in equity shall not b- sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law/ ^ Where THERE IS A PLAIN, SPEEDY Sum. 401; Dodge v. Woolsey, 18 AND ADEQUATE REMEDY AT LAW. — How. 331 ; Cropper V. Coburn, 2 This section merely declares a com- Curt. 465 ; Kimball v. Mobile, 3 mon principle in relation to equity Woods 555. It refers to the remedies jurisdiction. We have already con- which existed when the Judiciary Act sidered the equity jurisdiction of fed- of September 24, 1789, was passed, eral courts : a«/i?,chs. x.jxiii. But we with such changes as Congress has will here note the substance of some made : N. Brit, and Merc. Ins. Co. v, of the decisions bearing upon this sec- Lathrop, 25 U. S. App. 443. One tion. The language, "plain, ade- purpose of the section is to preserve quate and complete remedy ... at the right to trial by jury: Grether z'. law," it has been held, refers to the Wright, 75 Fed. Rep. 742. To pre- common law and not to the statutes vent the jurisdiction of the federal of the states : Gordon v. Hobart, 2 courts in equity there must be a 664 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Sec. 724. In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances w: ere they might be compelled to pro- duce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and, if a defendant fails to comply with such order, speedy, practical and efficient rem- edy at law, without the aid of a court of equity: Wright z/. Ellison, i Wall. 16 ; Grand Chute v. Winegar, 15 id. 373; Hungerford v. Sigerson, 20 How. 156 ; Boyce v. Grundy, 3 Pet. 210; Watson V. Sutherland, 5 Wall. 74; Oelrichs v. Spain, 15 id. 211; Morgan v. Beloit, 7 id. 613 ; May v. Leclare, 11 id. 217. Equity jurisdiction may be invoked although there is also a remedy at law unless the remedy at law both in respect of the final relief and the mode of obtaining it, is as efficient as the remedy which equity could con- fer under the same circumstances : Kilbourn v. Sunderland, 130 U. S. 505. And also to establish a lost deed, even though the proof of the loss might be made in an action at law: Simmons, etc., Co. v. Doran, 142 id. 417. As to allowing amend- ments where a party is mistaken as to his rights to meet the real equities of the case, see Wiggins Ferrj' Co. v. Ohio and M. R. Co., Ibid. 396. As to appointment of receivers in an equity suit, their duties respecting property in their hands, their relation to the court, etc., see Quincy, etc., R. Co. V. Humphreys, 145 id. 82 ; Texas and Pac. R. Co. v. Cox, Ibid. 593. A sale of property decreed by a court of equity should not be set aside for trifling reasons, and the courts should look closely into the reasons assigned before setting aside the sale: Pewabic Min. Co. v. Mason, 145 U. S. 349. A contract creditor without a judgment at law has no standing in a United States circuit court sitting as a court of equity upon a bill to set aside and vacate a fraud- ulent conveyance : Cates v. Allen, 149 id. 451 ; Swan Land Co. v. Frank, 148 id. 603. A railroad corporation can not, by the general principles of equity juris- prudence, or by the provisions of the code of Washington Territory, main- tain a suit for an injunction, as for a nuisance, against the keepers of sa- loons near the line of its road, at which its workmen buy intoxicating liquors and get so drunk as to be un- fit for work : Nor. Pac. R. Co. v. Whalen, 149 id. 157. If the remedy at law can only be made available by a multiplicity of actions, a bill may be filed in equity : Garrison v. Memphis Ins. Co., 19 How. 312 ; Craine v. McCoy, i Bond 422 ; Plummer v. Connecticut Mutual Ins. Co., I Holmes 267. For cases of equitable jurisdiction where not suf- ficient remedy at law under Rev. Stat. I 723, see Tyler v. Savage, 143 U. S. 79; Wehrman v. Conklin, 155 id. 314 ; Indianapolis Water Co. v. Amer. Strawboard Co., 53 Fed. Rep. 970. COMMON PROVISIONS. 665 the court may, on motion, give judgment against him by default.^ The act of June 22, 1874,^ provides : That in all suits and proceedings other than criminal arising under any of the rev- enue laws of the United States, the attorney representing the government, whenever, in his belief, any business book, invoice or paper, belonging to or under the control of the defendant or claimant, will tend to prove any allegation made by the United States, may make a written motion, particularly describing such ^Notice and motion to pro- duce.— A motion with notice to the opposite party of the time and place of hearing, and a plain designation or description of the papers or docu- ments, the production and examina- tion of which is desired, is sufficient : Jacques v. Collins, 2 Blatch 23; United States v. Three Tons. 6 Biss. 379. The notice is a mere prelimin- ary proceeding to enable the party to bring before the court the motion for the order to produce the paper or document, and at the time fixed for the making of the motion the de- fendant has a right to be heard, and he is not bound to produce them until the court shall order him so to do, and is in no default unless he neglects or refuses to obey the order : Thompson v. Selden, 20 How. 194 ; Maye v. Carberry, 2 Cr. C. C. 336 ; Has V- Steele, 3 Wash. 381 ; Macom- ber V. Clarke. 3 Cr. C. C. 347. The order will not be granted un- less it be shown that the paper or document exists and is in the posses- sion of the other party, and that it is material as evidence and pertinent to the issue: lasigi v. Brown, i Curt. 401 ; Triplett v. Bank, 3 Cr. C. C. 646 ; Jacques v. Collins, 2 Blatch. 23. The opposite party may show that the document is not in his possession and prevent the issuance of the order: Bas v. Steele, supra; United States V. 28 Packages, Gilp. 306. The notice and motion should be in writing, and the notice may be served upon the opposite party or his attorney : Geyger v. Geyger, 2 Dall. 332 ; United States v. 469 Barrels, 10 I. R. R. 205. The order can only be to produce the books, papers or documents on the trial, and the party seeking them has no right to examine them before that time: Triplett v. Bank, 3 Cr. C. C. 646 ; but it has been held that the court may grant an order for inspec- tion before the trial with leave to copy : Lucker v. Phoenix Assur. Co., 67 Fed. Rep. 18 ; Exchange Nat. Bk. V. Washita Cattle Co., 61 id. 190; nor can he require the production of a paper that would subject the oppo- site party to forfeiture; United States z/. 28 Packages, Gilp. 306; or which would incriminate him : U. S. v. Nat. Lead Co., 75 Fed. Rep. 94; Kirk- patrick v. Pope Mfg. Co., 61 id. 46. The order must be served. — The order for the production of the paper or document should be served on the party a reasonable time before the time fixed for its production : Macomber v. Clarke, 3 Cr. C. C 347. The penalty for refusal is a nonsuit, or default, as the circumstances of the case may require : lasigi v. Brown, I Curt. 401. ^ Act of June 22, 1874, ch. 391, \ 5, 18 Stat. L. 186. 66Q FEDERAL PLEADING, PRACTICE AND PROCEDURE. book, invoice or paper, and setting forth the allegation which he expects to prove ; and thereupon the court in which suit or proceeding is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice or paper in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served for- mally on the defendant or claimant by the United States mar- shal by delivering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice or paper in obedience to such notice, the allegations stated in the said motion shall be taken as confessed unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if pro- duced, the said attorney shall be permitted, under the direction of the court, to make examination (at which examination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice or paper as relate to or tend to prove the allegation aforesaid, and may offer the same in evi- dence on behalf of the United States. But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.^ Power to impose oaths and punish contempts. — Sec. 725. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority ; provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administra- tion of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or re- sistance 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.^ 1 For a full review of this statute, ^The power to punish for con- touching the production of books and tempts. — The power to punish for papers, see Boyd v. U. S., 116 U. S. contempts is incidental to all courts, 626; cited and applied in Counsel- as this is necessary to the other pow- man v. Hitchcock, 142 id. 547. ers granted to a court : United States COMMON PROVISIONS. 667 V. Hudson, 9 Cr. 32 ; Ex parte Rob- inson, 19 Wall. 506. This section de- fines the powers of the U. S. courts to punish for contempt : In re Bus- kirk, 25 U. S. App. 613. The use of abusive language in the court room is a contempt of court : United States v- Emerson, 4 Cr. C C. 188. It is also a contempt of court for a person who has been acquitted of a crime to threaten vengeance on a witness against him in the presence of the court: United States v. Carter, 3 Cr. C. C. 423 ; or for a person to commit an assault and battery in the hall of entrance to the room where the court is held: United States v. Emerson, 4 Cr. C. C. 188. So it is a contempt of court for a person who is summoned as a juror in a criminal case to express an opinion after the summons, for the purpose of disqualifying himself from serving as a juror : United States v. Devaughan, 3 Cr. C. C. 84 ; or for a juror to escape out of a jury- room through a window, against the com- mands of the bailiff: Orfutt v. Par- rott, I Cr. C. C. 154; or for a juror to disobey the order of the court, not to converse with any one about the case : In re May, i Fed. Rep. 737. Witnesses may be guilty of CONTEMPT. — A witness who refuses to be sworn according to law is guilty of contempt of court: United States V. Coolidge, 2 Gallis 364; or refuses to answer questions: United States V. Caton, I Cr. C. C 150 ; or to obey the requirements of a summons or subpoena: Voss v. Luke, i id. 331; United States v. Williams, 4 id. 372; Ex parte Pleasants, Ibid. 314. If the witness shows no disposition to treat the process of the court with contempt, but is unable by reason of sickness to comply with the process ; or is detained by the dangerdus ill- ness of a member of his family, or by age, infirmity, or by any other cause which renders his absence from home oppressive or dangerous to his health, the court will not compel his attend- ance or punish him for a contempt: Ex parte Beebes, 2 Wall. Jr. 127. In- ducing a witness by bribery to remain away is a contempt: In re Brule, 71 Fed. Rep. 943. Officers may be guilty of con- tempt. — An officer of the court may be guilty of contempt in disobeying an order to pay money received by him in his official capacity: Bagley V. Yates, 3 McLean 465 ; In re Pit- man, I Curt. 186 ; United States v. Mann, 2 Brock, i. An attorney is an officer of the court, in contemplation of law, and if he collects money for his client which he refuses to pay over to him, he is liable to an attachment for a contempt. But if he has cross- demands against his client, and has not acted dishonestly in not paying over the money, he is not guilty of contempt and not properly liable to an attachment: In re Paschal, 10 Wall. 483. Punishment of the party. — There are two classes of cases in which punishment for contempt of court can be properly administered : (i) Where the guilty party has by some past act shown contempt for the court; and (2) Where he con- tinues his contempt by refusing to comply with its orders. In the former case the court will determine the amount of the punishment from the nature and gravity of the case ; in the latter case the party refusing to obey the order of the court should be fined and imprisoned until he performs the act required of him by the order of the court, or shows that it is not in his power to do so : In re Chiles, 22 Wall. 157. The statute limits the punishment to fine and imprisonment, hence an 668 FEDERAL PLEADING, PRACTICE AND PROCEDURE. New trials. — Sec. 726. — All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have been usually granted in the courts of law.^ Power to hold to security of the peace.. — Sec. 727. The judges of the Supreme Court and of the circuit and district courts, the commissioners of the circuit courts, and the judges and other magistrates of the several states who are or may be authorized by law to make arrests for offences against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Consti- tution and laws of the United States, as may be lawfully exer- cised by any judge or justice of the peace of the respective states, in cases cognizable before them. Power to enforce awards of consuls. — Sec. "jiZ. The dis- trict and circuit courts and the commissioners of the circuit courts shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or de- cree of any consul, vice-consul or commercial agent of any for- eign nation, made or rendered by virtue of authority conferred on him as such consul, vice-consul or commercial agent to sit as judge or arbitrator in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to his charge ; application for the exer- cise of such power being first made to such court or commis- sioner by petition of such consul, vice-consul or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration or decree, and to enforce obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the authority of the United States, until such award, arbitration or decree is complied with, or the parties are otherwise discharged therefrom by the consent in writing of attorney cannot be disbarred for con- the discretion of tlie court in which tempt, although he may for miscon- made and are not reviewable in an duct: ^:r /ar/^ Robinson, 19 Wall, appellate court: Terre Haute v. 506. Struble, 109 U. S. 381. ^ These motions are addressed to COMMON PROVISIONS. G69 such consul, vice-consul or commercial agent, or his successor in office, or by the authority of the foreign government appoint- ing such consul, vice-consul or commercial agent; provided, /loia- ever, that the expenses of the said imprisonment and mainten- ance of the prisoners, and the costs of the proceedings, shall be borne by such foreign government, or by its consul, vice-consul or commercial agent requiring such imprisonment. The mar- shals of the United States shall serve all such process, and do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and commissioners. Offences punishable with death ; where tried. — Sec. 729. The trial of offences punishable with death shall be had in the county where the offence was committed, where that can be done without great inconvenience.^ ^ The staUites providing for the places where crimes and offences are to be prosecuted in the different states are as follows : In Arkansas, Act of Feb. 20, 1897, ch. 269, 29 Stat. L. 590, 2 Supp. R. S. 558. In Georgia, Act of Jan. 29, 1880, ch. 17, 21 Stat. L. 63 ; Act of Feb. 15, 1889, ch. 168, 25 Stat. L. 671, I Supp. R. S. 643. In Idaho, Act of July 25, 1892, ch. 145, 27 Stat. L. 72, 2 Supp. R. S. 28. In Indian Terriioty, Act of March I, 1895, ch. 145, 28 Stat. L. 693, 2 Supp. R. S. 392. In lozva. Act of July 20, 18S2, ch. 3T2, 22 St9t. L. 172, I Supp. R. S. 358 ; Act of Feb. 24, 1891, ch. 282, 26 Stat L. 767, I Supp. R. S 895. In Kansas, Act of May 3, 1892, ch. 59, 27 Stat. L. 24, 2 Supp. R. S. 12. In loinsiana, Act of Aug. 13, 1888, ch. 869, 25 Stat. L. 438, I Supp. R. S. 615 ; Act of Aug. 8, 1888, ch. 789, 25 Stat. L. 388, I Supp. R. S. 606. In Michigan, Act of June 19, 1878, ch. 326, 20 Stat. L. 175 ; Act of April 30, 1894, ch 66, 28 Stat. L. 67, 2 Supp. R. S. iSi. In Minnesota, Act of July 12, 1894, ch. 132, 28 Stat L. 102, 2 Supp. R. S. 195- In Mississippi, Act of July 18, 1894, ch. 144, 28 Stat. L. 114, 2 Supp. R. S. 202. In Missouri, Act of Jan. 21, 1879, ch. 20, 20 Stat. L. 263 ; Act of Jan. 28, 1897, ch. 106, 29 Stat. L. 502, 2 Supp. R. S. 544. In Montana, Act of July 20, 1892, ch. 208, 27 Stat. L. 252, 2 Supp. R. S. 40. In North Carolina, Act of Aug. 9, 1894, ch. 244, 28 Stat. L. 274, 2 Supp. R. S. 234. In North Dakota, Act of April 26, 1890, ch. 161, 26 Stat. L. 67, I Supp. R. S. 716. In Ohio, Act of June 8, 1878, ch. 169, 20 Stat. L. 102 ; Act of Feb. 4, 1880, ch. 18, 21 Stat. L. 64. In South Da/cota, Act of Nov. 3, 1893, ch. 10, 28 Scat. L. 5, 2 Supp. R. S. 151. In Tennessee, Act of June 11, 1880, ch. 203, 21 Stat. L. 176. In Texas, Act of June 14, 1880, ch. 213, 21 Stat. L. 198 ; Act of June 3, 1884, ch. 64, 23 Stat. L. 35, I Supp. R. S. 438; Act of March i, 1889, ch. 670 FEDERAL PLEADING, PRACTICE AND PROCEDURE- Offences on the high seas; where triable. — Sec. 730. The trial of all offences committed upon the high seas or elsewhere, out of the jurisdiction of anj' particular state or district, shall be in the district where the offender is found, or into which he is first brought/ Offences begun in one district and completed in another. — Sec. 731. When any offence against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined and punished in either dis- trict, in the same manner as if it had been actually and wholly committed therein.^ Suits for pecuniary penalties and forfeitures. — Sec. 732. All pecuniary penalties and forfeitures may be sued for and recovered either in the district where they accrue or in the dis- trict where the offender is found. Suits for internal revenue taxes ; where brought. — Sec. 733. Taxes accruing under any law providing internal revenue 333, I 18, 25 Stat. L. 7S3, i Supp. R. S. 674; Act of June 11, 1896, ch. 422, 29 Stat. L. 456, 2 Supp. R. S. 527 ; Act of Feb. 28, 1S97, ch. 178, 29 Stat. L. 516, 2 Supp. R. S. 547. See Cook V. U. S., 138 U. S. 157. In Utah, Act of March 2, 1897, ch. 366, 29 Stat. L. 620, 2 Supp. R. S. 576. In Washington, Act of Feb. 5, 1890, ch. 65, 26 Stat. L. 45, I Supp. R. S. 711. ' This section relates to crimes within the maritime jurisdiction of the court : United States v. Alberty, I Hemp. 444. If the offence is com- mitted upon the high seas, and the offender comes in the ship into one district, yet he may be tried in another district if lie is first apprehended there : United States v. Thompson, i Sum. 168; United States v. Corrie, 23 Law Rep. 145. But if the vessel on which the offence was committed was bound to a port in this district, and the accused is in custody in the same district, this is evidence that the offender was apprehended in that dis- trict: United States v. Mingo, 2 Curt. I ; United States v. Magill, i Wash. 463 ; 4 Dull. 425. See also United States V. Bird, i Sprague 299 ; United States V. Baker, 5 Blatch. 6; United States V. Arwo, 19 Wall. 486. ^Authorities contend that tlie in- dictment at common law should state that the deceased died in the county in which the indictment is found, though tlie better opinion is that it is not necessary : Am. Cr. Law (Whar- ton), 4th and revised edition, I 1052 et seq. The question of jurisdiction was raised in the famous Guiteau trial under the count in the indict- ment alleging stroke in District of Columbia and death in New Jersey, and it was held that the court had jurisdiction : See Assassination of Gar- field, by Alexander & Easton, p. 1794 et seq., 1835 ei seq., and 2569 et seq. COMMON PROVISIONS. C71 may be sued for and recovered either in the district where the hability for such tax occurs or in the district where the delin- quent resides. Seizures; where cognizable. — Sec. y;^4. Proceedings on seizures for forfeiture under any law of the United States made on the high seas may be prosecuted in any district into which the property so seized is brought and proceedings instituted. Proceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided. Captures of insurrectionary property. — Sec. 735, as amended by the act of February 18, 1875.^ Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district^ or within any district, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting or promoting any insurrection against the government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted Proceedings to enjoin Comptroller of the Currency. — Sec. 736. All proceeedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located. When a part of several defendants cannot be served. — Sec. 737. When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain juris- diction and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judg- ment or decree rendered therein shall not conclude or preju- dice other parties not regularly served with process nor volun- tarily appearing to answer; and non-joinder of parties who are not inhabitants of nor found within the district, as afore- 1 Act of Feb. 18, 1S75, ch. So, 18 Stat. L. 318. 672 FKDERAI. PLEADING, PRACTICE AND PROCEDURE. said, shall not constitute matter of abatement or objection to the suit/ Suits in equity against absent defendants — Sec. 738, as * This section excludes state legis- lation inconsistent with it: Allnut z'. Lancaster, 76 Fed. Rep. 131. Under the provisions of this section anj' of the parties to a joint contract may be sued vvitliout joining the others who are citizens of another state : Clear- water V. Meridith, 21 How. 489 ; Doremus v. Bennet, 4 McLean 224 ; Noyes v. Barnard, 15 U. S. App. 527; and if there are several executors an action may be maintained against one although the others may not be found in the district: United States V. Backus, 6 McLean 443 ; and if a creditor has instituted a suit against partners, some of whom are non-resi- dents of the district, he may discon- tinue the suit as to the non-residents and continue it as to the others : In- busch V. Farwell, i Black 566; and the voluntary appearance of a de- fendant in such a case, over whom the court has no jurisdiction, would not defeat it: Taylor v. Cook, 2 Mc- Lean 516. Parties to a bill. — There are three classes of parties to a bill : i. The formal parties. 2. Persons hav- ing an interest in the controversy and who ought generally to be made par- ties in order that the court may act on that rule which requires it to de- cide on and finally determine the entire controversy, and do complete justice by adjusting all the rights in- volved in it. If, however, their inter- ests are separable from those of other parties before the court, so that the court can proceed to a decree and do complete and final justice without affecting the interests of those not before the court, the latter are not indispensable. 3. Persons who have not only an interest in the contro- versy, but an interest of such a na- ture that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final deter- mination may be wholly inconsistent with equity and good conscience: Shields v. Barrow, 17 How. 130. In the latter case the court cannot, under the provisions of this section, proceed to a decree in the absence of parlies whose rights must necessarily be affected by it: Mallow v. Hinde, 12 Wh. 193; Northern Ind. R. Co. v. Michigan Cent. R. Co., 15 How. 233 ; Ribon V. Railroad Co., 16 Wall. 446 ; Williams v. Bankhead, 19 id. 563. Who are necessary parties. — If a person claims an interest in the fund in controversy, and is in posses- sion of the property given to secure the payment thereof, he is a necessary party and must be before the court in the adjudication of the matter : Wil- liams zf. Bankhead, 19 Wall. 563 ; and if the bill seeks to hold a surety liable, the principal is also a neces- sary party: Robertson v. Carson, 19 Wall. 94. If the bill is to set aside a sale made between parties, the ven- dor is a necessary party: Coiron v. Millaudon, 19 How. 113 ; and if part- ners bring an action for a debt due the firm, all the partners are neces- sary parties: Parsons v. Howard, 2 Woods I. So if a bill is filed by a stockholder to obtain his rights, where his stock has been fraudulently trans- ferred on the books of the corpora- tion, the corporation is a necessary party to the suit: Kendig v. Dean, 97 U. S. 433. And a corporation is an indispensable party to a bill filed by COMMON PROVISIONS. 673 amended by the act of March 3, 1875.* That when in any suit com- menced in any circuit court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incum- brance or lien or cloud upon the title, to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be;^ or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion and upon proof of the ser- vice or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudi- cation of such suit in the same manner as if such absent defend- ant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or de- fendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district. And when a part of the said real or personal property against which such proceeding shall be taken shall be within another district, but within the same state, said suit may be brought in either district in said state j provided, however, that any defendant or defendants not actually a receiver to have its assets applied Salt Co. v. Brigel, Ibid. 665. to the payment of a debt : Brigham ^ If it appears in the bill itself that V. Luddington, 12 Blatch. 237. the defendants are absent or non- 1 Act of March 3, 1875, ch. 137, \ 8, resident, an order under this section 18 Stat. L 472. See Amer. Freehold may be issued without issuing a sub- Land Mort. Co. V. Thomas, 30 U. S. poena or fixing a time for appearance : App. 690; Compton v. Wabash R. U. S. v. American Lumber Co., 80 Co., 31 id. 4S6; Tug River Coal & Fed. Rep 309. 43 674 FEDERAL PLEADING, PRACTICE AND PROCEDURE. personally notified as above provided, may, at any time within one year after final judgment in any suit mentioned in this sec- tion, enter his appearance in said suit in said circuit court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law.* Suit brought where defendants reside or are found. — vS"^^. 739. Except in the cases provided in the next three sections, no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court; and except in the said cases and the cases provided by the preceding section, no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process, in any other district than that of which he is an inhabitant or in which he is found at the time of serving the writ.^ ^ The proper practice under this whether a personal service is prac- provision was pointed out by Judge ticable or not may be shown by the Dillon, in Bronsont/. Keokuk, 2 Dill, complainant or his attorney or agent 498. The bill in such case should most conversant with the facts. If it aver the citizenship and residence of appears that the defendant resides in the respective defendants, and sub- another district, service may be di- poenas should be issued against all of reeled to be made by the marshal of them If the marshal return some of that district, and perhaps the court them not found, and they do not ap- may make a special order directing pear, the court, on the showing of or authorizing service by some other these and other necessary facts, officer. should make an order for them to A claim of a given number of appear and plead by a certain day, shares of stock in a corporation, but and direct the mode of serving the which are not designated, is not same. Personal service must be property within the meaning of this made in all cases where the residence section, but a mere chose in action, of the absent defendant is known or A debtor may be made a party by can be ascertained, and resort can be an order of publication, if the bill is had to constructive notice by publica- by a creditor to reach assets of a tion only where the better mode is debtor and have them applied to the not possible or not practicable within payment of his debt. But if tliey are a reasonable time and by the exercise citizens of the same state an order of reasonable diligence. The order will not be granted : Bingham v. directing an absent defendant to ap- Luddington, 12 Blatch. 237. pear cannot be made until the return '^See act of March 3, 1875, ch. 137, day of the writ, for he has until ? i, 18 Stat. L. 470. For the statutes that day to appear voluntarily ; and providing for the places where suits COMMON PROVISIONS. 675 Suits not of a local nature. — Sec. 740. When a state con- tains more than one district, every suit not of a local nature, in the circuit or district courts thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides; but if there are two or more defendants, residing in dif- ferent districts of the state, it may be brought in either district, and a duplicate writ may be issued against the defendants, di- rected to the marshal of any other district in which any defend- ant resides. The clerk issuing the duplicate writ shall endorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit ; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same state.^ Suits of a local nature in states containing several dis- tricts. — Sec. 741. In suits of a local nature, where the defend- ant resides in a different district, in the same state, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides. When land lies in different districts. — Sec. 742. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same state, may be brought in the circuit or district court of either district ; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the dis- trict for which such court is constituted. Where actions may be commenced in Indiana. — Sec. 743, In the district of Indiana all actions of which the circuit and dis- trict courts have jurisdiction may be instituted in said courts, respectively, held at New Albany and Evansville, in the first are to be brought in the diflferent prosecuted are set forth, states, see anie, note to Rev. Stat. ^ This section has not been repealed 729, where the statutes prescribing by the acts of 1875 and 1877-8: God- where crimes and ofTences are to be dard v. Mailler, 80 Fed. Rep. 422. 676 FEDERAL PLEADING, PRACTICE AND PROCEDURE. instance, by filing the proper pleadings or other papers in the offices of the deputy clerks performing the duties of clerks of said courts respectively ; and all proper and lawful process shall issue therefrom in the same manner as from other circuit and district courts in like cases. Where suits may be brought in Iowa. — Sec. 744. In the dis- trict of Iowa all suits not of a local nature in the district court 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, and duplicate writs may be sent to the other defendants. The clerk issuing the duplicate writ shall endorse thereon that it is a true copy of a writ sued out of the court in the proper division of the district ; and the original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded in as one suit. All issues of fact in such suits shall be tried at a term of the court held in the division where the suit is so brought. Where suits may be brought in Kentucky. — Sec. 745. In the district of Kentucky the clerks of the circuit and district courts, respectively, upon issuing original process in a civil ac- tion, 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 ac- crued, send the papers filed to the clerk of the court to which the process is made returnable; and whenever the process is not thus made returnable, any defendant may, upon motion, on or before the calling of the cause, have it transferred to the court to which it should have been sent had the clerk known the residence of the defendant when the action was brought. Causes in progress of trial, new term. — Sec. 'J46. 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 conclusion, COMMON PROVISIONS. 677 in the same manner and with the same effect as if another stated term of the court had not intervened. Parties may manage their causes personally. — Sec. 747. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein.^ Officers forbidden to practice as attorneys. — Sec. 748. No clerk, assistant 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.^ Penalty for violating the preceding section. — Sec. 749. Whosoever violates the preceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice, and be heard in his de- fence ; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office. Final record in equity and admiralty. — Sec. 750. In equity and admiralty causes, only the process, pleadings and decree, and such orders and memorandums as maybe necessary to show the jurisdiction of the court and regularity of the proceedings, shall be entered upon the final record.^ ^ Under the act of Feb. 15, 1879, ch. ' See ? 698. So far as this section 81, I Supp. R. S. 217, women may be requires the proof to be reduced to admitted to practice in the Supreme writing, where the facts are to be re- Court, viewed on appeal, it is appHcable to ^ No clerk, assistant or deputy of the circuit courts of appeals : The district or circuit courts shall be ap- Philadelphian, 21 U. S. App. 90. As pointed receiver or master, unless to duty of clerk in making up the special reasons exist therefor: Act record, see Nashua & Lowell R. Corp. of March 3, 1879, ch. 183, par. 2, i v. Boston & Lowell R. Corp., Ibid. Supp. R. S. 254. 50. 678 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XXV. PROVISIONS OF THE STATUTES RELATING TO JURIES. Jurors, Qualification, Selection, and the Constitution of Juries. § 531. The Revised Statutes, with the amendments thereof, provide for the qualification and selection of grand and petit jurors, and the constitution of juries, as follows : Jurors, qualifications and mode of selection. — Sec. 800. Jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same ex- emptions, as jurors of the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned ; and they shall be designated by ballot, lot or otherwise, according to the mode of forming such juries then practiced in such state court, so far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and em- panelling of juries, in substance, to the laws and usages relat- ing to jurors in the state courts, from time to time in force in such state.^ The act of March i, 1875, provides • That no citizen possess- ing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any state, on account of race, color or previous condition of servitude ; and any officer or other person charged with any duty in the selection or summon- ing of jurors who shall exclude or fail to summon any citizen for ^ See I 1671. JURIES. 679 the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thou- sand dollars.^ ^The act of March i, 1875, ch. 114, § 4, 18 Stat. L. 336, provides that no citizen possessing other quaUfications shall be disqualified as a juror in the federal or state courts on account of race, color or previous condition of servitude. The act of June 20, 1879, ch. 52, § 2, 21 Stat. L. 43, amends this section by providing how jurors shall be drawn, and that persons shall not be disqualified on account of race, color or previous condition of servitude. The provisions of this last act are not merely directory, but mandatory ; United States v. Ambrose, 5 C. L. B. 360 ; 3 Fed. Rep. 283. Qualification of jurors.— The word "qualification" in this section refers to general qualifications, such as age or citizenship, or anything else relating to his personal standing, but not to such matters as would render a juror unfit from acting in some par- ticular case: United States v. Collins, 1 Woods 499; United States v. Wil- liams, I Dill. 485. The federal courts have no discre- tion in reference to jurors, as the law requires that they shall have like qualifications and be entitled to like exemptions as jurors in the highest courts of law of the state, under the laws of the state: United States v. Wilson, 6 McLean 604 ; United Slates V. Gardiner, 5 C. L. N. 501. The state laws relating to chal- lenges to jurors are in force under this provision ; United States v. Reed, 2 Blatch. 435 ; United States v. Tus- ka, 14 id. 5. But if an act of Congress expressly provides for peremptory challenges in particular cases, no state law can affect this right: United States V. Shackelford, 18 How. 288. Nor does this section affect the right to a peremptory challenge, as it is not based upon the qualification of the juror, or upon the right to ex- emption : United States v. Douglass, 2 Blatch. 207; United States t/. Dev- lin, 6 id. 71. Nor does the section refer to the number of which the panel shall consist: United States V. Insurgents, 2 Dall. 335 ; United States V. Collins, i Woods 499. And the jurors should be selected from the district at large : United States v. Woodruff, 4 McLean 105. The right to peremptory challenges is now regulated by statute. See Rev. Stat. \ %\(^, post. Mode of drawing jurors. — The mode of obtaining a jury is now pro- vided for by the act of June 20, 1879. Under the former provisions of the statute relating thereto it was held that a literal conformity to the mode of selecting and drawing jur- ors prescribed by the laws of a state is not required, unless it is adopted by a rule of the federal court, and substantial conformity only is necessary: United States v. Tallman, 10 Blatch. 21; Alston v. Manning, i Chase 460. In these matters tlie federal courts may exercise a discretion as to the best mode of securing the main object of the law, which is to secure jurors properly qualified, and selected and empanelled substantially according to the mode required to be pursued by the laws of the state : United States v. Collins, I Woods 499 ; United States V. Wilson, 6 McLean 604; United States V. Gardner, 5 C. L. N. 501 ; United States z/. Tallman, 10 Blatch. 21- nSO FEDERAL PLEADING, PRACTICE AND PROCEDURE. The act of June 30, 1879/ provides: That the per diem pay of each juror, grand or petit, in any court of the United States shall be two dollars; and that the last clause of section 800 of the Revised Statutes of the United States, which refers to the state of Pennsylvania, and sections 801, 820 and 821 of the Revised Statutes of the United States are hereby repealed ; and that all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box con- taining, at the time of each drawing, the names of not less than three hundred persons possessing the qualifications prescribed in section 800 of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commis- sioner to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the prin- cipal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein. But nothing herein contained shall be construed to prevent any judge from ordering the names of jurors to be drawn from the boxes used by the state authorities in selecting jurors in the highest courts of the state ; and no per- son shall serve as a petit juror more than one term in any one year, and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith ; provided, that no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in The jurors need not be taken from States v. Collins, i Woods 499. But the lists made by the state authori- this act has no application to the ties. Conformity with the state laws selecting of jurors for the territorial is required in two respects only: i. courts, as they are not courts of the In reference to the qualification and United States within the meaning of exemption of jurors. 2. In reference this section: Clinton z/. Englebrecht, to the mode of designating and em- 13 Wall. 434. See also American panelling jurors, as by ballot, lot or Ins. Co. v. Canton, i Pet. 546 ; Ben- otherwise ; which mode must con- ner v. Porter, 9 How. 235. form to that in substance pursued by ^ Act of June 30, 1879, ch. 52, \ 2, the state courts : United States v. 21 Stat. L. 43. Gardner, 5 C. L. N. 501 ; United JURIES. 681 any court of the United States on account of race, color or pre- vious condition of servitude. By the act of August 8, 1888/ section 2 of the act of June 30, 1879, is amended so that whenever any circuit or district court of the United States shall be held at the same time and place they shall be authorized and required, if the business of the courts will permit, to use interchangeably the juries in either court drawn according to the provisions of said act. Sec. 801. Repealed. Jurors, how apportioned in districts. — Sec. 802. Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impar- tial trial, and so as not to incur an unnecessary expense or unduly to burden the citizens of any part of the district with such services. Venire; how issued and served. — Sec. 803. Writs of t-^wV^ facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. Talesmen for petit juries. — Sec. 804. When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel ; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may ap- point, and such person shall be sworn, as provided in the pre- ceding section. Special juries in circuit courts. — Sec. 805. When special juries are ordered in any circuit court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several states. Juries in particular districts. — Sections 806, 807, 814, 815, 816, 817 and 818 relate to juries in particular districts.^ ^ Act of August 8, 188S, ch. 785, 25 '^ The acts relating to jurors in par- Stat. L. 386, I Supp. R. S. 605. ticular districts are as follows : 682 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Number of grand jurors; completing the jury. — Sec. 808. Every grand jury empanelled before any district or circuit court shall consist of not less than sixteen nor more than twenty- three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the by- standers, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to com- plete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that pur- pose.^ Appointment and powers of the foreman of grand jury. — Sec. 809. From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power In Arkansas, Rev. Stat. ^ 814. In Colorado, Act of April 20, 1880, ch. 58, 21 Stat. L. 76. In District of Columbia, Act of March 3, 1893, ch. 208, par. 20, 27 Stat. L. 572, 2 Supp R. S. 124. In Georgia, Act of Jan. 29, 1880, ch. 17, 21 Stat. L. 63. In Kentucky and Indiana, Rev. Stat. I 815. In Indian Territory, Act of March I, 1889, ch. 333, 25 Stat. L. 783, I Supp. R. S. 672; Act of March i, 1895, ch. 145, 28 Stat. L. 693, 2 Supp. R. S. 396. In Michigan, Act of June 19, 1878, ch. 326, 20 Stat. L. 175, I Supp. R. S. 199 ; Act of April 30, 1894, ch. 66, 28 Stat. L. 67, 2 Supp. R. S. 182. In Mississippi, Act of July 18, 1894, ch. 144, 28 Stat. L. 114, 2 Supp. R. S. 203. In New York, Rev. Stat. ? 806 ; Act of March 23, 1882, 22 Stat. L. 32, i Supp. R. S. 334. In North Carolina, Rev. Stat. I 816. In Ohio, Act of June 8, 1878, ch. 169, 20 Stat. L. 102; Act of Feb. 4, 1880, ch. 18, 21 Stat. L. 64. In Oklahoma, Act of May 2, 1S90, ch. 182, 26 Stat. L. 81, I Supp. R. S. 732. In South Carolina, Rev. Stat. ? 817. In South Dakota, Act of Nov. 3, 1893, ch. 10, 28 Stat. L. 5, 2 Supp. R. S. 152. In Tennessee, Act of June 11, 1880, ch. 203. 21 Stat. L. 176. In Utah, Act of June 23, 1874, ch. 469, 18 Stat. L. 253, I Supp. R. S. 49 ; Act of March 22, 18S2, ch. 47, 22 Stat. L. 30, I Supp. R. S. 332 ; Act of July 16, 1894, ch. 138, 28 Stat. L. 107, 2 Supp. R. S. 200. In Vermont, Rev. Stat. ?§ 807, 818. ^ Notwithstanding the provision of this section, the federal courts have power to determine what number of persons shall be summoned in order that a grand jury may be selected or constituted therefrom : United States V. Tuska, 14 Blatch. 5. This section applies only to the district and circuit courts, and does not embrace territorial courts: Rey- nolds V. United States, 98 U. S. 145. JURIES. 683 to administer oaths and affirmations to witnesses appearing before the grand jury. Grand juries; when summoned. — Sir. 8io. No grand jury shall be summoned to attend any circuit or district court unless one of the judges of such circuit court, or the judge of such dis- trict, in his own discretion, or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. But nothing herein shall operate to extend beyond the time permitted by law the imprisonment before indictment found of a person accused of a crime or offence, or the time during which a person so accused may be held under recognizance before indictment found.^ Discharge of grand juries. — Sec. Six. The circuit and dis- trict courts, the district courts of the territories, and the Supreme Court of the District of Columbia, may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. Jurors not to be summoned oftener than once in two years. — Sec. 812. No person shall be summoned as a juror in any circuit or district court more than once in two years, and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within two years prior to the time of such challenge.^ Grand jurors may act in cases cognizable in circuit courts. — Sec. 813. The grand jury empanelled and sworn in 1 It is not necessary that the order but an omission of such order is a contemplated in this section should mere technical omission, and cannot be put on file by the judge himself, constitute the basis of an application, but it may be entered by the clerk addressed only to the discretion of with the same effect, as in contem- the court: United States v- Reed, 2 plation of law what is done by the Blatch. 435. clerk under the authority of the ^ A juror is not subject to chal- judge is done by the judge himself. lenge by reason of having served in It is the duty of the clerk to issue a another case in the same court at the venire, under the provisions of this same term: Walker v. Collins, 50 section, upon the order of the judge. Fed. Rep. 737. 684 FEDERAL PLEADING, PRACTICE AND PROCEDURE. any district court may take cognizance of all crimes and offences within the jurisdiction of the circuit court for said district as well as of said district court. Sees. 814-818. [See section 806 su/>ra.'] Challenges.— 5^^. 819. When the offence charged is treason or a capital offence, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony the defendant shall be entitled to ten and the United States to three peremptory challenges ; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges ; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel or to individual jurors for cause or favor, shall be tried by the court without the aid of triers.^ Grand and petit jurors in certain cases. — Sec. 822.^ No person shall be a grand or petit juror in any court of the United States upon any inquiry, hearing or trial of any suit, proceeding or prosecution based upon or arising under the provisions of title "Civil Rights" and of title "Crimes," for enforcing the pro- 1 See U 1031. 4303- The words its common law name, and at com- "any other felony" in this section mon law it is a felony, designate other offences than those 3- Where Congress adopts a state that are capital, for they are other- law providing what is an ofifence, and ■wise specially provided for by the under such law it is a felony: United provisions of this section: United States v. Coppersmith, 22 A. L. J. States V. Coppersmith, 22 A. L. J. 250; 4 Fed. Rep. 198. 250 ; 4 Fed. Rep. 198. If a criminal One indicted for robbing a mail case is removed from a state court, carrier is entitled to ten peremptory the number of peremptory challenges challenges: Harrison v. U. S., 163 is regulated by this section and not U. S. 140. bythe state law: Georgia z/.O'Grady, The right to three peremptory 3 Woods 496. In cases other than challenges is not impaired by consol- capital ones this section gives the idatioh under Rev. Stat. ^ 921 : Mat. defendant ten challenges in the fol- Life Ins. Co. v. Hillmon, 145 U. S. lowing cases : 285. 1. Where the offence is declared * Sections 820 and 821 were re- by statute expressly or impliedly to pealed by the act of June 20, 1879, ch. be a felony. 52, ? 2, 21 Stat L. 43 ; and the act of 2. Where Congress does not define May 13, 1884, ch. 46, i Supp. R. S. an offence, but simply punishes it by 428. JURIES. 685 visions of the fourteenth amendment to the Constitution, who is, in the judgment of the court, in complicity with any combination or conspiracy in said titles set forth ; and every grand and petit juror shall, before entering upon any such inquiry, hearing or trial, take and subscribe an oath, in open court, that he has never directly or indirectly counselled, advised or voluntarily aided any such combination or conspiracy.^ ^ The act of August 8, 1888, ch. trict courts to be used interchange- 785, 25 Stat. L. 386, I Supp. R. S. ably. 605, allows juries of circuit and dis- 686 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER XXVI. PROVISIONS OF THE REVISED STATUTES RELATING TO EVI- DENCE. Witnesses, Depositions, Subpoenas, Certificates, Authen- tications and Other Matters Relating to Evidence. § 532. The Revised Statutes, as amended, provide in reference to evidence as follows : No WITNESS CAN BE EXCLUDED ON ACCOUNT OF COLOR. Scc. 858. In the courts of the United States no witness shall be ex- cluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried ; ^ provided, that in actions by or against executors, administrators or guar- dians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and ad- miralty.^ ^Parties and persons interested may star, 71 id. 226. This section ap- be witnesses in the Court of Claims : pHes as well to cases in which the Act of March 3, 1883, ch. 116, ^ 6, i United States is a party as to those Supp. R. S. 403 ; Act of March 3, between private persons : Green v. 1887, ch. 359, f 8, I Ibid. 561. United States, 9 Wall. 655 ; and as ^ See Steiner v. Eppinger, 61 Fed. well to a party who testifies on his Rep, 253 : Mut. Ben. Life Ins. Co. v. own behalf as to cases where one Robison, 58 id. 723. State laws can- party calls another to testify : Texas not restrict this section, which con- v. Chiles, 21 id. 488; Railroad Co. tains the law as to interested parties v. Pollard, 22 id. 341. See | 1977. as witnesses : De Beaumont v. Web- But the statute does not apply to EVIDENCE. 687 The act of March i6, 1878/ provides that in the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of crimes, offences and misdemeanors, in the United States courts, territorial courts and courts-martial, and courts of inquiry, in any state or terri- tory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent wit- ness. And his failure to make such request shall not create any presumption against him.^ territorial courts, as they are not courts of the United States : Good v. Martin, 95 U. S. 90. The section in- cludes not only witnesses orally, but by deposition, who may give evi- dence without regard to interest or color : Cornet v. Williams, 20 Wall. 226. A husband is a competent witness for a wife, and in an action by a hus- band and wife to recover damages for an injury to her, she is a compe- tent witness if she is made so under the laws of the state : Green v. Tay- lor, 3 Hughes 400; Packet Co. v. Clough, 20 Wall. 528; In re Camp- bell, 3 Hughes 276. At common law the reason for ex- cluding a wife from testifying in favor of her husband did not rest upon the ground that she had an interest in the controversy, but upon grounds of public policy, and under this provi- sion she cannot testify where she is a party to the suit, unless authorized to do so by the laws of the state : Ibid. ; Lucas v. Brooks, 18 Wall. 436. A widow may not testify to a conversation between herself and her husband, when she is neither a party to nor interested in the suit: Hop- kins V. Grimshaw, 165 U. S. 342. A husband, executor of his deceased wife, may testify to incidents occur- ring with third parties: Hiuchman v. Pariin, 74 Fed. Rep. 698. If a party dies after his evidence has been taken, the adverse party may be examined if the administra- tor of the deceased party insists upon using the depositions before the jury : Mumm V. Owens, 2 Dill. 475. See also The Pollard, 2 M. L. 16. The section does not apply to crim- inal trials which are not within the words "at common law : " Logan v. U. S., 144 U. S. 263; U. S. V. Hale, 53 Fed. Rep. 352. A state law for- bidding conviction on uncorrobo- rated evidence of an accomplice should be followed by a federal court : U. S. V. Van Leuven, 65 Fed. Rep. 78. A party cannot testify as to trans- actions with intestate ; this section governs rather than state laws : Mor- ris V. Morton, 75 Fed. Rep. 912. But he may testify to matters within his own knowledge, relating to such transactions, which the testator could not have known or testified to had he been alive : Steiner's Exrs. v. Ep- pinger, 23 U. S. App. 344. ' Act of March 16, 1878, ch. 37, 20 Stat. L. 30. ^ Comments upon the failure of the defendant to testify must be excluded from the jury : Wilson v. U. S., 149 U. S. 61 ; see also Hicks v. U. S., 150 id. 442 ; Reagan v. U. S., 157 id. 301 ; Johnson v. U. S. , Ibid. 320; Allison V. U. S., 160 id. 203. 688 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Testimony of witnesses before Congress; when not admis- sible AGAINST them. — Scc. 859. No testimony given by a wit- ness before either house or before any committee of either house of Congress shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege. When pleadings and disclosures of evidence cannot be USED against a PARTY. — Sec. 860. No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or {orkiture ; provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury com- mitted in discovering or testifying as aforesaid.^ ^ Notwithstanding the provisions of this section, the books and papers of a party which have been taken from him may be given in evidence against him in a criminal prosecution for the enforcement of a penalty or forfeit- ure: United States v. Hughes, 12 Blatch. 553; 8 Ben. 29; Barnes v. United States, 21 L R. R. 212 ; United States V. Myers, i Hughes 533. But a defendant in an action for a pen- alty cannot be required to produce books and papers that will subject him to a penalty : Johnson v. Donald- son, 3 Fed. Rep. 22. See also United States V. Three Tons of Coal, 6 Biss. 379- An affidavit setting forth that cer- tain testimony is material to the de- fence, that defendant is without means to pay witnesses, and praying that they be summoned and paid by United States is not a " pleading of a party" nor "discovery or evidence obtained from a party or witness by means," etc., which cannot be given in evidence against him in a criminal proceeding under section 860 : Tucker V. U. S., 151. U. S. 164. See also Snow V. Mast, 63 Fed. Rep. 623. By the act of February 11, 1893, ch. 83, 27 Stat. L. 443, 2 Supp. R. S. 80, no person is excused from tesdfying or producing books, etc., before the Interstate Commerce Com- mission on the ground that such testi- mony would criminate him. He is not to be prosecuted on account of the transactions testified to, but is liable to prosecution and punishment for perjury, as well as for refusal to testify. But the constitutional pro- vision that "no person . . . shall be compelled in any criminal case to be a witness against himself," applies to proceedings before a grand jury, and a defendant is not obliged to answer questions when he states that his answers might criminate him ; Coun- selman v. Hitchcock, 142 U. S. 547 ; and see Exp. Irvine, 74 Fed. Rep. 954. EVIDENCE. 689 Mode of proof in common-law actions. — Sec. 86 1. The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided.' Mode of proof in equity and admiralty. — Sec. 862. The mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules now or hereafter pre- scribed by the Supreme Court, except as herein specially pro- vided. Depositions de bene esse. — Sec. 863. The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hun- dred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public not being of counsel or attorney to either of the parties, nor interested in the event of the cause.^ Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition ;^ ^ 111 an action for personal injury testimony to be used in the courts of the court cannot compel the plaintiff the United States, take acknovvledg- to undergo a surgical examination ments and affidavits, in the same before the trial : Union Pac. R. Co. manner and with the same effect as V. Botsford, 141. U. S. 250. commissioners of the United States * By the act of August 15, 1876, ch. circuit court may now lawfully take 304, 19 Stat. L. 206, I Supp. R. S. or do." 123, "Notaries public of the several ^ Where a party attends and cross- states, territories, and the District of examinesa witness, he thereby waives Columbia be, and they are hereby, irregularities in the notice : Mut. Ben. authorized to take depositions, and Life Ins. Co. v. Robison, 19 U. S. do all other acts in relation to taking App. 266. 44 690 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and in all cases in rcm^ the person having the agency or posses- sion of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and when- ever, by reason of the absence from the district and want of an attorney of record, or other reason, the giving of the notice here- in required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court.^ ^ Np:cessary conditions for tak- ing AND READING. — A deposition de bene esse can only be taken where the following conditions exist : 1. When the witness lives more than one hundred miles from the place of trial ; 2. Or is bound on a voyage to sea ; 3. Or is about to go out of the United States ; 4. Or is about to go out of the dis- trict to a greater distance than one hundred miles from the place of trial and before the time of trial ; 5. Or is ancient and infirm. And such a deposition can only be used upon the trial where it is shown — 1. That the witness is dead ; 2. Or gone out of the United States ; 3. Or to a greater distance than one hundred miles from the place of trial ; 4. Or that by reason of age, sick- ness or bodily infirmity, he is unable to appear at court. Harris v. Wall, 7 How. 693 ; The Patapsco Ins. Co. v. Southgate, 5 Pet. 604 ; Wood V. Kellogg, 6 McLean 44 ; Bannert v. Day, 3 Wash. 243 ; Stein V. Bowman, 13 Pet. 209. The authority to take depositions de bene esse is in derogation of the rules of the common law, and the statute on this subject is therefore strictly construed, so that depositions which have not been taken in strict accordance with the statute are in- admissible. And if depositions are taken in accordance with the preva- lent practice of the state courts, which do not agree with the positive provi- sions of this statute and the rules of the federal courts, they are not ad- missible : Evans v. Eaton, 7 Wh. 356 ; Evans v. Hettick, 3 Wash. C. C. 408; Bell V. Morrison, i Pet. 351; Harris v. Wall, 7 How. 693; Allen V. Blunt, 2 W. & M. 121 ; Carrington V. Stimpson, i Curt. 437. A defendant may examine a plaintiff de bene esse, before issue joined where the plaintiff resides out of the district and more than one hundred miles from the place of trial: Ex parte Fisk, 113 U. S. 713; Lowrey v. Kus- worm, 66 Fed. Rep. 539. The failure to take depositions de bene esse, does not destroy the party's right to recover mileage for witnesses who have traveled more than one hundred miles : Hunter v. Russell, 59 Fed. Rep. 964, disapproving of Smith V. Railroad Co., 38 id. 321. Depositions may be taken in term EVIDENCE. 691 Mode of taking depositions de bene esse, — Sec. 864. Every person deposing as provided in the preceding section shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magis- trate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent.^ Transmission to the court of depositions de bene esse. — Sec. 865. Every deposition taken under the two preceding sec- tions shall be retained by the magistrate taking it, until he de- livers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause.^ time, even where the cause might 1891, ch. 12S, 26 Stat. L. 743, i Supp. have been tried at that term : Union R. S. 891. Pac. R. Co. V. Reese, 15 U. S. App. ^ Depositions taken by a steno- 92. grapher, not reduced to writing in the A witness "lives," within the mean- presence of the witness, nor read ing of this section where he can be over to or by him, cannot be admit- found, and is sojourning, residing or ted in evidence against the objection abiding for any lawful purpose. The of either party: Moller v. U. S., 13 court took judicial notice that the U. S. App. 472. distance from the place of trial was ^ A state law regulating the time over one hundred miles: Mut. Ben. that must pass before a deposition Life Ins. Co. v. Robison, 19 U. S. can be read after it has been filed in App. 266. court, does not bind the federal The act of Feb. 3, 1879, ch. 40, 20 courts: Walker v. Collins, 19 U. S. Stat. L. 278, I Supp. R. S. 212, pro- App. 307. See Russell r^. Ashley (note), vides for taking testimony, to be Hemp. C C. 546, and Workem v. used before Congress, in cases of Diamond, Ibid. 701, as to mode of private claims against the United taking depositions, subpoenaing wit- States. As to the taking of deposi- nesses, rules of court and decisions tions before the Interstate Commerce thereon under sec. 30 of the act of Commission, see the act of Feb. 10, Sept. 24, 17S9. 692 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Depositions under dedimus potestatem. — Sec. 866. In any case where it is necessary in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage ; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct de- positions to be taken in pcrpetnam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. And the provisions of sections 863, 864 and 865 shall not apply to any deposition to be taken under the authority of this section.^ By the act of March 9, 1892,^ it is provided that in addition to the mode of taking the depositions of witnesses in causes pending at law or equity in the district and circuit courts of the United States, it shall be lawful to take the depositions or testimony of witnesses in the mode prescribed by the laws of the state in which the courts are held.^ Depositions in perpetuam rei memoriam. — Sec. 867. Any court of the United States may, in its discretion, admit in evi- dence in any cause before it any deposition taken in perpetuam 1 This section, like all laws in dero- Prevost, i Paine 64. And the com- gation of the common law, should be mission is not grantable of course, strictly construed: United States v. but only upon a showing that the evi- Parrott, i McA. 447. The only mode dence is material : United States v. in which a deposition can be taken in Parrott, i McA. 447 ; Sutton v. Man- a foreign country is under a commis- derville, i Cr. C. C. 115. And sion : Stein v. Bowman, 13 Pet. 209 ; under this section depositions in Winthrop v. Union Ins. Co., 2 Wash, perpetuam rei memoHam cannot 7. A commission may issue in chan- be taken ex parte where the defend- cery suits although the witness lives ants have not been served with pro- within the distance of one hundred cess, though they are out of the miles: Russell v. McLellan, 3 W. & country: Green v. Compania Gener- M. 157 ; but a commission will not ale Italiana de Navigation, 82 Fed. issue in a suit at law where the wit- Rep. 490. ness lives within that distance : Well- '■'Act of March 9, 1892, ch. 14, 27 ford V. Miller, i Cr. C. C. 485; Gus- Stat. L. 7 ; 2 Supp. R. S. 4- tine V. Ringgold, 4 Cr. C. C. 191 ; =* This act merely provides an addi- Rhodes v. Selin, 4 Wash. 715. tional mode of taking depositions in The COMMISSION must issue from the cases already authorized and does THE COURT.— This section provides not confer additional rights to obtain that the commission may be granted proofs under the provisions of state by any of the courts of the United statutes : Register Co. v. Leland, 77 States ; hence it cannot be granted Fed. Rep. 242 ; Shellabarger v. Oliver, by a judge at chambers: Peters v. 64 id. 306. EVIDENCE. 693 rei memoriani which would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof. SUBPCENAS FOR TAKING TESTIMONY BY COMMISSION. See. 868. When a commission is issued by any court of the United States for taking the testimony of a witness named therein at any place within any district or territory, the clerk of any court of the United States for such district or territory shall, on the applica- tion of either party to the suit, or of his agent, issue a subpoena for such witness, commanding him to appear and testify before the commissioner named in the commission, at a time and place stated in the subpoena; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses to testify, not being privileged from giv- ing testimony, and such refusal or neglect is proven to the satis- faction of any judge of the court whose clerk issues such sub- poena, such judge may proceed to enforce obedience to the pro- cess or punish the disobedience, as any court of the United States may proceed in case of disobedience to process of sub- poena to testify issued by such court. SuBPCENAs DUCES TECUM. — See. 869. When either party in such suit applies to any judge of a United States court in such district or territory for a subpoena commanding the witness, therein to be named, to appear and testify before said commissioner at the time and place to be stated in the subpoena, and to bring with him and produce to such commissioner any paper or writing or written instrument or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instrument, book or other document is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accordingly. And if the wit- ness, after being served with such subpoena, fails to produce to the commissioner, at the time and place stated in the subpoena, any such paper, writing, written instrument, book or other docu- ment, being in his possession or power, and described in the 694 FEDERAL PLEADING, PRACTICE AND PROCEDURE. subpcEna, and such failure is proved to the satisfaction of said judge, he may proceed to enforce obedience to said process of subpoena or punish the disobedience in hke manner as any court of the United States may proceed in case of disobedience to like process issued by such court. When any such paper, writing, written instrument, book or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties. Witnesses when required to attend, when not. — Sec. 870. No witness shall be required, under the provisions of either of the two preceding sections, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition ; nor shall any wit- ness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of either of the said sections, unless his fee for going to, returning from, and one day's attendance at, the place of examination are paid or tendered to him at the time of the service of the subpoena.' ^Examination under commis- sion. — All the interrogatories must be put to the witness or the deposi- tion cannot be read : Winthrop v. Union Ins. Co., 2 Wash. C. C. 7 ; Richardson v. Golden, 3 id. 109. The laws of the states as to practice in such cases are not binding upon the courts of the United States : Bell v. Davidson, 3 Wash. C. C. 328; Curtis V. The Central R. Co., 6 McLean 401. The authority given the commissioner must be strictly pursued : Gupp v. Brown, 4 Dall. 410; Boudereau v. Montgomery, 4 Wash. 186. If a commission is issued to several par- ties, all must join in the return : Munns v. Dupont, 3 Wash. 31 ; Gupp V. Brown, 4 Dall. 410; Armstrong v. Brown, i Wash. 43. Notice of time and place for ORAL examination. — If the applica- tion does not designate the time and place where depositions are to be taken, the party desiring them, or the commissioner, should give the opposite party notice thereof. See post, Equity Rule 67; Rhodes v. Selin, 4 Wash. 515; Knode v. Wil- hamson, 17 Wall. 586 ; and the return of the officer should show that due notice was given, where that is re- quired, and that the depositions were taken at the time and place desig- nated: Ibid.; Boudereau v. Mont- gomery, 4 Wash. 186. The notice may be served on the opposite party or his attorney : Merrill v. Dawson, Hump. 563 ; s. c, 11 How. 375 ; and it may be served personally or by mail, or by leaving a copy with a member of the family at the residence of the opposite party : Ibid. ; Walker v. Parker 5 Cr. C. C, 639; and it must give a reasonable time for him to appear : Nicholls v. White, i id. 58; but a deposition taken by one party, without notice, may be read EVIDENCE. 695 Depositions in the District of Columbia to be used else- where. — Sec. 871. When a commission to take the testimony of any witness found within the District of Columbia, to be used in a suit depending in any state or territorial or foreign court, is issued from such court, or a notice to the same effect is given according to its rules of practice, and such commission or notice is produced to a justice of the Supreme Court of said district, and due proof is made to him that the testimony of such witness is material to the party desiring the same, the said justice shall issue a summons to the witness, requiring him to appear before the commissioners named in the commission or notice, to testify by the other party : Yeaton v. Fry, 5 Cr. C. C. 335. See also Shutte v. Thompson, 15 Wall. 151 ; York Com- pany V. Central R. Co., 3 id. 113. Execution of commission under Equity Rule 67. — The return should show that the commissioner took the oath annexed to the commission, un- less the deposition is taken before a commissioner of the circuit court, in which case it is not necessary that this should appear: Winter z'. Simon- ton, 3 Cr. C. C. 104; Hoyt v. Ham- mekin, 14 How. 346 ; Frewall v. Bache, i Cr. C. C. 463. The return of the commissioner is prima facie evidence of the facts stated therein in relation to the execution of the commission : Ibid. ; Boudereau v. Montgomery, 4 Wash. 186. Where written interrogator- ies ARE FILED. — If a foreign com- mission is asked for, and in accord- ance with the genei'al rules of prac- tice in such cases interrogatories and cross-interrogatories are filed, this would be a waiver of previons irreg- ularities, and in such a case neither the parties nor their attorneys can ap- pear before the commissioner on the examination, nor can the witness have a friend to assist him : Cunningham V. Otis, I Gall. 166; Knode z/. Wil- liamson, 17 Wall. 586; Sargeant v. Biddle, 4 Wh. 508; Mechanics' Bank V. Seton, I Pet. 299. What the return should show. — The return should show that the witness was duly sworn, but it is not necessary to set out the form of the oath : Jones v. Oregon Central R. Co., 3 Saw. 523; Keene v. Meade, 3 Pet. I. The return need not show in whose handwriting the deposition was taken down : Ibid. But if ex- hibits are referred to by the witness, they should be annexed to the de- position and identiiied by marks or references to show they are the iden- tical exhibits referred to by the wit- ness : Dodge V. Israel, 4 Wash- 323. When a deposition has been used without objection in the court below, it cannot be objected to on appeal or writ of error in the Supreme Court : Brown v. Tarkington, 3 Wall. 377 ; Vattier v. Hinde, 7 Pet. 252 ; The Samuel, i Wh. 9; Evans v. Hettich, 7 id. 453. Depositions are admissible in ex- tradition cases under the act of August 3, 18S2, \ 5 ; see In re Ezeta, 62 Fed. Rep. 972. For full directions as to the mode of procedure in taking depositions in equity causes, see Equity Rule No. 67. 696 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in such suit, at a time and at a place within said district therein specified. Depositions when taken in the District of Columbia WITHOUT PRESENCE OR CONSENT. — SiT. 872. When it Satisfactorily appears by affidavit to any justice of the Supreme Court of the District of Columbia, or to any commissioner for taking deposi- tions appointed by said court — First. That any person within said district is a material witness for either party in a suit pending in any state or territorial or foreign court; Second. That no commission nor notice to take the testimony of such witness had been issued or given; and Third. That, according to the practice of the court in which the suit is pending, the deposition of a witness taken without the presence and consent of both parties will be received on the trial or hearing thereof, such officer shall issue his summons, requiring the witness to appear before him at a place within the district, at some reasonable time, to be stated therein, to testify in such suit. Manner of taking and transmitting depositions in such CASES. — Sec. 873. Testimony obtained under the two preceding sections shall be taken down in writing by the officer before whom the witness appears, and shall be certified and transmitted by him to the court in which the suit is pending, in such manner as the practice of that court may require. If any person refuses or neglects to appear at the time and place mentioned in the summons, or, on his appearance, refuses to testify, he shall be liable to the same penalties as would be incurred for a like offence on the trial of a suit. Witness fees in such cases. — Sec. 874. Every witness appear- ing and testifying under the said provisions relating to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose instance he is summoned, the fees now provided by law for each day he shall give attend- ance. Letters rogatory from United States courts. — Sec. 875. When any commission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, is exe- EVIDENCE. 697 cuted by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the min- ister or consul of the United States nearest the place where it was executed. On receiving the same the said minister or consul shall indorse thereon a certificate stating when and where the same was received, and that the said deposition is in the same condition as when he received it; and he shall thereupon trans- mit the said letter or commission, so executed and certified, by mail, to the clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the government. And the testimony of witnesses so taken and re- turned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of returning the same. When letters rogatory are addressed from any court of a foreign country to any circuit court of the United States, a com- missioner of such circuit court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts.^ SUBPCENAS TO RUN INTO OTHER DISTRICTS. See. 8/6. Sub- pcenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district; provided, that in civil causes the witnesses living out of the district in which the court is held do not live at a greater dis- tance than one hundred miles from the place of holding the same.^ Witnesses on the part of the United States. — Sec. S77. Witnesses who are required to attend any term of a circuit or district court on the part of the United States shall be subpoe- 1 As amended by the act of Feb. most convenient and usual routes : 28, 1876, ch. 69, 19 Stat. L. 241. See E.v parte Beebees, 2 Wall. Jr. 127. Rev. Stat. l\ 4071-4074. See Nelson And if a witness living within an- V. U. S., Pet. C. C. 235, as to form of other district, but not more than one letters rogatory and as to sufficiency of hundred miles from the place of trial, answers to interrogatories. has been duly subpa-naed, but fails ^ The distance a witness resides to attend, the court may issue an at- from the place of holding the court is tachment for him : United States v. to be determined not by an air line, Williams, 4 Cr. C. C. 372. but by the actual distance by the 698 FEDERAL PLEADING, PRACTICE AND PROCEDURE. naed to attend to testify generally on their behalf, and not to de- part court without leave thereof, or of the district attorney ; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. Witnesses on behalf of indigent defendants in criminal CASES. — Sec. 878. Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defence; that he can- not 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 witnesses, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States. Recognizances of witnesses in criminal cases. — Sec. 879. Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offence against the United States may, at the hearifig of any such charge, require of any witness produced against the prisoner, on pain of imprisonment, a recognizance, with or without sureties in his discretion, for his appearance to testify in the case. And where the crime or offence is charged to have been committed on the high seas or elsewhere within the admiralty and maritime juris- diction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused whose testi- mony in his opinion is important and is in danger of being otherwise lost.^ Recognizances in the district of Vermont. — Sec. 880. In the district of Vermont all recognizances of witnesses taken by any magistrate in said district for their appearance to testify in any case cognizable either in the district or circuit court thereof ' See II 848, 1014. EVIDENCE. 699 shall be to the circuit court next thereafter to beheld in the said district. Recognizances may be required at any time by district at- torney. — Sec. 88 1. Any judge of the United States, on the appli- cation of a district attorney, and on being satisfied by proof that the testimony of any person is competent and will be necessary on the trial of any criminal proceeding in which the United States are parties or are interested, may compel such person to give recognizance with or without sureties, at his discretion, to appear to testify therein; and for that purpose may issue a war- rant against such person under his hand, with or without seal, di- rected to the marshal or other officer authorized to execute pro- cess in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recognizance in the manner required, the judge may issue a warrant of commitment against him, and the officer shall convey him to the prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until he gives the recognizance required by said judge.^ Copies of books and other papers in any executive de- partment. — Sec. 882. Copies of any books, records, papers or documents in any of the executive departments, authenticated under the seals of such departments respectively, shall be ad- mitted in evidence equally with the originals thereof.^ ^ See ? 848. use a mere copy upon notice to the ''The term "papers or documents" government to produce the original : in this section refers only to such doc- Barney v. Schmeider, 9 Wall. 248; uments as are made by an officer or Chadwick v. United States, 3 Fed. agent of the government in the dis- Rep. 750. charge of his official duty ; and if it What is sufficient authentica- was not the duty of such officer or tion of papers or documents. — agent to file a paper or document in The certificate of the Secretary of the department, an authenticated copy State, under the seal of his depart- thereof would not be competent evi- ment, is competent evidence to prove dence: Block z^-. The United States, the diplomatic character of a minis- 7 Ct. CI. 406. ter accredited to the United States If a party desires to use such paper and the time when he was recognized or document as evidence in a suit as such : United States v. Liddle, 2 against the United States, he must Wash. 205; United States z'. Beamer, procure a certified copy, and cannot Bald. 234. See also White v. St. 700 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Copies as evidence of papers in the office of Solicitor of Treasury. — Sec. 883. Copies of any documents, records, books or papers in the office of the Solicitor of the Treasury, certified by him under the seal of his office, or, when his office is vacant, by the officer acting as Solicitor for the time, shall be evidence equally with the originals. Papers executed by the Comptroller of the Currency. — Sec. 884. Every certificate, assignment and conveyance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts; and all copies of papers in his office, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer. Certificates of organization of national banks. — Sec. 885. Copies of the organization certificate of any national banking Guirons, Minor 331 ; Catlett v. Pacific Ins. Co., I Paine 594; Bleecker v. Bond, 3 Wash. 529 ; Chadwick v. United States, 3 Fed. Rep. 750. But the mode of authentication prescribed by the statute must be strictly pur- sued : Block V. United States, 7 Ct. CI. 406. Thus, a copy of an adjudi- cation of a claim in the Treasury De- partment, certified by the Auditor, but without the seal of the depart- ment, is not competent evidence : WicklifTe v. Hill, 3 Litt. 330. A copy of the bond of a collector of internal-revenue authenticated by the Secretary of the Treasury, and under the seal of the Treasury De- partment, is competent evidence : Chadwick v. United States, 3 Fed. Rep. 750 ; and a quarterly return required to be made and filed in the department, duly certified by the Secretary, and under the seal of the department, is competent evidence : Ibid. So a certified copy of similar papers in the office of the Quarter- master, under his hand and the seal of the department, would be competent evidence. If an ofiScer having charge of a paper certifies that a paper is a true copy of the original, and the head of the department certifies as to the offi- cial character of the former under his hand and seal of office, the paper is properly authenticated : Thompson v. Smith, 2 Bond 320 ; Crowell v. Hopkinton, 45 N. H. 9 ; Ballew v. U. S., 160 U. S. 187. By the Act of July 26, 1892, ch. 256, I 3, 27 Stat. L. 272, 2 Supp. R. S. 51, the Commissioner of Indian Affairs shall cause a seal to be made and provided for his office, "with such device as the President of the United States shall approve, and copies of any public documents, records, books, maps or papers be- longing to or on the files of said office, authenticated by the seal and certified by the Commissioner thereof, or by such officer as may, for the time being, be acting as or for such Com- missioner, shall be evidence equally with the originals thereof." EVIDENCE. 701 association, duly certified by the Comptroller of the Currency, and authenticated by his seal of office, shall be evidence in all courts and places within the jurisdiction of the United States of the existence of the association, and of every matter which could be proved by the production of the original certificate.^ Transcripts of books of the Treasury. — Sec. 886. When suit is brought in any case of delinquency of a revenue officer or other person accountable for public money, a transcript from the books and proceedings of the Treasury Department, certified by the Register and authenticated under the seal of the depart- ment, or, when the suit involves the accounts of the War or Navy Departments, certified by the auditors respectively charged with the examination of those accounts, and authenticated under the seal of the Treasury Department, shall be admitted as evi- dence, and the court trying the cause shall be authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts or other papers re ating to, or con- nected with, the settlement of any account between the United States and an individual, when certified by the Register, or by such Auditor, as the case may be, to be true copies of the origi- nals on file, and authenticated under the seal of the department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court; provided, that where a suit is brought upon a bond or other sealed instrument, and the defendant pleads " iio?i est factum^' or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consideration, and, if it appears to be necessary for the attainment of justice, may require the production of the original bond, contract or other paper specified in such affidavit.^ By the act of March 2, ^ See §5135. States, 3 Fed. Rep. 750; United "^ This section extends to any case States v. Eggleston, 4 Saw. 199 ; of delinquency on the part of any Soule v. United States, 100 U. S 8 ; personaccountableforpubHc money : Walton v. United States, 9 Wh. 651 ; Bechtel t/. United States, 597; and it United States v. Eckford, i How. applies to sureties of such persons as 250 ; but a certified transcript from well as to the defaulting principal : the books and proceedings of the United States v. Gaussen, 19 Wall. Treasury Department is only prima 198. See also Chadwick v. United facie evidence of the facts stated 702 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 1895/ the transcripts from the books and proceedings of the De- partment of the Treasury and the copies of bonds, contracts and other papers provided for in Revised Statutes, section 886, shall hereafter be certified by the Secretary or an Assistant Secretary of the Treasury under the seal of the Department. Transcripts of books of treasury in case of embezzlement. — Sec. 887. Upon the trial of any indictment against any person for embezzling public moneys, it shall be sufficient evidence, for the purpose of showing a balance against such person, to pro- duce a transcript from the books and proceedings of the Treasury Department, as provided by the preceding section. Copies of returns in returns-office. — Sec. 888. A copy of any return of a contract returned and filed in the returns-ofifice of the Department of the Interior, as provided by law, when certi- fied by the clerk of the said office to be full and complete, and when authenticated by the seal of the Department, shall be evi- dence in any prosecution against any officer for falsely and cor- ruptly swearing to the affidavit required by law to be made by therein, so far as the same are au- thorized by law ; and any error therein may be corrected: /6zV/. An authenticated transcript from the books is competent prima facie evi- dence to show that an officer received the money charged against him, and need not be accompanied by authen- ticated copies of his receipts : Bruce V. United States, 17 How. 437. See also United States v. Jones, 8 Pet. 375 ; United States v. Martin, 2 Paine 68 ; United States v. Kuhn, 4 Cr. C. C. 401. The transcript is also prima facie evidence of the capacity in which the officer acted : Smith v. United States, 5 Pet. 292 ; but the officers of the Treasury Department cannot certify to matters that do not come within official knowledge : United States v. Jones, 8 Pet. 375 ; United States v. Kuhn, 4 Cr. C. C. 401. A transcript or copy of books, or a portion of them, duly authenticated by the proper head of a department, and under its seal, is competent evi- dence: United States v. Buford, 3 Pet. 12 ; United States v. Jones, 8 id. 375 ; United States v. Gaussen, 19 Wall. 198. See U. S. v. Bosby- shell, 73 Fed. Rep. 616 ; Moses v. U. S., 166 U. S. 71. The statement of a gross amount contained in a transcript is not com- petent evidence thereof, but it should contain a statement of the items of the account on both sides, both the debits and the credits, as they were acted upon by the accounting officers of the government : Ibid. ; United States V. Edward, i McLean 467; United States v. Vanzandt, 2 Cr. C. C. 338 ; Gratiot v. United States, 15 Pet. 336 ; Hoyt v. United States, 10 How. 109; ^jr parte Randolph, 2 Brock 447 ; United States v. Collier, 3 Blatch. 325. ' Act of March 2, 1895, ch. 177, \ 10, 28 Stat. L. 764, etc. , 2 Supp. R. S. 420. EVIDENCE. 703 such officer in making his return of any contract, as required by law, to said returns-office.^ Copies of post-office records and of auditor's statement. — Sec. 889. Copies of the quarterly returns of postmasters and of any papers pertaining to the accounts in the office of the Sixth Auditor, and transcripts from the money-order account-books of the Post-Office Department, when certified by the Sixth Auditor, under the seal of his office, shall be admitted as evidence in the courts of the United States, in civil suits and criminal prosecu- tions ; and in any civil suit, in case of delinquency of any post- master or contractor, a statement of the account, certified as aforesaid, shall be admitted in evidence, and the court shall be authorized thereupon to give judgment and award execution, subject to the provisions of law as to proceedings in such civil suits. Copies of statements by Post-Office Department. — Sec. 890. In all suits for the recovery of balances due from post- masters, a copy, duly certified under the seal of the Sixth Auditor, of the statement of any postmaster, special agent or other person employed by the Postmaster-General or the Auditor for that purpose, that he has mailed a letter to such delinquent postmaster at the post-office where the indebtedness accrued, or at his last usual place of abode ; that a sufficient time has elapsed for said letter to have reached its destination in the ordinary course of the mail ; and that payment of such balance has not been received, within the time designated in his instructions, shall be received as sufficient evidence in the courts of the United States, or other courts, that a demand has been made upon the delinquent post- master; but when the account of a late postmaster has been once adjusted and settled and a demand has been made for the balance appearing to be due, and afterward allowances are made or credits entered, it shall not be necessary to make a further demand for the new balance found to be due. Copies of records of General Land-Office. — Sec. 891. Copies of any records, books or papers in the General Land- Office, authenticated by the seal and certified by the Commissioner thereof, or, when his office is vacant, by the principal clerk, shall be evidence equally with the originals thereof. And literal ^ See I 3744. 704 FEDERAL PLEADING, PRACTICE AND PROCEDURE. exemplifications of any such records shall be held, when so intro- duced in evidence, to be of the same validity as if the names of the ofificers signing and countersigning the same had been fully inserted in such record.^ Copies of record of Patent-Office. — Sec. 892. Written or printed copies of any records, books, papers or drawings belong- ing to the Patent-Office, and of letters-patent, authenticated by the seal and certified by the Commissioner or acting Commis- sioner thereof, shall be evidence in all cases wherein the originals could be evidence;^ and any person making application therefor and paying the fee required by law shall have certified copies thereof.^ Copies of foreign letters-patent. — Sec. 893. Copies of the specifications and drawings of foreign letters-patent, certified as provided in the next preceding section, shall be prima facie evi- dence of the fact of the granting of such letters-patent and of the date and contents thereof Copies of specifications and drawings certified by Com- missioner OF Patents. — Sec. 894. The printed copies of specifica- tions and drawings of patents which the Commissioner of Patents is authorized to print for gratuitous distribution and to deposit ^ This section does not dispense Patents are public records, and with the signing and countersigning consequently all persons have a right of a patent for lands, as this must be to obtain copies of them. As these signed by the President and counter- records are in the care and custody signed by the recorder : McGarra- of the Commissioner of Patents, it is han V. Mining Co., 96 U. S. 316. See his duty to give authenticated copies also Hanrick v. Barton, 16 Wall. 166. of the same to any person u'ho shall A copy of a plot and description, demand it and pay or tender the fees duly authenticated by a certificate of therefor, as soon as he can conven- the Commissioner of the Land-Office iently ; and a failure to do so subjects under his seal of ofi&ce, is competent the Commissioner to an action for evidence : Harris v. Bamett, 4 Black, damages sustained thereby. But a 369. See ^i 2469, 2470. demand accompanied by insolence, ^ See New York v. Amer. Cable N. rudeness and insult is not a legal de- Co, 26 U. S. App. 7. mand: Bayden v. Burke, 14 How. ' Under this section a transcript of 575. See also Davis v. Grey, 17 Ohio certain documents on file in the St. 335 ; Sherman z'. Champlain Co., Patent-Office is competent evidence, 31 Vt. 162 ; Stone v. Palmer, 28 Mo. although it does not purport to be a 539 ; Stoner v. Ellis, 6 Ind. 152 ; Bul- copy of the whole : Toohey v. Hard- lock v. Wallingford, 55 N. H. 619. ing, I Fed. Rep. 174. EVIDENCE. 705 in the capitals of the states and territories and in the clerk's offices of the district courts shall, when certified by him and authenticated by the seal of his office, be received in all courts as evidence of all matters therein contained. Extracts of journals of Congress. — Sec. 895. Extracts from the journals of the Senate or of the House of Representa- tives, and of the executive journal of the Senate when the injunc- tion of secrecy is removed, certified by the Secretary of the Sen- ate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court. Copies of records in office of United States consul. — Sec. 896. Copies of all official documents and papers in the office of any consul, vice-consul or commercial agent of the United States, and of all official entries in the books or records of any such office, certified under the hand and seal of such officer, shall be admitted in evidence in the courts of the United States.^ Transcripts certified by the clerks of district courts in Texas, Florida, Wisconsin and other states. — Sec. 897. The transcripts into new books made by the clerks of the district courts in the several districts of Texas, Florida, Wisconsin, Min- nesota, Iowa and Kansas, in pursuance of the act of June 27, 1864, chapter 165, from the record and journals transferred by them respectively, under the same act, to the clerks of the cir- cuit courts in said districts, when certified by the clerks respec- ^ The certificate of a consul is not 367. But a consul's certificate is not evidence of any matter not within the competent evidence to prove acts provisions of this section, as its pro- that are not his official acts and of visions are in derogation of the com- which he has no personal knowledge : mon law rules of evidence and there- Brown v. The Independence, Crabbe fore must be strictly construed : Levy 54 ; or to prove the facts to justify an V. Burley, 2 Sum. 355. But the cer- imprisonment of a seaman by a mas- tificate of a consul is competent to ter in a foreign port : Johnson v. The prove his official acts : Brown v. The Coriolanus, Ibid. 239 ; or the re- Independence, Crabbe 54 ; and that a fusal of a master of a vessel to de- ship's papers were lodged with him: posit the register of the departure or United States v. Mitchell, 2 Wash, arrival of a vessel : Levy v. Burley, 2 478 ; and that a seaman was dis- Sum. 355 ; or that a paper is a true charged in a foreign port by his own copy of a foreign statute: Church v. consent : Lamb v. Briard, Abb. Ad. Hubert, 2 Cr. 187. See I 1707. 45 706 FEDERAL PLEADING, PRACTICE AND PROCEDURE. tively making the same to be full and true copies from the origi- nal books, shall have the same force and effect as records as the originals. And the certificates of the clerks of said circuit courts respectively of transcripts of any of the books or papers so transferred to them, shall be received in evidence with the like effect as if made by the clerk of the court in which the proceedings were had. Transcribed records certified by clerks in North Caro- lina. — Sec. 898. The transcripts into new books made by the clerks of the circuit and district courts for the western district of North Carolina, in pursuance of the act of June 4, 1872, chapter 282, when certified by the clerks respectively making the same to be full and true copies from the original books, shall have the same force and effect as records as the originals. And the certificates of the clerks of said circuit and district courts re- spectively, of transcripts of any of the said transcribed records, shall also be received in evidence with the like effect as if made by the proper clerk from the originals from which such records were transcribed. When original records are lost or destroyed. — Sec. 899. When the record of any judgment, decree or other proceedings 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 de- stroyed without his fault, obtain from it an order authorizing such defect to be supplied by a duly certified copy of the origi- nal record, where the same can be obtained ; and such certified copy shall thereafter have, in all respects, the same effect as the original record would have had. Same subject. — Sec. 900. When any such record is lost or destroyed, and the defect cannot 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 be- longed, verified by affidavit, showing such loss or destruction ; that the same occurred without his fault or neglect; that certi- fied copies of such record cannot be obtained by him ; and show- ing also the substance of the record so lost or destroyed, and that the loss or destruction thereof, unless supplied, will or may result in damage to hirn. The court shall cause said application EVIDENCE. 707 to be entered of record, and a copy of it shall be served per- sonally upon every person interested therein, together with written notice that on a day therein stated, which shall not be less than 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 be entered of record an order reciting the substance and effect of said lost or destroyed record. Said order shall have the same effect, so far as concerns the party or person mak- ing such application and the persons served as above provided, but subject to intervening rights, which the original record would have had if the same had not been lost or destroyed. Same subject. — Sec. 901. When any cause has been removed to the Supreme Court, and the original record thereof is after- ward lost, a duly certified copy of the record remaining in said court may be filed in the court from which the cause was re- moved, on motion of any party or person claiming to be inter- ested therein ; and the copy so filed shall have the same effect as the original record would have had if the same had not been lost or destroyed. Same subject. — Sec. 902, as amended by the act of January 31, 1879.^ In any proceedings in conformity with law to restore the records of any court of the United States which have been or may be hereafter lost or destroyed, the notice required may be served on any non-resident of the district in which such court is held anywhere within the jurisdiction of the United States or in any foreign country ; the proof of service of such notice, if made in a foreign country, to be certified by a minister or con- sul of the United States in such country, under his official seal. Records in case of loss. — Sec. 903, as amended by the act of January 31, 1879.^ -^ certified copy of the official return, or any other official paper of the United States attorney, marshal or clerk or other certifying or recording officer of any court of the United States, made in pursuance of law, and on file in any de- partment of the government, relating 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 be lost or destroyed, may be ^ Act of January 31, 1879, ch. 39, ? '■^ Act of January 31, 1879, ch. 39, § I, 20 Stat. L. 277, I Supp. R. S. 211. 2, 20 Stat. L. 277. 708 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 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 the judgment or decree shall appear from such return, 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 the said court. And in all cases where 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 records, files and papers, shall have the same force and effect, to all intents and purposes, as the original thereof would have been entitled to. Sec. 904, as amended by the act of January 31, 1879.^ That whenever any of the records or files in which the United States are interested in 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 which 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 be restored or supplied, to take such steps, under the direction of said judges, as may be necessary to effect such restoration or substitution, including such dockets, indices and other books and papers as said judges shall think proper. Said judges may direct the performance, by the clerks of said courts respectively and by the United States attorneys, of any duties incident thereto ; and said clerks and attorneys shall be allowed such compensation for services in the matter and for lawful disbursements as may be approved by the Attorney-Gen- eral of the United States, upon a certificate 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. Authentication of legislative proceedings and proof of JUDICIAL PROCEEDINGS.— 5^^. 905- The acts of the legislature of any state or territory, or of any country subject to the junsdic- 1 Act of January 31, 1879, ch. 39, § 3, 20 Stat. L. 278. EVIDENCE. 709 tion of the United States, shall be authenticated by having the seals of such state, territory or country affixed thereto. The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.^ Owing V. Hull, 9 Pet. 607 ; McNiel v. Holbrook, 12 id. 84; Mewster v. Spalding, 6 McLean 24; Jones v. Hayes, 4 id. 521 ; Drawbridge Co. V. Shepherd, 20 How. 227; Har- pending v. Reformed Dutch Church, 16 Pet. 455. The seal. — A seal within the meaning of the statute is an impres- sion upon wax, wafer or some other tenacious substance, and an impres- sion upon the paper only is not a seal: Coit v. Millikin, i Den. 376. If there is no seal attached to an exemplified record, nor certificate that the court has no seal, it is not competent evidence : McFarlane v. Harrington, 2 Bay 554; Allen v. Thaxter, i Blackf. 399; but a tran- ^ Acts of the legislature of ANY state, territory OR COUNTRY. — The mode of authentication pre- scribed by this section is not exclu- sive of any which the states may adopt. A state may provide for the authentication of the records of an- other state, and require less proof than prescribed by this section: Kingman v. Cowles, 103 Mass. 283 ; Latterett v. Cook, i la. i ; Parker v. Williams, 7 Cal. 247 ; Ordway v. Conroe, 4 Wis. 45 ; Lothrop v. Blake, 3 Pa. St. 483 ; Goodwyn v. Goodwyn, 25 Ga. 203 ; Kean v. Rice, 12 S. & R. 203. Printed copies of statutes with in- terlineations may be used if duly au- thenticated : United States v. Amedy, II Wh. 392 ; and it seems that an ex- script is admissible, though the clerk emplification of an act of the legisla- ture under the seal of the state is sufficient without an attestation by any state oflBcer : Ibid. ; United States V. Johns, 4 Dall. 412 ; i Wash. 363 ; Grant v. Henry Clay Coal Co., 80 Pa. St. 208. But a pamphlet with no seal at- tached to it is not competent evidence of the law of another state : Craig v. Brown, i Pet. C. C. 352. But the federal courts will take notice of the public laws of the states : certifies that he affixes his seal of office instead of the seal of the court : McLean v. Winchester, 17 Mo. 49 ; Coffie V. Neely, 2 Heisk. 304; Clark V. Depew, 25 Pa. St. 409 ; and if the clerk affixes his private seal and cer- tifies the court has no seal, the pri- vate seal will not vitiate the certifi- cate : Flourenoy v. Duke, 2 Brev. 256 ; Strade v. Churchill, 2 Litt. 75. The fact that the court whose rec- ord is certified has no seal should be shown either in the certificate of the 710 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Proofs of records in offices not appertaining to courts. — Sec. 906. All records and exemplifications of books, which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not such a case he may certify that he is the presiding magistrate and clerk and tiiat he has no seal, and that the attestation is in due form, and sub- scribe it as justice of the peace : Bis- sel V. Edwards, 5 Day 363 ; Blodget V. Jordan, 6 Vt. 580; Brown v. Ed- son, 23 id. 435 ; Starkweather v. Loomis, 2 id. 573 ; Scott v. Cleve- land, 3 Mon. 62. Competent evidence in the FEDERAL COURTS.— The rccords and proceedings of the state courts, duly authenticated, are competent evi- dence in all federal courts : Mills v. Dur>'ee, 7 Cr. 481 ; Galpin v. Page, 3 Saw. 93; United States v. Biebusch, I Fed. Rep. 213 ; Pennoyer v. Neflf, 95 U. S. 714; and the transcript of a state court, properly certified by the clerk under the seal of the court, is admissible in a federal court sitting in the same state without a certificate of the judge that it is in due form : Mewster v. Spalding, 6 McLean 24. The provision is also applicable to the federal courts in the District of Columbia : Mills v. Duryee, 7 Cr. 481. Records and proceedings that MAY BE authenticated. — If a rec- ord purports to be a confession of a judgment before the clerk of a state court, it is within the provision of this section: Sipes v. Whitney, 30 Ohio St. 69; Randolph v. Kessler, 21 Mo. 557; Coleman v. Waters, 12 W. Va. 278. The decree of a court of chancery : Patrick v. Gibbs, 17 Tex. 275 ; or a judgment to enforce a vendor's lien : Seaborn v. Henry, 30 Ark. 469; or for the maintenance of a bastard child: State v. Helmer, 21 la. 370; clerk or the judge, and if the attesta- tion of the clerk recites that there is no seal, the certificate of the judge that the attestation is in due form is sufficient: Simons v. Cook, 29 la. 324; Craig V. Brown, i Pet. C. C. 352. Records. — application of stat- ute. — The statute has no application to the records of the federal courts, but is limited to the records of the courts of any state or territory or country subject to the jurisdiction of the United States : Mason v. Laura- son, I Cr. C. C. 190 ; Dean v. Chapin, 22 Mich. 275; Adams v. Way, 33 Conn. 419 ; Williams v. Wilkes, 14 Pa. St. 228 ; Adams v. Lesher, 2 Blackf. 241 ; Dorsey v. Maury, 18 Miss. 298; Steere v. Tenney, 50 N. H. 461. The statute has application only to courts of record ; courts of justices of the peace are not generally courts of record, but may be so under local statutes. If they are made courts of record by statute, the statute should be produced and proved, or the cer- tified record of his court will not be competent evidence : Thomas v. Rob- inson, 3 Wend. 267 ; Kean v. Rice, 12 S. & R. 203; Gay v. Lloyd, i Greene (la.) 78; Pelton v. Platner, 13 Ohio 209 ; Draggoo v. Graham, 9 Ind. 212; Silver Lake Bk. v. Hard- ing, 5 Ohio 545 ; Warren v. Flagg, 19 Mass. 448 ; Ault v. Zehering, 38 Ind. 429. If a justice holds a court of record he is competent to certify a record of his court, although he may have no clerk or seal, and is not only the pre- siding magistrate, but the clerk. In EVIDENCE. 711 appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a or on a bond of recognizance : Spen- cer z/. Brockway, i Ohio 260 ; or for a penalty : Healy v. Root, 28 Mass. 389, may be certified under the pro- visions of this statute. So may the proceeds of probate courts : First Nat. Bk. V. Kidd, 20 Minn. 234 ; Bri.sjht V. White, 8 Mo. 421 ; Haile v. Hill, 13 id. 612 ; Hauze v. Hause, 16 Tex. 598; Melvin v. Lyons, 18 Miss. 78; Slack, V. Walcott, 3 Mass. 508; Case V. McGee, 8 Md. 9; Doe v. Doe, 31 Ga. 593 ; Lee v. Hamilton, 3 Ala. 529 ; Robertson v. Barbour, 6 Mon. 523 ; but unless a guardian's bond is a matter of record in the probate court, it cannot be authenticated so as to be evidence under this section : Carlisle v. Tuttle, 30 Ala. 613. See also Martin v. Martin, 22 id. 86 ; Russel V. Kearney, 27 Geo. 96 ; War- ren V. Wade, 7 Jones (N. C.) 494; Pickett V. Bates, 3 La. An. 627. The decision of a commissioner is not a judgment of a court, although he is an officer of it: Taylor v. Bar- ron, 30 N. H. 78 ; but if his decision is accepted and recorded by the court as its judgment, it may be authenti- cated under this statute : Taylor v. Barron, 35 id. 484. The clerk's certificate. — If the record is not properly attested and certified it cannot be used as evi- dence : Craig v. Brown, i Pet. C. C. 352 ; Bissel v. Edwards, 5 Day 363 ; Barrow v. Steel, 65 Mo. 611. The statute does not prescribe the form of the attestation or certificate, but the form is immaterial where there is a judge's certificate: Horner V. Spilman, 78 III. 206; White v. Strother, 11 Ala. 720; Thompson v. Manrow, i Cal. 428. See O'Hara v. Mobile and O. R. Co., 76 Fed. Rep. 718. The law does not require that the clerk shall certify the transcript as a full one of the whole proceedings, and if the certificate states that the transcript is truly copied from the record of the proceedings of the court, when it appears to be a com- plete record of a suit from the com- mencement to the termination of the suit, it will be sufficient: Mudd v. Beauchamp, Litt. Sel. Cas. 142 ; Reber v. Wright, 68 Pa. St. 471; Clark V. Depew, 25 id. 409. And the truth of the matters certified can- not be contradicted : McCormic v. Deaver, 22 Md. 187. The judge's certificate. — It is necessary that there be a certificate of the presiding judge that the attes- tation is in due form, and if there is no such certificate the exemplification is not competent evidence. The mode of attestation of records and proceed- ings of courts in the various states to make them competent evidence is usually prescribed by the statutes of the several states, and the section under consideration requires the mode of attestation for this purpose to conform to that used in the state where the court was held and not to the forms used in the state where it is offered: Duncommon v. Hysinger, 14 111. 14; Craig z>. Brown, i Pet. C. C. 352; White V. Strother, 11 Ala. 720 ; Thrasher v. Ingram, 32 id. 645 ; Snyder v. Wise, 10 Pa. St. 157; Ord- way V. Conroe, 4 Wis. 45 ; Brackett V. People, 64 111. 170; Corfield v. Coryell, 4 Wash. C. C 371 ; Pepin v 712 FEDERAL PLEADING, PRACTICE AND PROCEDURE. certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the governor or secretary of state, the chancellor or keeper of the great seal, of the state or territory or country, that the said Lachenmyer, 45 N. Y. 27; Hackett V. Bonnell, 16 Wis 471 ; Washabaugh V. Entriken, 34 Pa. St. 74; Hutchins V. Gerrish, 52 N. H. 205 ; Trigg v. Conway, Hem. 53S. The certificate sliould show that he was the presiding judge of the court where the proceedings took place : Little V. Alison, 8 Ga. 201 ; Pratt v. King, I Ore. 49 ; Brown v. Johnson, 42 Ala. 208 ; Taylor v. Kilgore, 33 id. 214 ; Bennett v. Bennett, i Deady 300; Erb V. Scott, 14 Pa. St. 20; Hatcher v. Rocheleau, 18 N. Y. 86 ; Barlow v. Steel, 65 Mo. 611 ; Thrasher V. Ingram, 32 Ala. 645 ; Newman v. Goza, 14 La. An. 642 ; Haynes v. Cowen, II Kans. 637. Objections to the admission of a record on the ground that it is not properly authenticated should be made in the court below ; they cannot be raised for the first time in the Su- preme Court: Carpenter v. Strange, 141 U. S. 87. This rule that confines the appellate court to the considera- tion of questions raised in the trial court is of general application : Mor- rill V. Jones, 106 U. S. 467 ; Spies v. Illinois, 123 id. 131 ; Brooks v. Mis- souri, 124^0'. 394 ; Hawkins v. Glenn, 131 id. 319 ; Dohl v. Montana, 132 id. 260; Burns v. Rosenstein, 135 id. 449 ; Toplitz V. Hedden, 146 id. 252. Objections to the admission of testi- mony must be made when it is of- fered : Benson v. U. S., Ibid. 325, and see Reagan v. Aiken, 138 id. 109. Effect of an authenticated record of a judgment as evi- DENCE. — If the record of a judgment is proved iu the manner prescribed by the statute, the evidence is of as high a nature as the inspection of the same record or as an exemplification of the record would be in any other court of the same state : Mills v. Dur- yee, 7 Cr. 481 ; Green v. Sarmiento, 3 Wash. 17 ; s. c, i Pet. C C. 74; Public Works v. Columbia College, 17 Wall. 521 ; McElmoyle v. Cohen, 13 Pet. 312. But if the judgment would not be valid under the laws of the state where it is offered in evi- dence, it cannot be deemed valid un- less it is shown to be so by proof of the laws of the state where it was rendered: Crafts v. Clark, 31 la. 77. See also McFarland v. White, 13 La. An. 394 ; Porcheller v. Bronson, 50 Tex. 555 ; Newton v. Mutual Benefit Life Ins. Co., 22 N. Y. 595- If a judgment by confession under a power of attorney may be set aside in the state where it was rendered, it may be examined and annulled in another state: Brown v. Parker, 28 Wis. 21. So if a judgment would not be a bar to a subsequent action in the same state, it would not be a bar to an action in another state : Matoon v. Clapp, 8 Oliio 248. If a judgment against a corporation cannot be enforced against stock- holders individually in the state where it was rendered, it cannot bind them in another state where a judgment could be so enforced : Sumner v. Marcy, 3 W. & M. 105. See also Killam v. Toms, 38 Wis. 592; Oldens V. Hallett, 5 N. J. L. 466 ; Sims v. Sims, 75 N. Y. 466 ; Commonwealth v. Green, 17 Mass. 514. Judgments are conclusive between the parties in every state except for such causes as would be suflScient to EVIDENCE. '13 attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of the court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of will be so considered in another state : Public Works v. Columbia College, 17 Wall. 521 ; Whitaker v. Bramson, 2 Paine 209. But a judg- ment which on its face purports to be a final judgment will in the ab- sence of evidence to the contrary be treated as a final one in another state : Rowland v. Jarvis, 5 La. An. 43. See also Lawrence v. Jarvis, 32 111. 125. Decrees in relation to land IN ANOTHER STATE. — No decree in one state can operate as a convey- ance of land in another ; nor will a conveyance of a commissioner ap- pointed under a decree of a court in one state divest a legal title to real estate in another state : Watts v. Waddle, i McLean 200; s. c, 6 Pet. 389; Tardy v. Morgan, 3 McLean 358 ; Burnley v. Stevenson, 24 Ohio St. 474; see also Davis v. Headley, 22 N. J. 115. Where the court had jurisdic- tion OF A CAUSE the JUDGMENT CANNOT BE IMPEACHED COLLATER- ALLY FOR ERRORS AND IRREGULARI- TIES. — It is a general principle of the law that where a court had jurisdic- tion in a cause both of the persons and the subject-matter a judgment rendered therein is conclusive, unless reversed or modified on appeal or writ of error; and no judgment can be questioned or impeached, collater- ally, for any errors or irregularities which could have been corrected on appeal or writ of error: Patterson v. The State, 12 Green (la.) 492 ; State V. Helmer, 21 la. 370; Henderson v. Staniford, 105 Mass. 504. Attorney's ignorance, negli- set aside the judgment in the state where it was rendered : McElmoyle V. Cohen, 13 Pet. 312 ; Green v. Sar- miento, 3 Wash. 17; Mills v. Duryee, 7 Cr. 481 ; Belton v. Fisher, 44 111. 32; Wheeler v. Raymond, 8 Cow. 311 ; Robert v. Hodges, 16 N. J. Eq. 299. Efficacy of a judgment in an- other STATE. — A judgment in one state cannot carry with it into another state any efficacy as a judgment to be enforced by execution. Wlien duly authenticated, it is only the evidence of an indebtedness and the ground for another judgment in the forum of another state, which can only be en- forced by execution under the laws of the latter state: McElmoyle v. Cohen, 13 Pet. 312; Beale v. Berry- man, 30 N. J. L. 216; McLurez/. Ben- cene, 2 Ired. Eq. 513 ; Carter v. Ben- nett, 6 Fla. 214; Harness v. Green, 20 Mo. 316 ; Barrett v. Failing, 3 Fed. Rep. 471. Appeal or writ of error. — The judgment of the inferior court is pre- sumed to remain unreversed until the contrary is shown : Schoonmaker v. Lloyd, 9 Rich. 173 ; and the pendency of a writ of error or appeal where no bond is given to stay proceedings constitutes no defence to an action on the judgment in another state : Mcjilton V. Love, 13 111. 4S6; Mc- Arthur v. Goddin, 12 Bush. 274; DeWoIf, 33 Pa. St. 45. See also Paine V. Schenectady Ins. Co., 11 R. I. 411 ; Bank v. Wheeler, 28 Conn. 433. Where a decree was merely interlocutory. — If a decree was merely interlocutory under the laws of the state where it was rendered, it 714 FEDERAL PLEADING, PRACTICE AND PROCEDURE. hi.s ofifice, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor or keeper of the great seal, it shall be under the great seal of the state, territory or country aforesaid in which it is made. And GENCE OR FRAUD. — Although a court of equity in one state may grant relief against a judgment entered in another where it is sought to obtain a judgment in the former state upon the judgment in the latter, in all cases where relief would be granted in the state where the judgment was first rendered, still a judgment in another state cannot be impeached on the ground of the ignorance, negligence or bad faith of an attorney : Amory V. Amory, 3 Biss. 266 ; Crawford v. White, 17 la. 560; Sipes v. Whitney, 30 Ohio St. 69. Nor can a judgment be attacked in a collateral manner on the ground that it was procured by fraud, and the issues re-opened and determined by the judgment and evi- dence on the original trial : Field v. Saunderson, 34 Mo. 542 ; Barnard v. Fowler, 119 Mass. 262; Johnson v. Dobbins, 35 Leg. Int. 242 ; Davis v. Headley, 22 N. J. Eq. 115 ; Rogers v. Gwinn, 21 la. 38; Bicknel v. Field, 8 Paige 440 ; Luckenbach v. Ander- son, 47 Pa. St. 123. But where an at- torney for the plaintiflF assured the defendant that nothing further should be done in the suit until further no- tice, and the attorney subsequently be shown in a suit on the judgment in another state, and that the pay- ment might be there shown ; see also Davis V. Smith, 5 Ga. 274; Buford V. Buford, 4 Munf 241. Statute of limitations.— The universal doctrine in reference to the laws of limitation applicable to judg- ments is that in a suit on a judgment the law of limitations of the state where the suit is brought is applica- ble, and not the statutes of the state where the judgment was originally rendered: McEImoyle v. Cohen, 13 Pet. 312 ; Bacon v. Howard, 20 How. 22 ; Bank v. Dalton, 9 id. 522 ; Rob- inson V. Payton, 4 Tex. 276; Pryor V. Moore, 8 id. 250; Kirkman v. Hendrick, 8 id. 253 ; Reid v. Boyd, 13 id. 241; Stockwell v. Coleman, 10 Ohio St. 33 ; Christmas v. Russell, 5 Wall. 290; Meek v. Meek, 45 la. 294. Jurisdiction of the person necessary.^— There must be some service of original process or an ap- pearance, and a personal judgment rendered without either is void in another state: Warren Man. Co. v. Etna Ins. Co., 2 Paine 501 ; Wester- velt V. Lewis, 2 McLean 511; De Arcy V. Ketchum, 11 How. 165; proceeded and obtained judgment Jones v. Warner, 81 111. 343; Tait v. De Ende, 18 La. 33; McLaurens v. Monroe, 30 Mo. 462 ; Rangley v. Webster, 11 N. H. 299; Middlese.x Bk. V. Butman, 29 Me. 19; Wood- ward V. Tremere, 23 Mass. 354 ; Bick- nell V. Field, 8 Paige 440; Jardine v, Richert, 39 N. J. L. 165. Presumptions from recital in THE RECORD. — If a record shows ser- vice, this would be at least presump- tive evidence that the service was without notice to the defendant, this was held, under the peculiar circum- stances of the case, to be such a fraud as to entitle the defendant to relief therefrom : Pearce v. Olney, 20 Conn. 544; Ward v. Quinlivin, 57 Mo. 425; see also Clay v. Clay, 13 Tex. 195, where it was held that fraud in obtaining a judgment without the credit of a payment made during the pendency of the original suit might EVIDENCE. 715 the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in made in accordance with the laws of the state where the judgment was rendered: Dunbar v. Hallowell, 34 111. 168 : Trayden v. Justis, 24 La. An. 222 ; Wilson v. Jackson, 10 Mo. 329 ; Downer v. Shaw, 22 N. H. 277. The record showing service MAY be contradicted.— Although an exemplified record of a court of another state may show that there was personal service of the original process, and this is prima facie evi- dence of the fact and of the jurisdic- tion of the court, yet the defendant may controvert this fact and by proof show that there was no such service : Knowles v. Gas Light Co., 19 Wall. 58; s. c, 2 Dill. 421; Pollard v. Baldwin, 22 la. 328 ; Lowe v. Lowe, 40 id. 220; Webster v. Hunter, 50 id. 215 ; Kingsbury v. Yniestra, 59 Ala. 320; Cheen v. Gray, 51 Tex. 112; Marx V. Fore, 51 Mo. 69 ; McDermott V. Clary, 107 Mass. 501 ; Norwood v. Cobb, 15 Tex. 500; Carleton v. Bick- ford, 79 Mass. 591 ; Lincoln v. Tower, 2 McLean 473. So evidence may be introduced to prove that a vessel was not seized within the county where the judg- ment was rendered, although the cer- tified record states that the seizure was within the county: Thompson v. Whitman, 18 Wall. 457. But the pre- sumption arising from a recital in the record that service was made within the district cannot be overcome by mere proof that the defendant was not a resident of the state : Kuhn v. McMillen, 3 Dill. 372. A recital of an appearance MAY BE CONTROVERTED. — If a record shows an appearance by the defend- ant it is at iQSiSi prima facie evidence of the fact: Whittaker v. Murray, 15 111. 293 ; Reber v. Wright, 68 Pa. St. 471 ; Cone v. Hooper, 18 Minn. 531 ; Tipton V. Mayfield, 10 La. 189; Ed- monds V. Montgomery, i la. 143 ; Cassidy v. Leetch, 53 How. Pr. 105 ; Price V. Ward, 25 N. J. L 225 ; Kerr v. Kerr, 41 N. Y. 272 ; Eager v. Stover, 59 Mo. 87 ; Wilcox v. Cassock, 2 Mich. 165. Service of original process out OF THE state. — The jurisdiction of state courts is limited by the bound- ary to the state, and original process issuing therefrom can have no force or effect without the state. Such process served without the state can- not give the state court jurisdiction of the person of a defendant, and a judgment in personam in such a case is void : Warren Man. Co. v. Etna Ins. Co., 2 Paine 501; Public Works V. Columbia College, 17 Wall. 521 ; Ewer V. Coffin, 55 Mass. 23 ; Price v. Hickok, 39 Vt. 292. Service by publication ; and by COPY.— Within the limits, however, of natural justice and fundamental principles of right, a state may pre- scribe the mode of bringing its own citizens before its courts, and the judgments of her courts entered on proceedings which conform to the statutes in such case provided cannot be impeached in the courts of another state. Thus, if the statute of a state permits a publication of notice against defendants residing out of a state, and some reside in and some without the state, and those in the state are per- sonally served with original process and those without the state by publi- cation, a judgment would be void in this respect against those defendants 716 FEDERAI, PLEADING, PRACTICE AND PROCEDURE. in the state who were personally- served, but not as a personal judg- ment against the others : Stockwell V. McCracken, 109 Mass. 84 ; Knowles V. Gas and Coke Co., 19 Wall. 58; Welch V. Sykes, 8 111. 197; Oilman V. Lewis, 24 N. J. L. 246 ; De Arcy v. Ketchum, 11 How. 165; Hall v. Lam- ing, 91 U. S. 160; Green v. Sarmiento, 3 Wash. 17; Christmas v. Russell, 5 Wall. 290 ; Bissill v. Briggs, 9 Mass. 462 ; Folger v. Ins. Co., 99 id. 1^1 ; Maxwell v. Stewart, 22 Wall. 77 ; Woodward v. Tremere, 23 Mass. 354 ; Reber v. Wright, 68 Pa. St. 471. Although a corporation is consid- ered a citizen of the state where it was incorporated, the statute of a state may provide for the service of original process on it, by service on an agent or ofl&cer of the corporation within the state where the suit is brought, and a judgment recovered on such a service would in that re- spect be binding in other states : Lafayette Ins. Co. v. French, 18 How, 404 ; s. c , 5 McLean 461 ; Way mouth V. Railroad Co., i McArthur 19; Mou- lin V. Ins. Co., 25 N. J. L. 57 ; Latimer V. Union Pac. R. Co., 43 Mo. 105 Effect of a voluntary appear- ance. — A voluntary general appear- ance in a suit is a waiver of all de- fects in the form or service of original process, and a judgment therein will be valid in any other state ; and all defects of this kind would be waived by pleading the judgment in bar to an action upon the original contract or other foundation of the suit : Hen- derson V. Steinford, 105 Mass. 504 ; Lucas V. Bank, 2 Stew. 280; Shields V. Thomas, 18 How. 253; Hill v. Men- denhall, 21 Wall. 453; Church v. Crossman, 49 la. 444; Kimbal v. Merrick, 20 Ark. 12; Smith v. Ross, 7 Mo. 463 ; Milne v. Van Buskirk, 9 la. 558; Wright v. Wersinger, 13 Miss. 210 ; Huston v. Dunn, 13 Tex. 476. See also Nations v. Johnson, 24 How. 195 ; Horton v. Critchfield, 18 111. 133. In case of foreign attachment. — If the defendant in a foreign attach- ment suit is not served with original process and makes no voluntary ap- pearance, the judgment is not con- clusive evidence of the debt : Ricketts V. Henderson, 2 Cr. C. C. 157 ; Phelps V. Holker, i Dall. 261 ; Ewer v. Cof- fin, 55 Mass. 23 ; Gilman v. Gilman, 126 id. 26 ; Jones v. Spencer, 15 Wis. 583; Pel ton v. Platner, 13 Ohio 209; Arndt v. Arndt, 15 id. 33 ; Mc- Vicker v. Beedy, 31 Me. 314 ; Price V. Hekok, 39 Vt. 292 ; Robins v. Ward, 8 Johns. 86; but if the de- fendant voluntarily appears in the action generally to defend, the judg- ment will be binding on him : Max- well V. Stewart, 22 Wall. 77 ; May- hew V. Thatcher, 6 Wh. 129 ; if the appearance is merely for the purpose of defending the property, it has been held that this did not give the court jurisdiction of the person : Starbuck V. Murray, .5 Wend. 148. See also Feltus V. Starke, 12 La. An. 798. And if the attachment was valid in the state where the suit was instituted, a sale of property under a judgment obtained therein will pass a valid title to the property : Green v. Van Bus- kirk, 7 Wall. 139 ; s. c, 2 Keyes 119 ; s. c, 34 Barb. 457 ; Melhop v. Doane, 31 la. 397. Remedies on judgments in an- other state. — The remedy on a judgment rendered in another state is by a suit on the judgment, and a resort to such remedies as the state where the last judgment is obtained may afford. The form of the action will of course depend upon the laws of the latter state. No court can give effect to a judgment of a court EVIDENCE. 717 of another state in any other way ; nor can it enforce the collateral rem- edies prevailing in the state where the original judgment was rendered : Dimick v. Brooks, 21 Vt. 569; Thorn V. Batory, 41 Md. 593; Briggs v. Campbell, 19 La. 524. Interest and satisfaction. — The rate of interest on a judgment is governed by the law of the state where it was rendered, and not upon the law of another state where it is the basis of a new suit: Clark v. Pratt, 20 Ala. 470 ; Lewis v. Wilder, 4 La. An. 574; David v. Porter, 52 la. 254; Hudson v. Daily, 13 Ala- 722 ; but a new judgment in another state does not satisfy the original one : Bates v. Lyon, 7 Paige 85 ; nor is it a bar to another action on the original one unless it has been satis- fied : Weeks v. Pearson, 5 N. H. 324 ; Tarver v. Rankin, 3 Fla. 210. Decrees for divorce. — In case of a decree of divorce, if the court had jurisdiction over the parties under the laws of the state where it was made, it will be deemed valid in other states so far as the divorce is concerned ; but in respect to collat- eral matters, such as alimony and property, it is not always conclusive of the rights of parties in another state : Cheever v. Wilson, 9 Wall. 108 ; Kinnier v. Kinnier, 45 N. Y. 535 ; Harrison v. Harrison, 20 Ala. 629; Barber v. Root, 10 Mass. 260; Kerr v. Kerr, 41 N. Y. 272 ; Smith v. Smith, 79 Mass. 209; Nicholas v. Nicholas, 25 N. J. Eq. 60; Doughty V. Doughty, 27 id. 315; s. c, 28 id. 581; Piatt's Appeal, 80 Pa. St. 501; People V. Baker, 76 N. Y. 78; Cox V. Cox, 19 Ohio St. 505; s. c, 20 id. 439; Luth V. Luth, 39 N. H. 20 ; Hoffman v. HofiFman, 46 N. Y. 30; Hood V. Hood, 93 Mass. 196 ; Ditson v. Ditson, 4 R. I. 87; Hunt V. Hunt, 72 N. Y. 217; Lyon V. Lyon, 68 Mass. 367 ; Burlen V. Shannon, 115 id. 438; State v. Armington, 25 Minn. 29; People v. Dawell, 25 Mich. 247; People v. Smith, 20 N. Y. 414 ; Middleworth v. McDowell, 49 Ind. 386. Pleadings in a suit on a judg- ment. — The form of the action and the requirements of the declaration or petition must, as we have observed, conform to the practice of the state where the suit is brought. If the judgment or decree is conclusive be- tween the parties in the state where it is rendered, it is, as we have seen, conclusive in other states if the court had jurisdiction. A plea therefore of nil debet is not a good plea to a declaration on a valid judgment of another state; the only plea which can be entered is mil tiel record : Maxwell v. Stewart, 22 Wall. 77 ; Mills V. Duryee, 7 Cr. 481 ; Hampton V. McConnel, 3 Wh. 234; Armstrong V. Carson, 2 Dall. 302; Jacquette v. Hugunon, 2 McLean 129; Lawrence z'. Jarvis, 32 111. 304; Buchanan v. Port, 5 Ind. 264 ; Hensley v. Force, 12 Ark. 756. And the same rule applies to a judgment rendered by a court in the District of Columbia : Hughes v. Davis, 8 Md. 271 ; Duval v. Pearson, 18 id. 502. But if the invalidity of the judg ment appears upon the record, or if the defendant desires to take issue on the jurisdiction of the court to render the judgment, then the plea nil debet or some equivalent plea under the statutes of the state is proper, as it presents the question of jurisdiction for inquiry; and the defendant may show that the court in which the j udg- ment was rendered had no jurisdic- tion of the subject-matter of the suit or of the person of the defendant : Warren Mfg. Co. v. Etna Ins. Co., 2 718 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the courts or offices of the state, territory or country as afore- said, from which they are taken/ Copies of foreign records in certain cases. — Sec. 907. It shall be lawful for any keeper or person having the custody of Paine 501 ; Warren v. Flagg, 19 Mass. 448; Beale v- Berryman, 30 N.J. L. 216 ; P'oster V. Glazner, 27 Ala. 391 ; Law- rence jy. Jarvis, 32 IlL 304; Starbach V. Murray, 5 Wend. 148; Price v. Ward, 25 N J. L. 225 ; Shufeld v. Buck- ley, 45 III. 223; Warren v. McCarthy, 25 id. 95. Such a plea must necessarily admit that the record exists as a matter of fact, and seek relief by avoiding its efTect ; and should therefore be form- ally pleaded in order that the facts upon which it is predicated may be admitted or put in issue : Hill v. Mendenhall, 21 Wall. 453; Miller v. Pennington, 2 Stew. 399 ; Moulin v. Insurance Co., 24 N. J. L. 222; Lack- land V. Pritchett, 12 Mo. 484. A plea of payment would always be good: Hutchinson v. Patrick, 3 Mo. 65; so of a plea that the plaintiff has executed to the defendant a release from the judgment : Eaton v. Hasty, 6 Neb. 419. ^ What records may be certi- fied AS EVIDENCE. — The language, "records and exemplification of books which may be kept in any public oflBce of any state or territory, or of any country subject to the juris- diction of the United States, not ap- pertaining to a court," means the public writings recognized by the common law as invested with an offi- cial character, but which are not of the nature of judicial records or judgments, and are therefore suscep- tible of proof by secondary evidence. Of this character are the acts and orders of the executive oflBcer of the state; the acts of legislative bodies; the journals of either branch of the legislature; registers kept in public offices ; books which contain tlie offi- cial proceedings of municipal corpo- rations ; parish registers and the like : Snyder v. Wise, 10 Pa. St. 157. Thus, an exemplified copy of a mar- riage license, certified and attested by the proper public officer : King v. Dale, 2 111. 513 ; or of the record of a patent to hold an office : Henthorn V. Shepherd, i Blackf. 157 ; or of a recorded guardian's bond, unless it is a matter of record in the probate court: Carlisle v. Tuttle, 30 Ala. 613, may be certified under this provi- sion. A deed or other instrument duly recorded under the laws of a state may be thus attested by the keeper of such record with the seal of his office annexed, if there is a further certifi- cate of the presiding justice of the court of the county or district in which such office is kept that such attestation is in due form and by the proper officer, and this certificate is further authenticated by the clerk or prothonotary of the court under his hand and seal of office, that the jus- tice who certifies is duly commis- sioned and qualified ; and provided further that the effect of such a rec- ord as evidence be shown in the state where it is recorded: Drummond v. Magruder, 9 Ct. 122 ; Dickerson v. Grissom, 4 La. An. 538; Condit v. Blackwell, 19 N. J. Eq. 193; Powell V. Knox, 16 Ala. 364 ; Key v. Vaughn, 15 id. 497 ; Kidd v. Manly, 28 Miss. 156; Brown v. Edson, 23 Vt. 435; Pennel v. Weyant, 2 Har. 501 ; Paca V. Button, 4 Mo. 371 ; Smith v. Red- den, 5 Har. 321 ; but a secretary of EVIDENCE. 719 laws, judgments, orders, decrees, journals, correspondence or other public documents of anv foreign government or its agents relating to the title to lands claimed by or under the United States, on the application of the head of one of the departments, the Solicitor of the Treasury, or the Commissioner of the Gen- eral Land-Office, to authenticate copies thereof under his hand and seal, and to certify them to be correct and true copies of such laws, judgments, orders, decrees, journals, correspondence or other public documents, respectively; and when such copies are certified by an American minister or consul, under his hand and seal of office, to be true copies of the originals, they shall be sealed up by him and returned to the Solicitor of the Treasury, who shall file them in his office and cause them to be recorded in a book to be kept for that purpose. A copy of any such law, judgment, order, decree, journal, correspondence or other public document so filed, or of the same so recorded in said book, may be read in evidence in any court, where the title to land claimed by or under the United States may come into question, equally with the originals. Little & Brown's edition of the statutes to be evidence. Sec. 908. The edition of the lav/s and treaties of the United States, published by Little & Brown, shall be competent evi- dence of the several public and private acts of Congress, and of the several treaties therein contained, in all the courts of law and equity, and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several states, without any further proof or authentication thereof. The act of June 20, 1874,^ provides that the said printed copies of the said acts of each session and of the said bound copies of the acts of each Congress shall be legal evidence of the laws and treaties therein contained, in all the courts of the United States and of the several states therein. The act of June 7, 1880,^ provides : The publication herein authorized shall be taken to be prima facie evidence of the laws therein contained in all the courts of the United States and of state need not certify that the attes- ^ Act of June 20, 1S74, ch. :^ii, \ S, tation of articles of incorporation is 18 Stat. L. 114. in due form of law: Grant v. Henry ^ Act of June 7, 1880, Res. 44, 21 Clay Coal Co., 80 Pa. St. 208. Slat. L. 308. 720 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the several states and territories therein ; but shall not preclude reference to, nor control in case of any discrepancy the effect of, any original act as passed by Congress ; provided, that nothing herein contained shall be construed to change or alter any exist- ing law.^ By the act of January 12, 1895,^ the pamphlet copies of the statutes and the bound copies of the acts of each Congress shall be legal evidence of the laws and treaties therein contained in all the courts of the United States and of the several states therein. Burden of proof of the defendant in certain cases. — Sec. 909. In suits or informations brought, where any seizure is made pursuant to any act providing for or regulating the collection of duties on imports or tonnage, if the property is claimed by any person, the burden of proof shall lie upon such claimant; provided, that probable cause is shown for such prosecution, to be judged of by the court.^ Possessory actions for the recovery of mining titles. — Sec. 910. No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession.* ' The second edition of the Revised The Coquittam, 57 Fed. Rep. 706. If Statutes is evidence, but does not a prima facie case is made out by control acts passed since Dec. i, 1873 • the prosecutor and the claimant fails Act of March 2, 1877, ch. 82, ? 4, 19 to produce papers or other evidence Stat. L. 268, I Supp. R. S. 134 ; Act which must be in his possession or of March 9, 1878, ch. 26, 20 Stat. L. under his control, and which would 27, I Supp. R. S. 153. So of Supple- determine the question, he cannot ment to Revised Statutes. succeed: Clifton v. United States, 4 When the meaning of the Revised How. 242 ; The Luminary, 8Wh.407. Statutes is plain the courts cannot For an exposition of the term look to the original statutes; but "probable cause," see The John may do so when necessary to con- GriflBn, 15 Wall. 29; Woods z/. United strue doubtful language : Bate Re- States, 16 Pet. 342. And whether frigerating Co. v. Sulzberger, 157 U. probable cause has been shown is S. I, citing U. S. v. Bo wen, 100 id. not a question of law for the court to 508. See also King v. McLean Asy- determine : Clifton v. United States, lum, 21 U. S. App. 481. supra; Taylor v. United States, 3 '■'Act of Jan. 12, 1895, ch. 23, \ 73, How. 197 ; Buckley v. United States, 28 Stat. L. 601, etc., 2 Supp. R. S. 356. 4 id. 251 ; see also Cliquot's Cham- ^ If probable cause is shown for the pagne, 3 Wall. 114. prosecution under this section, the * See Meydenbauer v. Stevens, 78 burden of proof is on the claimant : Fed. Rep. 787. Locke V. United States, 7 Cr. 339 ; LIMITATIONS. 721 CHAPTER XXVII. PROVISIONS OF THE REVISED STATUTES ON LIMITATIONS. The Statutes of Limitations. § 533. We insert here the provisions of the statutes on hmita- tions, with notes, for convenience of reference, as follows : Capital offences. — Sec. 1043. No person shall be prosecuted tried or punished for treason or other capital offence, willful murder excepted, unless the indictment is found within three years next after such treason or capital offence is done or com- mitted. Offences not capital. — Sec. 1044, as amended by the act of April 13, 1876.^ No person shall be prosecuted tried or punished for any offence, not capital, except as provided in section 1046, unless the indictment is found or the informa- tion is instituted within three years next after such offence shall have been committed.^ lAct of April 13, 1876, ch. 56, 19 Stat. L. 32. ^ It is not necessary to make a spe- cial plea'-of the statute of limitations, but the defence may be under a plea of not guilty : United States v. Brown, 2 Lowell 267 ; United States v. White, 5 Cr. C. C. 73 ; United States v. Cook, 17 Wall. 168. An indictment will not be quashed although it is apparent from the record that the oflfence was committed more than three years be- fore the indictment was found, as the defence of the statute of limitations cannot be set up by a demurrer: United States v. Cook, 17 Wall. 168 ; United States v. Watkins, 3 Cr. C. C. 441 ; United States v. White, 5 71^.368. 46 The indictment may set forth the true time of the commission of the offence, and any facts which show the defendant cannot avail himself of the statute as a defence, even though the time was more than three years before the finding of the indictment. Even if the indictment does not siiow that the defendant fled from justice, it may be given in evidence under the general issue : /6id. Tlie time runs from the commission of the offence to the finding of an in- dictment or the filing of an informa- tion on which the defendant is tried ; thus where an indictment for an of- fence was found within three years, but a nolle prosequi was entered upon 722 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Fleeing from justice. — Sfc. 1045. Nothing in the two pre- ceding sections shall extend to any person fleeing from justice.^ Crimes under the revenue laws.— 5^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 770 776 3 ;. -i'^v ■' ■<«■, .i