^\nU\: '}^}^ni:\\l]lU- fnjw:•?»> H ' • . '^ ^i'i li IMPORTANT FEDERAL STATUTES ANNOTATED EDITED BY RUSSELL H. ^gilETIS Op the Chicaqo Bab CHICAGO CALLAGHAN AND COMPANY 1891 Copyright, 1891, by Russell H. Curtis. T C-']M.'i ?9 •TATR JOCRNAI^ PniNTINO COMrAKT, nUMTERS AND STEnEOTVPBftB, MAIiISON, WIS. NOTICE. The decisions of the federal courts which construe the ap- pellate courts act of March 3, 1891, and which have been pub- fished to the present time, are only three in number, one a decision of the Supreme Court and two decisions of circuit courts. In In re Claasen, 140 U. S. 200, the Supreme Court holds, (1) that the appellate courts act, approved March 3, 1891, went into immediate operation upon its passage, e. g., that it went into operation so as to permit the suing out, March 21, 1891, of a writ of error from the Supreme Court to review a sentence for an infamous crime pronounced by a circuit court March 18, 1891, in a criminal suit tried in 1890; (2) that a writ of error from the Supreme Court to review a sentence of a circuit court in a criminal prosecution by the United States for an infamous crime is, under the appellate courts act of March 3, 1891, a writ of right; (3) that a citation may be signed by a justice of the Supreme Court under Ee- vised Statutes, section 999, as an authority for issuing the writ of error under Revised Statutes, section 100-1; (4) that the Supreme Court has power under Revised Statutes, section 716, to issue a supersedeas to stay execution of the sentence of a circuit court in a criminal case, and that this power is not abrogated by the appellate courts act of March 3, 1891; (5) tiiat a justice of the Supreme Court has authority not only to allow a writ of error from the sentence of a circuit court for an infamous crime, but also to grant a supersedeas in the case ; (0) that the rights of a defendant in a criminal prosecu- tion by the United States in respect to a bill of exceptions stand as they did at the time he was convicted ; and (7) that a crime which is punisliable by imprisonment in a State prison or penitentiary is an infamous crime whetlier the ac- cused is or is not sentenced or put to hard labor. For the opinion in the same case in the court below, see United States v. Chiasen, 40 F. R. 07. The third decision is United States v. Sutton, 47 F. R. 129 (Circuit Court D. Col. August, 1891. OjMnion by Sawyer, J.), holding (1) that a circuit court of appeals has no jurisdiction to review the judgment of a district court {e. , Kcviscd Stat- utes Sup. 4.M. The aj)pellate jurisdiction of tho United States Supremo Court over Ignited States circuit and district courts exorcised by direct ap]>cal or writ of error seems not to be limited by the pecuniary amount in controversy, except ])0ssibly in a few excejitional classes of cases. Section 3 of tlie act of February 1(), 1ST5 (see p. 20), which raised to S5,000 tho previously ex- isting- limit ot $2,000 to the jurisdiction of the Supreme (Jourt to review the decisions of circuit courts, was expressly repealed by section 14 of the appellate courts act of March 3, 1891. Trior statutes, fixing tho limit of $2,000, were repealed by tho act of February 16, 1875, and wore not revived by its repeal, as Revised Statutes, section 12, provides, that " whenever an act is repealed, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided." The appellate courts act of March 3, 1891, im- poses no pecuniary limit upon tho jurisdiction of the Supreme Court to review directly tho decisions of circuit and district courts by appeal or writ of error; neither does any other stat- ute of wide application. There are statutory provisions, not specifically repealed (see pp. 7, 8), which in terms impose a pecuniary limit on the appellate jurisdiction of the Supreme Court in prize cases, in cases arising under the interstate com- merce act, and in cases arising under the act of March 3, 1887, authorizing suits against the United States. To what extent these provisions are repealed by the a]Dpellate courts act of March 3, 1891, is, in the absence of judicial decision, uncertain. I shall welcome any suggestions or criticisms, public or pri- vate, which may aid me to make this work more accurate or useful. R. H. C. Chicago, November 21, 189L PREFACE. The principal purpose of this book is to place before the bar in easily accessible form the original evidence from a study of which must be solved the new questions to which the act and joint resolution of Congress of March 3, 1891, establishing cir- cuit courts of appeals, give rise. Those enactments are printed, together with the general statutes which govern the appellate jurisdiction of the federal courts, the general practice statutes enacted since the Kevised Statute?, and the rules of the Supreme Court. Such comments upon the new statute as the editor lias thought it useful to make in advance of any judicial decis- ions construing it are contained for the most part in chapter 3, treating of the jurisdiction of federal courts, not in the notes under tlie several sections of the act. Another puri)ose of this book is to present in a single vol- ume the more important general statutes, which govern the jurisdiction and practice of federal courts both of original and appellate jurisdiction, and which have been enacted since the })ul)lication of the Kevised Statutes. Under the judiciary act of March 3, 1875, as amended in 1SS7 and 1888 is given a digest of the decisions of the United States Supreme Court and the inferior federal courts, which construe or illustrate that statute, and which have been ren- dered since its amendment on March 3, 1887.' The Supreme Court lias delivered as yet only a few such decisions; the de- cisions on circuit are numerous and somewhat conflicting. The conclusions which the editor has thought it safe to draw are stated in those sections of chapter 3 which treat of the jurisdiction of federal circuit courts. Tills hook contains the interstate commerce act as amended in l88i> and 1801, the act conferring on federal circuit and dis- trict courts jurisdiction of suits against the United States, and other general statutes, under which the editor would gladly have C(^llected the judicial decisions construing them had time perniittod. It is possible that this work may yet be done in ;i future edition. A sketch of the jurisdiction of the several federal courts and of the judicial power of the United States has been added, as it seemed to the editor that what new matter he had to oll'cr could be best stated as part of a connected whole. R U. C. CmCAQO, May, 1891. 'Tlio orts. TABLE OF CONTENTS. CHAPTEK 1. APPELLATE COURTS ACT OF MARCH 3, 1891. Sectiona Page. 1. Additional circuit judges to be appointed 1 2. Circmt court of appeals created in each circuit — Organization- Clerk — Marshal — Fees — Rules 2 3. Judges who may hold circuit courts of appeals — District judge may sit — Judge not to review his own judgment — Places and times of holding court ^ 4 Appellate jurisdiction of circuit courts abolished — Judgment of circuit and district courts to be revised only by the United States Supreme Com-t or by circuit courts of appeals 4 6. Direct appeal from ti'ial courts to Supreme Court, when allowed — This statute not to affect appeals from the highest court of a State to the Supreme Court 4 6. Jurisdiction of circuit courts of appeals — When final — Revision of judgment of circuit courts of appeals by Supreme Court . . 10 7. Appeal to circuit court of appeals from interlocutory decree grant- ing or continuing an injunction li 8. Allowance to judge holding court away from his residence . . 13 9. Marshal of district to provide court-rooms and pay court expenses 12 10. Cases reviewed by the Supreme Court or by a circuit court of ap- peals to be remanded to the proper circuit or district court . . 13 11. Appeal to circuit court of appeals to be taken within six months or less — Practice as to appeals 13 12. Power of circuit court of appeals to Issue writs 13 la Appeals from federal courts in Indian Territory 14 14. Repeal .'.'** ^^ 15. Appeal from the supreme court of a Territory to a circuit court of appeals ^^ Joint Resolution, March 8, 1891. L Time of convening circuit courts of appeals — Jurisdiction of Su- preme and circuit courts prior to July 1, 1891, saved .... 10 CHAPTER 2. IMPORTANT GENERAL STATUTES, GOVERNING THE JURISDIC- TION AND PRACTICE OF THE FEDERAL COURTS, ENACTED AFTER THE REVISED STATUTES. Number. Pag^- 1. An act concerning the practice in Territorial courts and appeals therefrom. April 7, 1874 18 Vlii lAUI.lO OV CONTENTS. Numbor. Page. 2. An :Kt to fatilitntt' Uic (lis|H)si(i()ii of casos in Iho Sn])romo. Court of tlif L'niU'il States, ami lor other purjjosos. I'Vhniary 10, 1875 19 Jt An ait to dutiMininc tlio jurisdiction of the circuit courts of the I'nitoil States, ami to roguhite tlu' removal of causes from State courli«, anil for otiier i)urposes. March 3, 1875. As anieuded in 1S87 and 1888. Annotated 20 4. An act to proviile for tiie appointment of commissioners for tak- ing ailidavits, etc., for the courts of the United States. August 15. 1870 83 5. An act to make pei-sons charged with crimes competent witnesses in tiie L'nited SUitvs and Territorial courts. March 10, 1878 . 84 0. An act making appropriations, etc. (clerk when not to b(2 receiver or master). March 3, 1879 85 7. An act regulating fees and the practice in extradition cases. Au- gust 3, 1882 85 8. An act regulating the a])p('als from the supreme court of the Dis- trict of Columbia and the supreme courts of the several Terri- tories. March 3, 1885 86 9. An act to regulate commerce. February 4, 1887. As amended March 2, 1889, August 8, 1890, and February 10, 1891 .... 87 10. An act to provide for the bringing of suits against the Govern- ment of the United States. March 3, 1887 100 11. An act to authorize condemnation of land for sites of public build- ings and for other purposes. August 1, 1888 Ill 12. An act to regulate the liens of judgments and decrees of the courts of the United States. August 1, 1888 Ill 13. An act to correct the enrollment of an actapin-oved March 3, 1887, entitled " An act to amend sections 1, 2, 3 and 10 of an act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts and for other purposes. Approved March 3, 1875." August 13, 1888 . 119 14 An act to abolish the circuit court powers of certain district courts of the United States and to provide for writs of eiTor in capital cases and for other purposes. February 6, 1889 116 15. An act to provide for writs of error or appeals to the Supreme Court of the United States in all cases involving the question of the jurisdiction of the courts below. February 25, 1889 . . 118 CHAPTER 3. JURISDICTION OF FEDERAL COURTS. Sections. Page. 1. Sketch of federal courts 119 2. The judicial power of the United States 123 3. Jurisdiction of circuit courts over suits by and against the United States 130 4 Jurisdiction of circuit courts over suits by and against a State . 134 5. Original jurisdiction of circuit courts over suits between private parties 136 TABLE OF CONTENTS. IX Sections. , Page, 6. Jurisdiction by removal of suits between private parties ... 141 7. Jurisdiction of circuit courts of appeals 142 8. Jurisdiction of the United States Supreme Court 146 CHAPTER IV. RULES OF THE SUPREME COURT OF THE UNITED STATES, As announced January 7, 1SS4, together with all subsequent amend- ments, including the amendments printed in 139 United States Reports. Rules. Page. 1. Clerk 152 2. Attorneys and counsellors 152 3. Practice 152 4. Bill of exceptions 152 5. Process 153 6. Motions 153 7. Law library 154 8. Writ of error, retui-n and record 154 9. Docketing cases 155 10. Printing records • • 156 11. Translations 158 12. Further proof 158 13. Objections to evidence in the record • 158 14. Certiorari 159 15. Death of a party 15") 16. No appearance of plaintiff 160 17. No appearance of defendant 160 18. No appearance of either ijarty 161 19. Neither party ready at the second term 161 20. Printed arguments 161 21. Briefs 161 22. Oral arguments 163 23. Interest 163 24. Costs 163 25. Opinions of the court 165 26. Call and order of the docket IC") 27. Adjournment 160 28. Dismissing cases in vacation 166 29. Supersedeas 167 30. Rehearing 167 81. Form of printed records and briefs 167 82. Writs of error and appeals under the act of February 25, 1889, chapter 236 167 88. Models, diagrams, and exliibits of material 168 34. CustfKly of prisoners on habeas covjikn 168 35. Assignment of errors 168 36. Aj)peals and writs of error 169 X TABLE OF CONTENTS. Rules. rage. 37. Cases from ciivuit court of appeals 170 ;18. Intorest, costs, and fees 170 INDEX 171 APPENDIX. ORGANIZATION OF CIRCUIT COURTS OF APPEALS .... 205 RULES OF UNITED STATES CIRCUIT COURTS OF APPEALS. Rules. Paga 1. Name 209 2. Seal 209 a Terms 210 4. Quorum 210 5. Clerk 211 6. Marshal, crier and other officers 211 7. Attorneys and counsellors 211 8. Practice 212 9. Process 212 10. Bill of exceptions 212 11. Assignment of errors 213 12. Objections to evidence in the record 213 13. Supersedeas and cost bonds 213 14. Writs of error, appeals, retmn and record 214 15. Translations 215 16. Docketing cases 215 17. Docket 215 18. Certiorari 216 19. Death of a party 216 20. Dismissing cases 217 31. Motions 218 22. Parties not ready 218 23. Printing records 218 24. Briefs 219 25. Oral argtmients 220 26. Form of printed records, arguments and briefs 221 27. Copies of records and briefs 221 28. Opinions of the court 221 29. Rehearing 221 30. Interest 222 81. Costs 222 32. Mandate 223 33. Custody of prisoners on habeas corpus 223 84 Models, diagrams and exhibits of material 223 CHAPTER 1. APPELLATE COURTS ACT OF MARCH 3, 1891. Sections. 1. Additional circuit judges to be appointed. 2. Circuit court of appeals created in each circuit — Organization — Clerk — ^Marshal — Fees — Rules. 3. Judges who may hold circuit coiu'ts of appeals — District judge may- sit — Judge not to review his own judgment — Places and times of holding court 4 Appellate jurisdiction of circuit courts abolished — Judgment of circuit and disti-ict courts to be revised only by the United States Supreme Court or by circuit courts of appeals. 5. Direct appeal from trial courts to Supreme Court, when allowed — This statute not to affect appeals from the highest court of k State to the Supreme Court 6. Jurisdiction of circuit courts of appeals — "Wlien final — Revision of judgment of circuit courts of appeals by Supreme Court 7. Appeal to circuit court of appeals from interlocutory decree granting or continuing an injunction. 8. Allowance to judge holding court away from his residence. 9. Marshal of district to provide court-rooms and pay court expensea 10. Cases reviewed by the Supreme Court or by a ch-cuit cova-t of appeals to be remanded to the proijer circuit or district court 11. Appeal to circuit court of appeals to be taken within six months or less — Practice as to appeals. 12. Power of circuit court of appeals to issue writs. 13. Appeals from federal courts in Indian Territory. 14 ReiH-al. 15. Appeal from the supreme court of a Territory to a circuit court of ap- l^eals. JoLNT Resolution, March 3, 1891. 1. Time of convening circuit courts of appeals — Jurisdiction of Supreme and circuit courta prior to July 1, 1891, saved. An Act to estiblish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes. Approved March 3, 1891.1 Additional circuit judges to be appointed.] Be it enarlril Inj f/m Senato oikI JIousc of Hiprrsaitntivcs of tlie 1 Printed from a certified copy procured from the office of the Secretary of St'ite. The text follows the j)unftuation and capitalization of the certified copy. Omissions supplied are inclosed in brackets. 1 2 Arri:i.i,.VTE courts act. [Cii. 1. Utiiteil SlaU's of America in Congress assembled, That tlioro shall bo appoiiitoil by tho I'lvsickMit of the United Slates, by and with the advice and eonsiMit oi' tlie Senate, in eaeli ciccnit an aihlitional t'lri-uit jnd^"e, who shall have the same (jualifiea- tions, antl shall have the same j)o\ver and jurisdiction therein that the circuit judges of tho United States, within their re- s})ectivo circuits, now have under existing laws, and who shall be entitled to tho same comj)cnsation as tho circuit judges of the United States in their respective circuits now have. Judicial Circuits. For a description of tho nine existing circuits see R S., § 604, wliich, liowever, iias boeu modified slightly by sxibsoquent statutes. Col- orado is included in the eighth circuit by 19 Stat., 01, Jmie 20, 1870; R S. Sup., 215. Texas is included in the fifth 'circuit by 21 Stat, 10, June 11, 1879; R S. Sup., 490; but this statute appears to have mex-eh^ re-enacted the provision in R S., g 004, as to that State. Tlie States of Washington and Montana are included in the ninth circuit. 25 Stat, 682, § 21, February 22, 1889. The States of North Dakota and South Dakota are included in the eighth circuit. 25 Stat., 082, § 21, February 22, 1889. The State of Idaho is included in tho ninth circuit 26 Stat, 217, § 16, July 3, 1890. The State of Wyommg is included in the eighth circuit 26 Stat, 225, § 16, July 10, 1890. Powers of a Circuit Judge. He can grant a writ of ne ax'eat in cases in which it might be granted by the circuit court of which he is a judga R S., § 717. He may grant a restraining order or an injvmction in cases in which they might be granted by the circuit court of which he is a judge. R S., §§ 718, 719. He may hold persons to security of the peace and for good behavior in cases arising under the United States constitution and laws to the same extent as may be done by a State judge in cases within his jurisdiction. R S., g 727. He may issue writs of habeas corpus. R. S., § 752. But probably only in cases in which the court of which he is a judge could issue the writ See In re Burrus, 136 U. S., 586. He may admit to bail a person accused of a crime against the United States. R S., §§ 1015, 1016. He may issue a search-warrant for goods on which duty has not been paid. R S., § 3066, as amended by 22 Stat, 49, April 25, 1882. He may issue search-warrants for counterfeit money and counterfeiting implementa 26 Stat, 743, § 5. Circuit court of appeals created in each circuit — Organization — Clerk — Marshal — Fees.] § 2. That there is hereby created in each circuit a circuit court of ap- peals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record with appellate jurisdiction, as is hereafter limited and established. Such court shall prescribe the form and style of its seal and Ch. 1.] APPELLATE COUKTS ACT. 3 the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction as shall be con- ferred by law. It shall have the appointment of the marshal of the court with the same duties and powers under the regu- lations of the court as are now provitled for the marshal of the Supremo Court of the United States, so far as the same may be applicable. The court shall also appoint a clerk, who shall perform and exercise the same duties and powers in re- gard to all matters within its jurisdiction as are now exercised and performed by the clerk of the Supreme Court of the United States, so far as the same may be applicable. The salary of the marshal of the court shall be twenty-five hun- dred dollars a year, and the salary of the clerk of the court shall be three thousand dollars a year, to be paid in equal pro- portions quarterly. The costs and fees in the Supreme Court now provided for by law shall be costs and fees in the circuit courts of appeals ; and the same shall be expended, accounted for, and paid for, and paid over to the Treasury Department of the United States in the same manner as is provided in re- spect to the costs and fees in the Supreme Court. Rules.] The court shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. For statutory provisions relating to the marshal of the United States Su- preme Court, see R S., g§ 677, 680, 832, 4799. For statutory provisions relating to the clerk of the United States Supreme Court, see R S., §§ 677-679, 794-799 ; 23 Stat, 194, 224, July 7, 1884, pro- vides that the clerk of the Supreme Court shall pay excess of fees over salary and expenses into United States treasury ; an act regulating fees and costs, etc., 18 Stat., 333, February 22, 1875. For statutory provisions relating to fees and costs in the United States Su- preme Court, see 19 Stat, 344, March 3, 1877, providing for collecting from the losing party the costs of printing the record. For regulation of costs in the Supreme Court by rule of court, see rule 24 of the Supreme Court, post. Judges who may hold circuit court of appeals.] § 3. Tliat the Chief-Justice and the associate justices of the Su- preme Court assigned to each circuit, and the circuit judires within each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits in the manner here- inafter provided. In case the Cliief-Justice or an associate justice of the Supreme Court should attend at any session of the circuit court of appeals he shall ])reside, and the circuit judges in attendance upon the court in tiie absence of the Chief-Justice or associate justice of the Supreme Court shall preside in the order of the seniority of their respective com- missions. 4 APPELLATE COUKTS ACT. [Ch. 1. District judge may sit— Judge not to review his own judgmout.J In case the full court shall not at any time be iiuulo up by the attendance of the Chici'-Justice or an associate justice of the iSuprcnie Court and circuit judges, one or more district judges within the circuit shall be competent to sit in the court according to such order or })rovision among the dis- trict judges as either by general or ])artieular assignment shall be designated by the court : Provided, That no justice or jmlgo before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of a]>peals. Places and times of holding court.] A term shall be held annually by the circuit court of ap])eals in the several ju- dicial circuits at the following places : In the first circuit, in the city of Boston; in the second circuit, in the city of JS'ew York; in the third circuit, in the city of Philadelphia; in the fourth circuit, in the city of Richmond; in the fifth circuit, in the city of Xew Orleans ; in the sixth circuit, in the city of Cincinnati; in the seventh circuit, in the city of Chicago; in the eighth circuit, in the city of Saint Louis ; in the ninth cir- cuit, in the city of San Francisco ; and in such other places in each of the above circuits as said court may from time to time designate. The first terms of said courts shall be held on the second Monday in January, eighteen hundred and ninety-one, and thereafter at such times as may be fixed by said courts [.] The time for holding the first terms of the circuit courts of appeals is ex- tended by the joint resolution of March 3, 1891, printed post, to the third Tuesday in June, 1891. Appellate jurisdiction of circuit courts abolished — Judgments of circuit and district courts to be re- vised only by the United States Supreme Court or by circuit courts of appeals.] § 4. That no appeal, whether by w^rit of error or otherwise, shall hereafter be taken or allowed from any district court to the existing circuit courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing circuit courts, but all appeals by writ of error [or] othei-wise, from said district courts shall only be subject to review in the Supreme Court of the United States or in the circuit court of appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing circuit courts shall be had only in the Supreme Court of the United States or in the circuit courts of appeals hereby established according to the ])rovisions of this act regulating the same. Direct appeal from trial court to Supreme Court, when allowed.] § 5. That appeals or writs of error may Ch. 1.] APPELLATE COUETS ACT. 5 be taken from, the district courts or from the existing circuit courts direct to the Supreme Court in tlie following cases : [1.] 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 de- cision, [2.] From the final sentences and decrees in prize causes. [3.] In cases of conviction of a capital or otherwise infa- mous crime. [4.] In any case that involves the construction or apphca- tion of the Constitution of the United States. [5.] 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 dra^vn in question. [G.] 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. This statute not to affect appeals from the highest court of a State to the Supreme Court.] Xothing- in this act shall aflcct the jurisdiction of the Supreme Court in cases appealed from the highest court of a State, nor the construc- tion of the statute providing for a review of such cases. An examination of this section and the next, in connection with the last sentence of section 14, leaves little doubt that it was the intention of Con- gress to repeal all statutes providing for a review of the judgments and de- crees of federal circuit and district com-ts by the United States Supreme Court by means of an appeal or a writ of error, excejjt in the classes of cases mentioned in sections 5 and 6, and except possibly in a few exceptional classes of cases in which the United States are a party, e. cj., appeals from decisions of circuit courts as to duty charges under the act of June 10, 1890, number 17 in list, post, p. 9, and to repeal entirely all statutes providiug for an ajjpeal from circuit and district courts by way of certificate of division of opinion between the judges. The words in section 6, "i/nless otherwise provided by law," probably re- fer, (1) to cases in which the decision of a circuit or district court is final, as is the case when a federal circuit court makes an order remanding a cause to a State court ; (2) to cases in which the United States Supreme Court exer- cises apiK'Uate revision over the decisions of circuit and district courts by the writ of habeas corpus, mandamus or prohibition, or by any other method than by ajjpeal or writ of error or certificate of division of opinion betwcL-n the judgf^ holding the court below ; and (3) possibly to exceptional cases, Buch as an appeal under the revenue law of Juno 10, 1890, before mentioned. It is noticeable tliat section 14, while it expressly repeals all statutes and partH of slixtutes governing api>eals or writs of error so far as tliey are in- consistent with sections 5 and 0, yet makes no mention of existing statutes l)roviding for the exercise of ai»peilate jurisdiction by the United States Su- preme Court over inferior federal courts l)y means of tlie writ of habeas corpus, mandamus, prohibition or certiorari, or by any other means than an ai)peal or a writ of error. Even api)ellate review by means of a certifi- 6 APPKLI^TE COURTS ACT. [Cu. 1. oato of division of opiniou is not expressly menlioiiocl in section 14. The lanj:;unj;e emiiK)yeil iu Bectiou 4, abolishing the ai)i)ellato jurisdiction of cir- cuit courts, is more comprehensive than that employed in section 14, and sug- g»»stii that the language employed in the latter si'ction was not intended by Congress to deprive the Supreme Coint of all the appellate jurisdiction over circuit anil ilistrict courts conferred upon it by prior statutes. It is didiculfc to believe on the one liaud that Congress intended by tho act of ]\Iarch 8, 1891, to curtiiil tho jjower of tho yupreme Coiut to issue a writ of liabeas cori^ns, or on tlie other hand that it meant to allow the clear cut distinctions established by sections 5 and 6 of that act to be obscnred by appeals by means of a certificate of division of opinion allowed on principles diilereut from those there established. It seems more reasonable to suppose that Con- gress intended to pureue a niiddle course. There is no dilliculty in includ- ing ai)peals by certificate of division of oi)iiiion under the general term, appeals, in view of the recent decision of the Supreme Court holding that a writ of mandamus does not lie from that court to a circuit court to re- view an order of the latter remanding a cause to a State court, because Congress, by expressly abohshing an appellate review of such an order by appeal or \\Tit of error, forbade by implication the appellate review of such an order bj^ any proceeding. In re Pennsylvania Company, 137 U. S., 451. Tlie principal statutes which provide for an appellate review of the decis- ions of circuit and district courts by the United States Supreme Court by error, appeal or certificate of division of opinion, and which are not specific- ally repealed by the act of March 3, 1891, are the following : 1. E. S., § 651. Whenever any question occurs on the trial or hearing of any criminal proceeding before any circuit court upon which the judges ai-e divided in opinion, the point upon wdiich they disagree shall, during the same term, upon the request of either party, or of their counsel, be stated imder the direction of the judges, and certified, under the seal of the court, to the Supreme Court at their next session ; but nothing herein contained shall prevent the cause from proceeding if, in the opinion of the court, fur- ther proceedings can he had without prejudice to the merits. Imprisonment shall not be allowed nor punishment inflicted in any cases where the judges of such court are divided in opinion upon the question touching the said imprisonment or punishment 2. R S., § 653. When a final judgment or decree is entered in any civil suit or proceeding before any chcuit court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall, during the same term, be stated under the direction of the judges, and certified, and such certificate shall be entered of record. 3. R S., § 692. An appeal shall be allowed to the Supreme Court from all final decrees of any circuit court, or of any district court acting as a circuit court, in cases of equity, and of admiraltj^ and maritime jurisdiction, where the matter in dLsj)ute, exclusive of costs, exceeds the sum or value of $2,000, and the Supreme Court is ret^uired to receive, hear, and determine such ap- peals. 4- R S., § 693. Any final judgment or decree, iu any civU suit or proceed- Ch. 1.] APPELLATE COURTS ACT. 7 ing before a circuit court which was held at the time by a circuit justice and a circuit judge or a district judge, or by the circuit judge and a district judge, wherein the said judges certify as provided by law, that thek opinions were opposed upon any question which occurred on the ti-ial or hearing of the said suit or proceeding, may be reviewed and affirmed or reversed or modi- fied by the Supreme Court, on writ of error or appeal, according to the nat- ure of the case, and subject to the provisions of law apphcable to other writs of error or appeals in regard to bail and siqiersedeas. 5. R S., § 695. An appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dis- pute, exclusive of costs, exceeds the sum or value of $2,000 ; and shaU be allowed, without reference to the value of the matter in dispute, on the cer- tificat3 of the district judge that the adjudication involves a question of general importance. And the Supreme Comt shall receive, hear, and deter- mine such appeals and shall always be open for the entry thereof. C. R S., § C97. "VMieu any question occurs on the hearing or trial of any criminal proceeding before a ckcuit court, upon which the judges are di- vided in opinion, and the point upon wliich they disagree is certified to the Supreme Comt according to law, such point shall be finally decided by the Supreme Court ; and its decision and order in the premises shall be remitted to such circuit court, and be there entered of record, and shaU have effect according to the nature of the said judgment and order. 7. R S., g 699. A writ of error may be allowed to review any final judg- ment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute : First Any final judgment at law or final deci'ee in equity of any cii-cuit court, or of any district court acting as a circuit coml, or of the Supreme Court of the District of Columbia, or of any Territory, in any case touching patent-rights or copyrights. Second. Any final judgment of a circuit court, or of any district com-t acting as a circuit court, in any civil action brought by the United States for the enforcement of any revenue law thereof. Tliird- Any final judgment of a circuit court, or of any district com't act- ing as a circuit court, in any civil action against any officer of the revenue for any act done by him in the perfoi-mance of his official duty, or for the recovery of any money exacted by or paid to him which shaU have been paid into the treasuiy. Fourth- Any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citi- zen of the United Stat<'s. Fifth. Any final judgment of a circuit court, or of any district court act- ing as a circuit court, in any civil action brought by any person on account of injury to his person or property by an act done in furtherance of any con- spiracy mentioned in section nineteen liundred and eighty, title " Civil Rights." 8. R S., § 763. From the final decision of any court, justice, or judge in- ferior to the circuit court, uikju an application for a writ of habeas corpus 8 Ain-KLLATK COURTS ACT. [Oil. 1. or ujHMi such writ when issuoil, au appeal may be taken to the circuit court for tlio iliiitrict in which tho cause is heard: 1. In the case of any person lUlot^eii to bo rcstraim>d of his liberty iu viohitiou of the Constitution, or of !Uiy hiw or treaty of tho United States. 3. In tlio case of any prisoner who, being a subject or citizen of a foreign State, and domiciled therein, is com- mitted i>r confined, or in custody by or under the authority or law of tlie United States, or of any St;xte, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the connnissiou, order, or ;.aiit'tion of any foreign Stiite or sovereignty, tiie validity and effect whereof deiK-nd upon the law of nations, or under color tliereof. § 704. From tho tiu;d decision of such cu-cuit court an appeal may be taken to tlie Supremo Court in the cases described in tho preceding section. As amended by 2J Stat, 437. 9. An act to protect all citizens in their civil and legal rights. March 1, 1875, R S. Sup., 148; 18 Stat, 335. Section 5 is as follows: "That all cases arising under the provisions of this act in the courts of the United States shall be reviewable by the Supreme Court of the United States, without re- gard to the sum in controversy, under the same provisions and regulations as are now provided by law for the review of other causes in said court" By section 5 of the amendatory acts of March 3, 1887, and August 13, 1889, it was provided that notliing therein should repeal or affect this statute. Sections 1 and 2 of this statute are vmconstitutional so far as they purport to be operative within the States of the Union. The Civil Rights Cases, 109 U. S., 3. 10. An act restricting the refunding of custom duties, etc. IMarch 3, 1875, R S. Sup., 173 : 18 Stat, 469. Section 4 contains a proviso as follows : " That in all cases where the Secretary of the Treasury shall so request the Attorney-General shall take an appeal to the Supreme C-'ourt" 11. An act to authorize the registration of trade-marks and protect the same. March 3. 1881, R S. Sup., 006, 31 Stat, 503. Section 7 provides : " And courts of the United States shall have original and appellate jurisdiction in such cases [actions on the case for damages and equity suits for an injimction and account imder the act] without regard to the amount in controversy." 12. An act to reduce internal-revenue taxation, etc. March 3, 1883, 3^ Stat, 488. Provides, amending Revised Statutes, section 3493, for appeals and writs of error from judgments of forfeiture by district and circuit courts in proceedings under the statute as in other cases of municipal seizure. 13. An act to regulate commerce, as amended February 4, 1887, 24 Stat, 379 ; amendment 35 Stat, 855, March 3, 1889. Printed iu full post. Section 16 provides for an appeal to the Supreme Court from a judgment of a fed- eral circuit court enforcing an order of the interstate commerce commission when tlie value involved is |2,000 or more. In one class of cases the appeal must be taken within twenty days after judgment 14. An act to provide for the bringmg of suits against the government of the United States. March 3, 1887, 24 Stat., 505. Printed m full post. See sections 4, 9, providing for an appeal by the United States from an adverse decision of a federal circuit or district court to the United States Supreme Ch. 1.] APPELLATE COURTS ACT. 9 Com-t, without regard to the amount in controTersy, and for an appeal by the plaintiff when $3,000 is involved. 15. An act to abolish circuit court powers of certain disti-ict courts of the United States and to provide for writs of eiTor in capital cases. Feb. 6, 1889, 25 Stat, 655. Printed in full x>ost. 16. An act to provide for writs of error or appeals to the Supreme Court of the United States iu aU cases involving the question of the jurisdiction of the courts below. Feb. 25, 1889, 25 Stat., 693. Printed in full pos^ 17. An act to simpUfy the laws in relation to the collection of the rev- enues. June 10, 1890 ; 26 Stat., 131, 138, § 15. Provides for au appe^^l from a decision of a federal circuit court vmder said statute as to duty charges to the United States Supreme Court at the option of the United States in any case, and in the discretion of the circuit court upon application of the im- porter, the appeal to be taken within tliirty days after the decision of the circuit court 18. For prior statutes allowing appeals from Tenitorial supreme com-ts to tlie United States Supreme Court, see Ch. 2, Statutes Nos. 1, 8, post. 19. For prior statutes allowing appeals from the United States court in the Indian Territory to the United States Supreme Court, see notes under § 13, post. 20. For examples of the allowance of appeals to the United States Su- preme Court under special statutes, see 2-i Stat, 335, August 5, 1886, to pro- vide for protecting the interests of tlie United States in the Potomac River Flats, etc. ; 25 Stat, 400, 411, condemnation proceedings; 26 Stat, 24, March 19, 1890, appeal from the com-t of claims. The appellate jurisdiction of the United States Supreme Court, exercised by means of special writs, is governed chiefly by one constitutional and sev- eral statutory provisions, as follows : 1. Const, art 3, § 2, clause 2. In all the other cases before mentioned [i. e., cases not of original jurisdiction] the Supreme Court shall have appel- late jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. 1. R. S., g 688. The Supreme Court shall have power to issue writs of pro- hibition iii[to] the dLstiict courts, when proceeding as courts of admiraltj' and maritime jurisdiction ; and writs of mandcnnus, in cases warranted by the principles and usages of law, to any courts api)ointed under the authority of the Uuit«jd States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul or vice-consul is a party. 2. li. S., § 716. The Supreme Court and the ciicuit and district courts shall liave power to issue writs of scii'e facias. They shall also have power to issue ail writs not specifically provided for by statute, which maybe nec- essary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. 3. R S., g 717. WritH of ne caveat may 1)0 granted by any justice of the Supreme Court in cases where they might be granted by tlu; Supremo Court; and by any circuit justice or circuit judge, in ca-ses wlicre tiicy might be grant<'d by tlio circuit court of whicli he is a judge. But no writ oi lie exeat sliall be granted unless a suit iu equity is commenced, and satis- 10 Ari'ELLATE COURTS ACT. [ClI. 1. fact<^ry in-oof is m.-ulo to tho court or jmlgo granting tho same that the de- fondant ilosigns (juiL-kly to di'part from tlio United Statos. 4. 1\. S., J? 719. AVrits of injumtiou may bo granted by anj"^ justice of the Supromo Court in cases whore thoy miglit be granted by the Supreme Coiu't ; and by luiy judge of a circuit court in ciises wliei-o they might bo grantoil by such court But no justice of tho Supreme Court shall hear or allow any application for an injunction or restraining order in any cause ponding in tho circuit to which he is allotted, elsewliere than within such circuit, or at such place outwide of the same as the ixirties may stii)ulato in writing, except when it cannot be heard by the circuit judge of tho cii'cuit or tlie tlistrict judge of the district . . 5. R, S., § 751. Tho Supremo Court and the cii-cuit and district courts shall have power to issue writs of Itabcas cor2)us. 6. R. S., § 752. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas cor- pus for the pm'i)ose of an inquiry into the cause of restraint of liberty. As TO Clause 1. As to tlie practice upon an ajipeal or writ of error from a cu'cuit or disti'ict court to the Supreme Court in a case in which the jm"is- dictiou of the lower court is in issue, see. An act to provide for writs of error or appeals to the Supreme Court of the United States in aU cases involving tlie jurisdiction of the com-ts below, approved February 25, 1889, printed in full jiost; also Rvde 32 of the United States Supreme Court post, regulating the practice under the act of February 25, 1889. The latter act only i)rovides for an appellate review of final judgments and decrees involving the juris- diction of the court below. The language employed in section 5 is quite dilfereut from that used in the act of 1889, and is consistent with the inter- l)retation that an appeal may be taken from a judgment of a cu-cuit or dis- trict court either allirmiug or disaffirming its jurisdiction, although in the former case the judgment may not be final in the sense of disposing of the controversy. If this is the true inteii)retation, the suit would continue in the court below for a trial on the merits after a judgment of the Supreme Court sustaining the jurisdiction, and after judgment on the merits the case might be taken to the circuit court of appeals or a second time to the Supreme Coiirt imder other clauses of section 5 than the first As TO Clause 3. As to the practice upon writs of error from the Supreme Court in cases of a conviction of a capital or otherwise infamous crime, see. An act to abolish circuit court powers of certiiu district courts of tlie United States, and to jjrovide for writs of eiTor in capital cases, etc., in force Febru- ary 6, 1889, post. See, also. Rule 35 of the United States Supreme Court post, regulating the practice under the act of February 6, 1889. As TO Clause 5. A case, involving the construction of an act of Congress, is not, on that ground, included in clause 5. Jurisdiction of circuit courts of appeals — When final.] t; •;. That the circuit courts of appeals established by this act shall exercise appellate jurisdiction to review by ap- peal or by writ of error final decision [s] in the district court [s] and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless other- Ch. 1.] APPELLATE COTJKTS ACT. 11 wise provided by law, and the judgments or decrees of tlie cir- cuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy, being aliens and citizens of the United States or citizens of different States ; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws and in admiralty cases. Revision of judgment of circuit court of appeals by Supreme Court.] Excepting that in every such subject within its appellate 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 Court may either give its instruc- tion on the questions and propositions certified to it, which shall be bindmg upon the circuit courts of appeals in such case, or it may requhe that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. And excepting also that in any such case as is hereinbefore 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 re- view 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. 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 shah exceed one thousand dollars be- sides costs. Jjut 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. See remarks under section 5. Appeals to the Supreme Court. Cases at law or in equity to recover for, or restrain, infriugenient of a copyriglit or a trade-mark, not being enumerated among the cases in wliich the jurisdiction of circuit courts of apijeuls are liual, may be taken to the Sujjreme Court, probably, as of right, wlieu the value in controversy exceeds !^1,0UU exclusive of costs. Apijeal to circuit court of appeals from interlocu- tory decree granting or continuing an injunction.] § 7. That where, upon a heai'ing in etpiity in a district court, or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause in which an ap[)eal from a final decree may be taken under the I)iovisions of this act to the circuit court of ai)peals, an appeal 12 ArrKLLATE COURTS ACT. [ClI. 1. may be lakon from such inttM-locutory order or decrco ^rant- injj or t'cuitiiiuiiig such injuuctioii to the circuit court of ap[)cals : 2*i'ovuhd, That the a})[)eals must bo taken Avithin thirty (hiys from the entry of sucli order or decree; and it shall take ])re- cedence in the ai)})ollate court; and the proceedings in other resi)ects in the court below shall not be stayed unless other- wise ordered by that court during the pendency of such appeal. Tlio ant)\\ance of au appeal from au interlocutory order is a new feature in the practice of federal courts. The act of February 25, 1889, post, provid- injr fi>r a writ of error or au appeal to the Uuited States Supreme Court in all cases iuvolviug the question of the jurisdiction of the courts below, only pro\ iiled for the appellate review of a final judguient or decree. Allowance to judge holding court away from his residence.] § 8. That any justice or judge, who, in pursu- ance of the provisions of this act, shall attend the ch'cuit court of ap})eals held at any place other than where he resides shall, upon his written certificate, be paid by the marshal of the dis- trict in which the court shall be held his reasonable expenses for travel and attendance, not to exceed ten dollars per day, and such payments shall be allowed the marshal in the settle- ment of his accounts with the United States. Marshal of district to provide court-rooms and pay court expenses.] § 'J. That the marshals of the several dis- tricts in which said circuit court of appeals may be held shall, under the direction of the Attorney-General of the United States, and with his ajjproval, provide such rooms in the pub- lic buildings of the Linited States as may be necessary, and pay all incidental expenses of said court, including criers, bail- iffs, and messengers: I^rovlded, Jiowever, That in case proper rooms cannot be provided in such buildings, then the said marshals, Avith the approval of the Attorney-General of the United States, may, from time to thne, lease such rooms as may be necessary for such courts. That the marshals, criers, clerks, bailiffs, and messengers shall be allowed the same com- pensation for their respective services as are allowed for similar services in the existing circuit courts. Cases reviewed by the Supreme Court or by a cir- cuit court of appeals to be remanded to the proper circuit or district court] g lO. That whenever on aj)peal or writ of error or otherwise a case coming directly from the district court or existing circuit court shall be reviewed and determined in the Supreme Court the cause shall be remanded to the proper district or cu'cuit court for further proceedings to be taken in pursuance of such determination. And when- ever on appeal or w^rit or [of] error or otherwise a case coming from a circuit court of a})peals shall be reviewed and deter- mined in the Supreme Court the cause shall be remanded by Ch. 1,] APPELLATE COURTS ACT. 13 the Supreme Court to the proper district or circuit court for further proceedings in pursuance of such determination. AYhen- ever on appeal or writ of error or otherwise a case coming from a district or circuit court shall bo reviewed and deter- mined in the circuit court of appeals in a case in which the decision in the circuit court of appeals is final such cause shall be remanded to the said district or circuit court for further proceedings to be there taken in pursuance of such determina- tion. Appeal to circuit court of appeals to be taken, within six months or less.] § 11. That no appeal or writ of error by which any order, judgment, or decree may be re- viewed in the circuit courts 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: Frovlded, hotcever, 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 a])ply to appeals or writs of error in such cases taken to or sued out from the cu'cuit courts of ap- peals. See remarks in chapter 3. Practice as to appeals.] And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and sys- tem of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, including all provis- ions for bonds or other securities to be required and taken on such appeals and writs of error, and any judge of the circuit courts of appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the condition of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respect- ively. R S., §§ 997-1013, relate to practice on error and appeal See Rules of the United States Supreme Court, post. See act of February IG, 187.5, posi, reguhiting admiralty practice on the instance side of the court. Power of circuit court of appeals to issue writs.] § 12. Tliat tlie circuit court of ap[)cals sliall Jiave the i)owers specified in section seven hundred and sixteen of the lievised Statutes of the United States. Section TIG of the Revised Statutes is as follows: The Supremo Court and the circuit and district courts shall liavc power to issue writs of scire facias. Tliey shall also have power to issue all writs not spccilically pro- vided for by statute, wliicii may bo necessary for the exercise of tlieir re- spective jurisdictions, and agreial.lc tu the usages and principles of law. 14 Arnn.i.ATK courts act. [Ch. 1. QitiTt'C, Can n cirtMiit court of ajijioals issue a writ of liahcas eorj^ns? By R S., J^iJ 751, 1^^'2. tlu> Suprciuo Court, Iho cirt-uit and district courts and the several justices and jud^i's of said courts are given power to Issue the writ It has not been found necessary lieretofore to rest tlie power to issue writs of InilH'as corpus upon § 71(5 of the Revised Statutes. Section 14 of the ju- diciarj' act of 1789, from which R S., § 710, was drawn, was as follows : g 14. And be it further enacted, That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas cor- pus and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agi-ceable to the principles and usages of law. And that either of the justices of tlie Supreme Court, as well as the judges of the district courts, shall have power to grant writs of habeas corjnis for the pur])ose of an inquirj' into the cause of conmiitnient. — Provided, that writs of habeas corjms shall in no case ex- tend to prisoners in jail, unless where they are in custody, under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Appeals from federal court In Indian Territory.] § lo. Appeals and writs of error may be taken and prosecuted from the decisions of the United States court in the Indian Territory to the Supreme Court of the United States, or to the circuit court of appeals in the eighth circuit, in the same manner and under the same regulations as from the circuit or district courts of the United States, under this act. An act to establish a United States court in the Indian Territory, and for other purposes, approved March 1, 1889 (25 Stat, 783), § 6, provides for the review by the United States Supreme Court by writ of error or appeal of the final decisions of the United States court in the Indian Territory when the value in dispute exceeded |1,000. An act to provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes, approved May 2, 1890 (26 Stat, 81), § 42, is as follows : " Tliat appeals and writs of error may be taken and prosecuted from the decisions of the United States court in the Indian Territory to the Supreme Court of the United States in the same manner and under the same regula- tions as from the circuit courts of the United States, except as otherwise pro- vided in this act" Repeal.] § 14. That section six hundred and ninety-one of the Eevised Statutes of the United States and section three of an act entitled ''An act to facilitate the dis])Osition of cases in the Supreme Court, and for other purposes," approved Feb- ruary sixteenth, eighteen hundred and scventy-tive, be, and the same are hereby repealed. And all acts and parts of acts relating to appeals or writs of error inconsistent with the pro- visions for review by appeals or writs of error in the preceding sections five and six of this act are hereby repealed. For remarks upon the last sentence of tliis section, see notes under sec- tion 5, ante. Ch. 1.] APPELLATE COUKTS ACT. 15 Section 691 of the Revised Statutes, repealed by this section, provided for a \vrit of error from the United States Supreme Court to circuit courts to review their final judgments when the matter in dispute exceeded $2,000. Section 3 of the act of Februaiy 16, 1875, repealed by tliis section, provided that, in order that judgments and decree of circuit courts might be reviewed by the Supreme Court, the value in dispute must be $5,000 where before it had been $2,000. The imi-epealed part of the act of February 16, 1875, is printed in f uU post. Appeal from supreme court of Territory to cir- cuit court of appeals.] § 15. That the circuit court of ap- peal in cases in wliich the judgments of the circuit courts of appeal are made liual by this act shall have the same appellate jurisdiction, by writ of error or appeal, to review the judg- ments, orders, and decrees of the supreme courts of the several Territories as by this act they may have to review the judg- ments, orders, and decrees of the district court 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. Approved March 3, 1S91. It wUl be observed that the scope of the appellate jurisdiction of a circuit court of appeals to review the judgments of a supreme court of a Territory is less extensive than its power over the judgments of a circuit or district court of the United States. An act regulating appeals from the supreme court of the District of Col- umbia and the supreme courts of the several Territories, approved March 3, 1885, x>ost, is modified so far as inconsistent with this section. 10 JOINT RESOLUTION. [ClI. 1. JOINT RESOLUTION, MARCH 3, 1891. Joint Resolution to provide for the orj;auization of the circuit courts of appeals. Approved Alareh 3, IH'Jl.i Time of convening of circuit courts of appeals.] J?esoh'ed hy the Senate and House of Jieprcsentatlvcs of the ihiited States of America in Congress asscmhlcd, That tlic iirst ineetings of the several circuit courts of appeals mentioned in the act of Congress ])asse(l at tliis present session, entitled "An act to establish circuit courts of apj)eals and todeiinc and reg- ulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," shall be held on the thirtl Tuesday in June, A. 13. eighteen hundred and ninety-one ; and if, from any casualty, the Iirst meeting of any of said courts shall fail to be so held on that day, the first meeting of any such court so failing to be held, shall be held on such day subsequent thereto as the chief justice, or any justice of the Supreme Court of the United States assigned to such circuit, shall direct : Jurisdiction of Supreme and circuit courts prior to July 1, 1891, saved.] And he it further resolved, That nothing in said act shall be held or construed in anywise to impair the jurisdiction of the Sui^reme Court or any circuit court of tlie United States in any case now pending before it, or in respect of any case av herein the writ of error or the ap- peal shall have been sued out or taken to any of said courts before the first day of July, anno domini, eighteen hundred and ninety-one. Approved March 3, 1891. See the last sentence of section 3 of the preceding act, to correct which this resolution was passed. 1 Printed from a certified copy procured from the office of the Secretaiy of State. The text follows the punctuation and capitalization of the certified copy. CHAPTER 2. IMPORTANT GENERAL STATUTES, GOVERNING THE JURISDICTION AND PRACTICE OF THE FEDERAL COURTS, ENACTED AFTER THE REVISED STAT- UTES. Niunber. 1. An act conceming the practice in Territorial courts and appeals there- from. April 7, 1874. 2. An act to facilitate the disposition of cases in the Supreme Court of the United States, and for other purposes. February 16, 1875. 3. An act to determine the jurisdiction of the cucuit courts of the United States, and to regulate the removal of causes from State courts, and for other pm-poses. ilarch 3, 1875. As amended in 1887 and 1888. 4. An act to provide for the appointment of commissioners for taking affi- davits, etc., for the courts of the United States. August 15, 187G. 5. An act to make pereons charged with crimes competent witnesses in the United States and Territorial courts. March 16, 1878. 6. An act making appropriations, etc. (clerk when not to be receiver or master). March 3, 1879. 7. An act regulating fees and the practice in extradition cases. August 3, 1883. 8. An act regulating the appeals from the Supreme Court of the District of Columbia and tlie supreme courts of the several Territories. March 3, 18S5. 9. Ab act to regulate commerce. February 4, 1887. As amended March 2, 1889, August 8, 1890, and February 10, 1891. 10. An act to provide for the bringing of suits against the Government of tlie United States. March 3, 1887. 11. Ari act to authorize condemnation of land for sites of public buildings and for other purposes. August 1, 1888. 12. An act to regulate the liens of judgments and decrees of the courts of the United States. August 1, 1888. 13. An act to correct the enrollment of an act approved March 3, 1887, en- titled " An act to amend sections 1, 2, 3 and 10 of an act to deter- mine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts and for other pur- poses. Ap[)roved March 3, 1875." August 13, 1888. 14. An act to abolish the circuit court powers of certain district courts of the Unit(!d StiiU's and U) i)rovide for writs of error iu capital casee and for other i)urposes. February G, 1889. 15. An act t!iiun v. l?auor (li^ST), 120 U. S., 450, wliich ovciniled in olToct New Orlcana, otc, R Co. V. Mississippi, 113 U. S., 13, and Railroad Co. v. Mis- sissippi, 103 U. S., 135. A circuit court of the United States has no jurisdiction to compel a postmaster, by mandauius, to transmit mail matter at a lower rato of posUige thiui that charged. United States v. Pearson, 24 Blatch., 453. New remedies afforded by State statutes will be applied, and new rights given, enforced in the national courts. Held, accordingly, that an action at law, to (nfove the individual liability of stockholders, under pi'ovisions of the Civil Code of California, uiay be maintained in a federal chcuit court held in that Stata Borland v. Haven, 13 Sawyer, 551. The circuit com-ts of the United States have jurisdiction to cancel a written contract of marriage on the ground of its forgery. Such contract, if genuine, and followed by the requisite consummation, imposes upon the husband from its date the obligation to support the wife, and confers upon the wife certain rights in his ])roperty, and such obligation and rights measure the sum or value of the matter in dispute in a suit to cancel such written contract, within the meaning of the acts of Congress requiring a certain value to such matter in order to give the circuit courts of the United States jurisdiction. Where the controversy is not respecting the amount or value in dispute, such amount or valua when necessary to the jurisdiction, may be shown by the evidence produced in the case, or by affidavits filed when the question of jurisdiction is raised. Sharon v. Terry, 13 Sawyer, 387 ; Same Case, 36 F. R, 337. Where a State court refuses to permit its receiver either to sue in a fed- eral coui't or to be made a party defendant, the jurisdiction of the federal court faUs. Porter v. Sabin, 36 F. R., 475. The facts that a partnei-ship has become insolvent, and passed into the hands of a receiver appointed by a State court of another State, be- fore the commencement of an action against it in the federal court of the district of the residence of one of its members, and that plaint- iff's claim has been presented to the receiver, who still retains the partnership affaire in his hands unsettled, are no bar to the action. Rawitzer v. Wyatt, 40 F. R, 609. In Nevada, counties are liable to be sued in the State courts, the same as " natural persons." Held, also, that they are liable to be sued in the courts of the United States. Vincent v. Lincoln Co., 30 F. R, 749. WTiere a statute of a State provided that in the case of fraudulent as- signments a court of competent jurisdiction is authorized to declare the assignment void, although the assignee is not shown to have notice of the fraud, the equity courts of the United States having jurisdiction can enforce rights under such statute. Jaffrey v. Brown, 29 F. R, 476, followed. Bemheim v. Birnbaum, 30 F. R., 885. Ch. 2.] IMPORTANT STATUTES. 23 Original Jurisdiction Generally — continued. The circuit court has not original jurisdiction of proceediags to limit the hability of ship-owners by virtue of admiralty rule 58, which provides that all the niles and regulations for proceedings tu cases where ship-owners desire the benefit of the limitation of liabihty " shall apply to the circuit courts of the United States, where such cases are or shall be pending in said courts upon appeal from the district courts," or otherwise. The proceedings must originate in the disti-ict court In re Petition of Lord, 31 F. R., 416. Pending proceedings ia a State court under an assignment for the bene- fit of creditors, a ci'editor Avho was not a party to such proceedingp, and who was a non-resident of the State in which the assignment was made, brought suit in the United States circuit court to detei- miae the validity of a deed of trust made prior to the assignment, and covering a large amount of the assets assigned. The assignee had entered upon the duties of liis ti'ust, but had taken no steps to contest the deed. Held that, as the question of the validity of the deed was one which was so entirely separate and distinct from those questions involved in the general proceedings that it could properly be eliminated therefrom without prejudice to such proceedings, it was one which the United States court had jurisdiction to determine. Gould V. MuUauphy Planing-Mill Co., 32 F. R, 181. Tlie attachment of a debt in New Jersey by a resident of New York, after tlie execution in New York, by the owner of the debt, of an assignment for the benefit of creditors, will not prevent the federal courts from entertaining a suit by the assignee for the recovery of the debt Halsted v. Straus, 33 F. R.. 279. A State statute vesting in the board of suijervisors of each county " ex- clusive power to adjust all claims against their respective counties " is no bar to a prosecution for a tort in a federal court May v. Sag- inaw Co., 32 F, R, 629. An action wUl lie against a county for the infringement of a patent Id. Whenever it is intended to proceed against the sureties on an adminis- trator's bond, the United States circuit court has original jurisdic- tion in equity to compel an accounting by the administrator without a preliminary accounting before the probate court Prince v. Towns, 33 F. R, IGl. Plaintiffs alleged that their jjrojjcrty had been seized under color of a State law which was alleged to be void as against the federal con Btitution. Held, on demurrer, that a federal question was suflicientlj presented without formally alleging that the circumstances of tin' an-est were such as to call forth the operation of the State law. Booth V. Lloyd, 33 F. R, 593. A suit to annul a will as a muniment of title, and so as to rastniin the enforcement (jf a decree admitting it to pnjbat*', is in essential par- ticulars a suit in equity ; and if by the law obtaining in the State, customary or 8tatut<^)ry, such a suit can bo maintained in one of its courts, whatever d<3signation that court may bear, it may bo main- tained by original prf)ce8s in the circuit court of the United State."-, -^ IMl'OKTAUT STATUTES. [Cu. 2. OKUii.NAi. Ji insnuTioN Generally — coiitinucit if Uie iKirties aio citi/.eus of diU'oit-'uL States, and the amount in con trovi'i-sy iij sulliciont to give the circuit court of the United State*, jurisdiction. E\crluut i\ Everliart, 'Si F. R, 82. The fact that a citi/.eu of another Stiite is selected as administrator for the purpose of conferring on tlie United States circuit court jiu-isdiction of an action to be brought by him does not defeat that jurisdiction- Goll's Adra'r v. Norfolk, etc., Co., 36 F, R, 209. When defendant, in suit to quiet title to unoccupied land, is not in pos- session, complainant has not a plain, complete and adequate rem- edy at law, in which case suits in equity are forbidden by Revised Statutes, section 723, but the federal courts may administer the equitable remedy given by such Micliigan statute. Grand Rapids, etc., Co. V. Sparrow, 36 F. R, 210. Federal courts have jurisdiction to relieve against a title fraudulently obtained by proceedings in a State court by enjoining the assertion of the fraudulent title. Robb v. Vos, 36 F. R, 132. The motive with wliich a person pm'chases property or a claim has nothing to do with his right to maintain an action thereon in the national comets ; and so it does not affect the jurisdiction of said courts if the purchase is made with the expressed intention of suing therein. Neal v. Foster, 36 F. R, 29. Wliere entry beneath the surface on mining land is claimed to be made rmder the mining laws of the United States, and the right to enter turns upon the construction to be given to such laws, the case is within the jurisdiction of the United States circuit coui-t Cheese- man V. Shreeve, 37 F. R, 36. The federal couiis will take equity jurisdiction of a bill by non-resident heirs at law against resident heirs to compel an accounting of the property of their intestate in the hands of the defendants, and for a distribution of the estate, notwithstanding the remedy of com- plainants under the probate law of the State, when the bUl alleges facts evoking the exercise of the powers of a com't of chancery, such as that there has been no administration after the lapse of five years, that defendants have wrongfully appropriated the whole estate to their use, traded and speculated u^jon it, changing the original form of some of the property, made profits thereon, and been guilty of concealment, rendering a discovery and accounting necessary. Rich v. Bray, 37 F. R, 273. Tlie federal courts have jurisdiction of an action by a steamboat com- pany to recover damages from a railroad company for obstixicting a navigable river of the United Slates by building a bridge across it, regardless of the citizenslup of the parties. Sunflower River Packet Co. v. Georgia Pac. R Co., 39 F. R., 229. If a legislature of a State permits a county to contract and issue obliga- tions as evidences of indebtedness to citizens of other States, such legislature cannot prevent such citizens from bringing suits in a federal court in the State of the county by a law which provides Ch. 2.] IMPOETANT STATUTES. 25 Original Jurisdiction Gen'erally — continued. that counties cannot be sued, for the laws of the State permit the counties to create, on behalf of the citizens of other States, a proi>- erty right as against the counties, and this gives the right to such citizens to sue the counties in the federal courts. And such right is one which is beyond the control of any legislative action of the State, and can be regulated alone bj- the constitution and laws of the United States. Hoover v. Crawford County, 39 F. R., 1. The federal coui-ts have jurisdiction of suits involving the validity of a tax imposed by a State, alleged to be in violation of the United States constitution, without regard to the citizenslrip of the parties thereto. United States Exp. Co. v. Allen, 39 F. R, 712. In an action to restrain defendants from using bottles and labels in imi- tation of those of the plaintiff, where the patent for the design of such bottles has expired, the question whether defendants are using the same in good faith, in which case their acts would be lawful, or for the purpose of misleading the public to believe that they are sell- ing the article made by plaintiff, in which case the expiration of the patent would be no defense, does not arise under the laws of the United States so as to give the federal courts jmisdiction. So- ciete Anonyme De La DJstillerie De La Liqueur Benedictine De L'Abbaye De Fecamp v. Cook, 40 F. R., 383. Under act of Congress, 1875, giving cncuit courts jurisdiction in all cases " arising under the constitution or laws of the United States," such courts have jurisdiction of a bill for an injunction to restrain a railroad company from extending its road across land belonging to the United States, and to which the complainant claims to have an equitable title as a pre-emptor, where the question in disjiute is whether complainant has a right to the land under the laws of the United States. Jones v. Florida C. «& P. R Co.. 41 F. R, 70. Under the act of June 7, 1878, repealing the bankrupt law, and the act of March 3, 1887, amending the act of 1875, a circuit court has juris- diction of a suit by an assignee in bankrujitcy to prevent a person from estiblishing on the bankrupt's property, by proceedings in a State court, the lien of a fraudulent judgment obtained in 18G9, Lehman v. La Forge, 42 F. R, 493. A federal court has jurisdiction of a suit to set aside its former decree for being fraudulently obtained, although by reason of ijresent citi- zenshi[) a purely original bill between the parties could not be main- tained, as such a suit is but a continuation of the former controversy. Foster ?'. Mansfield, C. & L. M. R Co., 36 F. K., 027. An original bill and a cross-bill tin -rt- to constitute but one cause; and when a circuit court has jurisdiction of the former by reason of the citizenship of the parties thereto, it has jurisdiction of the latter without reference to such citizenship. Firet Nat Bank of Salem r. Salem Capital Flour-Mills Co., 31 F. R, 580. Contra, Vnimerson i\ Leverett, 31 F. R, 370. Defendant in a suit involving less than *2,000 was served with sunimons February 2, 1887, by an unauthorized iK-'i'son. lie ai)peared geuer- 20 IMrOKTANT STATUTES. [Ch. 2. OUUSINAL Jl"l{l>l'A ll>'.\ lil .M.IJAI.IA' — COIltillHCd. ally ou February 21), liu of circuit courts to suits iuwliich the matter in disputo oxcccils $'2,000, a circuit court luis juriiidictiou of a bill brought by a stockhoklcr for the benefit of tlie corporatiou aud any other stockholders who may choose to come ill, to restrain the directors from paying out assets of the cor poratiou to tlie amount of $100,000, though the complainant holds less than t;l,000 worth of stock, the matter in disputo in such case beiug the wrong done the corporation. Hill v. Ulasgow R Co., 41 F. R, 610. Under the act of 1875, as amended in 1887 and 1888, in a suit on county bonds and the interest coupons attached thereto, the coupons con- stitute " interest " within the meaning of the clause of the statute providing that the United States circuit courts shall have jurisdic- tion in certain cases where the amount in dispute exceeds $2,000, exclusive of interest and costs. Howard v. Bates County, 45 F. R, 27C. Patent and Copyright Suits. Under the act of Congress of March 3, 1887 (§ 1), providing that suits in the federal circuit courts shall be brought in the district where the defendant resides, except when the citizenship of the parties is the jurisdictional fact, a bill to restrain the infringement of a patent filed in IMissouri against a citizen of Indiana cannot be maintained. Reinstadler v. Eeeves, 33 F. R, 308. A bill for infringement of a patent in the circuit court for the southern district of New York by a citizen of that State alleged that the de- fendant was a corporation of Connecticut doing business in the district Held, on demurrer to the bill, for which a special appear- ance only had been entered, that the court had no jurisdiction ; the defendant, under the act of Congress of March 3, 1887, not being liable to suit outside of the district of which it was an inhabitant, except where it waives its objection, or where the jurisdiction of the circuit court is invoked solely on the ground of diverse citizen- ship. HaLstead v. Manning, Bowman & Co., 34 F. R, 565. A ckcuit court sitting in Illinois has no jurisdiction of a suit for the in- fringement of letters patent brought by a corporation of that State against a corporation of Connecticut, having its principal office in Massachusetts and doing business in Illinois ; a corporation, under the act of 1887, being an inhabitant of the place where it has its principal place of business, where its corporate offices and records are kei)t, and its corporate meetings are held, aud there being no statute in lUinois making it a condition of foreign corporations doing business in tlie State tliat they appoint agents upon whom pro- cess may be served Gormully & Jeffrey Manuf. Co. v. Pope Manuf. Co., 34 F. R, 818. Neither Revised Statutes, section 711, vesting in the United States courts exclusive jurisdiction of patent and copyright cases, nor section 699, providing for appeals and writs of error in such cases, without Ch. 2.] IMPORTANT STATUTES. 29 Patent and Copyright Suits — continued. regard to the sum in dispute, was repealed by act of Marcli 3, 1875, and neither can therefore be repealed by act of March 3, 1887, which only purports to amend the former act Both acts merely refer to those cases v\-here the State and federal courts have concurrent ju- risdiction. Miller-Magee Co. v. Carpenter, 3-1 F. R, 433. In view of the act of Juh^ 8, 1870, section 106, conferring on the circuit courts jurisdiction of all actions arising under the copyright laws, whether civil or penal in their nature, those courts, under Revised Statutes, section 629, clause 9, giving them jurisdiction of all suits arising under the copyright laws, have jurisdiction of qui tarn ac- tions for penalties imposed by section 4963 for violations of the law relating to copjriglit, though by section 563 the district courts have jirrisdiction of all suits for penalties and forfeitures incurred under the laws of the United States. Taft v. Stephens Lith. & Eng. Co. CMarch 20, 1889), 37 F. R, 726. Under section 1 of the act of 1875, as amended in 1887 and 1888, which provides that no civil action shall be brought against any person in any district except that in which he is an inhabitant, a suit cannot be maintained in the disti'ict of New Jei-sey against the commis- sioner of patents, whose official residence is the District of Colum- bia. lUingworth v. Atha, 42 F. R, 141. Suits by tiie United States, Citil and CRimNAL. The limitation as to amount in controversy, necessary to give the cir- cuit court jurisdiction, fixed by section 1 of the act of March 3, 1887, does not apply to suits in which the United States is plaintiff or pe- titioner. United States v. Shaw, 39 F. R, 433. Contra, United States V. Huffmaster, 13 Sawyer, 283 ; S. C, 35 F. R, 83. The old law embraced in section 629, Revised Statutes, gave jurisdiction of all suits at common law and in equity where the United States are plaintiffs or petitioners, and it also contained an independent special clause, giving jurisdiction of all suits arising under the reve- nue, internal revenue, or postal laws. The act of March 3, 1887, con- ferred jurisdiction of all suits at common law or in equity where the United States are plaintiffs or petitioners, without reference to said special subjects. Held, that the latter provision does not repeal by imphcation the grant of jurisdiction over the special subjects mentioned in tlie dependent clauses of the original statute. United States V. Shaw, 39 F. R, 433. The receiver of a national bank in process of liquidation, having received his appointment from the comptroller of the currency under the national banking laws, Ls an ofTicer of the United States, and as sucii may sue iu the circuit court,'witliout regard to citizeu.sliip or the amount involved, under Revised Statutes, section 629, clause 3, cou- fen-ing upon that court jurisdiction " of all suits at conmiou law where the United States, or any officer thereof, suing under au- thority of any acts of Congi-ess, are plaintiffs." Armstrong v. Ettle- Bohn, 30 F. R., 209. 30 IMPOKTAN'r STATUTES. [ClI. 2. Snxs BY TUE United States — contimted. Clauso 4. s(>ction 629, I\o\isod Statutos, was not repealed by the act of Marrh 'X 1875, or by the act of March B, 1887, definin>; the jurisdic- tion I'f the circuit courts; and these courts liave jurisdiction in suits arising under revenue laws, aUlKnigh the amount in (hspute is less than ^0,000. Ames v. llager, 13 Sawj-er, 473; S. C, 3G F. R, 129. Forging or unlawfull}- tampering with the tally-papers or other re- turns which show, in addition to the number of votes cast for a member of Congress, tlie number of votes cast for State officers at the same polls, is an offense against the federal election laws, of whit'h the federal courts and commissioners have jurisdiction. Van Bureu v. United States, 30 F. R, 77, Act of February 2(5, 1885, j)rohibiting the importation of contract labor, provides in section 3 that every person violating its provisions shall forfeit for each offense the sum of $1,000, which may be sued for and recovered as debts of hke amount are now recovered in the cir- cuit courts of the United States, and that it shall be the duty of the district attorney of the proper district to prosecute every such suit at the expense of the United States. Held, that, as the suit to re- cover such penalty is of a criminal nature, this provision is not repealed by the act of August 13, 1888. United States v. Mexican Nat R"y Co., 40 F. R, 769. Place of Suit Generally. A suit to enforce or remove an incumbrance or lien may be brought against a non-resident and service may be had by publication. See section 8, post. Section 1 of the act of March 3, 1875, as amended in 1887 and 1888, con- tains the clause : " But where the jurisdiction is foimded 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" Under this provision a circuit court has not jurisdiction of a suit by two plaintiffs, one of whom is a resident of the district in which suit is brought and one of whom is a resident of another State, against a defendant who is resident of another State. All tlie plaintiffs must be residents of the district in which suit is brought in order that it may be maintained. Smith V. Lyon, 133 U. S., 315 ; same case in lower court Smith v. Lyon, 38 F. R, 53. The provLsion in section 1 of the judiciary act of 1875, as amended in 1887 and 1888, as follows : " 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 of [or] pro- ceeding in any other district than that whereof he is an inhabitant," does not apply to cases in admiralty. In re Louisville Underwriters, 134 U. S., 488. Tlie provisions of the act of March 3, 1887, section 1, regarding the place of bringing suit by original process in the circuit courts of the Ch. 2.] IMPOETAJ^T STATUTES. 31 Place of Snx Generally — continued. United States, do not apply in determining the question of jurisdic- tion on an application for the removal of a cause from the State com-t Fales v. Chicago, K & St P. R'y Co., 33 F. R, 673. Where the action is one of which the cu-cuit courts have jurisdiction under the act of March 3, 1887, section 1, the controversy being one between a citizen of the State and a foreign subject, and the amount in dispute exceechng $2,000, the provision of that section in relation to the district where the action shall be brought does not aifect tlie question of jurisdiction, and the privilege it accords to defendant is waived by filing a general appeai'ance and answering to the merits. Norris v. Atlas Steamship Co., 37 F. R, 279. Under the act of August 13, 1888, a federal circuit court has no jurisdic- tion of a suit by citizens of the distiuct of suit against an alien tem- porarily in the district Myer v. Herrera, 41 F. R, 65. Under section 1 of tlie act of March 3, 1887, the process of federal circuit courts wdl not run throughout the United States, except in the par- ticular cases and to the extent provided by ReviHed Statutes, sec- tion 738. Bourke v. Amisou, 32 F. R., 710. Section 8 of the act of 1875 is an extension of Revised Statutes, section 738. Even if the act confers a privilege merely, which defendant might waive, it is not waived by a formal appearance entered on the first rule-day, followed on the second rule-day by an assertion of the right to be sued only in the district of his residence. Reinstadler v. Reeves, 33 F. Pu, 308. Where in a suit it appears that many of the defendants are from the same State, with conflicting interests, the controversy is between citizens of the same State, and the federal comts have no jurisdic- tion under act of March 3, 1887, giving them jm-isdiction when the suit is between citizens of different States. Covert v. Waldron, 33 F. R, 311. Under the act of March 3, 1887, when the jurisdiction depends upon grounds other than the citizenship of the parties, the defendant must be sued in the district of his domicile; but when the jurisdiction depends upon citizenship, the suit ma}' be brought in the district in which either plaintilF or defendant resides. St Louis, V. & T. II. R. Co. V. Terre Haute & I. R Co., 33 F. R., 385. Where the jurisdiction is founded only on tlie fact that the action is be- tween citizens of different States, suit may be brought in the disti'ict of the residence of either the plaintiff or defendant Bank of Winona V. Avery, 34 I'. R, 81. Where the jurisdiction depends solely on the citizenship of the parties, plaintiff may bring tlie action in the district wherein he resides, without reference to the residence of the defendant if lie resides in a different State. Bostwick r. American Finance Co., 43 F. R, 897. Code Virginia, 1«73, cliapter 145, reijuiros an administrator, when suing for damages for causing the death of his intestate, to bring tlie ac- tion in Ills own name, the amount recovered to go to the widow and children, if any ; otherwise to be asseta of the estate. Held tliat. 32 IMPOUTANT STATUTES. [Cu. 2. Pr.ACK OF SriT riKXERAiXY — continucil wluno tlie administrator and defondant are citizens of difTorcnt States, the action may be brought in a federal court thougli the de- ceased was a citizen of the same State with defendant, where his widow and children still reside. Harper v. Norfolk & W. R Co., 86 F. li, Wl Under the residence clauses of the act of Marc-h 3, 1887, a suit to enjoin the eoIU^etiou of a tax, on the j^round tliat it violates the United States constitution, must be dismissed as to such defendants as are non-residents of the district m which it is brought United States Exp. Co. V. Allen, Comptroller, 39 F. R, 712. Under the act of 188^, providing that, when an action is between citi- zens of dilferent States, it may be brought " in the district of the residence of the ]ilaintifT or defendant," an action by a non-resident against a partnership, whose membei*s are residents of different States and districts, may be brought in the district of the residence of one of them. Rawitzer v. Wyatt, 40 F. R, 609. K on motion to dismiss for want of jurisdiction it appears that the juris- diction is dependent whoUy on adverse citizenship, and that one of the defendants lives in the district where suit is brought, and the other defendant and the plaintiff Uve in different districts, the action will be dismissed as to the non-resident defendant but not as to the resident defendant Bensinger, etc., Co. v. National, etc., Co., 42 F. R, 81. Althougli act of March 3, 1887, authorizes an original suit brought in the cu'cuit court, where the jurisdiction is founded on the fact of diverse citizenship solely, to be brought in the district of the residence of either plaintiff or defendant and the statutes of Connecticut permit tlie attachment of the property, located in the State, of a non-resi- dent defendant, without personal service on him, and in the absence of voluntary appearance, the subjection of such property to a judg- ment in rem, yet Revised Statutes, sections 914, 915, authorizing the practice and modes of procedm-e in federal courts to be conformed to those of the respective States wherein such courts are held, and authorizing the same remedies by attachment as are provided by the laws of those States, do not give a United States circuit court sitting in Connecticut jurisdiction of proceedings in rem against the prop- erty of a non-resident defendant who has not been personally served or appeared. Harland v. United States Tel. Co., 40 F. R, 308. A general appearance by the defendant in an action is a waiver of the objection that the service of summons on him was irregular, because not made in the district of which he was an inhabitant, as required by act of March 3, 1887. Foote v. Massachusetts Ben. Ass'n of Bos- ton, 39 F. Pu, 23. A circuit court having jurisdiction of the subject-matter and the parties, the riglit of a defendant to object to being sued in a district of which he Ls not an inhabitant is personal to himself, and he may insist upon or waive that right as he chooses. Purcell v. British, etc., Co., 42 F. R, 465. Ch. 2.] IMPOKTANT STATUTES. 33 Place of Sxirr Generally — continued. Acceptance of service being merely equivalent to personal service in the district does not prevent a defendant from moving to dismiss the suit because brought in a district in which he does not reside. United States V. Loughrey, 43 F. R, 449. Where a bill shows on its face that defendant is not an inhabitant of tiie district wherein the suit is brought, defendant may assert his objec- tion to being served out of the disti'ict of liis residence by demurrei- as well as by motion to dismiss. Miller-]Magee Co. v. Carpenter, 34 F. R, 483 ; Remstadler v. Reeves, 33 F. R., 308. Place of Suit Against a Corporation. For patent and copyright suits in which the rights of a coi-poration are decided, see head, Patent and Copyright Suits, supra. When the jm-isdiction of a federal circuit court is foimded on any of the grounds specially mentioned in section 1 of the act of 1875, as amended in 1887 and 1888, except the diverse citizenship of the par- ties, the suit must be brought in the district of defendant's resi- dence ; but where the jurisdiction is founded solely on the ground that the plaintiff and defendant are citizens of different States, the suit may be brought in either the district of plamtiff's residence or of defendant's residence. In this case suit was brought in the dis- trict of plaintiff's residence against a sister-State corporation on whose agent due service was obtained within the district, and the jurisdiction of the federal circuit court over the suit was sus- tained. jNIcCormick v. Walthers, 134 U. S., 41. Where a foreign corporation (e. g., a sister-State corporation) is not doing business in a State, and neither the president nor any other ofBcer is there transacting business for the corporation, and representing it in the State, the corporation is not within the State so that sei-vice can be made upon it Service upon tlie president temi)orarily pres- ent in the State amounts only to an informal notice to the corpora- tion, and does not bring it into court. So held arguendo, the foreign corporation having waived defective service by appearance. Fitz- gerald, etc., Co. V. Fitzgerald (1890), 137 U. S., 98. A libel in admiralty in personam may be maintained against a corpo- ration in any district by service there upon an attorney appointed by the corporation as required by the statutes of the State to re- ceive service of legal process. Residence clauses of section 1 do not apply to admiralty suits. In re Louisville Underwriters, 134 U. S.. 488. A citizen of Mexico cannot sue a Connecticut corporation in the United States circuit court for the southern district of California, although the coi7)oration has an office and managing agent in that district Denton v. InU-mational Company of Mexico, 13 Sawyer, 355; S. C, 36 F. R, 1. Where plaintiff is a citizr-n of Massacliusette, and defcntlant a corpora- tion en at<'Bue 38 IMPORTANT STATUTES. [Ch. 2. Suit by an Assignee — continual ill oqiiity, by way of creditor's bill, to onforco said judgment against tlu> insolvont debtor's property. Held, that the assignor could not have sued in the original i)rot'eedingK in this court, and that his as- signees cannot do so, under the act of 1SH8. ]Mississip2)i Mills v. e'ohn, 39 F. li, 8(55. Tlio sixlo of an equitable interest in land is not a mere assigiunont of a right of action relating thereto ; and in a suit in a national court by the vendee to establish his right therein, it is not material what is the citizenship of his vendor under whom lie claims. Geatr. Pack- wood. 39 F. R, 525. Defendant city, having voted bonds for the erection of water-works, contracted for the same with F. & Co. Plaintiffs furnished the pipes for the works, and an agreement was made between plaintiffs, defendant and the conti'actors, by which plaintiffs were to be paid for the material furnished soon after the works were completed. Upon the completion of the works the contractors drew an order on the city in favor of plaintiffs for the amount due, which order was duly accepted by the defendant Held, that the order and ac- ceptance constituted a direct agreement between plaintiffs and de- fendant, and was not an assignment of the contractors' claim, within the meaning of act of August 13, 1888, i)rovidiug that an assignee cannot bring suit in the circuit court unless the assignor might have done so had no assignment been made. Ripley v. City of Superior, 41 F. R, 113. A promissory note payable to the order of , which was made for a valuable consideration, is in legal effect payable to bearer ; and one who buys it from a lawful holder, and afterwards fills the blank by wTiting liis own name therein as payee, is an assignee within the meaning of section 1 of the act of 1875, as amended in 1887 and 1888, and therefore not entitled to sue in a federal circuit court upon such note, the original holder and the maker both being citizens of the State in wliich suit is brought Steel v. Rothbam, 42 F. R, 390. By the provisions of section 1, as amended March 3, 1887, governing a suit by an assignee, it was intended to prohibit all suits by an as- signee of a chose in action in a federal court where the original assignor could not maintain the suit except suits on foreign bills of exchange and except notes made payable to bearer and executed by a corporation. Wilson v. Knox County, 43 F. R, 481. Jurisdiction by removal from State court — Suit involving federal question.] § 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall l)e made, under their authority, of which the circuit courts of tlie United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brouglit, in any State court, may be removed by the de- fendant or defendants therein to the circuit court of the United States for the proper district. Ch. 2.] IMPORTANT STATUTES. 39 Removal of other suits.] An}- other suit of a civil nat- ure, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or Avhich may hereafter be brought, in any State court, may be removed into the circuit court of the United States for the proper district by the de- fendant or defendants therein, being non-residents of that State. Severable controversy.] And Avhen in any suit men- tioned in this section there shall be a controversy which is wholly between citizens of diiferent States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the ch'cuit court of the United States for the pro})er district. Removal for local influence.] And where a suit is now pending, or may be hereafter brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from preju- dice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under tlie laws of the State, have the right, on account of such prejudice or local influence, to remove said cause : Provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being afl'ected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded, so far as relates to such other defendants, to tlic Stale court, to be proceeded with therein. Remand of case removed for local influence.] At any time before the trial of any suit which is now pending in any circuit court or may hereafter be entered therein, and which has been removed to said court from a State court on the attidavit of any party pkuntilf tiiat he had reason to be- lieve and did believe that, from ])rejudice or local influeiUH', ho was unable to (obtain justice in said State court, the circuit court shall, on application of the other party, examine into the truth of said allidavit and the grounds thei'eof, and, unh'ss it shall appear to the satisfacti(jn of said court that said party will not be able to obtain justice in such State court, it shall cause th(; same to be renuinded thereto. No appeal from remanding order.] W'lieiirvi r .my cause shall bo removed from any State court into any circuit iO IMl'OKl'ANT STATUTES. [ClI. 2 court of the United States, and tlie circuit court shall decide tliat the cause was im properly removed, and order the same to be remanded to tlie iState court irom whence it came, such remand shall bo immediately carried into execution, and no appeal or writ of error i'rom the decision of the circuit court so renuuuling such cause shall be allowed. As amended by act of August 13, 1888. 25 Stat, 433. Kkmoval for Fedeu^vx, Question. A suit to recover property acquired Ly the removing defendant as re- ceiver of a national bank by authority of the laws of the United States arises under tlie laws of the United States witliin the mean- ing of the removal act of August 13, 1888. Sowles v. Witters, 43 F. R, 700. A suit in a State court against a receiver appointed by a federal court, brought without leave of the federal court, is removable to a fed- er;il circuit court, since it involves a federal question, i, e., the con- sti-uction of the provisions of the amendatory act of March 3, 1887, permitting a suit in a State comt against a receiver appointed by a federal court Evans v. DilUngham, 43 F. R, 177. On motion to remand to the State comt by plaintiff, defendant sought to have the case retained, alleging that the matter in dispute arose under the constitution, laws or treaties of the United States. Held, that to give the court jurisdiction it must clearly appear from the record that the construction of some provisions of the constitution, laws or treaties must be met and decided before the issues in the particular cause can be finally disposed of, and the court will not take jurisdiction because a party asserts it exists, but in determin- ing that matter will consider all points of law and fact that inliere to that jurisdictional question. State of Iowa v. Chicago, M. & St R R'y Co., 33 F. R, 391. In an action in the nature of quo warranto, brought in the name of the State, by her attorney -general, to prevent a railroad company from exercising certain rights and privileges, and from controlling cer- tain lands, the defendant petitioned for the removal of the cause to the circuit court of the United States, alleging that it acquired own- ership in the land under an act of the legislature, and in accordance therewith exercised rights of ownership ; that subsequently the act granting the land was repealed; that such repealing act was in violation of the provisions of the constitution relating to laws im- pairing the obligation of contracts, and of the fourteenth amend- ment declaring that no person shall be deprived of property without due process of law. Held, that the petition showed an issue in the action arising under the federal constitution, witliin the meaning of the act of March 3, 1887, relating to the removal of causes from the State to the federal courts ; and a disclaimer by the attorney-gen- eral of the State, that no reliance was placed on the repealing act, cannot operate to eliminate such issue. State of lUinois v. Illinois Cent R Co., 33 F. R, 721. Cn. 2.] IMPOKTANT STATUTES. 41 Removal, for Ffderal Question — cojifniHccZ. An action between a receiver of an insolvent national bank and a de- positor, involving only the right of set-off of deposits against notes due by the depositor, does not present a federal question, under Re- vised Statutes, section 5242, avoiding preference to creditors of such an insolvent bank. Cause remanded to State coui'L Tehan t'. First Nat Bank, 39 F. R, 577. In order to remove a cause from a State- to a United States court, under the act of 1887, on the ground that it arises imder a statute of the United States, the record must afllrmatively show, from the facts alleged, that some disputed construction of the statute will arise for decision in the case. Austin v. Gagan, 39 F. R., 62G. Right of Removal in General. Under the judiciary act of March 3, 1875, and Revised Statutes, section 716, a mandamus suit begun in a State court cannot be removed from such court to a federal chcuit com-L Revised Statutes, sec- tion 716, and the act of 1875, taken together, limit the jurisdiction of federal circuit com-ts over mandamus suits to ancillary mandamus suits in which the com-t has acquired jurisdiction of the controversy before the institution of the mandamus suit Rosenbaum v. Bauer (1887), 120 U. S., 450, which, in effect overrules New Orleans, etc., R Co. V. Mississippi, 112 U. S., 12, and Raihoad Co. v. Mississippi, 102 U. S., 135, and People v. Colorado, etc., R Co., 42 F. R, 638. An appeal vmder a State law from an assessment of taxes to a State county court, which acts not judicially but as a board of commis- sioners, is not a " suit " witliin the meaning of the removal acts, and cannot be removed into a federal circuit comt Upsliur County v. Rich, 135 U. S., 467. Where a cause is removed from a State court to a federal court, on the ground of divei-se citizenship, if the petition for removal and the record both fail to sliow affirmatively the existence of such diverse citi^ienship at the commencement of the suit as well as when the re- moval was asked, the cause will be remanded to the State court La Confiance, etc., D' Assurance v. Hall (1890), 137 U. S., 61. In order that a case may be removed from a State court to a federal circuit court under tlie act of I^Iarch 3, 1875, the record of the case at the time of removal must show upon its face that the case is re- movable. No amendment of the record in the federal court is ad- missible to cure material defects existing in the record at tlie time oi removal Crehore v. Ohio, etc., R Co., 131 U. S., 240. Where neither the petition for removal of a cause from a State to a fed- eral court on the ground of diverse citizenship, under the removal act of March, 1887, nor the record sliows tliat defendant was a non- resident of the Statiy act of 1887 tlic value iu cDutroversy must ex- ccctl $»\000 in Dider to give a federal circuit court jinisdiction of a suit by removal, c. g., of a suit sought to be removed ou the ground of local prejudice. I)i re Peuu. Co., 137 U. S., 451. A record aud petition for removal of a cause from a State to a federal court which fails to show the citizeushii) of the petitiouere at the time the suit was commenced does not entitle them to a removal Seddon v. Virginia, T. & C. S. & I. Co., 3G V. 11., 6. The provisions of tiie act of March 3, 1887, section 1, regarding the place of bringing suit by original process in federal courts, do not apply iu determining tlie question of jurisdiction ou an application for tlie removal of a cause from a State court J'ales v. Chicago, etc., R Co., 33 F. R., 673. The statutes reguhiting the right of set-off may be effective to determine the sum or value of *' the matter in disi)uto " in the suit sought to be removed, and yet not operate iis restrictions imposed by State legis- lation upon the jurisdiction of tlie federal court If, therefore, the suit be one appealed from a justice of the peace to the State circuit com-t, and the defendant file there a plea of set-off, claiming $3,000 against the plaintiff, but under the statute of the State he can re- cover no more than $500 in that court, it is that sum which is the "matter in dispute," and the federal court can have no jurisdiction by removal imder the act of 1875, section 2, New York I. & P. Co. V. MUburn Gin & Macliine Co., 35 F. R, 225. In a suit for divorce defendant alleged in his petition for removal that the amount in controversy exceeded $2,000, ui:)on the ground that the complainant charged in her bill that he was the owner of valu- able real estate, and received an income of not less than $10,000 per annum, and prayed an award of alimony according to the equities of the case. Held, in view of the fact that the allowance of alimony was discretionary and the amount uncertain, that it could not be said to be a suit wherein the matter in controversy exceeded the sum of $2,000. Bowman v. Bowman, 30 F. R, 849. A declaration containing a si)ecial count on an insurance policy for $2,250, alleging a total loss, and concluding " to plaintiff's damage $2,000," " for the recovery of which, with just costs, plamtiff brings suit," and common counts in assuinjysit for $2,000, concluding as in the first count, shows that the amount in dispute exceeds $2,000, and the action is removable under the act of March 3, 1887. Piatt V. Phoanix Assur. Co. of London, 37 F. R,, 730. Where there is nothing in the pleadings by diiect averment as to the value in dispute, and no facts from which it can be ascertained that the sum or value is less than $2,000, and the petition for removal from the State to the federal court alleges tliat tlie matter in dispute exceeds the value of $2,000, which allegation is not controverted by special plea nor by affidavit, a motion to remand to the State court, Ch. 2.] IMPOBTANT STATUTES. 43 Right of Removal in General — continued. for want of federal juiisdictiou, must be denied. Langdon v. Hill- side Coal & Iron Co., 41 F. R, 6(i9. Plaintiff having sued defendant for §3,500 in the State court is estopped to assert on a motion to remand that the value in controversy is less than §2,000, the jui'isdictioual amount Henderson v. Cabell, 43 F. R., 257. On petition for removal of a cause from a State conrt to a federal court, Jield, that tlie adverse citizenship of the parties sufficiently appeared from the whole record, and also that the amoimt in controvei-sy ex- ceeded $2,000. Chambei-s v. McDougal, 43 F. R, 694. An information in the natiire of quo warranto, vmder Revised Statutes of Illinois, chapter 112, against a raih-oad company for exercising possessory rights over lands without authority' of law, although in form a criminal proceeding, is in its nature essentially a civil action, within the meaniug of the act of ]\Iarch 3, 1887, relating to the re- moval of causes from a State to a federal com-t State of lUiuois v. Ilhnois Cent R Co., 33 F. R, 721. Act of Iowa, April 5, 1888, section 27, entitled " An act to regulate rail- road corporations," provides that any such railroad corporation guilty of extortion shall forfeit and pay the Slate of Iowa not less tlian §1,000 nor more than §5,000, to be recovered in a civil action by ordinary proceedings instituted in the name of the State. Held, that an action for such penalty, brought by the State, is one of a criminal nature, and not removable under the act of March 3, 1887. State of Iowa v. Chicago, B. & Q. R Co., 37 F. R., 497. An action brought under laws of New York, 1875, chapter 604, as amended by laws of 1885, in the name of the "shore iuspector," to recover the penalty imposed by that act for depositing proliibited materials in the watei-s of the bay and harbor of New York, which penalty, when recovered, goes into the State treasury, is in effect an action by the State, and tlierefore not removable on the ground of citizen- sliii) under the act of March 3, 1887. It is iu its nature penal, to en- force a police regulation, and not a suit " of a civil nature, at law, or in equity." Ferguson v. Ross, 38 F. R, 161. In an action by the State against defendant it was alleged iu the petition that defendant unlawfully and knowingly fenced in a certain tract of the public and school lands of the State, and unlawfully used the same for grazing and herding purposes, without any lease ; that by rea-son of this unlaw ful iuclo.sure of land, and unlawful herding and grazing on said land, defendant wjis liable to plaintiff in the amount fixed by the State statute as penalty. Held that according to the allegations of the petition, the action was essentially a criminal ac- tion, and, as sucli, was not subject to removal to the circuit court State of Texa.s v. Day Laud & Cattle Co., 41 F. R, 228. Where Tutty, a white man, and Ward, a negro woman, were indicted in a State court for fornication, ami theroafter repaired to the Dis- trict of Columbia and nv( re niarrietl, inimcdiaU-ly returning to Ceor- gi:i, and tlu-reiipon ntl'-iiipUfl to remove into the Liiited SUitea court the indictments pending against them, the petition for ro- 44: IMl'ORTANT STATUTES. [Ch. 2. RiaiiT OF Rkmoval in Gkneual — continued. inoval was iloiiiod, and the indictiiuiils lomandcd to the court of tlie St^ito. State r. TiUty, 11 h\ R, Tr.l. "NVhoio plaiutitTs' title to the i)roduet of a mine has Ix-en establislied by a decree iu a State court, a proceeding by itlaintills against the same and other defendants to enforce their rights under the decree, al- though independent in form and involving a defendant who claims a superior title by purchase, is in ellect merely a supplementary proceeding, inseparably connected with the original decree, and therefore not removable to tiie United States court. Wolcott v. Aspen M. & S. Co., 34 F. R, 821. Where at the time of the lease an action of ejectment was ponding against certain of the property transferred, and the lessee, instead of defending the action, sets up by bill in equity only such matters as could by the law of the forum have been pleaded to the action of ejectment, such suit does not constitute a distinct and independent controversy, though the formal jjarties to the record are dill'erent And such cause cannot be removed into the federal court unless the original action rcight also have been removed. Richmond & D. R Co. V. Fmdley, 32 F. K., G41. A suit by a judgment creditor to subject laud in the name of the debt- or's brother to the payment of the judgment on the ground that the purchase price of the land was paid by the debtor, and the deed taken in the brother's name for the purpose of defrauding creditors, is not supplementary or auxiliary to the original suit, but an mde- pendeut proceeding against new parties and on new issues, and is ' removable under the act of 1875. Kalamazoo Wagon Co. v. Snavely, 34 F. R, 823. Where a railroad company by a contract of perpetual lease acquired property of the lessor for which an action of ejectment was pend- ing, held, the lessee's right of removal was only such as existed in the lessor. Richmond & D. R Co. v. Findley, 32 F. R, 641. A proceeding by a raUroad company for the condemnation of land is an action at law and removable to the federal court. Following Searl v. School Dist., 124 U. S., 197. Kansas City & T. R Co. v. In- terstate Lumber Co., 37 F. R, 3. A federal court does not acquire jurisdiction of a suit removed from a State court by virtue of an attachment made in the State court where there was no personal service of process on defendant, a resi- dent of another State. Perkins v. Hendryx, 40 F. R, 657. A suit for divorce was removed under the act of March 3, 1887, defend- ant denying in his petition the allegation of marriage set^ut in the bill, and claiming that the controversy arose b(;t\veen citizens of different States. Held, upon motion to remand, that the case could not be removed upon the issue made, as the determination of such issue would not necessarily dispose of the case. Bowman v. Bow- man, 30 F. R, 849. Where a case has been removed, on the petition of defendant, from a State court to a United States court, by reason of the difference of citizenship of the parties, a motion to remand, on the ground that Ch. 2.] IMPORTANT STATUTES. 45 Right of Removal in General — cojifan/eA the cause of action has been assigned to one who is of the same citizenship as the defendant, cannot be gi-anted when the record simply shows a motion in the State court, before the removal of the cause, for leave to substitute a new plaintiff, on which motion tiie court took no action. Smith v. Chicago, B. & Q. R'y Co., 30 F. R, 722. A part>' does not waive the right of removal by remaining in the State court and contesting the case on the merits, if the State court, upon due apphcation, Avrongfully refuses to order a removal of the cause. Richards v. Incorporated Town of Rock Rapids, 31 F. R,, 505. An Illinois corporation was sued in the supreme court of New York, and the cause was removed to the federal circuit court for the soutliern district, whereupon defendant filed a plea alleging that the court had no jurisdiction, or, if it had, that it ought not to exercise it, for the reason that the cause could be tried with greater conven- ience m the courts of Illinois. Held that, as no controlling author- ity appeared to warrant such a proceeding, the plea should be over- ruled. Spies V. Chicago & E. I. R. Co., 32 F. R, 713. The intention of the amendatory removal act of March 3, 1887, to restrict removals from State to federal courts, is so clear that it should be sti-ictly construed against any one seeking to evade the additional requirements which it puts upon the right of removal. Dwyer v. Peshall, 32 F. R., 497. The right of a citizen to remove a case into a federal court is not a vested right of property. The rules of statutory construction when vested rights are concerned do not apply when the jurisdiction of a federal court to entertain a removal case has been cut off by act of Con- gress. Manley r. Olney, 32 F. R., 708. Plaintiff was born in New York, but removed to New Jersey in 18G8, where he mamed in 1877, and continued to reside until the death of his wife in 1880. He then took his children to Scotland. On his return he located in New Jersey, and lived there, boarding until 1884, when he went to St. Louis. His business was contracting for street work, and lie secured many important contracts there for granite paving. He also formed a partnership with defendant for quarry- ing granite. He tlien closed out his business in New Jersey, and moved such of his machinery as he could not sell to St. Louis. After living there for tAvo years, part of the time in a hotel and part witli relatives, he sued defendant in the federal court for dissolution of i)artiiersliip, alleging that lie was a citizen of New Jersey. Ildd, that the facts set out established a residence in I\IiKsouri, and that they 'vere not overcome by a secret purpose of plaintiff to return to New Tsey when his business in Missiniri .vas concluded at some indefiuit(.' future period. Wright v. Schneider, 32 F. R., 705. Where the contest is about the facts only, the law being undisputed, there can be no removal Austin v. Ciagan, 39 F. R., 020. Under the act of March 8, 1887, an action pending in a State court may bo removed by defendant to a federal circuit court although neither party ia a resident of the district Hero the suit was in the circuit 40 IMl'OKTANT STATUTES. [Oil. 2. Right op RF^rovAi. in Gf.skr.kt. — continued court for the southorn district of Nmv York by aliens against citi- zous of ]\Iissoiui. Ulilo r. Biirnhain, 12 F. !{,, 1. tJudcr the act of August 13, 1888, a petition for removal of a cause by a corporation of one State sued in a sister State is not suflicient unless it alleges, in addition to tlie usual averment as to citizensbip, that it is a non-resident of the Stato in which it is sued. Hirech v. J. T., etc.. Co., 43 F. R, 803. "When a proper bond and petition for removal have been filed in the State court, the omission to ask the Stato court to act on the petition is no ground for remanding the cause. Brown i\ Nelson, 43 F. R. 614. Where a cause has been remanded to a State court because the petition for removal by the defendant did not set forth the diverse citizen- ship of the parties at the commencement of the suit as well as at the time of removal, the defendant cannot again remove the cause on the ground of diversity of citizenship. Johnston v. Donvan, 24 Blatch., 274 The right to remove to federal coui'ts causes pending in the Territorial courts of Dakoi.1 when the two States of Dakota were admitted to the Union depends upon the enabling act of February 22, 1889, sec- tion 23, not upon the act of March 8, 1875, as amended in 1887 and 1888. Herman v. McKinney, 43 F. R, 689. Under the act of February 22, 1889, providing for the admission of the Dakotas as States of the Union and the transfer of pending causes from the Territorial courts to the newly-established federal courts in those cases in wliich a federal court would have had jurisdiction of the cause if it had existed at the time the cause was begun, a cause may be removed in which the plaintiff was a citizen of Da- kota Territory and the defendant a citizen of a State at the begin- ning of the suit. Dome v. Richmond, etc., Co., 43 F. R, 690. Where a cause is once removed from a State to a federal court, and there are no jurisdictional objections to its remaining there, the facts, that a defendant has signed the removal bond as surety, and that the other surety had no authority to sign, are not, where the bond is otherwise ample, sufficient grounds for remanding the suit Chambers v. McDougal, 42 F. R., 694. An action for the recovery of $2,000, with interest, was commenced in the State court in December, 1886. On May 3, 1887, it was removed to the circuit court on petition of the defendant, and there tried, re- sulting in a verdict, June 21, 1887, in favor of the plaintiff. The application for removal was made prior to March 3, 1887. The de- fendant then moved to remand on the ground that the amount in controversy did not exceed, exclusive of interest and costs, the sum of $2,000. Held, that under the amendatory act of I\Iarch 3, 1887. limiting the right to removal in actions of this kind to cases where the amount in dispute exceeds $2,000, exclusive of interest and costs, the circuit court had no jurisdiction of the cause, and it should be remanded. Lazensky v. Supreme Lodge Knights of Honor, 82 F. R, 417. Cn. 2.] IMPORTANT STATUTES. 47 Right of Removal in Gexeral — conftmted. The circuit courts of the United States, sitting in Ohio, have no juris- diction to try a suit brought under the particular statutes of that State to contest the validity of a will by an original bill for that purpose ; and, as under the act of Congress of March 3, 1887, no cause can be removed from a State court to the United States cir- cuit court, unless the circuit court would have had original jurisdic- tion of the controversy involved in the case, such a controversy is not, under that act, a proper subject for removal. Reed v. Reed, 31 F. R. 49. Gaines v. Fuentes, 93 U. S., 10, and Ellis v. Davis, 109 U. S., 485, are cited by the court and distinguished. The act of 1887 is not unconstitutional, though by virtue of the re- moval the circuit comi; obtains jurisdiction of the entire cause, including controversies between plaintiff and the resident defend- ants. It only gives effect to the constitutional provision respect- ing controversies between citizens of different States, and with that view the single federal ingredient, the citizenship of defend- ant in another State, is controlUng. Whelan v. New York, L. K & W. R Co., 35 F. R, 849. Accord, Fisk v. Henerie, 33 F. R, 417. Removal — Parties. A non-resident plaintiff, suing in a State court, against whom a counter- claim is brought, is a " defendant " within the provision of the act of March 3, 1887, which limits the right of removal to the " defend- ant being ... a citizen of another State " than tliat in which the suit was brought Carson & Rand Lumber Co. v. Holtzclaw, 39 F. R, 578. An action was brought in a State court of Colorado, in which the plaint- iff was an alien, and the defendant a New York corporation. On application to docket the cause in the United Stiites circuit court for the district of Colorado, held that, under the act of 1887, which provides that a suit between citizens of different States shall be brought only in tlie district where either the plaintiff or defendant resides, the case was not transferable. Harold v. Iron Silver Min. Co., 33 F. R, 529. See Kansas City, etc., R Co. v. Interstate Lum- ber Co., 37 F. R, 3, digested on the next page. Under the act of Marcli 3, 1887, an action by a citizen brought in the State court oi plaintiff's district against a non-resident defendant may be removed to the federal court by the defendant Tiffany r. WiJce, 34 F. R, 230. Under the act of March 3, 1887, a citizen of one State, sued in a State court of another State by a citizen of the latter, has the right of removal to the United States circuit court Swayno v. IJoylston luH. Co., 35 F. R, 1 ; Fales v. Chicago, etc., R Co., 32 F. K., 073. Plaintiff, a resident corporation of C\)lorado, sued defendants, oik; of whom was a citizen oH Minnesota and one of Wisconsin, in a Colo- rado court and defenoration was created under the laws of a certain State precludes the idea that it may liave become a resident of another Sbito. Pe- tition for removal by sister State corporation sustained. Dissenting from Ilinschl v. Threshing Machine Co., 43 F. R, 803. Myers v. Nelson, 43 F. R., G9.5. A corporation organized under the laws of a foreign country, and liav- ing a general oflice there, does not become a resident of a State of the Union l)y doing busineas and having an oflice there, so as to de- feat its riglit to remove a cause against it from a State court to a federal court under the amendatory act of 1888, providing for re- moval of causes by a non-resident defendant. Purcell r. British, etc.. Co., 42 F. R, 405. 4 50 IMIHHM'ANT STATUTES. [Ch. 2. Removal — Parties — continued A foreign corporation (ft g., chartered by Great Britain) doing business in Texas throiiKb a local an'tMit. and being inider Texas law subject to suit by service on the local ag<>nt, is not a non-resi(l(mt, and is not entitled to remove a cause to the federal courts under the act of August 1!3, 1888, providing f«)r removal by non-resident dt lend- ant.s. Scott v. Texas, etc., Co., 41 F. R, 225. On appeal by a tax-payer to a State district court from an allowance of a claim by the county supervisors, as provided by Compiled Stat- utes of Nebraska, page 655, section 1010, the appellee, being the party who is bound to establish his claim, must be regarded as plaintiff, and, as such, has no right of removal to the federal court, under the act of March 3, 1887, which gives such right to the de- fendant only. Tidlock v. Webster County. 40 F. R, 706. Where a non-resident creditor of the estate resists an application for an allowance to a widow, and removes the entire proceeding to a United States court, it will be remanded, where the administrator is a resident of the same State as the widow. McElmurray v. Loomis, 31 F. R, 395. In an action under Compiled Laws of Kansas of 1885, chapter 105, section 80, for damages for illegally driving cattle into the State which com- municated the Texas fever to plaintiff's cattle, brought against the importer and the purchaser, who iiave assumed the liability, the im- porter's interest is not adverse to that of the purchasers, so as to justify his classification as a plaintiff, and thereby give defendants a right of removal, on the ground of citizenship, to the federal courts. Woodrum v. Clay, 33 F. R, 897. An action of replevin between citizens of the same State is not remov- able to the federal courts by reason of the non-residence of one from whom defendant purchased the ])roperty, and who intervenes to pro- tect the defendant's title. Brouson v. St. Croix Lumber Co., 35 F. R, 634. A lessee is interested in the controversy in a suit to set aside his lessor's title to the leased premises as fraudulent, and to quiet title in com- plamant ; and when he, being a resident of the same State as com- plainant, is made a party defendant, though the lessor is a resident of another State, the controversy is not wholly between citizens of different States, and is not removable. Miller v. Sharp, 37 F. R, 161. A cttizen of New York filed his bdl for partition in the federal circuit court in Mississippi against citizens of Mississippi as tenants in com- mon, and also joined as defendant a railroad company, a Mississippi corporation, which claimed title to the land adversely to all the ten- ants in common. Held, that as to the controversy between the tenants in common in regard to the partition, the court had juris- diction, but as to the controversy between the tenants in common and the railroad company it had no jurisdiction, as the parties having the same rights and interests were not all citizens of States different from those on the other side. Beebe v. Louisville, N. O. & T. R Co., 39 F. R, 481. Ch. 2.] IMPORTANT STATUTES. 51 Removal^ Parties — continued. An action brought by a citizen and r^esident of the eastern district of Texas against a citizen of another State, in a State court in ths western district, is removable to the circuit court of the latter dis- trict Burck V. Taylor, 39 F. R, 581. An action for a tort against two railway companies, one of which is lessor and the other a lessee, being joint and several, may be re- moved by one of the defendants on the gi'ound of non-residence though the other defendant is a resident of the same State as the plaintiff. Spangler v. Atchison, etc., R Co., 42 F. R, 305. But see Louisville, etc., R Co. v. Wangelin, 132 U. S., 599. When an action for partition is instituted in the United States court, all the plaintiffs on one side must be non-residents of the State in which the suit is brought, and jurisdiction cannot be conferred by making a necessary party plaintiff a defendant, who is a resident of the State, whose interests are all in common with those of the complainants, and against whom no antagonistic act is alleged. Rich V. Bray, 37 F. R, 273. Complainant, a citizen of Texas, the heir of B., sued his co-heirs, citizens of Arkansas, claiming from the fii"st defendant, who had obtained the legal title to the ancestor's property, a one-fourth interest, and from the other two defendants, partition. The last two defendants filed a cross-bill, claiming separate ownerships of one-fourth inter- est, and also partition. Held, that although the interests of the last two defendants and that of complainant were the same as against de- fendant who claimed the legal title, their interests were not so identi- cal in other respects as to require their being joined as complainants ; and a plea in abatement to the jurisdiction on the groimd that they were coUusively made defendants to give the federal court jurisdic- tion should be overruled- Belding v. Gaines, 37 F. R, 817. Under act of March 3, 1887, the circmt court cannot take cognizance of a suit brought against a party in a distiict of which he is not an inhabitant ; and section 2 does not authorize the removal of a suit brought in a State court against a party not an inhabitant of the district County of Yuba v. Pioneer Gold Min. Co., 32 F. R, 183. Overruled- An attachment suit, being the first levied, was removed to the federal court, the State court directing the receiver to retain so much of ihi' fund as belonged to that suit and pay the balance into the registry of the State court, which was done. Held, tliat on the failure of the removed attachment in the federal court the defendant was en- titled to the fund, and that it would not be returned to the State court to answer subsequent attachments not removed ; but any surplus retained by the receiver should be by him paid under the order of the State court Mack r. Jones, 31 F. R, 189. After removal the bill was demurred to on the ground that tlio lusirs r)f P., who apiK'ared in the caption .is neces-sary parties, were not prop- erly made parties; the bill containing no allegation that their names and residences were unknown, or that they were non-residents. r>2 mrORTANT STATUTES. [ClI. 2. Removal — Parties — continued. The domurror wj\s sustained and the bill amended by setting out the names of the lieii-s and their citizenship as of the same State as , that of the complainant There was no severable controverey. 7/c7(/. the amendment being compulsorj', the case should be re- manded and not dismissed. Perry v. Clift. 32 F. R, 801. Tlie act of JIarch 3, 1887, gives to tlie circuit court imuitMliate jurisdic- tion upon the filing of the required petition and bond in the State court where the action is pending, the case being removable; and no act of the State court is necessary to or can prevent the jurisdic- tion of the circuit court from attaching, which court upon the filing of a copy of the record may proceed with the case as if it had been originally entered there. AVilson v. Western Union Tel. Co., 34 F. R., 561. Where a defendant, after filing proper petition and bond in the State court for removal of the case to the federal court, again appears in the latter court and makes motions in the case, among others for continuance, such appearance does not confer jurisdiction upon the State court, and the case, having been properly removed, can be tried only by the federal court Baltimore & O. R. Co. v. Ford, 35 F. R, 170. A plea in abatement to a petition to remove a case from a State to a federal court will not be tested by technical rules, but it is suflicient if it sets out fairly and with suflicient certainty matters of fact which, if true, negative the jurisdiction of the federal court John- son V. Accident Ins. Co. of North America, 35 F. R, 374. Removal — Non-essential Parties. Plaintiff, a citizen of Connecticut, bi'ought in a State court of Connecti- cut an action of assumpsit against several non-residents, and the borough of Danbury, a municipal corporation of Connecticut A motion to remand will be denied where the corporation defendant has been made such without according to the testimonj- of the plaintiff and each of the defendants, so far as they have testified, any legal claim against it in such action, and where it appears that the corporation is in fact a sham defendant, though not made so for fraudulent purposes. Collins v. Wellington, 31 F. R, 244. The voluntaiy assignee of an insolvent, a citizen of Illinois, brought suit in the courts of tliat State to set aside an alleged fi'audulent prefer- ence. The preference consisted in the insolvent, on the day he made the assignment, turning over to one J., also a citizen of Illi- nois, certain warehouse receipts, to be held by him for the indem- nity of a creditor residing in New York. Both J. and the creditors were made parties to the suit A receiver was appointed, to whom J. turned over the receipts. Default was entered against J. for want of answer, and the creditors removed the cause to the federal court Held, on motion to remand on the ground of the common citlzen- Bhip of J. and the assignee, that the only question left open being whether the creditor took title to the receipts as against the assignee, J. was not a necessary party, and that the case should be retained, Ch. 2.] niPOETAiyT STATUTES. 53 Removal — Non-essential Parties — continued. the federal coui't being as competent as the State court, m the event of the dismissal of the bill, to order the return of the receipts to J. Judah V. Iowa Barb-Wire Co., 32 F. R, 5G1. In an action for damages for the death of plaintiff's intestate caused by the falling of a building, the owner of the building, a resident of another State, and Uie tenant in occupation, a resident of the State •where action was brought, were joined as parties defendant. The complaint did not show that the tenant was in any way responsible for the unsafe condition of the building, or that he was bound to put the building in good condition, but alleged merely that he was the tenant m occupation. Held, that the tenant was improperly joined as a defendant, and such joinder could not operate to defeat a non-resident defendant's right of removal from the State court to the federal coiui: Nelson v. Hennessey, 33 F. R, 113. In a suit against a corporation and its directors jointly, to cancel sub- scriptions to the corporate stock, and to compel the defendants to refvmd the amounts already paid on the same, the directors are not merely nominal parties ; and where one of them is a citizen of the District of Columbia, or a citizen of the stmie State as plaintiff, the suit is not removable under the act of March 3, 1887, providing that any suit in which the controversy is wholly betw^een citizens of dif- ferent States shall be removable to the United States circuit court Seddon v. Virgmia, T. & C. S. & L Co., 36 F. R, 6. Complainant, a citizen of Iowa, filed a biU charging that a judgment liad been fraudulently obtained against the city of Cedar Kapids, Iowa, in favor of defendant S., a non-resident, by means of a com- bination between him and others not made parties to the bilL Tlie relief sought was to have the judgment declaied void. The mayor, treasurer and recorder of the city were made defendants, that they might be restrained from paying the judgment xiendente lite, but it was not charged that they participated in tlie fraud, or that they had any interest adverse to complainant Held that tliough there was no separable controversy between complainant and S., the other defendants were only nominal parties, their interest being in fact adverse to S., and their joinder as defendants could not affect tlio right of S. to have the cause removed- May v. St John, 38 F. R, 770. Revised Statutes, section 737, authorizmg the court to proceed to the trial of the suit between the parties properly before it wlien there are several defendants, and one or more of them aie neither inhab- itants of nor found within the district and do not voluntarily ap- pear, does not relate to the removal of causes. Ames v. Chicago, S. F. & C. R'y. 3'J y- I^. ^^l- The presence on the record of one who is merely an agent or attorney for the principal defendant will not affect the right of removal as between the principal i>artiea to the controversy. Myers v. Nelson, 43 F. R. C95. 54 niroRTANT statutes. [Ch. 2. Removal — Mon-csseutial Parties — continued, \YlK'n the coutrovoi-sy is botwoou the plaintiff and the removing defend- ant, who are citi/ons of difToiont States, the fact that there are other defeudauti!, citizens of phiinlitr's Stale, does not prevent tlie removal of the case where the interest of one sucli dereiuhmt is identical witli plaintiff's interest and the other co-defendants are merely nom- inal parties. Brown v. Nelson, 43 F. R., G14. By joining a nominal defendant who will not imitc with the real de- fendants in an application to remove, the plaintiff cannot defeat the real defendant's right to remove. Heudersou v. Caball, 43 F. R, Removal — Practice. Read in connection wnth head, Practice in General, post, page 66. Under the Missomi statute for the condemnation of land by railway companies, providing that a summons shall be issued to the owner, giving him ten days' notice of the time when the petition will be heard, where the cause is removed to the United States cu'cuit court on the return-day of the summons, the appointment of commission- ers by the latter court to assess damages is a proceeding in the cause, and will not be made prior to the next regular term after the removal. Kansas City & T. R'y Co. v. Interstate Lumber Co., 36 F. R, 9. Under the statute requiring that after the filing of the petition and bond for removal the petitioner shall file a copy of the record in the cir- cuit court on the first day of the next term, and that the cause shall then proceed in the same manner as if it had been originally com- menced in said circuit court, wliile the court's jurisdiction becomes vested when the petition and bond are filed, the time for i)leading does not begin to run till the record is entered. Torrent v. Martin Lumber Co., 37 F. R, 727. The removing party is not left remediless by a remand, since the re- moving order did not absolutely take away the State court's juris- diction, but merely held it in abeyance w hile the cause was in the circuit court, and the State court is now bound to resume it Bu"ds- eye v. Scliaeffer, 37 F. R, 821. The fact that removal into the federal comi; was had upon the applica- tion of the defendant is immaterial on his motion to dismiss, if the conti'ovei-sy is one of which the comt has no jurisdiction. Ferguson u Ross, 38 F. R, 161. When special bail is not originally demandable in an action, the removal bond need not contain a condition for the entry of the defendant's appearance in the federal court, though he has not yet entered such appearance in the State court, as the act mentioned only requires that condition when special bail may originally be demanded. Burck V. Taylor, 39 F. R, 581. Defendant does not, by appearing in the State court for the purpose of removing the case to the federal court, thereby waive any irregu- larity as to service of process. Perkins v. Hendryx, 40 F. R, 657. Cn. 2.] IMPOKTANT STATUTES. 55 Removal — Practice — continued. Where a cause is removed from a State to a United States circuit court, and the plaintiff amends his complaint, he puts himself within a rule of practice of the circuit court, allowing a defendant, " in all cases," to demand security for costs before answering, though the demand could not have been made in the State court where the ac- tion was commenced. Henning v. Western Union Tel. Co., 40 F. R, 658. The period allowed defendant to answer or demur by code of South Caro- lina is suspended by filing in the State comt bond and petition for removal to the United States circuit court ; and begins to iiin again when the record is filed in that court ; and under the circuit court niles (fourth circuit), the defendant will be in time if he serve his defense before the rule-day next thereafter. Pelzer Manuf'g Co. v. St Paul Fire & Marme Ins. Co., 40 F. R, 185. The rules of practice of a United States circuit court govern a cause brought there from a State coui't, under the act of 1888, providing that " the cause shall then proceed in the same manner as if it had been originally commenced in said circuit com-t." Henning v. Western Union Tel. Co., 40 F. R, 658. In cases removed from the State court, costs accrued prior to such re- moval are taxable upon final judgment in federal court Cleaver V. Traders' Ins. Co., 40 F. R., 863. Under rule 79 of the circuit court of the ninth circuit, the plaint- iff may, at any time after defendant has filed and submitted to the State court his petition and bond for removal of a cause, pro- cure a transcript of the record of the cause from the State court, and file the same in the circuit court, and, after service of notice thereof, as prescribed in said rule, the circuit court will take jurisdiction of the case for all purjioses. Delbanco v. Singletary, 40 F.. R., 177. The federal court will allow plaintiff, before verdict, in an action re- moved from a State court in Georgia, to discontinue his suit as to part of the amount sued on, which he could do before removal under code of Georgia, section 3479, authorizing amendments at any stage of the cause as matter of right Nussbaum v. Northern Ins. Co., 40 F. R, 337. Removal — Separable Controversy. Under the removal acts of 1875 and 1887 the right to remove a separate controversy is confined to citizens of different States, and these acts repeal the act of July 27, 1800, and Revised Statutes, section 039, clause 2, giving the right to aliens. Woodrum v. Clay, 33 F. R, 897. Under the act of March 3, 1875 (18 Stat, 470), section 2, a suit in a State court against two jointly for a tort cannot be removed by either defendant into a federal circuit court iijion the ground of a separable controversy between the plaintilT and liiinsclf, altliough the defend- ants havei>leaded8eparatPIR;d to a.ssert a lien superior to that of the iiiorlgage. Held, that the controversy prt!M'iit('k, 38 F. R, 369. In cases coming within the removal act of 1887, section 2, chmse 3, jiro- viding that suits "whicli include a controvei-sy wliich is wliolly be- tween citizens of differentSUiti" :i romoval wIk-u it shall bo maiK' to apiu-ar to the circuit rouit tliat from prejudice or local inlhu-mo ilcfo ulant will not be able to obtain justice in the State court, the question whether there is no pi-ejudice, etc., is open to iiKpiiry. and may be determined from the evidence produced by both parties on motion to remand. Dcnnison v. Brown, 38 F. R, 535. Wlien a petition for removal lias been granted on such sufficient affi- davit, on motion to remand to the State court the circuit court will reconsider the sulliciency of the affidavit, and remand the case if not satisfied of the existence of prejudice or local influence. Amy v. Mannin, 38 F. R, 868. Tlu-ee days' notice is not a reasonable time to allow defendant an oppor- tunity to contest the allcgatioa of local jirejudice before an order of removal is made bj' the federal court Carson & Rxud Lumber Co. V. Holtzclaw, 39 F. R, 578. No Appellate Review of Remanding Orders. In view of the provision in the acts of 1887 and 1888, abrogating appeals and writs of error to review orders of federal courts remanding causes to State comts, it is held that a review by the Supreme Court of such remanding orders by mandamus is also lirohibilcd. In re Penn. Co. (1890), 137 U. S.. 451. Since the act of March 3, 1887, took effect the United States Supreme Coui't has no power to review on appeal or error an order of a cir- cuit court remanding a cause to a State court. Moray v. Lockhart, 123 U. S., 50 ; WUkinson v. Nebraska, 123 U. S., 286. The last paragraph of section 2 governs all removed cases, not merely cases removed for local prejudice. Id. If the order to remand a case to a State court was made while the act of March 3, 1875 (IS Stat, 470), was in force, but the writ of error to review it was not brought until after the amendatory act of March 3, 1887 (24 Stat, 552), went into effect, the United States Supreme Court cannot take jurisdiction of the writ Sherman v. Grinnell, 123 U. S., 679. The judiciary act of 1875, as amended in 1887 and 1888, provides that no appeal or writ of error shall lie to review an order of a circuit couit remanding a cause to a State court and 25 Stat, G93, Febru- ary 25, 1889, allowing appeals and writs of error from the Supreme Court to review final judgments and decrees when the jurisdiction of the lower court is in issue, does not change the rule. A remand- ing order is not a final judgment Richmond, etc., R. Co. v. Thouron, 134 U. S., 45. Under the act of March 3, 1887, a judgment of a federal circuit court remanding a cause to a State court on the gi'ound that the federal court has no jurisdiction of it, is not one which the Supreme Court can review by appeal or writ of error, although the circuit court also sustained a general demurrer to the declaration. Tiie act of February 25, 1889, giving an appeal or writ of error from a final Ch. 2.] rwroRTANT statutes. 75 No Appellate Review of Remanding Orders — continued. judgment of a circuit court wliere a question of the jurisdiction of 6uch circuit court is involved, does not apply to the present case, as a remanding order is not a final judgment within the meaning of the act Gurnee v. Patrick County (1890), 137 U. S., 141. Proceedings in State court.] § 3. That whenever any party entitled to remove any suit mentioned in the next pre- ceding section, except in such cases as are provided for in the last cUuse of said section, may desire to remove such suit from a State court to the circuit court of the United States, he may make and hie a petition in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sulKcient surety, for his or their entering in such circuit court, on the first day of its then next session, a co])y of the record in such suit, and for paying all costs that may be awarded by the said circuit court if said court shall hold that such suit Avas wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if s^Dccial bail was originally requisite therein. It shall then be the duty of the State court to accept said ])etition and bond, and proceed no further in such suit ; and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court; Removal of suit as to title under grants from dif- ferent States.] and if in any action commenced in a State court the title of land be concerned, and the })arties are citi- zens of the same State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the i)laintitfs or defendants, before the trial, may state to the court, and make allidavit if the court requin; it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exempiiiication of it, except where the loss of public rec- ords shall put it out of his or tiieir,[)ower, and shall move that any one or more of the adverse party inform the court whetiicr he or they claim a right or title to tlie land under a grant from some other State, the party or parties so required shall give such inl'ormation, or otiierwise not be allowed to j)l(.'ad such grant <;r give it in evidence upon the trial; and if he oi' tlicy inform ihal he or they ih) claim under sncli grant, any one or more of the party moving for such information may then, on 76 mrOKlANT STATUTES. [ClI. 2. petition aiul Ltnul, as hereinbefore mentioned in this act, re- move the cause for trial to the circuit court of tlio United States next to be holden in such district; and any one of either })arty removing the cause shall not be allowed to ])lead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. As aineuded by act of August 13, 1888 (:25 Stat., 43;}). Removal — AttachniGiits —Injunctions.] § 4. That when any suit shall be removed from a State court to a cir- cuit court of the United States, any attachment or sequestra- tion of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the linal judgment or decree in the same manner as by law they Avould have been held to answer final judgment or decree had it been rendered by the court in whicli such suit was commenced ; And ail bonds, undertakings, or security given by either part}' in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal; And all injunctions, orders, and other proceedings had in such court prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. Lack of jurisdiction — Suit dismissed or remanded to State court.] § 5. That if, in any suit commenced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substan- tially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court sJiall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just. The remainder of this section was repealed by the act of March 3, 1887 (24 Stat, oO^). The repealed portion is as follows : But the order of said coiut dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be. "When the record discloses a controversy of which a circuit court cannot properly take cognizance it should dismiss the suit, and its failure to do so is error which the United States Supreme Court will correct of its own motion when the case is brouglit before it for review. Morris v. Gilmer, 129 U. S., 310. Ch. 2.] IMPOETA^T STATUTES. 77 Under section 5 of the act of March 3, 1875 (18 Stat., 470), the United States Supreme Court will take notice of want of jurisdiction in the cu-cuit court, although the point lias not been formally raised either in the circuit court or in the Supreme Comt. Graves r. Corbin, 132 U. S., 571, 590. Where plaintiff's jurisdictional allegation as to the diveree citizenship of the parties is not travei-sed by defendant, no question concei-ning the ca- pacity of tlie parties to Utigate in a federal court can be raised before the jury. Deputron r. Young, 134 U. S., 241. Objection to jurisdiction of court imder section 5 of the judiciary act of 1875 should be raised at the fii-st opportunity, and delay in making it should be considered in examining the grounds on which it rests. Id^ A suit cannot properly be dismissed by a federal court as not involving a con- troversy within its jurisdiction unless the facts appearing of record create a legal certainty of tliat conclusion. Id. If the pleadings and evidence together show that the defendants are citizens of the United States and reside, in the sense of having tlieir domicile, in the State of which plamtiffs are citizens, the suit must be dismissed for lack of jurisdiction. Anderson v. "Watt, 138 U. S., 694. Act of March 3, 1875, section 5, providing that a cause in the circuit court must be dismissed if at any time during its progress the court discov- ers it has no jurisdiction, does not mean that a suit, properly brought, must be dismissed because defendant, by admission or failure to deny, reduces the amount in dispute to less than the statutorj- sum. Fuller v. Metropolitan Life Ins. Co., 37 F. R, 163 ; Same Case, 24 Blatch., 548. Rule 9 of tlie circuit court for California piovides that "when any matter in abatement, otlier than such as affects the jurisdiction of the court, shall be pleaded in the same answer with matter in bar or to the merits, or simultaneously witli an answer of matter in bar or to the merits, tlie matter so jileaded in abatement shall be deemed to be waived." Held, that neither the act of ^March 3, 1875, section 5, nor the rule authorizes a plea to the jurisdiction to be entered altar answer to the merits, and after the commencement of taking testimony. Hewitt v. Story, 39 F. R, 158. Under section 5 of the act of !March 3, 1875, if a federal circuit court, after overruling a motion to remand a cause to a State court from which it had been removed on the ground tliat it involved a federal question, disposes of the only federal question in the case (c. g., by sustaining de- murrer to plea), a second motion to remand the cause to a State court is proper. IlambUu v. Chicago, B. & Q. R Co., 43 F. R, 401. But see de- cisions below contra. The jurisdiction of the federal courts, which has once attached bj- reason of diverse citizenship, is not divested by a subsequent transfer of the cau.se of action by which the controversy becomes one between citizens of the same State. Jarboe v. Templer, 38 F. R, 213. A horse-car company, claiming to have an exclusive franchise in Omaha, Nebraska, of which State it was a resident, sought in the federal couits to enjoin a cable company, also a resident of that State, frnni laying its tracks in Omaha, on the ground that the act incorporatiug the cable 78 IMrOliPANT STATUTES. [ClI. 2. coin]^:iny was a Statt^ law impairing tho oMiiation of contracts. The coavt lu'Ul that tho exchisivoncss of the plaintilT's franchise was liniitod tt> a nu-rc horse railway, hut tho constitution of the State forbidding the damaging, as well as the taking, of jtrivate property for public use with- out compi'nsation therefor, referred tho case to conimissi(jner8 to report Avhat damage, if any, the plaintilV would sulfor by the laying of the cable line. Jkkl, that a real, substantial federal question having been in- volved in the case at the outset, ihj elimination of that question did not oust the court of jurisdiction of the question of damages. Omaha Ilorso R"y Co. r. Cable Tram-way Company of Omaiia, 32 F. R., 727. Defect of juri^idiLtion appearing in the petition or declaration may betaken atlvantage of l)y demurrer, in the absence of a general appearance by defendant. Myer v. Ilerrera, 41 F. R., C5. Where the pet'.tiun shows on its face that the court has not jurisdiction of the cause, t'.ie action may be dismissed on motion. The objection need not bo first raised by demurrer. Connor v. Vicksburg & ]M. R. Co., 36 F. R., 273. C, a judgment creditor, and also the purchaser of land under an execution sale, conveyed the sanw? to M., his son-in-law, a non-resident, for an in- terest in a worthless patent. Subsetjuent to his agreement to convey, he endeavored to obtain possession of the land by proceedings, in which he swore that he was the owner, and entitled to possession. The grantee nevei- saw the land, never examined the title or inquired as to its value, and tofense. may properly be considered on that motion. Kentucky v. Louisville Bridge Co., 42 F. R, 241. Removal — Practice after.] § 0. That the circuit court of the United States shall, in all suits removed under the pro- visions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same pro- ceeilings had been taken in such suit in said circuit court as shall have been had therein in said State court prior to its re- moval. * The proviso in section G of the amendatory act of March 3, 1887, relates only to the jurisdiction of federal circuit courts, not to the appellate jurisdic- tion of the United States Supreme Court. That court has no jurisdiction to hear an appeal from an order of a circuit court remanding a cause to a State court, although the cause was begnan and removed to a federal com-t before the act of 1887 took effect. Wilkinson v. Nebraska, 123 U. S., 286. The proviso in section 6 of the act of March 3, 1887, excepting pending cases from the operation of the act, relates only to the jurisdiction of federal ckcuit courts, and does not confer on the United States SujDreme Court jm-isdiction over a writ of error from a judgment of a federal circuit court remanding a cause to a State court, when the suit was begun and removed before the act of 1887 took effect, but not remanded until after- wards. Gurnee v. Patrick County (1890), 137 U. S., 141. Removal — Practice as to.] § 7. That in all causes re- movable under this act, if the term of the circuit court to which the same is removable, then next to be holden, shall commence within twenty days after tiling the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter appearance therein ; and if done within said twenty days, such tiling and appearance shall be taken to satisfy the said bond in tiiat behalf; That if the clerk of the State court in which any such cause shall be pending, shall refuse to any one or more of the par- ties or persons a)>plying to remove the same, a copy of the rec- ord therein, after tender of legal fees for such coi)y, said clerk so offending shall be deemed guilty of a misdemeanor, and, on conviction thereof in the circuit court of the United States to Cn. 2.] IMPORTANT STATUTES. SI which said action, or proceeding was removed, shall be pun- ished by imprisonment not more than one year, or by fine not exceeding one thousand dollars, or both in the discretion of the court. And the circuit court to which any cause, shall be removable under tliis act shall have power to issue a writ of certiorari to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the removal of the same, and enforce said writ according to law ; And if it. shall be impossible for the parties or persons re- moving any cause under this act, or complying with the pro- visions for" the removal thereof, to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the circuit court shall make an order requiring the prosecutor m any such action or proceeding to enforce forfeiture or recover penalty as aforesaid, to Hie a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine ; and in default thereof the court shall dismiss the said action or proceeding; But if said order shall be complied with, then said circuit court shall require the other party to plead, and said action, or proceeding shall proceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de nooo; ami the bond given, conditional as aforesaid, shall be discharged so far as it requires copy of the record to be tiled as aforesaid. Suit to enforce possession, etc.— Service by publica- tion.] § b. That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien u[)on, or claim to, or to i-emove any incumbrance or lien or cloud upon the title to real or personal proi)erty within tin; district wliere such suit is brouf^ht, one or more of the defend- ants therein shall not be an inhabitant of, or found within, the :;aid disti-ict, or shall not voluntarily appear thereto, it shall be lawful lor the court to make an order directing such ai>.sent defendant or defendants to appi-ai', plead, answer, or demur, by a day cei-tain to be designated, which order shall be served on such alweht defendant oi- defendants, if practicar ble, wherever found, and also n\)im the lu^rson or persons m possession or charge of said i)roperty, if any there be; Or where such personal service upon such absent defeiidant or del'endants is not practicable, such order shall be ])id)lislied in such manner as the court may dii'ect, not Jess than once a week for six consecutive weeks; And incase such absent defendant shall not appear, pleiul, 82 IMTOKTANT STATUTES. [ClI. 2. answer, or demur within the time sd limited, or williiii some further time, to ho aUowed hy the court, in its discretion, aiul upon the proof of the service or jiuhHcation of said order, and oi the performance of the directions contained in the same, it shall 1)0 lawful for the court to entertain jurisdiction, and ])ro- ceed to the hearing:; and adjudication of such suit in the same manner as if such absent defendant had been served with pro- cess within tlu^ said district; IJut said adjudication shall, as regards said absent (h^lend- ant or defendants without ap])earance, alfect only the projjei'ly which shall have been the subject of the suit and under th(( jurisdiction of the court therein, within such district, And wdien a part of the said real or jiersonal property against which such ])roceeding shall be taken shall be within another district, but within the same State, said suit may be brought m either district in said State: I^rockled, hov^evcr, that any defendant or defendants not actually personally notified as above j)rovided may, at any time within'one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said circuit court, and thereupon the said court shall make an order set- ting aside the judgment therein, and permitting said defend- ant or defendants to plead therein on })ayinent by him oi' them of such costs as the court shall deem just; and tliereupon said suit shall be proceeded with to linal judgment according to law. By section 5 of the amendatory acts of March 3, 1887, and August 13, 1888, post, this section is expressly continued in force. This section is an extension of Revised Statutes, section 738, and relates to the same subject-matter. Buit to remove incumbrance held properly brought under section 8 of the act of March 3, 1875 (18 Stilt, 470). Mellen v. Moline, etc.. Iron Works. 131 U. S., 3.32. Under the act of March 3, 1887, a suit by a citizen of Ohio against citizens of Vermont, New York and Maine, to enforce claim to property in Ver- mont, is properly brought in the district of Vermont. Carpenter v. Tal- bot, 33 F. R. 537. Under the act of March 3, 1875, section 8, which is expressly left in force by the amendatory act of August 13. 1888, a circuit court Inis jurisdiction of a suit by resident of another district to ^foreclose a mortgage on the land, when some of the defendants are, and others are not, resident of the district in which the suit is brought. Ames v. Holdenbaum, 43 F. R., 341. The si>ecific prayers of the bill being (1) for an account of lumber, etc., taken from demised premises; (2) for damages for defendants breathes of covenant; (3; for the appointment of a receiver of demised premises, lumber, etc., held, that the suit waa not one within the contemplation of section 8. Ellis v. Reynolds, 35 F. R., 394. Cu. 2.] niPOKTANT STATUTES. 83 An alien bondholder of a railroad company to restrain the trustee m a mort- gage securing tlie bonds from paying over to the company, in fraud of phiintiff "s rights, the pi'oceeds of the sale of land which, by the mort- gage, was set apart to create a sinking fund for the redemption of the bonds, is within the saving clause of the act of 1887, and when tlie ac- tion was commenced witliin the district of which the trustee was an inhabitant, and in which it had the fund, an order may issue to the comi)any, a non-resident corporation, to appear and plead. Pollitz v. Farmers' Loan & Trust Co., 39 F. R, 707. By the act of March 3, 1887, the right given by the eighth section of the act of March 3, 1875, to bring in non-residents by pubhcation in certain cases is expressly continued. American F. L. M. Co. v. Benson et al., 33 F. R, 450. Death of party — Substitution of representative.] § 9. That whenever either party to a final judg-ment or decree which has been or shall be rendered in any circuit court has died or shall die before the time allowed for taking an ap- peal or bringing a writ of error has expired, it shall not be necessary to revive the suit by any formal proceedings afore- said. The representative of such deceased party may file in the office of the clerk of such circuit court a duly certified coi)y of his appointment and thereupon may enter an appeal or bring writ of error as the party he represents might have done. If the party in whose favor such judgment or decree is ren- dered has died before appeal taken or writ of error brought, notice to his representatives sliall be given from the Supreme Court, as provided in case of the death of a party after appeal taken or writ of error brought. See rule 15 of the United States Supreme Comt, post, on the same sub- ject Repeal.] § 10. That all acts and parts of acts in conflict with the provisions of this act are hereby repealed. For sections 2-7, inclusive, of the amendatory act of August 13, 1888, which do not directly amend the act of ]\Iarch 3, 1875, see statute No. 13. post. No. 4. An Act to provide for tlie appointment of commissioners for taking afTida- vits. vUi., for the courts of the United Statea Approved August 15, 1870. 19 Stat, 200. Notaries— May take depositions, acknowledgments, etc.] Jj'e it enacted, etc., That notaries ]>id)lic of the several States, Territories, and tjjo District o! Cohimbia be, and they arc hf-rcby, auliiori/.ed to take; deposit icjns, and do all other acts in relation to taking testimony to be used in the courts of 84 IMPORTANT STATUTES. [ClI. 2. the United States, talvc acknowledgments and affidavits, in the same manner and with the same ell'ect as commissioners of the Unitetl States circuit court ma}^ noV lawlully take or do. See Revised Statutes, section 1778, wliicli provides that notaries may ad- minister oatlis in cases in which justices of the peace may do so. The statutes of the United States confer on notaries public no general au- thority to administer oaths. United States v. Hall (1889), 131 U. S., 50. The act of August 15. 1876 (19 Stat, 200), does not autliorize a notary i)ublic to swear an officer of a national bank to his report made under Revised Statutes, section 5211. United States v. Curtis, 107 U. S., 671. For statute authorizing a notary public to administer an oath to a bank of- ficer, see act of February 26, 1881. 21 Stat, 352. No statute of the United States authorizes a notary public to administer an oath to a deputy surveyor of the United States in regard to the manner in which he executed a contract for surveying public land. United States V. Hall (1889), 131 U. S., 50. Defendant was charged before a State court with perjury in having testi- fied falsely before a notary public in a proceeding under Revised Stat- utes, chapter 8, title 2, regulating the taking of testimony in a contest for a seat in the house of representatives of the United States. Held, that the offense is cognizable only by the federal courts, under Revised Statutes, section 5392, providing for the punishment of perjury in any case in which the laws of the United States authorize an oath to be ad- ministered, and the second section of the judiciary act of August 13, 1888, giving the United States courts exclusive cognizance of all crimes cognizable under the authority of the United States. In re Loney, 38 F. R, 101. A statute (20 Stat, 30) which provides that a defendant charged with crime shall at his own request, but not otherwise, be a competent witness, does not render competent a defendant who by previous conviction of an infamous crime has lost the privilege of testifying. United States v. HoUis, 43 F. R, 248. No. 5. An Act to make persons charged with crimes and offenses competent wit- nesses in the United States and Territorial courts. Approved March 16, 1878. 20 Stat, 30. Accused is competent witness.] Be it enacted, &c., That in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the com- mission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him. Ch. 2.J IMPORTANT STATUTES. 85 Ko. 6. An Act making appropriations to supply deficiencies in the appropria- tions for the fiscal year ending June thirteenth, eighteen hundi-ed and seventy-nine, and for prior years, and for those heretofore treated as permanent, and for other purposes. Approved March 3, 1879. 20 Stat, 410. Clerk of court not to be appointed receiver or mas- ter, except.] (Pak. 2.) Xo clerk of the district or circuit courts of the United States or their deputies shall be ap- pointed a receiver or a master in any case except where the judge of such court shall determine that special reasons exist therefor to be assigned in the order of appointment. Ko. 7. An Act regulating fees and the practice in extradition cases. Approved August 3, 1882. 22 Stat, 215. Subpoena for defendant's witnesses.] § 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 wliose evidence is material to his defense, that he cannot safely go to trial witliout them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually un- able to pay the fees of such witnesses, the judge or commis- sioner before whom such claim for extradition is heard may order that such witnesses be subpoenaed; and in sucii 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 subpcxmaed in behalf of the United States. Fees to be paid by Secretary of State.] § 4. That all witness fees and costs of every nature in cases of extradition, including the fees of tlie commissioner, shall be certilicd by the judge or commissioner before whom the hearing shall take place to the Secretary of State of the United States, who is nereby authorized to allow the payment thereof out of the appi'opriation to defray the ex[)enscs of tiie judiciary; and the Secretary of State shall cause tiie amount of said fees :uu\ costs so allowed to l>e i-eimhui-scd to the (iovernment of the United States by tlio foreign government by whom the i)r<)- cecdings for extradition may have been instituted. Documentary evidence for petitioner.] § 5. Tliat in all cases where any (h'i»ositi(»ns, wanaiits, or other pai)ers or coj)ies theieof shall l;e oU'ered in evidence upon the hearing of any extradition cast; under Title sixty-six of the lievised Stat- utes of the United Stat\.ll ehargi>s madt^ for any st'i'vice i-endered or to be rendered in the transj)ortation of passengers or ])roj)(M'ty as aforesaid, or iu eonnection therewith, or lor the receiving, delivering, storage, or handling ol" sueli pro})erty, shall be reasonable and just; and every unjust and nnreasonable charge for such serv- ice is prohibited and declared to be unlawlul. Special rates aud rebates prohibited.] ^ 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any serv- ice rendered, or to be rendered, in the trans[)ortation of pas- sengers or property, subject to the provisi(ms of this act, than it charges, demands, collects, or receives from any other i)er- sou or persons for doing for him or them alike andcontemj)o- raneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby ])rohibited and dechired to be unlawful. Undue preferences prohibited — Equal facilities to connecting lines — Terminal facilities.] § 3. That it shall be unlawful for any common carrier subject to the pro- visions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, jirm, corporation, or locality, or any particular description of traffic, in any res[)ect whatsoever, or to subject any ])articular person, company, iirm, cor[)oration, or locality, or any partic- ular descri[)tion of traffic, to any undue or unreasonable prej- udice or disadvantage in any res})ect whatsoever. Every common carrier subject to the provisions of this act shall, according to their respective ])Owers, afford all reason- able, proper, and equal facilities for the interchange of traffic between their resi)ective lines, and for the receiving, forward- ing, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such con- necting lines; but this shall not be construed as retpiiringany such common carrier to give the use of its tracks or terminal facilities to another earner engaged in like business. Shorter distance charges not to be more than for longer -Commissioners may authorize exception.] § 4. TJjat it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of pas- Ch. 2.] IMrORTAXT STATUTES. 89 sengers or of like kiud of property, under substantially similar circumstances and conditions, for a shorter tlian for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any coniinon carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance: Provkled, howeve)', That upon application to the Commission appointed under the provisions of this act, such common carrier ma}'^, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the trans- portation of passengers or property; and the Commission may from time to time prescribe the extent to which such desig- nated common carrier may be relieved from the operation of this section of this act. Pooling of freights or earnings prohibited.] § 5. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any contract, agree- ment, or combination with any other common carrier or car- riers for the poohng of freights of dilfereut and competing railroads, or to divide between them the aggregate or net pro- ceeds of the earnings of such railroads, or any portion thereof; and in any case if an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a sepa- rate oli'ense. Common carriers to print and post schedules — Contents.] g <>. That ever}^ common carrier subject to the provisions of this act shall print and keep o])en to public in- spection schedules showing the rates and tares and charges for the transi)ortation of i)assengers and ])roperty which any such common cai-rier has established and which arc in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall })lainly state the phice.s U[ion its railroad between which i)ro[)erty and ])assengers will be car- ried, and shall contain the classilication of freight in force, aiul shall also state se})arately the terminal charges and any rules or regulations which in any wise change, aliect, or determine any part or the aggi-egate of such aforesaid rates and fares and charges. Such sclicdulcs shall be plainly printed in large type, and copies lor the use of the public shall be posted in two pub- lic and conspicuous places, in every de])ot, station, or oilic(! of such carrier whc're passengers or freigiit, i'es|,et'tively, are re- ceived for transportation, in such form that they shall be ac- cessible to the public and can be conveniently inspected. Schedules of freight through foreign countries — To pay ClLily on failure to posi.J Any coininon caniei- sub- ject to tlie provisions ol" this act receiving Ireight in tin; United States to be carried through a foreign country (o any place in 90 iMrouPANi- siAi'iiTKs. [Cji. 2. the Unitod States shall also in liko manner print and keen open to public inspei-lion, at every depot or ollice whe:o such frei»;-ht is received Tor shipment, schedules showing- the through rates estal)lishe(l and charged by such common carrier to all points ill the United States beyond tiie foreign country to which it accepts freight for shipnient; and any freight shiitped from the United States through a foreign country into the United States, the through rate on wliicii shall not have been made public as retpiired by this act, shall, before it isaihnitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production; and any law in conflict with t^his section is hereby repealed. Notice of advances — Notice of reductions.] No ad- vance shall be made in the rates, fares, and charges which have been established and published as aforesaid by any com- mon carrier in compliance with the requirements of this sec- tion, except after ten days' public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into etfect; and the ])roi)osed changes shall be shown by ])rinting new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. Eeductions in sncli published rates, fares, or charges shall only be made after three days' previous public notice, to be given in the same manner that notice of an ad- vance in rates must be given. Unlawful to deviate from schedules.] And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the trans[)ortation of pas- sengers or property, or for any services in connection there- witii, than is specitied in sucli published schedule of rates, fares, and charges as may at the time be in force. Copies to be filed with commission — Joint tariffs of rates — To be made public] Every common carrier subject to the ])rovisions of this act shall tile with the Com- mission hereinafter provided for copies of its schedules of rates, fares, and charges which have been established antl i)ub- hshed incom[)liance with the requirements of this section, and shall promptly notify said Commission of all changes made in the same. Every such common carrier shall also hie with said Commission copies of all contracts, agreements, or arrange- ments with other common carriers in relation to any trallic affected by the [jrovisions of this act to which it may bo a party. And in cases where passengers and freight pass over continuous lines or routes operated by more than one common Ch. 2.] raiPOKTANT statutes. 91 carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint taritis shall also, in lil^e manner, be filed with said Commission. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid shall be made pubhc by sucli common carriers when directed by said Commission, in so far as may, in the judgment of the Commission, be deemed practicable; and said Commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carrier to pubhsh, and the places in which they shall be published. Advances in joint rates — Reductions in joint rates.] No advance shall be made in joint rates, fares, and charges, shown upon joint taritis, except after ten days' notice to the Commission, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into etiect. jS>o re- duction shall be made in joint rates, fares, and charges, except after three days' notice, to be given to the Commission as is above provided in the case of an advance of joint rates. The Commission may make public such proposed advances, or such reductions, in such manner as may, m its judgment, be deemed practicable, and may prescribe from tune to time the measure of publicity which common carriers shall give to advances or reductions in joint taritis. Deviations unlawful.] It shall be unlawful for any com- mon carrier, i)arly to any joint tarilf, to charge, demand, col- lect, or receive from any person or persons a greater or less compensation for the ti-ansportation of persons or property, or for any services in connection therewith, between any points as to which a joint rate, fare, or charge is named thereon than is specilic(l in the schedule filed with the Commission in force at th(3 lime. Form of schedules.] The Commission may determine and prescribe the form in which the schedules required by this section to be kept oi)en to public insj)ection shall be pre[)ared and an-anged, and may change the form from time to time as shall be found expedient. Proceedings on failure to file or publish schedules — Writ of mandamus to issue- Failure to comply pun- ishable as contempt — Injunction to issue.] If any sneh commoii carrier shall neglect w lefuse to lilc or pubhsh its schedules or taritis of rates, tares, and charges as provided in this section, or any i)art of the same, such common carrier shall, in ant to ])err()i'm such service, to com})el com[)Uance with tlie aloresaiil [)rovisi()ns of this section; and such writ siiall issue in tlie name of tiie peo- ple of the United States, at the relation of the Commissioners appointeil under the provisions of this act; and the failure to comply with its requirements shall be punishable as and for a contem[)t; and the said Commissioners, as complainants, may also ajjjjly, in any such circuit court of the United States, for a writ of injunction against such common carrier, to restrain such common can-ier from receiviuf^ or trans[)orting' pi'operty among the several States and Territories of tlie United States, or between the United States and atljacent foreign countries, or between ports of transshipment and of entry and the sev- eral States and Territories of the United States, as mentioned in the iirst section of this act, until such common carrier shall have complied with the aforesaid provisions of this section of this act. As ameiided by 25 Stat, 855, March 2, 1889. Combinations to prevent continuous carriage of freight to destination prohibited.] § 7. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in ditferent cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destniation; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage irom the ])lace of shipment to the place of destination, unless such break, stoppage, or interrup- tion was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this act. Liability for violations of this act.] § 8. That in case any common carrier subject to the provisions of this act shall do^ cause to be done, or perjuit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act re(|uired to be done, such comuK^n carrier shall be liable to the person or persons injured thereby for the full amount of damages sus- tained in consequence of any such violation of the) provisions of this act, together with a reasonable counsel or attorney's fee, to be Mxetl by the court in every case of recovery whicd Ch. 2.] IMPORTANT STATUTES. 93 attorney's fee shall be taxed and collected as part of the costs in the case. Persons damaged may make complaint to Commis- sion, or sue personally.] § 0. That any ]ierson or ])Grsons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Com- mission as hereinafter provided for, or may bring suit in liis or their o\vn behalf for the recovery of the damages for which such common carrier may be liable under the ])rovisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of (.himagcs the court before which the same shall be pending may compel auy director, officer, receiver, trustee, or agent of the corporation or company de- fendant in such suit to attend, ai)pear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit ; the claim that any such testimony or evidence may tend to crhninate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. Penalty for violation — Fine — Imprisonment for unlawful discrimination.] § 10. That any common car- rier subject to tlie provisions of this act, or, whenever such common carrier is a corporation, any director or officer tiiereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone or witli anv other corj)oration, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall will- fully omit or fail to do any act, matter, or thing in this act re(juired to be done, or shall cause or willingly sutler or })er- mit any act, matter, or thin*r so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, u[)on conviction thereof in any dis- trict court of the United States within the jurisdiction of which such offense was committed, be subject to a lins and carry out tho ob- jects for which it was crcatcil; and llic coiiiiuissioii is hereby uiUhori/.cd and rciiuired to execute and enlorce the [)r()visions of this act; and, upon the re(juest of the couiiuission, it shall be the duty of any district attoi-ney of the United States to wlioni the coniinission may apply to institute in the proper court and to jjrosei^'ute under tiio direction of the attorney- general of the I'nited States all necessary proceedings for the enforcement of the ])rovisions of this act and for the punish- ment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the pur- poses of this act the commission shall have power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, i)apers, taritfs, contracts, agreements, and documents relating to any matter under investigation. Attendance of witnesses.] Such attendance of witnesses, and the production of such documentary evidence, may be re- quired from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission, or any party to a proceeding before the com- mission, may invoke tlie aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under tho provisions of this section. Circuit courts to issue order for attendance of wit- ness— Punisliment for contumacy — Self-criminating testimony.] And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of ccjiitumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such com- mon carrier or other person to appear before said commission, (and produce books and papers if so ordered) and give evidence touching the matter in question ; and any failure to obey such order oi the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or tes- timony shall not be used against such person on the trial of any criminal ju'oceeding. Testimony by deposition — Notice — Compulsion.] The testimony of any witness may be taken, at the instance of a party, in any proceeding or investigation depending be- fore the commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The com- mission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any Ch. 2.] IMPORTANT STATUTES. 97 stage of such proceeding or investigation. Such depositions may be taken before any jndge of any court of the United States, or any commissioner of a circuit, or an}" clerk of a dis- trict 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 tlie United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceeding or investigation. Eeasonable notice must first be given in writing by tne party or his attorney propos- ing to take such deposition to the opposite party or his attor- ney 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. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commission as hereinbefore provided. Oath and signature of deponent.] Every person de- posing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. Ilis testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent. Depositions in foreign countries.] If a Avitness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an oflicer or person designated by tlie commission, or agreed upon by the parties by stipulation in writing to be filed with the com- mission. All depositions must be promptly fiJcd with the commission. Fees for depositions.] Witnesses whose depositions are taken ])ursuaiit to this act, and the magistrate or other oilicer taking the saiuo, shall scvcrall}^ be entitled to the same fees as are paid for like services in the courts of the United States. As amended by 26 Stat, 743, February 10, 1891. This ameudment super- sedes the amendment of this section made by 25 Stat, 855, March 2, 1889. Petitions to Commission as to violations of this law— Charges to bo forwarded to common carrier- Investigation if complaint is not satisfied — Investiga- tion of com plaints by railroad commissions of States — Lack of direct damage not to dismiss complaint.] § i:i Tliat any person, firm, corporation, or association, or any mercantile, agricultural, or manulactiiring society, or any body ])olitic or municipal organization complaining ol" aiiylhing done or omitted to be done by any common cai-rier subject to 7 <.)S nirOUTANT STATUTES. [ClI. 2 the provisions of this act in contravention of the provisions thereof, may 'ipplv to said Coniniission by petition, Avhich shall briclly state the facts; whereupon a statement of tiie charges tluis miuhi sliall be l\)r\var(letl by the Commission to sueli common carrier, who shall be called npon to satisfy the com|)laint or to answer the same in writing- within a reason- able time, to be s])ecilied by the Commission. If such common carrier, within the time specilicd, shall make repai'ation for tho injury alleged to have been done, said carrier shall be relieved of liability to the com|)lainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the com[)laint within the time specilicd, or there shall aj)pcar to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the mat- ters comj)lained of in such manner and by such means as it shall deem proper. Said Commission shall in like manner investigate any com- plaint forwarded by the raih'oad commissioner or railroad commission of any State or Territory, at the request of such commissioner or commission, and may institute any intjuiry on its own motion in the same manner and to the same effect as though complaint had been made. Ko com[)laint shall at any time be dismissed because of the absence of direct damage to the complainant. Written reports of investigations to be made.] § 14. That whenever an investigation shall be made by said Com- mission, it shall be its duty to make a report in writing in re- ijpect thereto, which shall include the lindings of fact upon which the conclusions of the Commission are based, togetlier with its recommendation as to what ie])aration, if any,sliould be made by the common carrier to any i)arty or })artics who taay be found to have been injured; and such lintliugsso made .^hall thereafter, in all judicial proceedings, be deemed jy/7'ma facie evidence as to eacli and every fact lound. Record copy.] All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier that may have been complained of. Publishing reports and decisions.] The Commission may provide lor the publication of its i'e])oi'ts and decisions in 6UCI1 lorm and manner as may be best adapted for [)ubiic in- formation and use, and such authorized publications sliail be competent evidence of the re})orts and decisions of the Com- mission therein contained, in all courts of the United States, and of the several States, without any further proof or au- thcnlijation thereof. The Commission may also cause to be printed for early distribution its annual reports. Ab ameudcd by 25 Stat, 855, March 2, 1869. Cll. 2.] IMPORTANT STATUTES. J>9 Notice to common carrier of violr.tioti — Record td be made if violation has ceased or reparalion made.] § 15. That if in any case in Avlii:-h an investigation siiall be made by said Commission it sliall be made to appcar-'to the satisfaction of the Commission, either by the testim-eny, of witnesses or other evidence, that anything has been done oY omitted to be done in viohition of the provisions of this act,^ or of any law cognizable by said Commission, by any common car»'ier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the Commission to forthwith cause a copy of its report in re- spect thereto to be delivered to such common carrier, together with a notice to said common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specilied by the Commission ; and if, within the time speci- fied, it shall be made to aj^pear to the Commission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the Commission, or to tlie satisfaction of the party complaining, a statement to that effect shall be entered of record by the Commission, and the said common carrier shall thereupon be relieved from fur- ther liability or penalty for such particular violation of law. Proceedings in circuit courts for violations of t)iis act or disobeying order of Commission — Court to hear on short notice — Pleadings — Report of Com- mission prima facie as to facts — Injunction — Attach- ment on disobeying process — i'lne — Appeals to Supreme Court — Ijistrict attorney to prosecute.] § l»j. That whenever any common currier, as delined in and subject to the jn-ovisions of this act, shall violate, or refuse or neglect to obey or perform any lawful order or requirement of the Commission created by this act, not founded upon a controversy requiring a trial by jury, as provided by the seventh amendment to the Constitution of tlie United fetates, it shall be lawful for the Commission or for any comi)auy or person interested in such order or re(purement, to api)ly in a summary way, by petition, to the circuit court of the United States sitting in equity in the judicial district in which the common carrier complained ol has its i)rincipal oHice, or in which the violation or disobedience of such order or recjuiro- ment shall happen, alleging such violation or disobedience, as the case may be; and tno said court shall have power to hear and determine the matter, on such short notice to the common Ciirrier complained of as the c(nirt shall tieem reas(jnable; and such notice may be served on such common carrier, his or its officers, agents, or servants in such manner as the court shall too IMPORTANT STATUTES. [Cll. 2. direct; and sajS cquH shall proceed to hear and determine the matter spunlily as a court of C(]uity and without the formal ploadings and proceeilings a))i)lieablo to ordinary suits in equity'', l»'-vt in such manner as to do justice in the premises; and to" this end such court shall have power, if it thmU lit, to direct and prosecute in such mode and by such persons as it may apjioint, all such inquiries as the court may tiiink needful to enable it to form a just judgment in the nuitLer of such petition ; and on such hearing the iindings of fact in the reiiorL of said Commission shall \m 2)riina faoie evidence of the mat- ters therein stated; and if it be made to appear to such court, on such hearing or on report of any such person or persons, that the lawful order or requirement of said Commission drawn in question has been violated or disobeyed, it shall bo lawful for such court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such com- mon carrier from further continuing such violation or disobe- dience of such order or requirement of said Commission, and enjoining obedience to the same; and in case of any disobe- dience of any such writ of injunction or other pro])er process, mandatory or otherwise, it shall be lawful for such couit to issue writs of attachment, or any other process of said court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier, and if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction, or other proper process, mandatory or otherwise; and said court may, if it shall think lit, make an order direct- ing such common carrier or other person so disobeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding for each carrier or person in default the sum of live hundred dollars for every day, after a day to be named in the order, that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such mone3's shall be payable as the court shall direct, either to the party complaining or into court, to abide the ultimate decision of the court, or into the Treasury; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order iii the nature of a writ of execution, in hke manner as if the same had been recovered by a final decree in personam in such court. When the sub- ject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of secu- rity for such appeal ; but such appeal shall not operate to stay or supersede tiie order of the court or the execution of any Ch. 2.] IMPORTANT STATUTES. 101 writ or process thereon ; aad such court may, in every such matter, order the payment of such costs and counsel fees as shall be deemed reasonable. Whenever any such petition shall be tiled or presented by the Commission it shall be the duty of the district attorney, under the direction of the Attorney- General of the United States, to prosecute the same ; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States, Proceedings in matters requiring jury trial— Order for trial — Practice — Summoning jury — Waiving jury Appeal — Costs — Circuit courts to be always in sessioii.] If the matters involved in any such order or requirement of said Commission are founded upon a contro- versy requiring a trial by jury, as provided by the seventh amendment to the Constitution of the United States, and any such common carrier shall violate or refuse or neglect lo obey or perform the same, after notice given by said Commission as provided in the fifteenth section of this act, it shall be lawful for any company or person interested in such order or require- ment to ap[)ly in a summary way by petition to the cn-cuit court of the United States sitting as a court of law in the ju- dicial district in which the carrier complained of has its prm- cipal olhce, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or disobedience as the case may be ; and said court shall by its order then lix a time and ])lace for the trial of said cause, which shall not be less than twenty nor more than forty days from the time said order is made, and it shall be the duty of the marslial of the district in whicli said proceeding is pending to forthwith serve a copy of said petition, and ol said order, upon each of the defendants, and it shall be the duty of the defendants to lile tiieir answers to said petition within ten days after the service of the same upon tlicni as aforesaid. At the trial of the lindings of fact of said Commission as set forth in its report shall be i>rhii(Jb facta evidence of the matters therein stated, and if eitlier party shall demand a jury or shall omit to waive a jury the court shall, by its order, direct the mar- slial forthwith to summon a jury to try the cause; but if ail the parties shall waive a jury in writing, then the court shall try the issues in said cause and reiKlcr its judgment thereon. If the subject in dispute sliall be of the value oi two thousand dollars or more either [)arty may ap[)eal to the Su[)rcme Court of the United States under the same regulations now provided by law in res[)ect to security for such appeal; but such appeal must be taken within twenty days from the day of the rendi- tion of the judgment of said circuit court. If the jutlgmcnt of the circuit court shall be in favor of the party con)|>l;iining, he or they shall be entitled to recover a reasonable counsel or 102 niroRTANT sr.vri'ir.s. [On. 2. attorney's foo, to be fixoil by the court, Avbioli shall be col ieetidas part of the costs in the ease. For the purposes of this act, except iiiii" its penal provisions, tiie circuit courts of the United fc>tates shall be deeniecl to bj always in session. As amended by 25 Stat, 855, March 2, 1889. Conduct of proceedings of Commission — Record of votes and acts — Subpoenas.] § IT. That the Connnis- sion may conthict its i)roceeilings in such manner as Avill best conduce to the proper disjjatch of business and to the ends of justice. A majority of the Commission shall constitute a quo- rum lor the transaction of business, but no Commissioner shall partieii)ate in any hearing or proceeding in which he has any pecuniary interest. Said Commission nuiy, from time to time, make or amend such general rules or orders as nniy be requisite for the order and regulation of proceedings before it, includ- inn- forms of notices and the service thereof, which shall con- form, as nearly as may be, to those in use in' the courts of the United States.' Any party may appear before said Commis- sion and be heard, ni person or by attorney. Every vote and otticial act of the Commission shall be entered of record, and its proceedings shall be public upon the request of either party- interested. Said Commission shall have an ollicial seal, which shall be judicially noticed. Either of the members of the Commission may administer oaths and affirmations and sign subpoenas. As amended by 25 Stat, 855, March 2, 1889. Salaries — Commission to appoint employees — Of- fices — Witnesses.] g 18. That each Commissioner shall receive an annual salary of seven thousand five hundred dol- lars, payable in the same manner as the judges of the courts of the United States. The Commission shall appoint a secre- tary, who shall receive an annual salary of three thousand five hundred dollars, payable in like manner. The Commission shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper performance of its duties. Until otherwise i)rovided by law, the Commission may hire suitable offices for its use, and shall have authority to procure all necessary office supplies. Wit- nesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Expenses.] All of the expenses of the Commission, in- cluding all necessary expenses for transportation incurred by the Commissioners, or by their employees under their orders, in making any investigation, or upon official business in any- other places than the City of Washington, shall be allowed and Ch. 2.] IMPOETANT STATUTES. 103 paid on the presentation of itemized vouchers therefor ap- proved by the chairman of the Commission. As amended by 25 Stat, 855, March 2, 1889. Sessions.] § 19. That the principal office of the Commis- sion shall be in the city of Washington, where its general ses- sions shall be held ; but whenever the convenience of the publio or of the parties may be promoted or delay or expense pre- vented thereby, the Commission may hold special sessions in any part of the United States. It may, by one or more of the Comuiissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier sub- ject to the provisions of this act. Annual reports to Commission from common car- riers — Details — May prescribe uniform system oi accounts.] § 20. That the Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this act, to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the Commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same ; the dividends paid, the surplus fund, if any, and the num- ber of stockholders; the funded and floating debts and the in- terest paid thereon ; the cost and value of the carrier's property, franchises, and equipment; the number of employees and the salaries paid each class ; the amounts expended for improve- ments each year, how expended, and the character of such im- provements; the earnings and receipts from each branch of business and from all sources; the operating and other ex- penses; the balances of profit and loss ; and a complete exhibit of the financial operations of the carrier each year, including an annual balance-sheet. Such reports shall also contain sucii information in relation to rates or regulations concerning lares or freights, or agreements, arrangements, or contracts with other common cai'riers, as the Commission may require: and the said Commission may, within its discretion, lor the ijurpos* of enabling it the better'^ to carry out the j)urj)oscs of this act. prescribe (if in the opinion of the Commission it is praclicabk to ju'cscribe such unilorniity and methods of keeping accounts) a period of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uni- form system of accounts, and the manner in which such ac- counts shall be k('i)t. ' Annual report of Commission to be made direct to Congress — List of employees.] ^ til. That the Commis- sion shall, on or before the lirsl day of JJeceniber in each year. 104 IMPORTANT STATUTES. [ClI. 2. miike a ivjiort, which sshall be transmitted to Congress, and copies oi whicli shall be distributed as are the other reports transmitted to Congress, This report shall contain such in- formation anil data collected by the Commission as may be considered of value in the determination of (questions connected with the reguhition of commerce, together with such recom- mendations as to additional legislation relating thereto as the Commission may deem necessai-y ; and the names and com- pensation of the persons employed by said Commission. As ainoudod by 25 SUit, 855, March 2, 1889. Exceptions to provisions of the act — Extension — Officers and employees — Pending litigation.] § 22. That nothing in this act shall jirevent the carriage, storage, or handling of property free or at reduced rates for the United States, fetate, or munici})al governments, or for charitabkj })ur- posi'S, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employed in such transportation, or the issuance of mileage, excursion, or commutation passenger tickets; nothing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons, or to inmates of the National liomes or State Homes for Disabled Volunteer Soldiers and of Soldiers' and Sailors' Orphan Homes, including those about to enter and those returning home after discharge, under arrangements with the boards of managers of said homes ; nothing m this act shall be construed to prevent railroads from giving free carriage to their own officers and emj)loyees, or to prevent the principal officers of an}' railroad company or companies from exchanging passes or tickets with, other raUroad companies for their officers and ein])loyees ; and nothing in this act contained shall in any way abridge or alter the remedies now existing by common law or by statute, but the provisions of this act are in addition to such remedies : Provided, That no pending litigation shall in any way be af- fected by this act. As amended by 25 Stat, 855, March 2, 1889. Appropriation.] § 23. That the sum of one hundred thou- sand d(jllars is hereby appro] )riated for the use and j)ur poses of this act for the tiscal year ending June thirtieth. Anno Domini eighteen hundred and eighty-eight, and the interven- ine: time anterior thereto. Commission to be appointed and organized at once — Law to take effect in sixty days.] ^ 24. That the provisions of sections eleven and eighteen of this act, re- lating to the appointment and organization of the Commission Cu. 2.] IMPORTANT STATUTES. 105 liereiii provided for, shall take effect immediately, and the re- maining- prodsioiis of this act shall take elfect sixty days after its j^asbage. The amendatory act, 25 Stat, 855, March 2, 1889, contains an additional section, as follows : Circuit and district courts may issue mandamus to compel equal facilities to shippers — Mandamus may- issue pending determination — Other remedies not excluded.] § 10. That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleoino- such violation by a common carrier, of any of the provisions of the act to which this is a su])plement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said comuion carrier at the same rates as are cliarged, or upon terms or conditions as favorable as those given by said com- mon carrier for like traffic under similar conditions to an}' other shipper, to issue a writ or writs of laandainus against said common carrier, commanding such common carrier to move and trans})ort tlie traffic, or to furnish cars or otlier facil- ities for transportation for tlio party a])plying for the writ; provided, that if any question of fact as to the proper compen- sation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the Avrit of peremptory Tnandanms may issue, notwithstanding such question of fact is undetermined, upon such terms as to securit}-, payment of money into tlie court, or otherwise, as the court may think proper, pending tiie determination of the question of fact : Provided^ that the remedy hereby given by writ of luandamus shall be cumuhitive, and shall not be held to exclude or inter- fere with other remedies provided by this act or the act to which it is a supplement. An Act to limit tlie effect of the regulations of commerce betvreen the sev- eral States and with foreign countries in certain cases. Approved August 8. 18U0. 2U Stat, 313. 'ntoxicating liquors made subject to laws of State — Original j/dckages not exempt.] Be it enacted by the Senate and House uf Itep- aentaliccH of the U ailed Utates of America in Congress assembled, That all fermentt'd. distilled, or other intoxicating lujuurs or lirovisions of the sec- ond section of this act shall lile a jx-tition, duly verilied with the clerk of the respective coui-t having jurisdiction of the cuije, and in the district where the pluintilf resides. Such pc- lOS IMPOUTANT 6TATUTKS. [ClI. 2. tit ion shall set fortli the full iiaiiic and rt'siclcnce of the plaint- ill", the nalnro of his claim, and a snceinct statement of the faets iiiH»n whieh the claim is based, the money or any other thini:- claimed, or the ilamaiics S(»u<'lit to be recovered and praym^^- tiie court for a juoyment or elecree upon the facts and law.' Service — Defense — Proceedings on failure of gov- ernment to answer.] § 0. Thai tlie ])hiintiir shall cause a copy of iiis ])etition tiled under the ])rece(ling- section to be served upon the district attorney of the United States in the district wiierein suit is brought, and shall mail a co})y of the same, by regist(*red letter, to the Attorney-General of the United States, and shall thereu[)on cause to be filed with the clerk of the court wherein suit is instituted an altidavit of such service and the mailing of such letter. It shall be the duty of the district attorney upon whom service of petition is made as aforesaid to appear and defend the interests of the government in the suit, and within sixt}' days after the service of pc'titioii upon him, unless the time should be extended by order of the court made in the case to file a plea, answer, or demurrer on the part of the government, and to lile a notice of any counter-claim, set-off, claim for damages, or other de- maud or defense whatsoever of the government in the prem- ises : Provided^ That should the district attorney neglect or refuse to lile the plea, answer, demurrer, or defense, as re- quired, the ])laintift may proceed with the case under such rules as the court may adopt in the premises ; but the plaint- iff shall not have judgment or decree for his claim, or any part thereof, unless he shall establish the same by proof satis- factory to the court. Opinions.] § 7. That it shall be the duty of the court to cause a written opinion to be filed in the cause, setting forth the specilic liiulings by the court of the facts therein and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such courts. Interested parties may testify.] § 8. That in the trial of any suit brought under any of the })ro visions of this act, no person shall be excluded as a witness because he is a party to or interested in said suit ; and any plaintiff or party in inter- est may be examined as a witness on the part of the Govern- ment. Repeal.] Section ten hundred and seventy-nine of the Re- vised Statutes is hereby repealed. The i)rovisions of section ten hundred and eighty of the Revised Statutes shall apply to cases under this act. Appeals and writs of error — Procedure.] § 9. That the plaintiff or the United States, in any suit brought under Ch. 2.] IMPORTANT STATUTES. 109 the provisions of this act shall have the same rights of appeal or writ of error as are no\v reserved in the statutes of the United States in tliat behalf made, and upon tne conditions and limitations therein contained. The modes of procedure in claiming and perfecting an aj)peal or writ of error shall con- form in all respects, and as near as may be, to the statutes and rules of court governing appeals and writs of error in hke causes. The right of appeal given by this section is probably modified by sections 5 and 6 of the act of March 3, 1891, ante. Under the act of March 3, 1887 (24 Stat, 505), an appeal on the part of the United States lies to the Supreme Court from a judgment of a district court against the United States, rendered in the exercise of the jurisdic- tion conferred by said statute, without regard to the amount of the judgment. The United States has the same right of apijeal as from a decision of the court of claims. United States v. Davis, 131 U. S., 36. Adverse judgment to the United States to be certi- fied to Attorney-General — Appeal — Limitation —In- terest.] § 10. That when the findings of fact and the law applicable thereto have been filed in any case as provided m 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 cer- tified copies of all the papers filed in the cause, with a tran- script of the testimony taken, the Avritten findings of the court, and his written opinion as to the same ; whereupon the Attor- ney-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 : I-*rovided, That no appeal or writ of error shall be allowed after six months from the judg- ment 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. Report to Congress.] § 11. That the Attorney-Gen- eral shall rci)ort to Congress, and at the beginning of each session of Congress, the suits under this act in which a final judgment o.- decree has been rendered giving the date of each, and a slatement of the costs taxed in each case. Claims referred by Departments.] § 12. That when any claim or matter may be pending in any of the Executive Departments which involves controverted (juestions of factor law, the head of such Department, with the consent of the claimant, may transmit the same, with the vouchers, papers, proofs, and documents pertaining thereto, to saitl Court of 110 IMroRl'ANT SIA rUTKS. [CiL 2. Claims, and the samo sliall ho tlioro ]irooec(lo(l in undor such rules as the court uiav adopt. AVhcn the facts aiid conclu- sit>iis of hiw shall have heeii found, the court shall report its lindiiiu's to the Department by which it was transmitted. Claims referred under " Bowman act " — Judg- ment. ] ^ !;>. That in every case which shall come hefoi-e the Court of Claims, or is now ])endin<^ tliei'cin, under the |)rovis- ions of an act entitled "An act to ad'ord assistimce jukI reliel" to Congress and the Executive Departments in the investi<^a- tion of claims and denuindsa<^'ainst the (irovcrnment," approved March third, ei^'hteen hundred and eig'hty-tlirce, if it shall ay)- pear to the satisfaction of the court, upon the facts established, that it has jurisdiction to render judi^ment or decree thereon under existing laws or under the ])rovisions of this act, it shall proceed to do so. giving to either ])arty such further oppor- tunity for hearing as in its judgment justice shall retpiire, and report its proceedings thei-ein to either House of Congress or to the Department by which the same was referred to said court. Reference of claims pending in Congress — Report to Congress.] § 14. That wdienev^er any bill, except for a pension, shall be pending in either House of Congress provid- ing for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person, the House in wliich such bill is pending may refer the same to the Court of Claims, avIio shall proceed with the same in accord- ance Avitli the provisions of the act ai)proved March third, eighteen hundred and eighty-three, entitled an " Act to afford assistance and relief to Congress and the Executive Depart- ments in the investigation of claims and demand.s against the Government," and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing ui)on the question whether there has been dela}'^ or laches in presenting such claim or ap])lying for such grant, gift, or bounty, and any facts bearing ui)on the (|uestion whether the bar of any statute of limitation should be re- moved or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy. Costs.] § 15. If the Government of the United States shall put in issue the right of the plaintiff to recover, the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue. Such costs, however, shall include only what is actually incurred for w-itnesscs and for summon- ing the same, and fees paid to the clerk of the court. Inconsistent laws repealed.] § IG. That all laws and parts of laws inconsistent with this act arc hereby repealed. Uh. 2.] IMPOKTANT STATUTES. Ill l^O. 11. An Act to authorize condemnation of land for sites of public buildings, and for other purposes. Approved August 1, ItsSS. 25 Stat, 3o7. Condomnaticn — Jurisdiction of federal courts.] Be it enacted by the Senate and House of Representatives of the United States of America in Conyress assembled, That in every case in whicli the Secretary of the Treasury or any other otli- cer of tJie Government has been, or hereafter shall be, author- ized to procure real estate for the erection of a ])ublic building or for other pubhc uses he shall be, and hereby is, authorized to acquire the same for the United States by" condemnation, under judicial process, whenever in his opinion it is necessary or advanta^-eous to the Government to do so, and the United States circuit or district courts of the district wherein such real estate is located, shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of tiie Attor- ney-General of the United States, upon every appliaition of the Secretary of the Treasury, under this act, or such other otiicer, to cause proceedings to be commenced for condemna- tion, within thirty days from the receipt of the application at the Department of Justice. Procedure.] § 2. The practice, pleadings, forms and modes of proceedmg in causes arising under the provisions of this act sliall conform, as near as may be, to the practice, pleadings, forms and proceedings 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 the court to the contrary notwithstanding. Act of August 1, 1888, authorizing designated government officers to ac- quire for llie United States, by condemnation, real estate for the erection of public buildings and conferring upon the United States circuit and district courts jurisdiction of the condemnation pi-oceedings. is not void as in conflict with the Constitution of the United States, amendment 5, declaring that private property shall not be taken for public use with- out ju.-}t compensation, by it3 omission to provide for coiiii)ensation to the owner, as the act must be read with the Constitution, and the courts will not award process of condemnation unless compeusatiou be pro- vided for. In re Rugheimer, 36 F. R, 309. No. 12. An Act to r.gulate the liens of judgments and decrees of the courts of the United Stales. Approved August 1, 1888. 25 Stat, 357. Lien cf judgment of federal court.— Docketing fed- eral judgment in Stale oflico.] Be it enacted by the Senate and J louse erty within the district Kevised SUxtutes, section 644, providing for the removal of a suit brought by an alien in certain cases, although not mentioned in this section, is ap- parently consistent with the act of 1875, as amended in 1887 and 1888, and probably remains in force. Revised Statutes, section 639, clause 1, relating to the removal of causes from State courts, is not expressly repealed by the act of 1875 or by the act of 1887. •• Repeal.] § 6. That the last paragraph of section five of the act of Congress approved March tliird, eighteen hundred and seventy-five, entitled " An act to dcternime the jurisdic- tion of circuit courts of the United States and to regulate the removal of causes from State courts, and for other purposes," and section six hundred and forty of the Revised Statutes, and all laws and parts of laws in conflict with the provisions of this act, be, and the same are hereby repealed: Provided^ That this act shall not afi'ect the juristliction over or disposi- tion of any suit removed from the court of any State, or suit commenced in any court of the United States, before the pas- sage hereof except as otherwise expressly provided in this act. Subsection 2 of Revised Statutes, section 639, relating to the removal of causes from State courts, was repealed by the act of March 3, 1875, as orig- inally enacted. King v. Cornell, 106 U. S., 395. Subsection 3 of Revised Statutes, section 639, which is the local prejudice removal act of 1867, was repealed by implication by the act of March 3, 1887. Minnick v. Ins. Co., 40 F. R., 369. It was not repealed by the act of March 3, 1875, as originally enacted. Hess v. Reynolds, 113 U. S., 73. Relative of judge not to be employed in court.] § 7. 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 ofiice or duty in any court of which such justice or judge may be a member. No. 14. A>' Act to abolish circuit court powers of certain district courts of the United States, and to provide for writs of error in capital cases, and for other purposes. In force February 6, 1889. To take eifect May 1, 1889. 25 Stat, 655. Writ of error from supreme court in capital case.] ^ 6. That hereafter in all cases of conviction of crime, the pun- ishment of which provided by law is death, tried before any Ch. 2.] IMPOETANT STATUTES. 117 court of the United States, the final judgment of such court against the respondent shall, upon the application- of the re- spondent, be re-examined, reversed, or affirmed b}^ the Supreme Court of the United States upon a Avrit of error, under such rules and regulations as said court may prescribe. Every such writ of error shall be allowed as of right and without the re- quirement of any security for the prosecution of the same or for costs. Upon the allowance of every such writ of error, it shall be the duty of the clerk of the court to which the writ of error shall be directed, to forthwith transmit to the clerk of the Supreme Court of the United States a certified transcript of the record in such case, and it shall be the duty of the clerk of the Supreme Court of the United States to receive, file, and docket the same. Every such writ of error shall during its pendency operate as a stay of proceedings upon the judgment in respect of which it is sued out. Any such writ of error may be filed and docketed in said Supreme Court at any time in a term held prior to the term named in the citation as well as at the term so named ; and all such writs of error shall be advanced to a speedy hearing on motion of either party. When any such judgment shafi be either reversed or affirmed the cause shall be remanded to the court from whence it came for further j)roceedings in accordance with the decision of the Supreme Court, and the court to which such cause is so re- manded shall have power to cause such judgment of the Su- preme Coui-t to be carried into execution. No such writ of error shall be sued out or granted unless a petition therefor shall be filed with the clerk of the court in which the trial shall have been had during the same term or withm such time, not exceeding sixty days next after the explication of the term of the court at wfiich the trial shall have been had, as the court may for cause allow by order entered of record. Section 5 of the act of March 3, 1891, provides for an appellate review by the Supreme Court of decisions of circuit and district com-ts in cases of a conviction of a capital or otherwise infamous crima Rule 35 of the United States .Supreme Court, post, regulates the practice under this statute. § 7. That this act shall take effect and be in force from and after the first day of May, Antio Domini eighteen hundred and eighty-nine. Iteceived by the President January 25, 1889. Note by the Department of State. — The foregoing act liaving been presented to the President of the Unit<.'d States for his approval, and not having beeu return(;arty against whom the judgment or decree is ren- dered shall be entitled to an appeal or writ of error to the Supreme Court of the United States to review such judgment or decree without reference to the amount of the same ; but in cases where the decree or judgment does not exceed the sum of five thousand dollars the Supreme Court shall not re- view any question raised upon the record except such question of jurisiliction; such writ of error or appeal shall be taken and allowed under the same provisions of law as ap])ly to other writs of error or appeals except as provided in the next fol- lowing section. See rule 32 of the United States Supreme Court, regulating the practice under this statute, post. See section 5 of the act of March 3, 1891, ante. Under 25 Stat, 693, February 25, 1889, an appeal does not lie from an order of a federal circuit court remanding a cause to a State court, such order not being a final judgment or decree within the meaning of that stat- ute. Richmond, etc., R Co. v. Thouron, 134 U. S., 45. § 2. That in cases of judgments or decrees mentioned in the first section of this act, and heretofore rendered, where the period of limitation for taking writs of error or appeals in other cases has not expired, appeals or writs of error may be sued out at any time within one year after the passage of this act. CHAPTER 3. JURISDICTION OF FEDERAL COURTS. Sections. 1. Sketch of federal courts. 2. The judicial power of the United States. 3. Juiisdiction of circuit couiis over suits by and against the United States. 4 Jurisdiction of chcuit courts over suits by and against a State. 5. Original jurisdiction of circuit courts over suits between private parties. 6. Jurisdiction by removal of suits between private parties. 7. Jurisdiction of circuit courts of appeals. 8. Jurisdiction of the United States Supreme Court Section 1. Sketch of federal courts. According to the plan, which was put in operation by the judiciary act of 1789, and which has been continued in force ever since, the States of the Union are each divided into one or more districts, which never cross State lines. In each district there are two federal courts of original jurisdiction, a circuit court and a district court, except where the powers of a circuit court are conferred on the district court for the district. From the time when these courts were established the circuit courts have had con- fided to them, to the exclusion of the district courts, much of the original jurisdiction over suits between private parties, which Congress could bestow, and nearly all such jurisdiction it has seen fit to have exercised, excepting admiralty jurisdic- tion, which has been reserved equally carefully to tlie district courts. The jurisdiction of circuit courts over suits between private parties, both original and by removal from State courts, embraces, 1, jurisdiction founded on the character of the i)ar- ties — a jurisdiction, which they exercise concurrently with the State courts — and 2, jurisdiction founded on the ])resenc(». of a federal question, namely, one arising under the constitution, laws and treaties of the United States. The jurisdiction over suits between private parties conferred on circuit courts in 1789 by the judiciary act was much extended after the war of the Rebellion, in 1800, 1807 and 1875,' and was again curtailed in 1887 by the amendment of the act of 1875.'^ Still this juris- diction, as it is left by the amendatory act of 1887, is consider- ably wider than it was by the act of '1789. The circuit courts have general jurisdiction of criminal and civil suits liy the J See particularly the removal acta 2 gee ante, clu 2, Statute Na 3. passed during those years. 120 JlUIsniCTION OF FEDERAL COURTS. [Ch. 3. rnitrd States, witli a few exceptions, and jurisdiction of suits bv juivate jiersons against tlie ITnited States to onft>rce claims exeeediii^- ^2,(H)i) anil not exceeding $10,000, of such a nature that they could bo enl'orced in the court of claims,* The ap- pellate jurisdiction which the circuit courts have heretofore exercised over the district courts will cease after July 1, 181)1.- District courts have jurisdiction of all civil suits in admi- ralty. Their jurisdiction over suits either expressly or virtu- ally between ])rivate ])arties is not wholly coniined, however, lo their admiralty jurisdiction. They have jurisdiction of par- ticular classes of cases between ])rivate })arties, de})endent on the subject-matter, c. g., under the Interstate Commerce Act, ante, chapter 2, and they had such jurisdiction under the bank- ruptcy act, now repealed. District courts have no jurisdiction founded on the diverse citizenship of the parties, and no juris- diction by removal of suits from State courts. They have juristliction of prosecutions for minor crimes against the tJnited States, of suits to enforce forfeitures of property, and of civil suits by the United States at common law and in some cases in ecpiity. The Supreme Court of the United States, the only federal court expressly provided for in the federal constitution, in ad- dition to the limited original jurisdiction conferred upon it directly by the ])eo])le through the instrumentality of that in- strument, has such a))pellate jurisdiction as Congress prescribes from time to time. It was the sole apj^ellate federal court within the States — with the exception of circuit courts exer- cising appellate jurisdiction in certain cases over district courts, consular courts, courts held abroad by foreign ministers and executive department boards — from the formation of the gov- ernment in 1789 until the appellate courts act took effect March 3, 1891. Besides appellate jurisdiction over inferior federal courts, the Supreme Court has conferred upon it by the judiciary act of 1789 appellate jurisdiction over the final decis- ions of State courts of last resort, involving a federal question, when the decision of the State court was against the right claimed under federal authority. This jurisdiction it has ex- ercised without any substantial change from 1789 until the present time, and such jurisdiction is declared by the appellate courts act of 1891 to be unaffected by that statute. The court of claims, established in 1855, has jurisdiction to decide claims against the United States in a variety of cases under the provisions of several general statutes and of a number of special acts. Speaking in general terms, it has jurisdic- tion to decide claims arainst the government arising ex con- tractu, by express or imjnied contract, but not to decide claims 1 Ante, p. 106, § 2. '^ Joint resolution, ante, p. 16. Ch. 3.] juKisDicnox or federal courts. 121 for injuries hj torts.^ By a recent statute it is given jurisdic- tion to virtually render judgment in certain cases against Indian tribes.'- The Supreme Court of the United States, circuit courts, dis- trict courts, the new circuit courts of appeals created by the act of 1S91, and the court of claims, comprise the United States courts which have been created under the third article of the federal constitution. Perhaps the court of private land claims should be added to the foregoing list, but that is doubtful. The judges of the courts created under the third article of the federal constitution hold office, by the terms of the constitu- tion, during good behavior, and can be removed only by im- peachment, by the abolition of the courts over which they resj^ectively preside, b}^ resignation or by death. In the Territories over which the power of Congress is gen- eral, and unrestrained by tlie limitations imposed by article 3 of the constitution upon the federal judicial power to be exer- cised within the States, there are such courts of original and appellate jurisdiction as Congress has established; and appeals are usually provided for from important decisions of the su- preme court of a Territory to the Supreme Court of the United States. The judges of the Territorial courts hold office, not by constitutional tenure during good behavior, but for such terms as Congress prescribes. The remarks upon Territorial courts apply to the courts of the District of Columbia. The supreme court of the District of Columbia, however, in addition to its functions as a court of the District, has some jurisdiction, which relates to the nation, and which is exclusive of the jurisdiction of circuit and district courts. It is the only court which has general power to issue a mandamus to a federal executive officer, for exam])le, a secre- tary of the treasury, to com[)el him at the instance of any [)ri- vate person interested, to perform a plain ministerial official duty, not involving the exercise of discretion.' Circuit and dis- trict courts have no power to issue a mandamus to federal officers or others, exce})t (1) in a few classes of cases where such power is specially conferred by statute, and (2) as ancillary to 1 Consult R S., §§ 1049-1093, 5261 ; Stat, 504, March 3, 1881, R. S. Sup., 24 Stat, 005, g 1, ]\Iarch 3, 1H87, ante, 008; 22 Stiit, 98, June 5, 1H.S2; 22 p. 505 ; 26 Stat, 851, March 3, 1891 ; Stat, 108, July 15, 1882 ; 22 Stat, 485, 18 Stat, 192, June 22, 1874, R S. March 3, 1883; 22 Stat, 582, 585, Sup., 83; 18 Stat., 252, June 23, 1874, March 3, 1883; 22 Stat, 635, Jan. 24, R S. Sup., 105; 18 Stat, 452. March 1883; 23 Stat, 288, Jan. 20, 1885; 28 8, 1875, R S. Sup., 170; 20 St-it, 278, Stat, 350, March 3, 1885; 25 Slat, Feb. 3, 1879, R S. Sup., 404 ; 20 suit, 094, Feb. 25, 1889; 25 Stit, 1013, 171, June 19, 1878, R S. Sup., 371 ; 20 J^Iarcli 2, 1HH9. St'it, 324, Man;h 1, 1879, R S. Sup., ^2()Stit, 851, March 3, tH91. 421 ; 21 Stit, 284, June 16, 1880, R S. » Some ca«es in which thiw jurisdic- Sup., 562, limited, 22 Stat, 469 ; 21 tion lias been invoked are : liedCeld 122 JUlilSDIOTION OF FEDERAL COUIiTS. [Cu. 3. a suit of which thev have ah'oady acquired jurisdictiou,' The supn^nio court of tlic District of Cohiuihia has exchisivc juris- dictiin of an appeal from the decision of llic coinniissioner of patents rejecting an a})i)lication for ii patent for an invention.'^ A court of j)rivate land claims, to consist of live judges, is establishetl by an act of IMarch [), ISUl, with jurisdiction to decide claims of j)rivate i)arties and cities and towns, to land in the States and Territories, under Spanish and Mexican li'rants, so as to bar the title of the United States thereto.' It IS provided that no right of a private party against a private party shall be affected by a judgment of the court/ It is provided also that the powders of the court and the term of office of its judges shall cease on December 31, ISOS.** It is doubtful if this is a federal court established under the third article of tlie constitution, for by the terms of the statute "which establishes the court, its judges are to hold office for a fixed term, not during good behavior. The validity of the organization of the court may be upheld perhaps on the ground that as the United States cannot be sued without their assent they may impose conditions upon the right to sue them, one of "which may be that a claimant shall prosecute his claim in a court of different organization from that prescribed by the constitution for the decision of suits between private parties. Foreign ministers and consuls of the United States exercise, under treaties and statutes, in several semi-civilized countries, judicial powers and hold qtiasi-iedGnxl courts. The power of Congress to establish, these courts of foreign ministers and consular courts rests chiefly, without doubt, on the treaty- making power of the United States." An act of October 1, 1888, provides for boards of arbitrar tion to adjust controversies between common carriers en- gaged in interstate or Territorial commerce and their em- ployees.^ Courts-martial, military and naval, are maintained under th-e power of the general government, conferred by the con- stitution, " to raise and support armies " and " to provide and maintain a navy." V. Windom, 137 U. S., 636; United rahan, 9 WaU., 298; United States States V. Lynch, 137 U. S., 280 ; Mil- v. Commissioner, 5 Wall., 503 ; Com- ler V. Raum, 135 U. S., 200 ; United missioner of Patents v. Wliiteley, 4 States V. Black, 128 U. S., 40 ; United WaU., 522. States V. Bayard, 127 U. S., 251; ' See jaos^, § 5, on the original juris- Bayard v. United States, 127 U. S., diction of circuit courts. 246; Carrick v. Lamar, 116 U. S., '-^R S., §i^ 4911-4914. 423 ; Butterworth v. Hoe, 112 U. S., 50 ; 3 26 Stat, 854, March 3, 1891. Wyman v. Halstead, 109 U. S., 654; ^Sec. 13 of act, 26 Stat, 854 United States v. Schurz, 102 U. S., » gees. 1, 19, of act, 26 Stat, 854. 378 ; United States v. Boutwell, 17 « See R S.. §§ 4083-4130. Wall, 604; The Secretary v. McGar- v 25 Stat, 501. Ch. 3.] JtTEISDICTION OF FEDERAL COURTS. 123 § 2. The judicial power of the United States. A full discussion of this topic would be iucousistent with the purpose of this book. A sketch of it will be attempted, however, con- taining a comparison between the federal judicial power and the total judicial power of the nation, as that is an aspect of the subject not generall}^ discussed in text-books. The judicial power of any civilized nation of modern times may be divided conveniently as follows : (1) The enforcement of the rights of the nation against individuals, including under this head both criminal prosecutions and civil suits brought by its authority. (2) The enforcement of the rights of individ- uals against the nation, e. g. by suits against it brought with its consent. (3) Private law, the enforcement of the rights of an individual against an individual, including the enforcement (a") of his rights of dominion {i. e. in rem) over his own body, lire and reputation, (b) of his rights in rem over other persons (shght since the abolition of slavery), (c) of his property rights, i. e. his rights in rem over land, inanimate movables and ani- mals, including patent-rights, copyrights and their like, which may be described as rights of dominion over indeterminate ob- jects, and (d) of his primary rights in lyersonam^ contractual and otherwise. In this division, the enumeration of primary riglits — i. e. rights given for their own sake — includes under each primary right the secondary rights arising from it, whether they are in substitution for a violated primary right or are rights to remedies. In our own country the national judicial power to be exercised within the States is divided be- tween the government of the United States and the several States. The former has only such judicial, legislative and exec- utive powers as the people have delegated to it by the federal constitution. AVith the exception of the limited original juris- diction bestowed on the United States Supreme Court, the people by the constitution have conferred no jurisdiction di- rectly on federal courts. Congress is authorized to confer jurisdiction upon theiii in its discretion within certain limits. This ])ossible jui-isdiction, which Congress may bestow, is the judicial power of the United States, or more briefly, the fed- eral judicial power.^ Of jurisdiction under the first liead into which the total judicial power of a natinn is divided by the foregoing analysis tlie federal judicial j?ower embraces — all criminal prosecutions '' and civil suits* by the United States, 1 Defined in Const, art 3, sec. 2, as versies in wnich the United States modified by amoudmont XL is a party, which embraces only civil 2 Jurisdiction of criminal prosecu- suits. Accord. Tenucsseo v. Davis, tions by the United States is given 100 U. S., 257. Tlieterm "coutrover- by Const, art 3, sec. 2, claases 1, 3, sies " embraces only civil suits. Wis- authoriziuR jurisdiction of cases at consin v. Pelican Ins. Co., 127 U. S., law and in aiial grant of judicial power, supposing a State t(j waive its exemption from suit A Stiite may always do that Clark t\ Bernard, 108 U. a, 480, 447. 6 Const, art. 3, sec, 2, clause L * Const, art 3, sec 2, clause 5. '' Const, art 3, sec. 2, clause 9. 8 Cohens v. Virginia, 6 Wheat., 264, 410. ^Iccord Ames v. Kansas, 111 U. S., 449, holding that a quo war- ranto suit by a State against a cor- poration (domestic for the purposes of the suit), involving a federal ques- tion, may be removed from a State to a federal court on the application of the defendant " A citizen cannot bring an original suit against his own State, without its consent, although a federal ques- tion be involved. Hans v. Louisiana, 134 U. S., 1. Amendment XI does not exclude from the jurisdiction of the federal courts a suit by a State against one of its own citizeu-s which involves a federal question and in which such citizen has become ap- pellant Ames V. Kansas, 111 U. S., 449. 'Oyiccorci Hepburn v. Ellzey, 2 Cranch, 445 ; Barney v. Baltimore City, WaU., 2b0. 12(5 Jl'KISniCTION OF FEDKRAL COURTS. [ClI. 3. ailnurnltv cases on the instance side of tlio court, and cases ol' ancillarv jurisdiction;' — second, those in which the jurisdiction depends on tiie character of tlie parties, i. e. cases between citizens of dilferent States, or between a citizen and an alien, or between a citizen and a foreign nation, or between citizens of the same State clainung lands under grants of ditferent States : — and third, cases arisiug in the Territories, the District of C\)luuibia, forts, navy-yards and other ceded places, where the judicial power of the L'nited States is general,- A case which involves a federal question is within the federal judicial power although it also involves other questions of fact and hiw.'' The federal jutlicial power founded on the character of the parties does not extend to a suit between aliens,* or to a suit between a foreign nation and an alien,' or to a suit be- tween a citizen of the United States residing in the District of Columbia or in one of the Territories and a citizen of the United States residing in a State or an alien;" neither does it extend to the enforcement of criminal law% as the word " con- troversies " in the constitutional grant of judipial power refers onl}^ to civil suits.^ In what has been said heretofore it has been assumed that the parties lo a suit were a single plaintiff and a single defend- ant. The general question, whether the federal judicial power based on the character of the parties alone embraces a suit, when at the time the court takes jurisdiction there is a plurality of plaintiffs or defendants, and one of the requisite relations as to character does not exist between each plaintiff and each defendant, has not been authoritatively decided by the Supreme Court. In a number of decisions, however, of that court con- struing the separable controversy clause of section 2 of the 1 Const, art 3, sec. 2, clauses 1, 2, 3. 303 ; Mossman v. Higginson, 4 Dall., After jurisdiction of a suit has once 12. Lack of jurisdiction of a suit be- attached — & g., because the cause is tween aliens to be recognized must between citizens of different States — be proved in the regular way. Har- a federal court may exercise ancil- tog v. Memory, 116 U. S., 588. lary jurisdiction without regard to 5 Const, art 3, sec. 2. the citizenship of the parties. Stewart ^ Citizen residing in District of Co- V. Dunham, 115 U. S., 61, 64. lumbia a party. Hepburn v. EUzey, 2 Jurisdiction dependent on charac- 2 Cranch, 445 ; Barney v. Baltimore ter of the parties. Const, art 3, sec. 2, City, 6 Wall., 280. Citizen residing clauses 4 to 9. Jurisdiction depend- in Territory a party. New Orleans ent on place. Const, art 4, sec. 2, v. Winter, 1 Wheat, 91. cl. 2, and art 1, sec. 8, cL 17. Ameri- ' Wisconsin v. Pelican Ins. Co., 127 can Ins. Co. v. Canter, 1 Peters, 511. U. S., 265. In determining whether 3 Osborn v. U. S. Bank, 9 Wheat, a suit is of a ci%-il nature a court will 738, 823 ; The Mayor v. Cooper, 6 look back to the original cause of ac- WalL, 247, 252. tion. Id. Hodgson V. Bowerbank, 5 Cranch, Cn. 3.] JURISDICTION OF FEDERAL COURTS. 127 judiciary act of 1S75, as originally enacted, it is assumed, with- out expressly deciding the question, that the judicial power of the United States extends to the whole of a suit which con- tains a separable controversy between plaintiffs and defend- ants who are citizens of different States, although the suit also embraces other controversies and altliough there are other plaintiffs and defendants who are citizens of the same State.^ Chief Justice Waite's statement- arguendo in an earlier decis- ion, to the effect that diversity of citizenship between each plaintiff and defendant must exist to bring the case within the federal judicial power, is Hmited by these later decisions. The ancillary jurisdiction exercised by federal courts and the jurisdiction exercised by them in pursuance of R. S., § 737, allowing a suit at law or in equity to be brought without joining a non-resident who, although interested in the subject-matter of the suit, is not an indispensable party, furnish additional arguments in support of the later decisions. Cases in which the jurisdiction depends on the character of the parties may arise from any part of the broad field of sub- stantive private law. The United States Supreme Court, speaking by Justice Field, has said :— " The constitution im- poses no limitation upon the class of cases involving contro- versies between citizens of different States to which the judicial power of the United States may be extended ; and Congress naay therefore lawfully provide for bringing, at the option of either of the parties, all sucli controversies within the juris- diction of the federal judiciary." ^ And that court has held in a chain of decisions that a proceeding in a State court savor- ing of ecclesiastical jurisdiction — e. g. a suit to annul the pro- bate of a will, a suit to establish a claim against a decedent-s estate — becomes, when an issue has been formed between definite parties, a case at law within the meaning of tlie con- stitutional grant of federal judicial power.'' The federal courts recognize and enforce new primary rights created by the States,* and even in some cases new remedies created by them ; ^ 1 Barneyu Latham, 103 U. S., 205 ; latter iuto a federal court Boom Hyde v. Ruble, 104 U. S., 407, 409 ; Co. v. Patterson, 93 U. S., 403. Brooks I'. Clark, 119 U.S., 503, 512. ••Gaiues v. Fuentes, 92 U. S., 10; 2 Obor V. Gallaglicr, 93 U. S., 199, Ellis v. Davis, 109 U. S., 485 ; Hess v. 204. Question of tlie extent of the Reynolds, 113 U. S., 73. federal judicial power baaed on the »A federal court will enforce an character of the parties argued but administrator's right, given by State not decided in ca.se of Sewing Ma- statute, to receive damages for caus- chine Cos., 18 Wall, 553. ing the death of his intesUite, al- ' Gaines tJ. Fuentes. 92 U. S., 10, 18. though such statute provides tliat An cniinent domain suit by a corpo- the right shall be enforced only in a ration of a SUite against a land- State court Railway Co. v. Whit- owner in the State, a citizen of a ton, 13 WtdL, 270. sister State, may be removed by the ^Gromley v. Clark, 184 U. S., 888; 128 JURISDICTION OF FEDERAL COURTS. [ClI. 3. and this is so alllionoli by State law jurisdiction to enforce such riiihts and administer such remedies is conlined to par- ticular State courts.^ Still it must not bo supposed that the judicial power of the United States extends, even when the constitutional condi- tions as to diverse citizenship are fullilled, to every part of judicial power. The gmwt of judicial power in the federal constitution is limited' by its terms to suits between parties and does not include ex jmrte judicial proceedings, such as the ordinary grant of probate of a Avill by a State court,- the ex parte appointment of a guardian, conservator or administra- tor, or the ex parte issue of letters testamentary to an exec- utor.^ It is possible, too, that there are one or more exceptions to the rule announced by Justice Field and previously cited, and that even when the citizenship of the parties is diverse the federal judicial power does not include all jurisdiction inter partes; for example, that it may not include granting a divorce, allowing alimony, the original grant of the probate of a will, or the appointment and removal of administrators, ex- ecutors and guardians, although such proceedings be contested. While there seem to be no sound reasons for making these exceptions, the opinion that they exist is supported by the con- sideration that the federal courts have never exercised juris- diction within the States in these cases, and that the Supreme Court has disclaimed any power in the courts of the United States to grant a divorce or allow alimony, speaking, however, of cases brought under a statute which imposed as a condition of jurisdiction a definite amount in controversy.'' This pos- sible defect of power in the federal courts is in all cases a lack of power to administer certain remedies, not a lack of power to recognize primary rights and to enforce them so far as the remedies at the command of the courts will allow. The ex- clusion of federal courts from the exercise of these powers is probably due, in part to views of expediency in those who have moulded their jurisdiction, and in part to the survival of distinctions existing in English law at and before the time of Broderick's Will, 21 Wall., 503, 520 ; language of the Supreme Court in Holland v. Challen, 110 IT. S., 15, 24. Chcever v. Wilson, 9 Wall, 108, 124. 1 Accord. Railway Co. v. Wliitton, Accord. Anderson v. Watt, 138 U. S., 13 Wall., 270. 694, 706. As showing the disinclina- 2 Ellis V. Davis, 109 U. S., 485, 497. tion of the Supreme Court to have s The reasoning in Ellis v. Davis, federal courts exercise jurisdiction «u,j)ra, apphes to these cases as much affecting the status of persons, see as to the case before the court In re Burrus, 136 U. S., 586, holding 4 Barber v. Barber, 21 How., 582, that a federal district court cannot 584. This decision caunot well be restore a child to its father by habeas founded on the unity of citizenship corpus, although the citizenship of of husband and wife, as has been the pai-ties be diverse, suggested on circuit, in view of the Ch. 3.] JTKISDICTION OF FEDEEAL COUKTS. 129 our separation from the mother country. During the period of English colonization of America and at the time when the federal constitution was adopted, there were in England four systems of civil courts, namely — the common-law courts — the ecclesiastical courts, exercising exclusive jurisdiction, inter alia, to appoint administrators and executors, to admit a will to probate, and to grant a divorce — admiralty courts — and chancery courts, exercising a general chancery jurisdiction su}> plementing and controlling the other jurisdictions, and a pre- rogative jurisdiction, including the supervision of minors and lunatics and the appointment of guardians for them. The jurisdiction which federal courts have not exercised in the ad- ministration of private law is the exclusive jurisdiction of the English ecclesiastical courts and the prerogative jurisdiction of the English chancery. The federal judicial power does not extend to the decision of political questions, that is, of questions within the exclu- sive jurisdiction of the legislative and executive departments of government, — whether arising in a suit between private persons or in a suit in which the United States or a State is a party,' — nor to the direction of federal and State legislative and executive officers in the performance of their duties in- volving the exercise of discretion. J3ut a State officer may be enjoined by a federal court of equity from acting under a void State law to the destruction of a franchise granted by the United States.'^ Federal executive officers, inferior to the President,^ and State officers may be compelled by the judicial department to perform a purely ministerial duty not involv- ing the exercise of discretion.^ In addition to the four systems of civil courts before men- tioned, namely, the common law, canon law, admiralty and ecjuity courts, there was in England at the time of the forma- tion of our government a tifth system of courts, namely, courts-martial, including in that term naval as well as arniy courts. We have sucli courts, Ijoth under the federal and State 'Georgia v. Stant«m, 6 Wall., 50; U. S., 52, 69, 70. As to injunction Mi.ssi.ssipi)i f. Johnson, 4 WalL, 475; against State officer. Osborn v. Kentucky r. Dennison, 24 How., 60. United States Bank, 9 Wlieat, 738. A political right is one which execu- » Example of denial of injunction tive ofJicers of government will en- against tlit; President Mississippi v. force although courts will not do so, Johnson, 4 Wall., 475. e. g., a person's valid claim against a •• As to federal officers, see caaes foreign nation not consenting to be cited, pont, as to power of tho Su- sued. preme Court of the District of Colum- 2 As to fe-ovonmuM\ts. ;ulininistoring a body of substantive law of tlioir own. Tlie judicial poAYor of the United States delined in tho second section of the third article of the federal constitution does not include this military jurisdiction,' although federal courts may examine its exercise by the military courts and re- lieve, i'. (J. by writ of habeas corj)7(s or prohibition, against unauthorized acts done by them without jurisdiction under color of its authority." This sketch of the judicial power of the United States would be incomplete did it not contain mention of the jurisdiction, both criminal and civil, exercised in semi-civilized independent countries by United States ministers and consuls. This juris- diction is exercised under the provisions of treaties and stat- utes, and undoubtedly rests cliietly on the treaty-making power of the federal government conferred by the constitution.* § 3. Jurisdiction of circuit courts over suits by and against the United States. Circuit courts have jurisdic- tion of all prosecutions for crimes against the United States, unless otherwise specially provided, including concurrent juris- diction with district courts of crimes cognizable by the latter.* Under the provisions of the federal constitution'^ an accused person must be tried in the State and district in which the crime was committed, if it was committed in any State. The trial of crimes committed upon the high seas or elsewhere out of any particular State or district is, by statute, to be in the district where the offender is found or into which he is lirst brought.^ A person accused of a crime against the United States may be arrested anywhere in the United States for trial in the proper district ; ' and a witness in a criminal case may be required to go from any place in the United States to attend the trial.** Ttie provisions in section 1 of the amended judiciary act of 1875, relating to the i)lace of suit, do not gov- ern criminal prosecutions, being expressly limited to civil suits. The circuit court for the district of California is given appel- 1 Kurtz V. Moffitt, 115 U. S., 487, circuit and district courts to the 500 ; Smith u Whitney, 116 U. S., 167. Great Lakes. 20 Stat, 424. -' Example of the exercise of such ^ Const, art 3, sec. 2 ; Amendment jurisdiction. Ex parte Mason, 105 VI. U. S., 696; Wales v. Whitney, 114 «RS.,§730. Murder committed on U. S., 564 ; Dynes v. Hoover, 20 How., island of Navassa, m West Indies, 65 ; Smith v. Whitney, 116 U. S., 167. within the jurisdiction of the United 3 Consult R S., g§ 4088 et seq. States as declared by the executivo < Amended judiciary act of 1875, department of government, may be section 1, clause 6, ante, c\x 2. See punished under R S., § 5575. Jones provisions for criminal prosecutions v. United States, 137 U. S., 202. by the United States mentioned post ' R. s., g ioi4 with civil suits. Act of September 4, 8 R. g.^ § 1014. 1890, extends criminal jurisdiction of Ch. 3.] JTJRTSDICTIOX OF FEDERAL COURTS. 131 late jurisdiction to review, in certain cases, the decisions of United States consular and foreign minister's courts held in China and Japan, both in criminal and civil cases.^ Federal circuit courts have original jurisdiction probably of all civil suits in which the United States are plaintiffs, irre- spective of the amount in controversy. The judiciary act of 1875, as amended in 1887, certainly confers such jurisdiction generally when the value in controversy exceeds 82,000, and ap- pears to confer it without any limit as to the value involved.^ The decisions on circuit are conflicting as to the proper con- struction to be placed upon the statute* and the Supreme Court has not yet passed upon the question. The act of 1875, as originally enacted, did not confer on the circuit courts juris- diction of civil suits by the United States, when the value in controversy Avas §500 or less,* But the language of the amend- ment of 1887 as to the value in controversy is quite different from that employed in the original act of 1875. In section 1 of the original act of 1875 the limitation as to the value in controversy occurs only once, at the beginning of the section, and applies to all the clauses which follow it, while in the amended section the limitation as to the value in controversy is repeated as a part of several clauses conferring jurisdiction over distinct classes of cases, raising the presumption that a clause — like the one conferring jurisdiction of suits brought by the United States — which does not contain a limitation as to the value in controversy, is intended by Congress to be free from such limitation. It has not yet been decided whether the requirement in section 1 of the amended judiciary act of 1875, that a suit shall be brought only in tiie district of defendant's residence, with an exception wliicli need not be noticed here, applies to civil suits brought under that act by the United States, nor how far such requirement governs the place of bringing suits by the United States provided for by other statutes. There seems no sound ground for disregarding the limitation in question as to place of suit, except in cases as to which Congress has clearly manifested an intention that it should not apply. The jurisdiction conferred on circuit courts by the amended judiciary act of 1875 over civil suits in which the United States are plaintiffs is conlined doubtless to suits at law and in equity, and does not include probably civil admiralty suits by the United States — e. g. to condemn a vessel as a prize or to enforce its forfeiture for the violation of some statute — for during the whole period of the nation's life cir- 1 R S., §§ 4093-4096. United States v. Shaw, 89 F. R, 48a '^ Amended judiciary act of 1875, Contra, United States v. lluiriiiaster, sec 1, ante, ch. 2. 35 F. R, 83 ; S. C, 13 Sawyer, 28a ' In favor of the jurisdiction with- * 18 Stat, 470. out reference to value in controversy. 132 JlKlhUUllON OF FKDKKAL COLKTS. [Cu. 3. ciiit courts have never exercised iidmiriilty jurisdiction to any material extent, excei)t by way of ai)[)eal. AVhether or not circuit courts have jurisdiction under the amended judiciary act of 1875 of civil suits generally by the United States in which the value in controversy is less than $2,000, they have been held on circuit to have such jurisdic- tion in })articular classes of cases under })rior statutes declared to be still in force, e. y. under Kevised Statutes, sec. 021), clauses 3, 4, they have been held to have jurisdiction of all suits at common law, without regard to tlie value in contro- versy, where the United States, or any officer thereof suing under an act of Congress, are plaintiffs,' and of suits, without limitation as to the value in controversy, arising under cus- toms, internal revenue, and postal statutes.- This jurisdiction is sustained in one decision on the theory that the amended judiciary act of 1875 repeals only the hrst clause of section 020 of the Kevised Statutes, which is general, and leaves in force the second and following clauses of that section, which refer to particular classes of cases.^ It was said in another decision that the amended judiciary act of 1875 refers only to cases of which the federal and State courts have concuri-ent jurisdic- tion, not to cases of which the federal courts have exclusive jurisdiction, but this theory is evidently untrue unless limited,* and does not account for the fact, that Kevised Statutes, sec. 629, clause 3, just mentioned, giving circuit courts jurisdiction of suits at common law by the United States, remams in force, for State courts evidently have concurrent jurisdiction with federal courts of such suits. It is unnecessary, however, to account for the fact, that prior statutes, which purport to con- fer jurisdiction on federal circuit courts, which are of nar- rower scope than the amended judiciary act of 1875, and which are consistent with it and are not expressly repealed, re- main in force. Federal circuit courts have jurisdiction, with- out doubt, of civil suits by the United States in a number of special classes of cases under statutes enacted both before and after March 3, 1887, when the amended judiciary act of 1875 took effect.* 1 Armstrong v. Ettlesohn, 36 F. R., federal courts is exclusive of State 209. courts. 2 Ames V. Hager, 36 F. R, 129 ; o By the Revised Statutes and sub- S. C, 13 Sawyer, 473 ; United States sequent acts of Congress circuit V. Shaw, 39 F. R, 433. courts are given jurisdiction, inter 3 United States u Shaw, 39 F. R, alia, in addition to the classes of suits 433. by the United States, previously men- * Section 1 specifically confers on tioned, of all suits by the United circuit courts jurisdiction of crimes States for the enforcement of for- against the United States, a class of feitures and penalties provided for cases in which the jurisdiction of by merchant-seamen laws (R S., Ch. 3.] JTJEISDICTION OF FEDERAL COrETS. 133 The federal statutes do not provide for the removal by the United States of a suit begun by them in a State court into a federal court. Criminal suits by the United States and civil suits, including probably civil suits to which the United States are a party, § 629. cl. 5 ; R S., § 4610 ; 22 Stat, 186, August 2, 1882) ; of all suits for the condemnation of projjerty taken as prize because employed in aid of insurrection (R S., § 629, cl. 6 ; R S., §§ 5308, 5309, 5311); of aU suits aris- ing under any law relating to the slave trade (R S., g 629, cL 7) ; of all suits by writ of qtto warranto to re- move any pei-son from office (R S., §629, cL 14; R S., § 1786); of suits to recover taxes, fines and forfeitures (R S., § 3213) ; of suits to enforce the forfeiture of vessels engaged in the cooley trade (R S., § 2159); of suits by the comptroller to forfeit the franchises of a national bank (R S., .^ 5239) ; of criminal prosecutions and actions for penalties under the civil rights act (18 Stat, 335, March 1, 1875, R S. Sup., 148); of prosecutions for theft or embezzlement from the United SUites (18 Stat, 449, March 3, 1875, R S. Sup., 183); of prosecutions of persons injuring trees on govern- ment land (18 Stat, 481, March 3, 1875, R S. Sup., 186) ; of suits to enforce forfeitures and penalties under an act to reduce internal revenue taxa- tion (22 Stat, 488, March 3, 1883); of prosecutions for CDUuterfeiting (23 Stat, 22, May 10, 1884) ; of prosecu- tions for the violation of the act to estabUsh a bureau of animal indus- try (23 Stat, 31, 33. May 29, 1884), of suits to enforce and U> enjoin tlie vio- lation of an act to prevent the unlaw- ful occupation of j)ulilic laiuls (23 Stat, 321, February -'5, 1885); c^f suits for pf-naUii's under an act to prohibit the importation of alien laborers (23 Stat, 332, February 26, 1885); of criminal suits and civU suits for an injunction, mandamus or damages imder the Interstate Commerce Act (ante, ch. 2, Statute No. 9) ; of crim- inal i^rosecutions and suits for penal- ties and forfeitmes under an act to execute tieaty provisions with China (24 Stat, 409, Februaiy 23, 1887); of mandamus suit under the provisions of an act relating to subsidized rail- ways (25 Stat, 382, August 7, 1888) ; of mandamus suits to compel officers of courts, clerks, marshals, commis- sionei-s and attorneys to account (18 Stat, 333, February 22, 1875, R S. Sup., 145); of proceedings to restore lost or destroyed court records in which the government is interested (20 Stat, 277, January 31, 1879, R S. Sup., 403); of a2)pellate power to review the decisions of boards of general appraisers as to duty charges (26 Stat, 131, June 10, 1890. § 15); of criminal suits and civil suits for an injunction or other remedy under an act to protect trade against unlaw- ful restraints and monopolies (26 Stat, 209, July 2, 1890); of criminal and civil suits under the alien immi- gration act of March 3, 1891 (26 Stat, 10S4, § 13); of suits to condemn land for the use of tiie United States (25 Stat, 357, August 1, 1888, ante, p. 110); of viandavius suits to com- pel the Union Pacific Riilroad Com- pany to oiM?rate its road according to law (R S., *:5 5202) ; and of suits under numerous si)ecial statutes, of which the largest class are statutes author- izing the erection of bridgi'S over navigable wat<'i», and providing for bringing, in the adjacent circuit courts, Huita arising from the obstnio tion of navigation by such bridges. llU JURISDICTION OF FEDERAL COURTS. [Ch. 3. may be romovoil fr«>in a district court into tlie circuit court for'thc district on account of tiic disability or interest of the disti-ict iiulge and on other ort)unds.^ Circuit courts have jurisdiction of suits by a private ])arty ao-ainst the United States for money demands exceedin*^^ $2,000 and not exceeding !?10,000, in the same classes of cases, in gen- eral, in whicii the court of claims has jurisdiction.'^ The claims against the United States of which the circuit courts have ju- risdiction may be described, in general terms, as claims founded on express ov implied contracts with the government and do not include claims for injuries from torts.^ Claims are not specitically enforced ; only money damages are awarded."* The circuit courts have jurisdiction also of suits by an im- porter against a collector of customs to recover back any alleged excess of duties collected by him. As the importer must pay whatever sum the collector demands in order to ob- tain his'property, the government rarely has occasion to sue for duties, and a judicial determination of the validity of duty charges is often attainable only by a suit in form against the collector, but virtually against the United States, A circuit court has jurisdiction of a suit by a civil, military or naval receiving or disbursing officer to stay by injunction proceedings against him on the part of the United States by distress warrant against him and his sureties for failure to ac- count and to pay over public moneys alleged to be in his hands ; ^ and it has jurisdiction of a suit by a national bank to enjoin proceedings under a receivership of the bank instituted by the comptroller of the currency." § 4. Jurisdiction of circuit courts over suits by and against a State. A State may probably bring a civil suit which involves a federal question, and in which the value in controversy exceeds 82,000, in a United States circuit court, under the amended judiciary act of 1875, as that statute con- fers on circuit courts jurisdiction of such suits irrespective of the character of the parties.' That statute does not confer on circuit courts jurisdiction of a suit by or against a State 1 R S., §§ 587, 588, 601, 637, 1037- 5 R S., §§ 3636, 3637. 1039. For statutory provisions regu- ** R S., § 5237. lating tlie transfer of civil suits from ^ Consult the statute, ante, p, 20 et one circuit court to another, see R. S., seq. Accord. Ames v. Kansas, 111 8S 615, 616. U. S., 449, holding that under the act 2 See act of March 3, 1887, ante, of 1875, as originally enacted, an ac- p 105. tion of quo warranto by a State in > Act of March 3, 1887, ante; Gib- one of her ovi^n courts against a cor- bons V. United States, 8 WalL, 269 ; poration chartered by herself could Morgan v. United States, 14 Wall., be removed into a federal court vi^hen 531 it was a suit involving a federal ques- < United States v. Jones, 131 U. S., 1. tion. Ch. 3.] JUKISDICTION OF FEDERAL COUETS. 135 based on the character of the parties.^ If a State waives its constitutional exemption from suit by a private party, no rea- son is perceived why it should not be a defendant, under the amended judiciary act of 1875, in a circuit court in any suit, which involves both a federal question and a sufficient value in controversy. If a State does not waive its exemption from suit, it may perhaps still be sued in a circuit court in such a case brought by the United States or by a foreign nation, but in the absence of decided cases it would be unprofitable to discuss the question. It has been decided that a citizen of a State cannot sue his own State, not waiving' its exemption, in a federal circuit court, although a federal question be in- volved, and although such a suit is not expressly prohibited by the eleventh amendment to the federal constitution.- A federal circuit court has jurisdiction, by removal from a State court, of several classes of criminal prosecutions by a State, e. g. a prosecution by a State against any person who cannot enforce his civil rights in the State court ^ or against a civil or military officer for acts done or omitted under color of any civil rights law,* or against any person for acts done under revenue laws,* or against any person holding property under a revenue law where such suit affects the validity of the law,** or against any person for acts done under registration laws, i. e. under the provisions of R. S. Title XXVI, " The Elective Francliise," ' or agamst an officer of Congress for his official acts.^ In aU these cases the right to remove the cause is in the defendant. A federal circuit court has jurisdiction, by removal from a State court under the amended judiciary act of 1875, on the defendant's ai)plication, of a civil suit which is brought by a State in one of her own courts against a private party, which involves a federal question and a requisite value in contro- versy, and which c(juld have been brought in a federal circuit court as an original suit.^ A suit in which a State is a party or in which the revenue laws of a State are enjoined or stayed is entitled in any fed- » Accord, Alabama v. Wolff e, 18 « R S., § 643. F. R., 830, holdiug that under the act ^ R S., g 643. of 1875. aa originally enacted, a suit 8 Act of March 3, 1875, 18 Stat, 371, by a btate iu.stituted in one of her § 8 ; R S. Sup., 165. own courts agaiust a citizen of an- "Ames v. Kausius, 111 U. S., 449. other State wa.s not removable on the Thin case was decided under the act ground of the character of the parties, of 1875 as originally enacted, but the 2 liana v. Loui.sianl^ 134 U. S., 1. amendment of 1887 does not alleit 'R S., § 641, continued in force by the force of the decision. Haus v. the amendatory act of Marcli 3, 1887, Louisiana, 134 U. S., 1, before cited, § 5, ante. The same remark apphes does not conllict with Ames v. Kan- U) the next four notea. Ha**, although it limits the inferences ") ; S. C, 30 F. R, 1 ; Fales 41 ; Ilawley v. Southern I'acilic R V. Chicago, etc., R Co.. 32 F. R, 073; Co., 33 F. R, 305; Hills v. Kicliniuud, Jessup V. 111. Cent R Co., 36 F. It, etc., R Co., 37 F. K., 000. 735 ; Preston v. Fire-extinguisher •> Consolidated Store Service Co. v. Mfg. Co., 30 F. R, 721 ; Ilohorst v. Lanison, etc., Co., 41 F. R, 833 ; Hamburg, etc., Co., 38 F. R, 273 ; McBride v. Grand, etc., Co., 40 F. R, Booth 17. St Louia, etc., Co., 40 F. R, 102. 13S jumsnicriox or federal courts. [Cii. 3. laws it was c'roattnl and has an ollicc^ in llio federal district in which suit is brought, it is inunatcrial that its principal office is in another federal district within the State.^ The ])roviso as to place of brini;ing suit in section 1 of the judiciai-v act of 1875, as amended in 1887, a])plies in terms to every civil suit brought in a circuit or district court, and has been held on circuit to govern suits brought under other stat- utes; e. 433. Accord. Taftu. Stephens, 2Rein.sta(ller v. Reeves, 33 F. R, etc., Co., 37 F. R. 736. 308; Halstead v. Manning, etc., Co., ^R S., g§ 716-7J9. 34 F. R, 565 ; GormuUy, etc., Co. v. " Harshman v. Knox County, 123 Pope Mfg. Co., 34 F. R, 818. U. S., 306 ; East St Lonis v. Amy, 120 3 In re Louisville Underwriters, 134 U. S., 600 ; New Orleans Board of U. S., 488. Liquidation v. Hart, 118 U. S., 136; Ch. 3.] JUKISDICTION OF FEDERAL COURTS. 139 application for the writ as an original suit.' iN'eitlier does the amended judiciary act of 1875, for the general language em- ployed in section 1 of that statute is limited, and controlled by R. 8. § 716, conferring ancillary jurisdiction to issue writs'- Circuit courts have jurisdiction, however, under special stat- utes to issue a writ of mandamus as an exercise of original jurisdiction in several classes of cases. They may issue the writ to a common carrier to compel it to fQe with the inter- state commerce commission and pubhsh schedules of rates and fares, and probably to compel it to comply with any laAvful order of such commission not arising from a controversy requir- ing a trial by jury under the constitution.^* A circuit or dis- trict court may issue the writ upon the relation of any person alleging discrimination against him by a common carrier in the conduct of interstate traffic to compel such carrier to carry freight for relator on reasonable terms.-' A circuit court may issue a mandamus to a common carrier at the instance of the interstate commerce commissioners to compel it to com- ply with the provisions of the act of xVugust 2, 1888, requiring subsidized railway companies to maintain telegraph lines.^ A circuit court may award a writ of mandamus against any officer of the court to compel him to settle his accounts, give bonds and perform such other duties as are specified in the act of February 2, 1875, regulating fees and costs.^ The proper circuit court may award tlie writ to compel the Union t'aciiic Railroad Com})any to operate its road according to law.' It has been held on circuit that a circuit court can issue a writ of certiorari only as an ancillary proceeding.* Circuit courts and the judges thereof are specitically given power by sections 751 and 752 of the Revised Statutes to issue writs of habeas corpus to release a person from illegal impris- onment. This power is subject to several constitutional, stat- utory and common-law limitations. 13y the federal constitu- tion the limitation is inii)osed that the application for the writ shall fall within the national judicial power as delined in the second section of the third article of that instrument. One Cape Girardeau County Court v. HiU, 855, March 2, 1889, g 1 ; 24 Stat., 379. 118 U. S., 68; Labette County v. Feb. 4, 1887, g 16, amended 25 Stat, Moulton, 112 U. S., 217. 855, March 2, 1889, § 5. I Riggs u Johnson County, 6 Wall, ^ Ante, \}. \^o. Additional section, 166 ; Graham v. Norton, 15 Wall., 427 ; 25 SUit, 855, March 2, 1889, § 10. Bath County v. Amy, 13 Wall., 244; *25 Stat, 382, 383, § 3. Kentucky v. Denniaon, 24 How., 66 ; 6 18 Stat, 333, Feb. 22, 1875, § 4 ; Rosenbaum v. Bauer, 120 U. S., 450. R S. Sup., 145, 146. ••« Koseubaum v. Bauer, 120 U. S., < li. S., g 5262. See also 17 Stat, 450. 509, March 3, 1873, on the same sub- »^ntc, pp. 91, 99; 24 Stat, 379, j<'ct Feb. 4, 1887, g 6, amended 25 Stat, » la re Martm, 5 Blatch., 303. 140 JURISDICTION OF FEDERAL COURTS. [Cu. 3. Statutory limitation is that a fcdoral court shall not issue the writ to reloaso a person in the custody of a State unless his continonient bo in violation of the constitution, laws or treaties of the United States.^ The United States Supremo Court has recently decided that the power of a federal court to issue a writ of /labt'ii,^ corpus is limited by the (jencral jurlt. 0, 7. 144 JL'KISDICTION OF FEDKRAL CODUTS. [ClI. 3. civil ease a s])ocies either of an a]>])eal or of a writ of error in name as well as in fact. The other statutory ])r(n'isi()ns listed under section 5 of the appellate courts act expressly provide for appeals or writs of error and seem to be repealed {subject to the exceptions hereinafter mentioned) by section 14 of that statute, which re]ieals in general terms all acts and parts of acts relating to ajipeals and writs of error inconsistent with the provisions for ai)pellate review in sections 5 and 6. The statutory provisions which stand unrepealed are (1) those providing for an a])peal or writ of error m classes of cases taken out of the operation of the general repealing clause by their peculiar features, and (2) those wdiich provide for a less period than six months within which an appeal or writ of error may be sued out, and which arc continued in force by section 11 of the appellate courts act. Crimixal cases. The decisions of a circuit court of appeals in criminal cases coming before it are in general final.^ Under the provisions of section 11 of the appellate courts act the practice as to writs of error from a circuit court of appeals to a circuit or district court in criminal cases will be formed upon the statutory provisions and rules of the Supreme Court gov- erning writs of error to the Supreme Court in criminal cases. Consult statute Xo. 14, cmte, P'^ge 116, and rule 35 of the Su- preme Court, 2)ost. Perhaps all writs of error in criminal cases must be sued out within sixty days from the expiration of the judgment term. Eevexue cases. The decisions of a circuit court of a})peals in such cases are in general final.'^ Section 15 of the revenue act of June 10, 1890,^ probably remains in force at least so far as it provides that an appeal from a decision of a federal cir- cuit court as to the proper amount of duty charges shall be taken within thirty days from the rendition of the decision. It may be that the whole section, which provides for an ap- peal to the Supreme Court by the United States at its option and by the importer in the discretion of the court, is one of those exceptional statutory provisions before alluded to which are not repealed by section 14 of the appellate courts act. Keferences to several statutory provisions which relate to ap- peals in revenue cases, and which are probably repealed by the ap}>ellate courts act, are collected in a note.'' Patent cases. The decisions of a circuit court of appeals in cases arising under the patent laws are in general final; but in cases arising under copyright and trade-mark statutes the decision of a circuit court of appeals is final only when the 1 Appellate courts act, § 6, ante, ^Ante,Tii.^,*^Yl. p. 11. * See list of statutoiy provisions, 2 Appellate courts act, § 6, ante, p. 7, 1[ 7, cL 2; p. 8, "j^f 10, 12; p. 9, p. 11. ir 17. Ch. 3.] JUKISDICTION OF FEDERAL COURTS. 145 value in controversy does not exceed $1,000.' Eeferences to statutes which relate to appeals in such cases, and which are probably repealed by the appellate courts act, are collected in a note.'- Admiealty cases. The decisions of a circuit court of ap- peals in instance cases in admiralty are in general final.' As to the practice on appeals in such cases consult the statutes to which reference is made in the accompanying note.* Suits fouxded on diverse ciTizENsnip. In suits between citizens of different States and in suits between a citizen of a State and an alien the decisions of a circuit court of appeals are in gcjieral final."* The language of the statute is, *' the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy, being ahens and citizens of the United States or citizens of different States." ^ This language is too broad. The fact that a suit is between an alien and a citizen of the United States does not necessarily bring it within the judicial power of the United States as defined in the third article of the federal constitution. The federal judicial power based on the char- acter of the parties does not embrace, as before shown,^ a suit between a citizen of the United States residing in a Territory or in the District of Columbia on one side and an alien or a citizen of a State on the other side. No practical inconven- ience results from the broad language of the statute, as that must be construed as limited by the constitution.** Other suits. The decisions of a circuit court of appeals in cases in which the value in controversy is $1,000 or less and in cases in which there is no definite value in controversy, e. g. in a habeas corjms suit, ami in which therefore there can be no value in controversy exceeding §1,000,'' are probaljly final to the same extent as the classes of decisions expressly declared final by statute. Although section 5 of the appellate courts act provides for taking cases directly from a circuit or district court to the Su- preme Court when they involve the construction of the fed- eral constitution or a treaty, or involve the constitutionality of a statute or the validity of a treaty, it (h)es not })rovido for such direct review of cases merely involving the construction 'AiJpC'lJuto courts act, § C, unlc, ■' Apitcllutc courts act, g 0, ante, p. 11. p. 11. *See list of statutory provisions, ^^ Id. ante, p. 7, If 7, cL 1 ; p. 8, "ill. ^ Ante, p. 12G. 3Appellat^ Accord In re RugheinxeT, 96 F. K, p. 11. 309, ante, p. 111. < R S., g G92, ante, p. 6, •[ 3 ; act of '■> Accord Kurtz v. Moffitt, 115 U. S,, Feb. IG, 1H75, ante, p. 19. 487. 10 14G JURISDICTION OF FEDERAL COURTS. [Ch. 3. of ail act of Congress, and cases of that class go for appellate review in the lirst instance from the courts of original juris- diction to a circuit court of ap])cals. In suits under section IG ot the interstate commerce act, of such a nature that a jury trial may be insisted upon under the federal constitution at the option of any of the parties, an ap- peal must be taken within twenty days from the rendition of judgment.' It is j)ossible that the provisions for a])peals in the interstate commerce act -are of so exceptional a nature that they stand wholly uni-epealed by section 14 of the appellate courts act, and upon that supposition appeals under the act go directly from the courts of original jurisdiction to the Supreme Court. The same remark applies to the provisions relating to ap- peals in the act of March 3, 1887, providing for bringing suits against the United States.^ Appeals, etc., from Territorial courts. Section 15 of the appellate courts act confers on circuit courts of appeals appel- late jurisdiction to review the decisions of the su])reme courts of the Territories in those classes of cases in which the judg- ments of circuit courts of appeals are made final by that act, i. e. "in all cases in which the jurisdiction is dependent en- tirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States ; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws and in admiralty cases." The proper construction to be placed upon these words has already been discussed.* For the practice as to appeals and writs of error to review decisions of Territorial couris see the statutes to which reference is made in the foot- note.* As to appeals and writs of error to review decisions of the United States court in the Indian Territory, which occupies an exceptional position, see section 13 of the appellate courts act and the notes thereto. The district court for the Territory of Alaska probably has the status of an ordinary district court of the United States," and its decisions, therefore, will be subject to review by the ap- propriate circuit: court of appeals to the same extent as the decisions of other district courts. § 8. The jurisdiction of the United States Supreme Court. The original jurisdiction of the Supreme Court, con- ferred upon it directly by the constitution, is not subject, as is well known, to enlargement or limitation by Congress, and is of course unaffected by the appellate courts act. 1 Page 101; Appellate Courts Act, * See ante, p. 145. § 11, p. 13. -See note 3, post, p. 149. 2 See pp. 100, 101. ^ See remai'ks and case cited, jpos^, » See pp. 108, 109. p. ICO. Ch. 3.] JTTRTSDICTION OF FEDERAL COURTS. 147 The appellate jurisdiction of the Supreme Court over the decisions of State courts of last resort, involving a federal question, when the decision of the State court is against the right claimed under federal authority, is expressl}^ declared by the appellate courts act to be unatfected by that statute.' The principal statutes governing the exercise of this jurisdiction are cited in the accorapan3'ing note.^ The appellate jurisdiction of the Supreme Court over the decisions of the court of claims is not referred to in the appel- late courts act, and is without doubt unaffected by it. The principal general statutes under which this jurisdiction is exer- cised are cited in the note below.' The appellate jurisdiction of the Supreme Court of the United States over the decisions of the supreme court of the District of Columbia and of the court of private land claims is also unmentioned in the appellate courts act and must be deemed unatfected by that statute. Statutes governing such jurisdiction are cited in the note below.* The appellate jurisdiction of the United States Supreme Court exercised by means of special writs, of which the writs of mandamus, prohibition, habeas corpus, certiorari and scire facias are the chief, is probably unaffected to any material ex- tent by the appellate courts act, which contains no reference to such jurisdiction. The statutory provisions giving the Supreme Court power to issue such writs are printed anteJ' The Supreme Court has jurisdiction, by appeal or writ of error, to review directly the judgments and decrees of circuit and district courts in the classes of cases enumerated in sec- tion 5 of the appellate courts act." In view of the former practice, an action at law should be taken up probably by a writ of error, and a suit in equity or admiralty should be taken up by an appeal. The principal statutes governing the practice in such proceedings are cited in the note below.' • Section 4 of the act, ante, p. 5. p. 86. This statute appears to super- 2 R S., §§ 709, 710, 1003, 1017. Pro- sedo R. S., §g 699, 705, 700, and 20 SUit., ceedings on error and appeal R S., 320, § 4, Feb. 25, 1879, and R S. Dist §§ 997-1013. A writ of error must of Columbia, §g 846-848. As to court bf sued out witliiu two y(.'ars after of private land claims, 26 Stat 854, juOgTiiftnt, except where the prosecu- g 9. tor is an infant, insane or imprisoned. « Pages 9, 10. R a, §1008. 8^nfc, pp. 4, 5. »R S., ^ 707; 24 Stat, 505, § 9, 7. See statutory provisions relating March 3, 1887, ante, p. 108 ; 26 Stat, to ai)i)ealH and writs of error printc*! 851, 854, § 10, March 3, 1891; 18 Stat, ante, pp. 0-9; an act (<. fafililat4- 452, March 3, 187.5, R S. Sup., 170; tlic os not revise in general, by Avrit of error or aj^l>eal, the dei'isions of the supreme court of a Territory unless the value in controversy, exclusive of costs, exceeils $5,000.' Oases involving the validity of a patent, a copyright, a federal treaty, a federal statute or an authority exercised uuder the United States are exceptions and are reviewed without regard to the value in controversy.- A further exce])tion a])])ears to exist as to decisions of the supreme court of the Teri'itory of Utah in some criminal cases.^ The Supreme Court has jurisdiction to review the decisions of the United States court in the Indian Territory as if it were a circuit court of the United States.^ The appellate review of the decisions of the district court for the Territory of Alaska is not expressly provided for by the appellate courts act. It is probable that it is to be classed as a disti'ict court of the United States within the meaning of Unit statute, and therefore that the United States Supreme Court has the same jui'isdiction to revise its decisions directly by writ of error or ap[)eal that it has to revise the decisions of other district courts.* There is nothing in the appellate courts act to show that the term, district court, therein used, refers exclusively to district courts sitting within the States, and the Supreme Court has recently treated the district court for Alaska as an ordinary district court of the United States by holding that it has jurisdiction to issue to it under section 6S8 of the Eevised Statutes a writ of prohibition.^ 1 Ante, p. 86. courts act, a7ite, p. 14, and notes 2 Jci thereto. 3 18 Stat., 253, June 23, 1874, R. S. ^ Statute establishing a district Sup., 105, 108. court in the Territory of Alaska, 23 « See section 13 of the appellate Stat., 24, May 17, 1884. 6/n re Cooper, 138 U. S., 404 CHAPTER 4. RULES OF THE SUPREME COURT OF THE UNITED STATES, As announced January 7, 1SS4, together with all subsequent amend- ments, including the amendments printed in 137 United States Reports.^ Rules. 1. Clerk. 2. Attorneys and counsellors. 3. Practice. 4. Bill of exceptions. 5. Process. 6. Motions. 7. Law library. 8. Writ of error, return and record. 9. Docketing cases. 10. Printing records, IL Translations. 12. Further proof. 13. Objections to evidence in the record. 14 Certiorari 15. Death of a party. 16. No appearance of plaintiff. 17. No appearance of defendant 18. No appearance of either party. 19. Neither party ready at the second term. 20. Printed arguments. 21. Briefs. 22. Oral argiunents. 23. Interest 24. Costs. 25. Opinions of the court 26. Call and order of the docket 27. Adjournment 28. Dismissing cases in vacation. 29. Supersedeas. 30. llehearing. 31. Form of printed records and briefa. 1 ' Thr- rules f)f the Supreme Court wliich have not been amended arc printed from 108 United States Kej)ort.s, Tin- jiiii<-iiilni<-ntH liave been tiikcn from the subsequent Unitfd States Reports, and liavo been insert<;d at thonproixjr places. iy2 SUPREME COUKT KDLK8. [ClI. 4. RuU>s. \.V2. Writs of error ami appeals under the act of February 25, 1889, chap- tor -sus. 38. Models, diagrams, aud exhibits of material 34. Custody of prisoners on habeas corpus. 35. Writs of error under section of tlie act of February 6, 1889, chapter 113 (25 Stilt, C5G). 1. Cleek. 1. The clerk of this court shall reside and keep the oiFice at the scat of the national government, and he shall not prac- tice, either as attorney or counsellor, in this court, or in any other court, while he shall continue to be clerk of this court. 2. The clerk shall not permit any original record or paper to be taken from the court room, or from the ollice, without an. order from the court, except as provided by Rule 10. 2. Attorneys and Counsellors. 1. It shall be requisite to the admission of attorneys or counsellors to practice in this court, that they shall have been such for three years past in the supreme courts of the States to which they respectively belong, aud that their private and professional character shall appear to be fair. 2. They shall respectively take and subscribe the following oath or affirmation, viz. : I, , do solemnly swear [or atfirm] that I will de- mean myself, as an attorney and counsellor of this court, up- rightly, and according to law; and that I will support the Constitution of the United States. 3. Practice. This court considers the former practice of the courts of king's bench and of chancery, in England, as affording outlines for the practice of this court ; and will, from time to time, make such alterations therein as circumstances may render necessary. 4. Bill of Exceptions. The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several mat- ters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. Ch. 4.] SUPREME COURT RULES. 153 5. Process. 1. All process of this court shall be in the name of the Pres- ident of the United States. 2. When process at common law or in equity shall issue against a State, the same shall be served on the governor, or chief executive magistrate, and attorney-general of such State. 3. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return of the said process ; and if the defendant, on such service of the subpoena, shall not appear at the return day, the complainant shall be at liberty to proceed ex parte. 6. Motions. 1. All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. One hour on each side shall be alloAved to the argument of a motion, and no more, without special leave of the court, granted before the argument begins. 3. Xo motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. 4. All motions to dismiss writs of error and appeals, except motions to docket and dismiss under Rule 9, must be submitted in the first instance on printed briefs or arguments. If the court desires further argument on that subject, it will be or- dered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief or argument, on the counsel for plaintiff in error or appellant of record in this court, at least three weeks before the time lixed for submitting the motion, in all cases except where tlie counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. Affidavits of the deposit in the mail of the no- tice and brief to the ])roper address of the counsel to be served, duly ])ost-paid, at such time as to reach him by due course of mail, the three weeks or thirty days before the time lixed by the notice, will l>e regarded aspr^V/^tf/Wr'/t' evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be considered, unless, for satisfactory reasons, further time be given by the court to either party, 5. There may be united, with a nuition to dismiss a wi-it of error or an appeal, a m()ti(jn to aJlirm on the ground that, although the record may show that this court has jurisdiction, it is manifest the writ or appeal was taken for delay only, or 154: SUPROrE COURT RULES. [Cn. 4. that the question on ^vllicll the jurisdiction depends is so friv- oU)us as not to need further argument. ('». The court will not hear argunients on Saturday (unless for special cause it shall order to the contrary), but will de- vote that day to the other business of the court. The motion- day shall be ^londay of each week; and motions not re(|uired by the rules of the court to be put on the docket shall be en- titled to preference immediately after the reading of opinions, if such motions shall be made before the court shall have en- tered upon the bearing- of a case upon the docket. 7. Law Library. 1. During the session of the court, any gentleman of the bar having a case on the docket, and wishing to use any book or books in the law^ library, shall be at liberty, upon a])plica- tion to the clerk of the court, to receive an order to take the same (not exceeding at any time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or wiien required by the clerk. It shall be the duty of the clerk to keep, in a book for that pur- pose, a record of all books so dehvered, w^hich are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, and also one dollar per day for each day's detention beyond the limited time. 2. The clerk shall deposit in the law library, to be there carefully preserved, one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs, or argunients filed therein. 3. The marshal shall take charge of the books of the court, together with such of the duplicate law books as Congress may direct to be transferred to the court, and arrange them in the conference-room, which he shall have fitted up in a proper manner; and he shall not permit such books to be taken therefrom by any one except the justices of the court. 8. "Writ of Error, Return ai^d Eecord. 1. The clerk of the court to which any writ of error may be directed shall make return of the same, by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings in the case, under his hand and the seal of the court. 2. In all cases brought to this court, by writ of error or ap- peal, to review any judgment or decree, the clerk of the court by which such judgment or decree was rendered shall annex Ch. 4.] STJPKEME COUKT RULES. 155 to and transmit with the record a copy of the opinion or opin- ions filed in the case. 3. iS^o case vriW be heard until a complete record, containing in itself, and not by reference, all the papers, exhibits, deposi- tions, and other proceedings, which are necessary to the hear- ing in this court, shall be tiled. 4. Whenever it shall be necessary or proper, in the opinion of the presiding judge in any circuit court, or district court exercising circuit court jurisdiction, that original papers of any kind should be inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safe-keeping, transporting, and return of such original papers as to him may seem proper ; and this court will receive and consider such original papers in connection with the tran- script of the proceedings. 5. All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day. Amendment of subdivision 5 of Rule 8, promulgated January 26, 1891. 137 U. S., 710. 6. The record in cases of admiralty and maritime jurisdic- tion, when under the requirements of law the facts have been found in the court below, and the power of review is limited to the determination of questions of law arising on the record, shall be confined to the pleadings, the findings of fact and conclusions of law thereon, the bills of exceptions, the judg- ment or decree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. 9. Docketing Cases. 1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vaca- tion or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of this court, may enlarge the time, by or before its expiration, tlie oi-der of enlargement to be filed with the clerk oi this court. If the plaintiff in error or appellant shall fail to comply Avith this rule, the defendant in error or ai)j)ellce may have the cause docketed and dismissed upon procluciii'^ a certificate, whether in term time or vacation, from the clerk of the court wherein tlie judgment or decree was njiidered, stating the case and certifying that such writ of error or ajipeiil has been duly sued out or allowed. And in no case shall the i)hiintiir in error or appellant be entitled to docket the case and file the record 156 SUrKEMK COURT EULES. [ClI. 4. aftor tho sauu' sliall havo boon docketed and dismissed under this rule, uidoss by order of the court . Aiiu'iulmcnt of 8ubdi vision 1 of Kiile 9, promulgated January 20, 1891. 137 U. S.. 710. -2. lUit the dolViidant in error or appellee may, at his option, docket the case and file a coi)y of the record with the clerk of tlio court ; aiul, if tho case is docketed and a copy of the rec- ord liled with tho clerk of this court by the ])laintitf in error or appellant within the ])criod of time above limited and pre- scribed by this rule, or by the defendant in error or a])pellce at any time thereafter, the case shall stand for argument. AmtMulineut of subdivision 2 of Rule 9, promulgated January 2G, 1891, 137 U. S., 710. 3. Upon the filing of the transcript of a record brought up by Avrit of error or appeal, the a]i))earance of the counsel for the i)arty docketing the case shall be entered. 4. In all cases where the period of thirty days is mentioned in liule S, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming, North Da- kota, South Dakota, Alaska and Idaho, AnK'udmeiit of subdivision 4 of Rule 9, promulgated January 2C, 1891. 137 U. S., 711. 10. Feinting Eecoeds. 1. In all cases the plaintiff in error or appellant, on docket- ing a case and filing the record, shall enter into an undertaking to the clerk, with surety to his satisfaction, for the payment of his fees, or otherwise satisfy him in that behalf. 2. The clerk shall cause an estimate to be made of the cost of printing the record, and of his fee for preparing it for the printer and supervising the printing, and shall notify to the party docketing the case of the amount of the estimate. If he shall not ])ay it within a reasonable time, the clerk shall notify th(! adverse party, and he may pay it. If neither party shall pay it, and for want of such payment the record shall iKjt have been printed when a case is reached in the regular call of the docket, after March 1st, 1884, the case shall be dismissed. 3. Upon ])ayment of either party of the amount estimated by the clerk, twenty-five copies of the record shall be printed, under his supervision, for the use of the court and of counsel. 4. In cases of appellate jurisdiction the original transcript on file shall be taKen by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such Ch. 4.] STTPEEilE COUET EULES. 157 original papers, sent up under Eule 8, Section 4, as are neces- sary to be printed; and of the whole record in cases of origi- nal jurisdiction. 5. The clerk shall supervise the printing, and see that the printed copy is properly indexed. He shall distribute the printed copies to the justices and the reporter, from time to time, as required, and a copy to the counsel for the respective parties. 6. If the actual cost of printing the record, together with the fee of the clerk, shall be less than the amount estimated and paid, the amount of the difference shall be refunded by the clerk to the party paying it, If the actual cost and clerk's fee shall exceed the estimate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with costs, the amount of the cost of printing the record and of the clerk's fee shall be taxed against the party against whom costs are given, and shall be inserted in the body of the mandate or other proper process. 8. Upon the clerk's producing satisfactory evidence, by af- fidavit or the acknowledgment of the parties or their sureties, of having served a copy of the bill of fees due by them, re- spectively, in this court,"^ on such parties or their sureties, an attachment shall issue against such parties or sureties, respect- ively, to compel pa^'ment of the said fees. 9. The plaintiff in error or appellant may, within ninety days after filing the record in this court, file with the clerk a statement of the errors on which he intends to rely, and of the parts of the record which he thinks necessary for the consid- eration thereof, and forthwith serve on the adverse party a copy of such statement. The adverse party, within ninety days thereafter, may designate in writing, filed with the clerk, additional parts of the record which he thinks material ; and, if he shall not do so, he shall be held to have consented to a hearing on the parts designated by the plaintiff in error or appellant. If parts of the record shall be so designated by one or both of the parties, the clerk shall print those parts only; and the court will consider nothing but those parts of the record, and the errors so stated. If at the hearing it shall appear that any material part of the record has not been prmted, the writ of error or ap])eal may be dismissed, or such other order made as the circumstances may appear to the court to require. If the defendant in error or appellee shall have caused unnecessary ymrts of the record to be printed, such order as to costs may be made as the court shall think proper. ITie fees of the clerk, under llule 24, Section 7, shall be com- puted, as at present, on the folios in the record as filed, and l.'iS SI ruKMK C(n;KT kui-ks. [Cii. 4. shall 1)0 ill full fi)r the perfoiinanco of his duties in the execu- tion hoioof. SccUou 9 of llule 10, promulgated March 28, 1887. 120 U. S., 785. 11. Translations. liVluMiover any record transmitted to this court upon a writ of oiTor or appeal shall contain any document, paper, testi- mony, or other proceedino;s in a foreign language, and the rec- ord does not also contain a translation of such document, pa])er, testimony, or other proceedings, made under the au- tiiority of the inferior court, or admitted to be correct, the record shall not be }>i'intcd ; but the case shall be reported to this court by the clerk, and the court will thereu})on remand it to the inferior court, in order that a translation may be there supplied and inserted in the record. 12. Further Proof. 1. In all cases where further proof is ordered by the court, the dej^ositions which may be taken shall be by a commission, to be issued from this court, or from any circuit court of the United iStates. 2. In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories, to be filed by the party api)lying for the commission, and notice to the opi)osite party or his agent or attorney, accompanied with prevent any i»arty from giving oral testimony in open court in cases where tjy law it is admissible. 13. Ojjjections to Evidence in the Kecord. In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record; but the same shall otherwise be deemed to have been admitted bv consent. Ch. 4.] SUPREME COURT RULES. 159 14, Certiorari. No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari must be made at the first term of the entry of the case ; otherwise, the same will not be granted, unless upon special cause shown to the court, account- ing satisfactorily for the delay. 15. Death of a Party. 1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the per- sonalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the case shall be heard and deter- mined as in other cases ; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party mov- ing for such order, if defendant in error, shall be entitled to have the Avrit of error or appeal dismissed ; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the judgment or decree re- versed, if it be erroneous : Provided^ however, That a copy of every such order shall be printed in some newspaper of gen- eral circulation witliin the State, Territor}'-, or district from which the case is brought, for three successive weeks, at least sixty da3's before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the repre- sentatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no meas- ures are taken by the opposite ])arty within that time to com- pel their a])pearancc, the case shall abate. 3. When either party to a suit in circuit court of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree, rendered in tlie circuit court, and at the time of suing out such writ of ei-ror or appeal the other party to the suit shall be dead and have no pruj)er representative within the jurisdiction of the court which rendered such final judg- ment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, the party desiring such writ of error or apjjeal may procure the same, and may have proceed- ir.O srruKMK couKT Ki;i,ES. [Cii. 4. infjs on sm-li jiuli^inont or dccroo su]ipi"sc(1o(1 or stayed in tlio sanio man nor as is now allowed hv law in other cases, and shall thereupon proeeed with sucli writ of error or appeal as in other eases. And within thirty days after the conimence- ment of the term to whieh the suit or writ of error or a])peal is returnable, the plaintilf in error or ap])ellant shall make a suggestion to the court, supported by ailidavit, that the said party was d ad when the writ of error or a])])eal was taken or sued' out, and had no ])roj)er representative within the juris- diction of the court which rendered such judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Ter- ritory of the United States, and stating therein the name and character of such representative, and the State or Territory in whieh such representative resides ; and, upon such suggestion, he mav, on motion, obtain an order that, unless such repre- sentative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or ap- Eellant shall be entitled to open the record, and, on hearing, ave the judgment or decree reversed, if the same be errone- ous: Provided, however, That a proper citation reciting the substance of -such order shall be served upon such representa- tive, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: A.nd provided, also, That in every such case, if the representative of the deceased party does not appear by the tenth day of the term next succeeding such sug- gestion, and the measures above provided to compel the appear- ance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate: And provided, also, That the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases. IG. Ko Appearance of Plaintiff. "Where no counsel appears and no brief has been filed for the j)lainliff in error or appellant, when the case is called for trial, the defendant may have the plaintiff called and the writ of error or appeal dismissed, or may open the record and pray for an aflfirmance. 17. Xo Appeakance of Defendant. "Where the defendant fails to appear when the case 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. Ch. 4,] SUPKEME COUKT RULES. 161 18. 'No Appearance of Either Party. When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dis- missed at the cost of the plaintiff. 19. Neither Party Ready at Second Term. "WTien a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff, unless sufficient cause is shown for further postponement. 20, Printed Arguments. 1. In all cases brouo;ht here on writ of error, appeal, or otherwise, the court w^iU receive printed arguments without regard to the number of the case on the docket, if the counsel on both sides shall choose to submit the same within the first ninety days of the term ; and, in addition, appeals from the "Court of Claims may be submitted by both parties within thirty days after they are docketed, but not after the first day of April ; but twenty-five copies of the arguments, signed by attorneys or counsellors of this court, must be first filed. Amendment to subdivision 1, Rule 20, promulgated October 31, 1887. 123 U. S., 759. 2. When a case is reached in the regidar call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument for the opposite party will be received, unless it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex ^^a/'^e. argument. 4. No l)rief or argument will be received, either through the clerk or otherwise, after a case has been argued or siu)- raitted, except upon leave granted in open court after notice to opposing counsel. 21. Briefs. 1. The counsel for the plaintiff in error or appellant shall file with the clerk of the C(jurt, at least six days before the case is called for argument, twenty-five copies of a printed brief, one of which shall, on ai)|)lication, be furnished to each of the counsel engaged upon tlio opjjositc side. 11 ItVJ SLrUKMlC COUIiT liULES. [Cu. 4. L>. This briof shall, contain, in tho order here stated — (1) A conoiso abstract, or statement of tho case, presenting succinctly tho (jncstions involved and tho manner in vvhicn thov aro raised. (i>) A specilication of tho errors relied upon, ■which in cases brought up by writ of error, shall set out separately and par- ticularly each error asserted and intended to bo urged; and in cases brought up by api)eal the specification shall state, as par- ticularly as may be, in what tho decree is alleged to be erro- neous. ' AVhen the error alleged is to the admission or to tho rejection of evidence, the s|)ecilication shall quote tho full sub- stance of the evidence atlmittcd or rejected. When tho error alleged is to the charge of the court, tho specification shall set out the part referred to totidem verhis, whether it be instruc- tions given or instructions refused. When the error alleged is to a ruling upon tho report of a master, the spocilication shall state the exception to the report and tho action of tho court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to pages of the record and the authorities relied upon in support of each point. When a statute of a State is cited, so much thereof as may bo deemed necessary to the decision of the case shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk twenty-five printed copies of his argument, at least three days before the case is called for hearing. His brief shall be of a like character with that required of the plaintiff in error or appellant, except that no specification of errors shall be requii-ed, and no statement of the case, unless that presented by the plaintiff in error or appellant is contro- verted. 4. When there is no assignment of errors, as required by section 997 of the Eovised Statutes, counsel w^ill not be heard, except at the request of the court; and errors not specified according to this rule will be disregarded ; but the court, at its option, may notice a plain error not assigned or specifiod. 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may bo dismissed on motion ; and when a defendant in error or an api)ellee is in default, he will not be heard, except on consent of his adversary, and by request of the court. G. \\'hen no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel wiU be heard for the adverse party ; but if a printed brief or argu- ment is filed, the adverse party will be entitled to be heard by two counsel. Ch. 4.] SUPKEME COURT KIILES. 163 22. Oeal Aeguaeents. 1. The plaintiff or appellant in this court shall be entitled to open and conclude the argument of the case. But when there are cross-appeals thej shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. 2. Only two counsel will be heard for each party on the ar- gument of a case. 3. Two hours on each side will be allowed for the argu- ment, and no more, without special leave of the court, granted before the argument begins. The time thus allowed ma}^ be apportioned between the counsel on the same side, at their discretion : Provided, always, That a fair opening of the case shall be made by the party having the opening and closing arguments. 23. Inteeest. 1. In cases where a writ of error is prosecuted to this court, and the judgment of the inferior court is affirmed, the interest shall be calculated and levied, from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. 2. In all cases where a writ of error shall delay the pro- ceedings on the judgment of the inferior court, and shall ap- pear to have been sued out merely for delay, damages at a rate not exceeding ten per cent., in addition to interest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the pay- ment of money in cases in equity, unless otherwise ordered by this court. 4. In cases in admiralty, damages and interest may be al- lowed if specially directed by the court. Amendment of subdivision 4 of Rule 23, promulgated March 10, 1890. 133 U. S., 711. 24. Costs. 1. In all cases where any suit shall be dismissed in this court, except where the dismissal sliall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, un- less otherwise agreed by the parties. 2. In all cases of aflirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appclloo, unless otherwise ordered l)y the court. 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appel- lant, unless otherwise ordered by the court. The cost ol the 10 i SCPKEME COURT KULES. [Cn. 4. transcrijit of tho record from the court, holow slinll be a part of such costs, and be taxable in thst court as costs in the case. 4. Neither of tlie foregoing- sections sliall a]iply to cases where the United States are a party; but in sucli cases no costs shall be allowed in this court for or against tho United States. 5. In all cases of tho dismissal of any suit in this court, it shall be the duty of tho clerk to issue a mandate, or other proper process, in the nature of a ])rooc(l.endo^ to the court below, for the purpose of informing such court of the proceed- ings in this court, so that further proceedings may be had in such court as to law and justice may appertain. 0. "When costs are allowed in this court, it shall bo the duty of the clerk to insert the amount thereof in the body of tho mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. 7. In pursuance of the act of March 3d, 1883, authorizing and empowering this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted : For docketing a case and filing and indorsing the transcript of the record, five dollars. For entering an appearance, twenty-five cents< For entering a continuance, twenty-five cents. For filing a motion, order, or other paper, twenty-five cents. For entering any rule, or for making or copying any record or other paper, twenty cents per folio of each one hundred words. For transferring each case to a subsequent docket and in- dexing the same, one dollar. For entering a judgment or decree, one dollar. For every search of the records of the court, one dollar. For a certificate and seal, two dollars. For receiving, keeping, and paying money in pursuance of any statute or order of court, two per cent, on the amount so received, kept, and paid. For an admission to the bar and certificate under seal, ten dollars. For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and dis- tributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio. For making a manuscript copy of tlie record, when required under Rule lu, twenty cents per folio, but nothing in addition for supervising the printing. For issuing a writ of error and accompanying papers, five dollars. For a mandate or other process, five dollars. Ch. 4.] * SUPEEME COURT RULES. 165 For filing briefs, five dollars for each party appearing. For every copy of any opinion of the court or any justice thereof, certified under seal, one dollar for every printed page, but not to exceed five dollars in the whole for any copy. 25. Opinions of the Court. 1. All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be re- corded. And it shall be the duty of the clerk to cause the same to be forthwith recorded, and to deliver a copy to the reporter as soon as the same shall be recorded. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. Opinions printed under the supervision of the justices de- livering the same need not be copied by the clerk into a book of records ; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. 26. Call antd Order of the Docket. 1. The court, on the second day in each term, will commence calling the cases for argument in the order in which they stand on the docket, and proceed from da}'- to day during the term in the same order ; (except as hereinafter provided ;) and if the parties, or either of them, shall be ready when the case is called, the same will be heard; and if neither party shall be ready to proceed in the argument, the case shall go down to the foot of the docket, unless some good and satisfactory rea- son to the contrary shall be shown to the court. 2. Ten cases only shall be considered as liable to be called on each day durin;^ the term. But on the coming in of the court on each day the entire number of such ten cases will be called, with a view to the disposition of such of them as are not to be argued. Aroendmeut to Bection 2 of Rule 26, promulgated May 13, 1889. 130 U. S., 706. 3. Criminal cases may be advanced by leave of the court on motion of cither ]mrty. 4. Cases once adjudicated by tliis coui't unon tlic merits, and again brouglit up by writ of error or a}>peal, may be advanced by leave of the court on motion of either ])arty. 5. Kevenue and other cas(.'s in wliich the United States are concerned, which also involve or alfect some matter of general 100 SUTREME OOUET KULES. [ClI. 4. public interest, may also by leave of the court be advanced on motion of the attorney -general. 0. All motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reiisons for the application. 7. No other case will be taken up out of the order on the docket, or be set down for any jjarticular day, except under siu'cial and jieculiar circumstances to be shown to the court. Everv case "vthich shall have been called in its order and ])assed and put at the foot of the docket shall, if not again reached dui-ing the term it was called, be continued to the next term of the court. 8. Two or more cases, involving the same question, may, by the leave of the court, be heard together ; but they must be argued as one case. il If, after a case has been passed under circumstances which do not place it at the foot of the docket, the parties shall de- sire to have it heard, they may file with the clerk their joint request to that effect, and the case shall then be by him rein- stated for call ten cases after that under argument, or next to be Ciiilcd at the end of the day the rec^uest is filed. If the parties will not unite in such a request, either may move to take up the case, and it shall then be assigned to such place upon the docket as the court may direct. lu. No stipulation to pass a case without placing it at the foot of the docket Avill be recognized as binding upon the court. A case can only be so passed upon application made and leave gi'anted in open court. 27. Adjournment. The court will, at every term, 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 case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. 28. Dismissing Cases in Vacation. "Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an ap- peal, shall in vacation, by their attorneys of record, sign and file with the clerk an agreement in writing directin*^ the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the" case dismissed, and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court. Ch. 4.] SUPKEME COIJKT KULES. 167 29. Supersedeas. Supersedeas bonds in the circuit courts must be taken, with good and suificient security, that the plaintiff in error or ap- pellant shall prosecute his writ or appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal ; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admhalty process, as in the case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recov- ered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal. 30. Rehearing. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by spe- cial leave granted during the term ; and must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. 31. Form of Printed Records and Briefs. All records, arguments, and briefs printed for the use of the court must be in such form and size that they can be con- veniently bound together, so as to make an ordinary octavo volume. 32. Writs of Error and Appeals Under the Act of Feb- ruary 25, 1889, Chapter 236. Cases brought to this Court by writ of error or a]ipeal, under the Act of February 25, 1889, Chai)tcr 286, wlicrc the final judgment or decree rendered by the Circuit Court does not exceed the sum of five thousand dollars, will bo advanced on motion, and heard under the rules jirescribed by Rule 6 in regard to motion to dismiss writs of error and appeals. Amended Rule 32, promulgated March 10, 1890. 138 U. S., 711. An amendment of section 3 of Rule 82, promulgated May 5, 1881, 111 U. S,, V, is suiiersedtd by the present amended Rule 32. 168 SLTKEME COURT KULKS. [Cu. 4. 33. IMODEI-S, DiAGUAMS, AND ExUIBITS OF MATERIAL. 1. !N[o(lols, dinf^rams, and cxliibits of material formiiic^ part of tho evulonco takon in the court below, in any case ])en(lin<^ in this court, on writ of error or nj)i)eal, shall bo ])lacc(l in tho custody of the marshal of this court at least one month before the case is heard or submitted. 2. All models, dia<;rams, and exhibits of material, placed in the custody of the marshal for the inspection of the court on the hearing of a case, must be taken away, by the parties within one month after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule; and if the articles are not removed within a reasonable time after the notice is ^iven, he shall destroy them, or make such other disposition of them as to him may seem best. Amended Rule 33 was promulgated November 23, 1885. 115 U. S., 701. Ordered, That the following regulations be established imder section 765 of tlie Revised Statutes. 34. Custody of Prisoners on Habeas Corpus. 1. Pending an appeal from the final decision of any court or judge declinmg to grant the writ of haheas corpus, the custody of tne prisoner shall not be disturbed. 2. Pending an a])i)eal from the linal decision of any court or judge discharging tlie Avrit after it has been issued, the pris- oner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in cus- tody of the court or judge, or be enlarged upon recognizance, as hereinafter provided. 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon re- cognizance, with surety, for api)earance to answer tJtie judgment of the appellate court, except where, for special reasons, sure- ties ougnt not to be required. Rule 34 was promulgated March 29, 188C, and is printed in the text as amended May 10, 1886. 117 U. S., 70a Ordered, That the following be adopted as rules of this court under the act approved March 3, 1891, entitled "An act to establish circuit courts of appeals, and to define and re;^ulate in certain cases the jurLsdiction of the courts of the Uuite«l StJites, and for other purposes." Strike out "Rule 35 " and insert instead thereof the following : 35. Assignment of Errors. 1. Where an appeal or writ of error is taken from a district court or a circuit court direct to this court, under section 5 of Cn. 4.] SUPREME COUKT EULES. 169 the act entitled "An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes," ap- proved March 3, 1801, 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 particularl}' each error asserted and in- tended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full sub- stance of the evidence admitted or rejected. AVhen the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assign- ment 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. 2. The plaintiff in error or appellant shall cause the record to be printed, according to the provisions of sections 2, 3, 4, 5, 6 and of Rule 10. Amended Rule 35 was promulgated May 11, 1891. 139 U. S., 705. Rule 35 was first promulgated November 3, 1890. 137 U. S., 709. In its original form it related to writs of error in capital cases brought imder the act of February 6, 1889. Ante, p. 116. 3G. Appeals and AVkits of Ekror. 1. An appeal or writ of error from a circuit court or a dis- trict court direct to this court, in the cases provided for sec- tions 5 and of the act entitled " An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurischction of the courts of the L'nited States, and for other puri)oses," ai)proved March 3, 1891, may be allowed, in term time or in vacation, by any justice of this court, or by any circuit judge within his^ circuit, or by any district; ji'7. Cases from CiRomT Court of Appeals. 1. 'NVIkmv, undor section Oof tlie snid act, a circuit court of a)>|>cals shall ciM'tity to this court ;i (lucstiou or ])r()|K)sition of law, concorninn- which it desires the instruction of this court for its ]tro))er decision, the certilicate shall contain a ])ro|)er statement of the facts on which such (juestion or proposition of law ai'ises. 2. If a])i)licati(^n is thcreu]ion made to this court that tho whole recoi-d and cause shall bo sent up to it for its consid- eration, the ]iarty nuiking- such ai)})]ication shall, as a part thereof, furnish this court with a ccrtilied copy of the wholo of said record. 8. AVhere ap])lication is made to this court under section G of the said act to recjuire a case to be certified to it for its review and determination, a certified copy of the entire record of the case in the circuit court of appeals shall be furnished to this court by the applicant, as ])art of the application. Rule 37 was promulgated May 11, 1891. 139 U. S., 706. 38. Interest, Costs and Fees. The provisions of Pailes 23 and 2-J: of this court, in regard to interest and costs and fees, shall apply to writs of error and apj)eals and reviews under the provisions of sections 5 and of the said act. Rule 38 was promulgated May 11, 1891. 139 U. S., 707. INDEX. A. Accused. Is competent witness in criminal casa p. 84. Acknowledgment. Notary may take. p. 83. Adjournment. Rule of Supreme Court as to its adjournments, p. IGG. Admiralty Case. Decision of circuit court of appeals in admiralty suit to be final, p. 11. In circuit coui't in admiralty case jury trial with consent of parties. p. 19. Circuit court to find facts and law separately in admiralty case. p. 19, Jurisdiction of circuit courts of appeals when final in admiralty case. p. 145. Affidavit. Upon removal of cause for local prejudice from State to federal court p. 70. Notary may take. p. 83. Affirmation. See Oatlu Alaska, Territory of. Appeal from district court in Alaska to circuit court of appeals, p. 146. Appeals from district court in Alaska to United States Supreme Court p. 150. Alien. Suit between alien and citizen to be finally determined in circuit couit of appeals, p. 1 1. Alimony. Allowance of alimony perhaps not within the judicial power of the UuiU'd States, p. 128. Ancillary Suit. Substituted service when allowed m ancillary suit p. 137. 172 INDEX. Appeal. Soc Writ of Error. GE.NE1U.LX.Y. rrom ilisti-ict courts to circuit courts abolished, p. 4. From circuit ami district courts to be ouly to United States Supreme Court or to a circuit court of appciUs. p. 4. B}' certificate of division of opinion in criminal case. p. 6, ^ 1 ; p. 7. Ct'rtilicato of division of opinion in a civil case. p. C, ^^f 2, 4. Appe;il allowed from linal decree in equity under Revised Statutes with- out regard to value in dispute, p. 7, n[ 7. Appeal or error without regard to value in civil action against revenue olticer by pi'ivate person, p. 7, TT 7, cL 3. Appeal or writ of error without regard to value in suit for deprivation of constitutional right or of right as citizen of the United States. p. 7, 'ii 7, cl. 4 Error or appeal without regard to value in suit under civil rights law. p. 7, 11 7, cL 5. . Cases reviewed by the Supreme Court or by the circuit court of appeals to be remanded to the proper circuit or district coui't p. 12. No appeal from order remanding a suit, to a State court p. 39. No appellate review of order remanding cause to State court (decisions), p. 74. Statutes providing for appeals repealed by the appellate courts act (re- mai-ks). p. 144. Rules of the Supreme Court of the United States, p. 151. Rule of United States Supreme Coui't, as to bill of exceptions, p. 152. as to writs of error, p. 154 as to contents of the record in the Supreme Court p. 155. as to writs of error and appeals under act of February 25, 1889. p. 167. as to custody of prisoners in habeas corpus cases, p. 168. To Circuit Court of Appeals. Appeal to circuit court of appeals from interlocutory decree granting or continuing an injunction, p. 11. Appeal to circuit court of appeals to be taken within six months or less, p. 13. Practice as to appeals on appeal to circuit court of appeals, p. 13. Appeals from decisions of the United States court in the Indian Terri- tory to a circuit court of appeals, pp. 14, 146. Appeal from supreme court of Territory to circuit court of appeals, pp. 15, 146. Appeal from order of circuit court as to enforcement of order of inter- state commerce commission, pp. 100, 101. Appeal to a circuit coui-t of appeals of case brought under interstate commerce act where there is right of trial by jury. p. 146. Decision of circuit court of appeals in habeas corpus suits probably final, p. 145. Appeal imder provisions of statute providing for bringing suits against the United States, p. 146. INDEX. 173 Appeal — Continued. To Supreme Court. Direct appeal from circuit or district court to United States Supreme Court, p. 4. From circuit and district courts to Supreme Court on question of juris- diction, p. 5; p. 9, •[ 16; p. 10; p. 118. From circuit and district courts to the Supreme Court in prize causes. p. 5. From circuit and district courts to the Supreme Court in cases of con- Tiction of a capital or otherwise imfamous crime, p. 5. List of statutes which provide for appeals, writs of error and certifi- cates of division of opinion to take cases to Supreme Court pp 6, 7, 8, 9. From circuit and district courts to Supreme Court in admiralty and equity cases under Revised Statutes, p. 6, •[ 3. From district court to Supreme Court in prize cases, p. 7. Appeals to Supreme Court in habeas corjms ca^es. p. 7, ^ 8. Appeal or writ of error without regard to value to permit review by Su- preme Court of cases arising under civil rights act p. 8, ^ 9. Appeal or error to Supreme Court under revenue act of March 3 1875 P- 8, rr 10. Appeal or error to Supreme Court without regard to value in conti-o- versy in suit under trade-mark statute, p. 8, ^ 11. Appeal or error to Supreme Court from judgments of forfeitm-e of dis- trict and circuit courts, p. 8, ^ 12. Appeal or error to Supreme Court under interstate commerce act p. 8, ^13. Appeal or error to Supreme Court in suit against United States, p 8 •[[14; p. 109. ' Writs of error to Supreme Court in capital cases, p. 9, "If 15. Appeal to Supreme Court as to duty charges under revenue act of June 10, 1890. p. 9, •[ 17. Jurisdiction of Supreme Court exercised by means of special writs, p. 9. From circuit court of appeals to Supreme Court p. 11. Appeals from federal court in Indian Territory, p. 14. From Territorial courts to United States Supreme Court pp. 18, 149. Appeals and writs of eiTor to Supreme Court from supreme court of District of Columbia or from supreme court of a Territory allowed only when value in controversy exceeds $5,000. p. 86. Appeal from order of circuit court as to enforcement of order of inter- state commerce commission, pp. 100, 101. Writ of erior from Supreme Court in capital cases, p. IIG. Supreme ( 'ourt has ni nucMic COVHT — Continued, Suproino Court probably lias not jurisdiction of appeals and writs of error from a circuit court of appeals in habeas corpus cases, p. US. Cerliorari to rotnove suit from circuit court of appeals to Supreme Court p. 149. Aj^ix'als from district court in Alaska to United States Supreme Court. Appearance. Kulo of Supreme Court as to non-appearance of defendant p. 160. as to non-appearance of plaintiff, p. 160. as to non-appearance of either party, p. 16L Appellate Courts Act. Of JIavch 3, 1891. p. 1. Not to affect appeals from the highest court of a State to the Supreme Court p. 5. Repeal of various statutes by. p. 14. Joint resolution of IMarch 3, 1891, concerning the organization of circuit courts of appeals, p. 16. Sketch of jm-isdiction of circuit courts of appeals, p. 142. Meaning of words •' unless otherwise provided by law." p. 143. Remarks upon the effect of that act to repeal prior statutes providing for appeals, p. 144. Argument. Rule of Supreme Court as to printed arguments, p. 161. as to oral arguments, p. 163. Assignee. ^ Suits by assignee in circuit court pp. 21, 36, 186. Assignment. Of district judges to sit in circuit courts of appeals, p. 4 Attachment. Practice upon removal from State court as to attachments, p. 76. To enforce obedience to order of interstate commerce commission, p. 99. Attorney. Rule of Supreme Court as to admission of attorneys, p. 152. Attorney-General. To approve lease of court rooms for circuit courts of appeal when nec- essary, p. 12. Judgment adverse to the United States in suit against them to be cer- tified to the attorney-general jx 109. Authority Exercised Under the United States. Appeal or error in case involving such authority without regard to value in controversy in case going up from District of Columbia or Territorial supreme court p. 86. INDEX. 175 B. Bank. See National Bank. Bill of Exceptions. Rule of Supreme Court governing bills of exceptions, p. 152, Board of Arbitration. To adjust controversies between common carriers and their emploj^es. p. 122. Bond. Practice as to bonds on appeal to a circuit court of appeals to be same as on other appeals, p. 13. Brief. Rule of Supreme Court as to briefs, p. 161. What brief in Supreme Court shall coutaio. p. 162. Rule of the Sujjreme Court as to form of printed records and briefs, p. 167. c. Capital Crime. Conviction of, to be reviewed directly by the United States Supreme Court p. 5 ; p. 9, ^ 15 ; pp. 116, 168. Certificate of Division of Opinion. Probably repealed by appellate courts act pp. 5, 143. In criminal case. p. 6, "J 1. In a civil suit p. 6, U^ 2, 4. List of statutes which provide for appeals, writs of error and certificates of division of opinion to take cases to Supreme Court pp. 6, 7, 8, 9. Certificate of Importance. From circuit court of appeals to Supreme Court pp. 11, 149. Certiorari. Jurisiliction of United States Supreme Court to issue, pp. 5, 147, 159. Jurisdiction of Sui)reme Court exercised by means of special writs, p. 9. To require circuit court of apjieals to certify up the case to the Supreme Court pp. 11, 149. Circuit court can issue only as ancillaiy proceeding, p. 139. Rule of Supreme Court as to issue of. p. 159. Chancery. See names of the several courts. Prerogative jurisdiction of the Englisli chancery courts not exercised by federal courts, p. 129. Practice of king's bench and of chancery court in England are general guides to the practice of the United States Supreme Court p. 152. 1 70 INDEX. « Circuit Court. UU.NKKAl.LY. AdiiitioiKiI circuit judges to be appointed, p. 1. Judicial circuits, p. 3. ApiH'Uato jurisdiction of circuit courts abolished, p. 4. Jurisdiction of circuit courts prior to July 1, 1891, not affected by the apiK'llate courts act p. IC. Relative of judge not to be appointed to office about court p. IIC. Organization and jurisdiction, p. 119. Original Jurisdiction of Circuit Coubts. Ac exeat may be granted by judge of circuit court p. 9. Has power to issue writs not specifically provided for and appropriate to its jurisdiction, p. 9. Has power to issue writ of scire facias, p. 9. May issue writ of habeas corj)us. p. 10. Grant of writ of injunction by court or judga p. 10. In admiralty cases the court to find facts and law separately, p. 19. In admiralty cases jury trial with consent of parties, p. 19. Original jurisdiction of. pp. 20, 21. Jury allowed in patent causes in equity, p. 20. Suit by assignee in circuit court pp. 21, 36, 136. Place of suit instituted in circuit court pp. 21, 30, 136. Place of suit against a corporation, pp. 33, 137. Provisions in amended judiciary act of 1875 as to place of bringing suits govern civil suits brought under other statutes, p. 138. Amount in controversy (notes), p. 26. Patent and cojiyright suits (notes), p. 28. Service by publication in suit to enforce possession or to enforce or re- move lien, p. 81. Repeal of all acts in conflict with the judiciary act of March 3, 1875. p. 83, Notaries may take depositions, etc. p. 83. Substitution of representative upon death of party, p. 83. Accused is competent witness, p. 81. Clerk of court not to be appointed receiver or master, p. 85. Fees and practice in exti'adition cases, p, 85, To issue order for attendance of witness before interstate commerce commission, p. 96. To enforce order of interstate commerce commission, p. 99. May issue mandamus to compel equal facilities to shippers, p. 105. Jurisdiction of suits against the United States, pp. 106, 130. Jurisdiction of circuit courts of suits by the United States, p. 130, Jurisdiction of suit by the United States to condemn property, p. 111. Lien of judgment of federal court p. 111. Docketing judgment of federal court in State office, p. 111. Clerk of court to keep judgment docket p. 112, Judgment of federal court need not be docketed in county where ren- dered, p. 112. Receiver apix)inted by circuit court shall manage property according to local law. p. 112. INDEX. 177 Circuit Court — Continued. Original Jurisdiction of Circtit Courts — Continued. Receiver may be sued without leave of court, but court api)ointing re- ceiver to retain control p. 113. Suits by or against national banks, p. 114. Statutes continued in force by amendatory act of March 3, 1887. p. 115. Original jurisdiction of circuit court of suits between private parties, p. 126. Jurisdiction of circuit courts over suits by and against a State, p. 134. Rule under which defendant may be made to appear and plead in cross- suit p. 137. Substituted service in ancillary suit p. 137. Power to issue writs, p. 138. Statutes giving jurisdiction of patent and copyright suits without re- gard to value in dispute not repealed, p. 138. Mandamus to officer of court to compel him to settle his accoimts. p. 139. Jurisdiction by Removal. Jurisdiction by removal from State court p. 38 ; p. 41 et seq. Removal from State court of suit involving federal question, pp. 38, 40. Removal of cause from State court for local influence, pp. 39, 68, 73. Remand of cause removed for local influence, p. 39. Removal from State court of suit involving separable controversy, pp. 39, 55. Removal of other suits, p. 39. Parties upon removal of cause from State to federal court p. 47. Non-essential parties upon removal of cause from State to federal court, p. 53. Practice upon removal of cause from State to federal com-t pp. 54 66, 80. Time of application for removal of suits from a State to a federal court (decisions), p. 60. Removal of a suit from a State to a federal court on account of title under grants from different States, p. 75. Proceedings in State court for the removal of a cause to a federal court p. 75. Practice upon removal from State court as to attachments, p. 76. Practice as to injunctions upon removal of cause from State to federal court p. 76. Remand of suit from federal to State court for lack of jurisdiction, p. 76. Practice after removal of case from Stitc to federal court p. 80. R<.'moval of suit from district court or from another circuit court pp. 1:3:3, 141. Juri«diction by removal of suits between private parties fron State courts, p. 141. APPEAL.S, etc., from CIRCUIT COURTS. Judgments of circuit courts to be revised only by the United States Supreme Court or by circuit courts of appeals, p. 4. Direct appeal from circuit court to Sui)reme Court, when allowed, p. 4. 12 17s INDEX. Circuit Court — Conthmed. AiTKAiJi, ETC.. FUOM CiKCUiT CovRTS — Continued. C<'rtilicaU> of divison of opiuiou in crimuial case. p. 6, ^ 1 ; p. 7. Cortifu-ato of divisiou of oi)inion in civil case. p. C, T[T[ 2, 4. Appeal to Supreme Court in equity auil admiralty cases under Revised Statutes, p. 0, 1[ 3. Appeal to circuit court of appeals from interlocutory decree granting or coutinuing an iujunction. p. 11. Cases reviewed by the Supreme Court or by circuit court of appeals to be remanded to the proper circuit court or district court p. 12. Appeal to circuit court of appeals to be taken within six montlis or less, p 13. Practice as to appeals on appeal to cii-cuit courts of appeals, p. 13. Appeal to United States Supreme Court in admiralty cases, p. 19. No appellate review of order remanding cause to State court, pp. 39, 74, Appeal from order of circuit court as to enforcement of order of inter- state commerce commission, pp. 100, 101. Writ of error from Supreme Court in capital cases, p. 116, Appeal to Supreme Court from courts of original jurisdiction on ques- tion of jui-isdiction. p. 118. Circuit Court of Appeals. Clerk of, salary, appointment and pow^ers. p. 2. For practice as to appeals and writs of error, see Appeal. Marslial of, salary of, appointment and powers, p. 2. Organization of. p. 2, Created ui each circuit p. 2. Fees in. p. 3, Rules, p. 3. Judges who may hold circuit court of appeals, p. 3. District judge may sit as judge of, p. 4. Places and times of holding court p. 4. Judge not to review his own judgment, p. 4. Jurisdiction of circuit courts of appeals, pp. 5, 142, 144 Jurisdiction of court, when final, p. 11. Jurisdiction of court defined, pp. 10, 11, Jurisdiction of criminal, patent, copyright, revenue and trade-mark cases, p. 144. Jurisdiction of circuit courts of appeals in cases founded upon diverse citizenship, when final p. 145. Decision of circuit court of appeals in habeas corpus suits final, p. 145. Jurisdiction of circuit courts of appeals, when fiual in admiralty case. p. 145. Appeal or writ of error under Re\ ised Statutes without regard to value in controvery. p. 7, T[ 7. Appeal t^j circuit court of appeals from interlocutory decree gi'anting or continuing an injunction, p. 11. Cases reviewed by the Supreme Court or by circuit court of appeals to be remanded to the proper circuit court or district court p. 12. INDEX. 179 Circuit Court of Appeals — Continued. Marshal of district to provide court rooms and pay court expenses, p. 12. Allowance to judge holding court away from his residenca p. 12. Time of convening, p. 16. Power to issue writs, p. 13. Quxzre, whether circuit court of appeals can issue writ of habeas corpus. p. 14 Practice as to appeals on appeal to cu-cuit courts of appeals, p. 13. Appeal to circuit court of appeals to be taken within six months or less. p. 18. Appeals from decisions of the United States court in the Indian Terri- tory to a circuit court of appeals, pp. 14, 140. Appeal from supreme court of territory to circuit court of appeals pp. 15, 146. Joint resolution of March 8, 1891, concerning the organization of circuit courts of appeals, p. 16. Remarks upon the effect of the appellate courts act to repeal prior stat- utes providing for appeals, p. 144. Appeal from district court in Alaska to circuit court of appeala p. 146. Appeal to, under provision of statute providing for bringing suits against the United States, p. 146. Appeal to a circuit court of appeals of case under interstate commerce act, where there is a right of trial by jury. p. 146. Revision of judgment of circuit court of appeals by Supreme Court, p. 11. Certiorari to remove case from circuit court of appeals to Supreme Court p. 149. Certificate of importance from circuit court of appeals to Supreme Court p. 149. Circuit Judge. Additional circuit judges to be appointed, p. 2. Powers of. p. 2. Competent to sit as judge of circuit court of appeals, p. 3. Not to review his own judgment in court of appeala p. 4 Citizen of United States. Appeal or writ of error without regard to value allowed by Revised Statutes to Supreme Court in case of suit of person to maintain right as citizen of the United States, p. 7, 1[ 7, cl. 4 Civil Rights. Appeal or writ of error without regard to value to permit review by Supreme Court of cases arising under civil rights act p. 8, ^ 9. Claims, Court of. See Court of Claims, Clerk. Clerk of court not to be appointed receiver or master, p. 85. Clerk of federal court to keep judgment docket p. 112. Rule of Supreme Court as to clerk, p. 152. ISO INDEX. Commorco. Btv Jiitiratdtc Comincrcc Act. Injunotiou to pr^toct trade-mark used in foreign commerco or com- merce with Indian tribes, p. 140. Common Carrier. Si't> IiifiTstatc Commerce Act. Uoaril of arbitration to adjust differences between common carriers and their employes, p. 122. Mandamus against, issued from circuit court p. 139. Comptroller. Injunction by national bank to enjoin receivership instituted by comp- troller, p. 134 Condemnation. Of property by the United States, p. 111. Congress. Report to Congress of judgments against the United States, p. 109. Reference of claims against the United States pending in Congress to court of claims, p. 110. Consanguinity. Kel;iti\ u of judge not to be appointed to office about court p. 116. Constitution of the United States. Cases involving the construction or application of the federal constitu- tion to be reviewed directly by the United States Supreme Court p. 5. Cases involving the constitutionaUty of a State constitution to be re- viewed directly by the Sujireme Court p. 5. Constructive Service. Substituted service, when allowed in ancillary suit p. 137. Consular Court. Organization and jurisdiction of. p. 122. Copyright. Appeal or writ of error in case touching patents or copjTights under Re- vised Statutes without regard to value in controversy, p. 7, T[ 7, cL 1. Jurisdiction of circuit courts of appeals over copyright cases, pp. 11, 144. Apjx;al or error in copyright case from circuit court of aj)peals to Su- preme Court p. 11. Copyright suit in circuit court (notes), p. 28. Appeal or error from supreme court of District of Columbia or from supreme court of Territory to United States Supreme Court with- out regard to value in controversy, p. 86. Statutes giving jurisdiction of patent and copyright suits without re- gard to value in dispute not repealed, p. 138. Place of bringing suit for infringement of copyright p. 138. Injunction to enjoin infringement of copyright p. 140. INDEX. 181 Corporation. See Foreign Corporation, Decisions on place of suit against corporation, p. 33 et seq. Remarks upon place of suit by or against a corporation, p. 137. Costs. In circuit courts of appeals, p. 3. In smt against the United States, p. 110. Rule of Supreme Court as to allowance of interest, p. 163. Counsellor. Rule of Supreme Court as to admission of counseUor. p. 152. Court-martial. Authority under which courts-martial are organized, p. 122. Com-ts-martial exist imder the goverimient of the United States, p. 129. Court of Claims. » Jurisdiction of suits against the United States, p. 106. Organization and jurisdiction, p. 120. Jurisdiction of United States Supreme Court over decisions of the comt of claims, p. 147. Court of Private Land Claims. Organization and jurisdiction, p. 122. Court Room. ]VIarshal of district to provide court rooms for circuit com't of appeals and pay its comt expenses, p. 12. Crime. Decision of circuit court of appeals in criminal suit to be final p. 11. Accused is competent witness in a criminal casa p. 84. Writ of enor from Supreme Coiu-t in capital cases, pp. 116, 168. Jurisdiction of circuit courts of appeals over criminal cases, p. 144 Infamous crime defined- p. 148. Rule of Supreme Court as to practice under the act of February 6, 1889, providing for writs of error from the Supremo Com't in criminal cases, p. 168. Criminal Case. See Crime. Cross-bill. Rules under wliich defendant maybe made to appear and plead in cross- suit, p. V61. Custody. liules of Supreme Court as to custody of prisoners in Jmbeas corpus cases, p. 168. LS2 INDEX. D. Death. t>ul>stitxition of representative upon death of party, p. 88. Kiile of Supremo Coui't as to practico upon death of party, p. 159. Defendant. Rule of Supreme Court as to non-appearance of defendant p. ICO. Department. Claim agaiust the United States referred by department to court of claims, p. 109. Deposition. Is'otaiy may take. p. 83. Under interstate commerce act p. 96. In foreign countries under interstate commerce act p. 97. Oath and signature of deponent under interstate commerce act p. 97. Diagram. Rule of Jie Supreme Court as to models, diagrams and exliibits. p. 168. Disbursing Officer. Suit by civil, military, naval, revenue or other disbursing officer to stay proceedings by government against him. p. 134. Dismissal. Of cases in vacation by the Supreme Com-t p. 166. Distress Warrant. To stay proceedings by United States against government officer, p. 134. District Attorney. To prosecute violations of order of interstate commerce commission, p. 99. District Court. Original Jurisdiction. Has power to issue writ of scire facias, p. 9. Has power to issue WTits not specifically provided for and appropriate to its jurisdiction, p. 9. May issue writs of habeas corpus, p. 10. Clerk of court not to be appointed receiver or master, p. 85. May issue mandamus to compel equal facilities to shippers, p. 105. Jurisdiction of suits against the United States, p. 106. Jurisdiction of suit by the United States to condemn property, p. 111. Lien of judgment of federal court p. 111. Docketing judgment of federal court in State office, p. 111. Clerk of court to keep judgment docket p. 112. Judgment of federal court need not be docketed in county where ren- dered- p. 112. Receiver shall manage property according to local law. p. 112. Receiver may be sued without leave of court, but court appointing re- ceiver to retain control p. 113. INDEX. 183 District Court — Continued. Original Jurisdiction — Continued, Suits by or against national banks, p. 113. Eelative of judge not to be appointed to office about court p. 116. Organization and jurisdiction, p. 120. Appeals, etc., from District Coltits, Direct appeal from district court to Supreme Court, when allowed, p. 4 Judgments of district courts to be revised only by United States Supreme Court or by circuit coiu-t of appeals, p. 4. Appeal to Supreme Court in equity and admiralty cases under Revised Statutes, p. 6, TT 3. Appeal from district court to Supreme Court in prize cases, p. 7. Appeal to cii'cuit court of appeals from interlocutory decree granting or continuiag an injunction, p. 11. Cases reviewed by the Supreme Court or by circuit court of appeals to be remanded to tlie projDer circuit court or district court p. 12. Appeal to circuit court of appeals to be taken within six months or less. p. 13. Practice as to appeals on appeal to circuit courts of appeals, p. 13. Appeal from district courts prior to July 1, 1891, not affected by appel- late courts act p. 16. Removal of criminal suit from district court to circuit court pp. 133, 134. Removal of civil suit to circuit court p. 141. District Judge. May sit as judge of com-t of appeals, p. 4. Not to review his own judgment as judge of court of appeals, p. 4 District of Columbia, Supreme Court of. Appeal or writ of error in case touching patent-rights or copyrights imder Revised Statutes, without regard to value in controversy. p. 7, 1[ 7, cL 1. Appeal or writ of error from decision in any patent or copyright case, or in case involving vaUdity of treaty, statute or federal authority, p. 86. Organization and jurisdiction, p. 121. Appeals and writs of error to Supreme Court of United States from su- preme court of District of Columbia to be allowed only when value in controversy exceeds $5,000. p. 86. Appellate jurisdiction of United States over decisions of the supremo court of the District of Columbia, p. 147. Diverse Citizenship. Suit between citizens of different States, or between citizen and alien, to be finally determined in circuit court of appeals, p. 11. Jurisdiction of circuit courts of appeals in cases founded upon diverse citizenshif), when final. {). 145. Division of Opinion. See Certificate of Division of Opinion, ISrt INDEX. Divorce. I'lnviT to grant divorce perhaps not witliin the judicial power of tlie United States, p. 12a Docket. Doikoting judgment of federal court in State oflBce. p. 111. Judgment of federal court need not bo docketed in covmty where ren- dered, p. 112. Clerk of federal court to keep judgment docket p. 113. Rule of Supreme Court as to. p. 155. Rule of Supreme Court as to call and order of its docket p. 165. E. Ecclesiastical Courts. Their exclusive jurisdiction not exercised by United States courts, p. 129. Evidence. Accused is competent witness, p. 84. Self -criminating testimony given in pursuance of interstate commerce act p. 96. Rule of Supreme Court as to objections to evidence in the record, p. 158. Exceptions, Bill of. See Bill of E.ircptions. Executive Officers. May be cominlk-d to perform ministerial duty. p. 129. Executors and Administrators. Substitution of representative upon death of party, p. 83. Apix)intment and removal of executors and administrators perhaps not within the judicial power of the United States, p. 128. Exhibit. Rule of the Supreme Com-t as to models, diagrams and exhibits, p. 168. Expenses. Current exj^nses of circmt courts of appeals, how paid. p. 13. Extradition. Subpoena for defendant's witnesses — Fees to be paid by Secretary of State — Documentary evidence for petitioner, p. 85. P. Federal Courts. Sketch of. pp. 119, 121. Jurisdiction of. Ch, 3, p. 119. Federal Judicial Power. See Judicial I'uwer of tlie United States. ESTDEX. 185 Federal Question. Defined, p. 123. Removal of suits from State to federal court on account of. pp. 38, 40. Fees. In circuit courts of appeals, p. 3. In extradition cases, p. 85. For depositions imder interstate commerce act p. 97. In Supreme Court, pp. 163, 164. Fine. Under interstate commerce act p. 93. To enforce obedience to order of interstate commerce commission, p. 99. Foreign Corporation. See Corporation. Remarks upon place of suit by or against foreign corporation, p. 137. Foreign Minister's Court. Organization and jurisdiction, p. 122. Forfeiture. Appeal or error to Supreme Court from judgments of forfeiture of dis- trict and circuit comts. p. 8, ^ 12. Form. Rule of the Supreme Coiurt as to form of printed records and briefs. p. 167. G. Government. See United States. Guardian. Appointment and removal of guardians perhaps not within the judicial power of the United States, p. 128. H. Habeas Corpus. JurLsdictiou of United States Supreme Court to issue, pp. 5, 9, 147. Apixials to Supreme Court in habeas corpus cases, p. 7, 1[ 8. Qiuere, whether circuit court of appeals can issue writ of habeas carpus' p. 14 When circuit courts may issue a writ of habeas corpus, pp. 139, 140. Case taken by Iiabeas corpus to Supreme Court is withdrawn from the jurisdiction of circuit courts of appeals, pp. 14;i, 143. Decision of circuit court of apjjoals in liabeas corpus suits final pp. 145, 149. Rule of Supreme Court as to custody of prisonens in habeas coitus cases. p. 16y. 1S(J i:ossii)ns — May proscribo uuiforin system of accounts — Details — An- nual ivport of coiniuissiou to bo mailo iliroct to Congress — Annual ri'iHuts to coniniissiou iraax coniinou carriers — List of employes, p. lO;}. Comniissioii to bo appointed and oi'ganizod at onco — Extension — Ex- ceptions to provisions of the act — OlUcoi-s and employes — Pending litigation — Appropriation — Law to take effect in sixty days. p. 104. Circuit and district courts may issue mandamus to compel equal facil- ities to sliippoi-s — iU(tnrs. p. 105. Power of feileral circuit court to issue, pp. 138, 139. To ofliccr of court to compel him to settle his accoimts. p. 139. Case taken by mamlaimis to Supreme Court is withdrawn from the ju- risdiction of circuit courts of appeals, pp. 142, 148. Marshal. Appointment and salary of marshals of circuit courts of appeals, p. 3. Marshal of district to provide court rooms for circuit courts of appeals and to pay their incidental expenses, p. 12. Master. Clerk of court not to be appointed receiver or master, p. 85. Military Court. See Court-martiaL Military Oflacer. Suit by civil, military, naval, revenue or other disbursing officer to stay proceedings by government against him. p. 134. Minister. See Foreign Minister's Court. Model. Rule of United States Supreme Court as to modela p. 168. Motion. Kule of Supreme Court as to motions, p. 153. Municipal Corporation. Mandamus may issue as a species of execution against a municipal cor- poration, p. 138. N. National Bank. Suits by or against national banks, p. 113. Suit by national bank to enjoin receivership instituted by comptroller, p. 134 Naval Court. See Court-martiaL Naval Officer. Suit by civil, military, naval, revenue or other disbursing officer to stay proceedings by government against him. p. 134. Ne Exeat. May be granted by federal courts and judges, p. 9. INDEX. 191 Non-essential Parties. Non-essential parties upon removal of cause from State to federal court p. 52. Non-resident. When need not be made party, p. 137. Notary. May take depositions, acknowledgments, etc. p. 83. Notice. Of taking testimony imder interetate commerce act p. 96. o. Oath. Of deponent testifying under interstate commerce act p. 97. Oaths and afiSi-mations may be administered by member of interstate commerce commission, p. 102. Oklahoma, Territory of. Provisions in organic act establishing Territory regarding appeals from United States court in Indian Territory, p. 14. Opinion. Rule of Supreme Court as to its opinions, p. 165. Oral Argument. See Argument. Original Package. Not excepted from act of Congress making intoxicating hquor subject to State laws. p. 105. P. Parent. Power to recover child by writ of habeas corpus, p. 140. Party. Parties upon removal of cause from State to federal court p. 47. Substitution of representative upon death of part^'. pp. 83, 159. Rule of Supreme Court as to non-appearance of either party, p. 161. Rule of Supreme Court when neither party is ready at second term, p. 161. Patent Suit. Ai>peal or writ of error in case touching patent or copyrights imder Revised St'itutes witliout regard to value in controversy, p. 7, II 7, cl. 1. Decision of circuit court of appeals in case involving patent law to be final, p. 11. Jury in equity suit for trial of patent causes, p. 20. In circuit court (notes), p. 28. 11)2 INDEX. Patent Suit — Conthi ncd ApiH-'ul or error from suprome court of District of Columbia or from supremo court of Territory to United States Supreme Court with- out rej^ard to value in coutrovei-sy. p. 80. Statutes giving jurisdiction of jiatent and copyright siiits without regard to value iu dispute not repealed, p. 138. Place of bringing suit for infringement of patent p. 138. Injvmetion to enjoin infringement of patent p. 140. Jurisdiction of circuit courts of appeals over patent cases, p. 144. Plaintiff. Rule of Supreme Court as to non-appearance of plaintiff, p. 160. Political Question. Federal jutlicial power does not extend to decision of such a question, p. 129. Practice. As TO Exercise of Original Jurisdiction. Notary moy take depositions and affidavits, p. 83. Clerk of court not to be appointed receiver or master, p. 85. In extradition cases, p. 85. Jury trial under the interstate commerce act p. 101. In suit by United States to condemn land to be same as in the State com'ts as near as may be. p. 111. Receiver shall manage property according to local law. p. 112. Receiver may be sued without leave of court, but court appointing re- ceiver to retain conti'ol. p. 113. Place of bringing suit by or against a domestic or foreign corporation, p. 137. Rule under which defendant may be made to appear and plead in cross- suit p. 137. Substituted service in ancillary suit p. 137. Remarks upon place of bringing suit p. 137. Statutes giving jurisdiction of patent and copyright suits without re- gard to value in dispute not repealed, p. 138. Provisions in amended judiciary act of 1875 as to place of bringing suits govern civil suits brought under other statutes, p. 138. Power of circuit courts to issue writs, pp. 138, 140. Rule of Supreme Court as to process, p. 153. as to practice, p. 153. As TO Removal of Causes. Practice as to appeals on appeal to circuit courts of appeals, p. 13. Practice upon removal of cause from State to federal court pp. 54, 66, 80. Decisions upon the general practice upon the removal of a cause from a State to a federal court on account of local prejudice, p. 73. Practice after removal of cases from State to federal court p. 80. Removal of a suit from a district court to a circuit court or from an- other circuit court pp. 133, 141. INDEX. 193 Practice— Contimted. As TO Appellate Review. On appeal or wi-it of error from Supreme Court, p. 147. Time within which appeal or writ of error to obtain appellate review by Supreme Court may be sued out. p. 148. Certificate of importance from circuit com-t of appeals to Supreme Court p. 149. Eules of Supreme Court of the United States, p. 151. Rule of Supreme Court as to bill of exceptions, p. 153. Practice of king's bench and of chancery court in England are general guides to the practice of the United States Supreme Court p. 152. Rule of Supreme Com-t as to motions, p. 153. as to writs of error, p. 154. as to contents of the record in the Supreme Court p. 155. Docketing cases in the Supreme Court p. 155. Printing record of case in Supreme Court p. 156. Objections in Supreme Court to evidence in the record, p. 158. Fm-ther proof in Supreme Court p. 158. Translations in Sui)reme Court p. 158. Issue of certi(yrari from Supreme Court p. 158. Rule of Supreme Court as to practice upon death of party, p. 159. as to non-appearance of plaintiff or defendant, p. 160. What brief in Supreme Court shall contain, p. 161. Rules of Supreme Court as to printed arguments and briefs, p. 161. when neither party is ready at second term. p. 161. as to non-appearance of either party, p. 161. as to oral arguments, allowance of interest and costs, p. 163. as to its opinions and to the call and order of its docket p. 165. as to its adjournment and the dismissal of cases in vacation, p. 166. as to writs of error and appeals under act of February 25, 1889, p. 167. astosiqjersedeas, i( 'hearing, and form of printed records and briefs, p. 167. Writ of error from the Supreme Court umler the act of February 6, 1889. p. 168. Rule of Supreme Court as to custody of prisonei-s in habeas corpus cases, p. 168. as to models, diagrams and exhibits, p. 168. Printed Argument. S<'0 Aiyinni itt. Printed Record. Rule of Supreme Court as to form of printed records and briefa p 167 13 1 • 1 INDEX. Prisoner. Kiilo of Suproino Court as to custody of prisoners in habeas coTrpus cases, p. 108. Process. lu oircuit court of appoals. p. 3. Prohibition, Writ of. JurLsiUctiou of Uuitod States Supremo Court to issue, pp. 5, 9, 147. Case takeu bj' writ of prohibitiou to Supreme Court is withdrawn from the jurisdiction of circuit courts of appeals, pp. 142, 148. Proof. « Rule of Supreme Court as to further proof, p. 158. Publication. Service by publication in suit to enforce possession or enforce or re- move a lieu. p. 81. Public Building. Condemnation of land for pubhc building by United States, p. 111. Q. Quorum. Of circuit com-t of appeals, p. 2. R. Railroad. See Interstate Commerce Act. Receiver. Clerk of court not to be appointed receiver or master, p. 85. Shall manage property according to local law. p. 112. Receiver may be sued without leave of court, but court appointing re- ceiver to retain control p. 113. Suit by national bank to enjoin receivei*ship instituted by comptroller, p. 134 Right of federal court to enjoin suit in State court against its receiver, p. 140. Record. Rule of Supreme Court as to its contents, p. 155. as to printing record, p. 1 56. as to objections to evidence in the record- p. 158. Registration of Trade-marks. See Trade-Tnark. Rehearing. Rule of Supreme Court as to rehearing, p. 167. Relative. Relative of judge not to be appointed to office about court p. 116. INDEX. 195 Remand. Cases reviewed by the Supreme Court or by circuit court of appeals to be remanded to the proper circuit court or district court p. 13. No appeal from order remanding suit to a State court pp. 39, 74. Of case removed from State court for local influence, p. 39. Remand of suit from federal to State court for lack of jurisdiction, p. 76. Removal of Suit. From State court to federal circuit court pp. 38, 41. From State court to federal circuit court for, presence of federal ques- tion (decisions), p. 40. Parties upon removal of cause from State to federal court p. 47. Non-essential parties upon removal of cause from State to federal court p. 52. Practice upon removal of cause from State to federal court pp. 54, 66, 75, 80. Decisions upon what constitutes a separable controversy upon the re- moval of a cause from a State to a federal court p. 55. Time of application for removal of suits from a State to a federal court (decisions), p. 60. Decisions upon the removal of a cause from a State to a federal court for local prejudice, pp. 68, 73. Affidavit for removal of cause from State to a federal court on account of local prejudica p. 70. No appellate review of order remanding cause to State court (decisions), p. 74 Removal of a suit from a State to a federal court on account of title under grants from different States, p. 75. Remand of suit from federal to State court for lack of jm-isdiction. p. 76. Practice as to injunctions upon removal of cause from State to federal court p. 76. Practice after removal of cases from State to federal court p. 80. No removal of suit by United States brought in a State coiu-t p. 133. Removal to federal court of civil or criuiiual suit by a State, p. 135. Jurisdiction of federal circuit courts by removal of suits between pri- vate parties from federal to State courts, p. 141. Repeal. Of former statutes conferring jurisdiction on the United States Supreme Court J). 5. Of statutes by appellate courts act p. 14. Repeal of all acts in conflict with tlio judiciary act of March 8, 1875. p. 83. Status's repealed by amendatory act of March 8, 1887. p. 116. Representative. See Executors and Administrators. lOG INDEX. Revenue Case. Apptvil or writ of error under Revised Statutes without regard to value in civil action by United Stiites to enforce revenue law. p. 7, *[[ 7, cl. 2. Appeal to Supreme Court as to duty charges under revenue act of June 10. 1890. p. 9, IT 17. Decision of cii'cuit court of appeals in suit under revenue law to be final, p. 11. Jurisdiction of circuit courts of appeals over revenue casea p. 144 Revenue Officer. Suit by civil, military, naval, revenue or other disbursing officer to stay proceedings by government against him. p. 134. Rules. Of the Supreme Court of the United States, p. 151. Of circuit courts of appeal p. 3. s. Salary. Of clerk and marshal of circuit court of appeals, p. 3. Scire Facias. Jurisdiction of Supreme Court to issue writ of scire facias, pp. 9, 147. Second Term. Rule of Supreme Court as to practice when neither party is ready at second term. p. 161. Separable Controversy. Removal from State to federal com-t of suit involving such controversy, p. 39. Decisions upon what constitutes a separable controversy upon the re- moval of a cause from a State to a federal court, p. 55. Jurisdiction on ground of separable controversy of federal circuit courts by removal of suits between private parties from federal to State courts, p. 141. Service. By publication in suit in circuit coui't to enforce possession or to enforce or remove lien. p. 81. Set-off. In suit against United States, p. lOG. Shipper. May be protected by mandamtia against common carrier, pp. 105, 139. Signature. Of deponent testifying under interstate commerce act p. 97. State Constitution. Case involving the constitutionalty of, to be reviewed directly by the United States Supreme Court p. 5. INDEX. 197 State Court. Appellate courts act not to affect appeals from highest court of a State to United States Supreme Court p. 5. Proceedings in State couit for tbe removal of a cause to a federal court p. 75. Time of application for removal of suits from a State to a federal court (decisions), p. 60. Practice upon removal of suit from State court to federal court as to attachments, p. 76. Remand of suit from federal to State court for lack of jurisdiction, p. 76. Eeceiver appointed by federal court may be sued in State court without leave of federal comt p. 113. Federal com-t appointing receiver to retain final control of suit against him, p. 113. Appellate jurisdiction of United States Supreme Court over State courts. p. 147. State of the Union. Federal judicial power over suits against a State, pp. 124, 125. Federal judicial power over suits by a State, p. 123. Jurisdiction of cii'cuit com-ts over suits by and against a State, p. 134 Statute. Cases involving the constitutionality of an act of Congress to be re- viewed directly by the Supreme Court p. 5. Appeal or error allowed without regard to value in controversy in suit involving vahdity of a statute in case going up from District of Co- lumbia supreme comt or Territorial supreme court p. 86. Stay. Appeal from interlocutoiy order granting or continuing injunction not to stay proceedings in court below, p. 12. Subpoenas. May be issued by member of Interstate Commerce Commission, p. 102. Substituted Service. When allowed, p. 137. Rules uuder which defendant to cross-bill may be made to appear, p. 137. Suit. Suits by or against national banks, p. 113. Against receiver, p. 113. By national bank to enjoin receivership instituted by comptroller, p. 134. By and against the United States in a federal circuit com-t p. 130. Place of bringing suits in federal courts, pp. 131, 136. By civil, military, naval, revenue or disbursing officer to stay proceed- ings by government against him. p. 134. Jurisdiction of circuit courta over suitH by and against a State, p. 184. Against a collect Sui)rome C'ourt from courts of original jurisdiction on ques- tion of jiinsdiction. p. 118. Writs of error to Supreme Court iti capital rases, p. 9, ^] 15 ; p. 116. Nc exeat may he granted liy jiistices of Supremo Court p. 9. 'May imue y>rit <>( habeas r<)r})iis. p. K). Grant of writ of injunction by Supreme C«nut or justice, p. 10. 200 INDEX. Supremo Court of United States — Continued. Certiorari to roquii-o circuit coiiiL uf appeals to send upcase to Supreme Court, p. 11. Revision of judgniout of cii-cuit court of appeals by Supreme Court, p. 11. Cases reviewed by tiie Supremo Court or by circuit court of appeals to bo remanded to the proper circuit court or district court p. 13. Appeals from United SUvtes court in Indian Territory to Supreme Court pp. 11, 150. Jurisdiction of Supremo Comt prior to July 1, 1891, not affected by ap- pellate courts act p. 16. Appeals and writs of error from Territorial courts to. p. 18. Appeals from ciicuit courts to United States Supreme Com't in admi- ralty cases, p. 19. No appeid to Supreme Court from order of circuit com-t remanding suit to State court p. 39. Appeal or error from supreme court of District of Columbia or Territo- torial supreme court to United States Supreme Court in cases involv- ing the validity of a treaty or statute or federal authority, p. 86. Appeals and writs of error to Supreme Court from supreme court of District of Columbia, or from supreme court of a Territory, allowed only ^\hen value in controversy exceeds $5,000. p. 86. Relative of judge not to be appointed to office about court p. 116. Organization and jurisdiction, pp. 120, 146. Has not jmisdiction to review directly by appeal or error case involving constmctiou of an act of Congress, p. 145. Appellate jurisdiction in exceptional cases, p. 148. Time within which appeal or writ of error to obtain appellate review by Supreme Court may be sued out p. 148. Appellate jurisdiction over criminal prosecutions for infamous crimes, p. 148. Certiorari to remove suit from circuit comt of appeals to Supreme Court, p. 149. Certificate of importance from circuit court of appeals to Supreme Court p. 149. Jurisdiction of appeals from district court of the Territorj^ of Alaska, p. 150. Rules of the Supreme Court of the United States, p. 151. Practice of king's bench and of chancery court in England are general guides to the practice of the United States Supreme Court p. 152. T. Territorial Commerce. Board of arbitration to adjust differences between common carriers and their cmjiloyes. p. 122. Territorial Court. See Territorial Supreme Court. Law and chancery jurisdiction need not be exercised separately in. p. 18. INDEX. 201 Territorial Court — Continued. Right of jury trial preserved in. p. 18. Organization and jiu-isdiction. p. 121. Appeals to cii'cuit court of appeals from Territorial courts, p. 146. Appeal from such coui'ts where law and chancery jurisdiction are ex- ercised together, p. 119. Territorial Supreme Court. Appeal or writ of error in case touching patent or copyrights under Re- vised Statutes without regard to value in controversy, p. 7, H 7, cL 1. Appeal from supreme court of Territory to circuit court of appeals, p. 15. Appeal and writ of error from supreme com-t of Territory to Supreme Court of United States, pp. 18, 149. Appeals and writs of error to Supreme Court from supreme court of a Temtory allowed only when value in controversy exceeds $5,000. p. 86. Appeal or writ of error from decision of Territorial supreme court in any patent or coj^yright case or in case involving vahdity of treaty, statute or federal authority, p. 86. Title from Different States. Removal of suit as to such title from State to federal com-t. p. 75. Trade-mark. Appeal or error to Supreme Court without regard to value in contro- versy in suit under trade-mark statute, p. 8, 1[ 11. Appeal or error from circuit court of appeals to Supreme Court in trade- mark case. p. 11. Injimction to protect trade-mark, when issued, p. 140. Jurisdiclion of circuit courts of appeals over trade-mark cases, p. 144. Translation. Rule of Supreme Court as to translations, p. 158. Transportation. bee Intcrdate Commerce Act Treaty. Cases involving the validity or construction of a treaty to be reviewed directly by tlie Supruiuc Court p. 5. Appeal or eiTor allowed in case involving the validity of a treaty, with- out regard to value in controversy, from Territorial supreme court or District of Columbia supremo court to United States Supremo Court p. 80. u. Union Pacific Railroad Company. Mandamus by circuit (••.uit b> sikI. cuinpany to compel it to operate its road according to law. p.»i:59. 202 INDEX. United States. ApiK ;\1 or writ of onor uiulor Revised Statutes without regard to value ill rivil action by Unitoil Stated to enforce revenue law. p. 7, TJ 7, el. ;.'. Suits by the United SUites, civil and criminal, in circuit courts, p. 29. Suits against United States by private parties autliorized. p. lOG. Sketch of judicial power of the United States, p. 123. Fedt'ral judicial power over suits by the United SUites. p. 123. Federal judicial power over suits against the United States, p. 124. Jurisdiction of circuit courts over suits by aud against the United States, p. 130. United States Circuit Court. See Circuit L'utirt. United States Court in Indian Territory. See Indian Territory, United States Court in. United States District Court. See District Court. United States Supreme Court. See Supreme Court of the United States. " Unless Otherwise Provided by Law." Meaning of these words in appellate courts act commented upon. p. 142. V. Vacation. Dismissal of cases in Supreme Court in vacation, p. 166. Value in Controversy. Appeals and writs of error to Supreme Court from supreme court of Distiict of Columbia or from supreme court of a Territory allowed only when value in controversy exceeds $5,000. p. 86. w. Will. Grant of probate of will perhaps not within the judicial power of the United States, p. 128. Witness. Accused is competent witness, p. 84. Attendance of witness required by interstate commerce act p. 96. Self-criminating testimony given in pursuance of intei-state commerce act p. 96. Fees of witness under interstate commerce act p. 102. Writ of Error. See Appeal. From United States Supreme Court to a circuit or district court, p. 4. List of statutes which jjrovide for appeals, writs of error and certificates INDEX. 203 Writ of Error — Continued. List of division of opinion to take cases to Supreme Court pp. 6, 7, 8, 9. rule of Supreme Com-t as to writs of error and appeals imder act of February 25, 1889. p. 1G7. From Supreme Court to circuit com-t of appeals, p. 11. From United States Supreme Court to Territorial courts, p. 18. Writ of en-or from Supreme Com-t in capital cases, p. 116. rule of Supreme Com-t as to. p. 168. Rule of Supreme Coui-t as to writs of error, p. 154. Writs. See names of particular writs, e. g., Certiorari, Habeas Corpus, Injunc- tion, Mandamus, Ne Exeat, Pi'ohibition, writ of, Scire Facias. Power of circuit com-t of appeals to issue writs, pp. 3, 13. Qucere, whether the circuit court of appeals can issue wi-it of habeas corpus, p. 14 Power of circuit court to issue writs, p. 138. Jurisdiction of United States Supreme Court exercised by special writs, pp. 9. 10, 147, 149. Jurisdiction of Supreme Court to exercise appellate jurisdiction over circuit courts of appeals by special writs, p. 149. APPENDIX. ORGANIZATION OF THE UNITED STATES CIRCUIT COURTS OF APPEALS. FIRST CIRCUIT. JUDGES. HORACE GRAY, Circuit Justice. LE BAEON B. COLT, Circuit Judge. The district judges qualified to sit in this court upon due assignment in order of seniority of commLssious are : THOMAS L. NELSON, DISTRICT Judge. NATHAN WEBB, District Judge. GEORGE ]M. CARPENTER, District Judge. EDGAR ALDRICH, District Judge. John G. Stetson, Cleric, Boston. William W. Doherty, Marshal. The first circuit comprises Rhode Island, Massachusetts, New Hampshire, and Maine. See ante, p. 2. SECOND CIRCUIT. JUDGES. SAMUEL BLATCHFORD, Circuit Justice. WILLLVM J. WALLACE, Circuit Judqk. K HENRY LACOMBE, Circuit Judge. John A. Sfiields, Clerk, New York. Augustus C. Tate, Marshal The second circuit comprises Vermont, Connecticut, and New York. See ante, p. 2. 206 ArrENDix. THIRD CIRCUIT. JUDGES. JOSEPH P. BRADLEY, Circuit Justiobs. MARCUS W. ACHESON, Circuit Judoe. "WILLIAM BUTLER, District Judge. "VViLLiAsi V. Williamson, Clerk, Philadelphia. Abram D. Harlan, Marshal. . The thii-d circuit comprises Pennsylvania, New Jersey, and Delaware. See ante, p. 2. FOURTH CIRCUIT. judges. MELVILLE W. FULLER, Chief Justice of the United States. HUGH L. BOND, Circuit Judge. JOHN J. JA(JKSON, District Judge. Henry T. Meloney, Clerk, Richmond. Thomas S. Atkins, Marshal. The fourth circuit comprises Maryland, Virginia, "West Vir- ginia, Xorth Carolina, and South Carolina. See ante, p. 2. FIFTH CIRCUIT. JUDGES. LUCIUS Q. C. LAMAR, Cmcurr Justice. DON A. PARDEE, Circltt Judge. ROBERT A. HILL, District Judge. James M. McKee, Clerk, New Orleans. NoRBORNE T. N. Robinson, Marshal The fifth circuit comprises Georgia, Florida, Alabama, Mis- sissippi, Louisiana, and Texas. See ante, p. 2. CIRCUIT COURTS OF APPEALS ORGANIZATION. 207 SIXTH CIRCUIT. JUDGES. HENRY B. BROWN, CiRcriT Justice. HOWELL E. JACKSON, Circuit Judge. GEORGE R SAGE, District Judge, Walter S. Harsha, Clerk, CincirmatL Thomas Claiborne, 3Iarshal. The sixtli circuit comprises Ohio, Michigan, Kentucky, and Tennessee. See ante, p. 2. SEYENTH CIRCUIT. judges. JOHN M. HARLAN, Circuit Justice. WALTER Q. GRESHAM, Circuit Judge. HENRY W. BLODGETT, District Judge. Oliver T. TkloRTON, Clerk, Chicago. Lemuel O. Oilman, Marshal. The seventh circuit comprises Indiana, Illinois and Wiscon- sin, See ante, p, 2. EIGHTH CIRCUIT. JUDGES. DAVID J. BREWER, Circuit Justice, HENRY C. CALDWELL, Circuit Judge. AMOS M. THAYER, District Judge. John D. Jordan, Clerk. St. Ix)uis. WiLiJAM R HODOES, Marshal. The ciglitli circuit comprises Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, North Dakota, South Dakota, Wyominfr. and the Territories of Now Mexico, Okla- homa, and Utah, and tlie Indian Territory, See ante, pp. 2, 15, and order assigning Territories. 139 U. S., 707. As to the Indian Territory, see ante, p. 14. •JOS Al'l'KNUlX. NINTH CIECUIT. JUDGES. STErTTEN J. FIEED, Circuit Justicr LORENZO SAWYER, Circuit Judge. lilATTIIEW P. DEADY, District Judok Frank D. ]\Ionckton, Clerk, San Francisco. John C. Franks, Marshal. The ninth circuit comprises California, Oregon, Nevada, "Washington, Montana, Idaho, and the Territories of Alaska and Arizona. See ante, p. 2, and order assigning Territories. 139 U. S., 707. CIRCUIT COURTS OF APPEALS RULES. 209 RULES OF THE UNITED STATES CIRCUIT COURTS OF APPEALS. The rules recommended by the justices of the United States Supreme Court to the several circuit courts of appeals are printed below. Such changes in these rules as the latter courts have made are stated in notes under the several rules. The changes are stated in detail for each circuit except the ninth. The clerk of the United States circuit court of appeals for that circuit writes the editor mider date of July 1, 1891, that the rules of his court are not ready, and adds, " but I do not think that they will materi- ally diifer from those recommended by the justices of the Supreme Court" The rules adopted leave open for future settlement the more important questions considered in this book as to the effect of the appellate courts act of March 3, 1891 ; for example, these rules do not touch the question how far that act repeals prior statutes providing for a dh-ect appeal to the United States Supreme Court, nor the question whether that act permits a direct appeal to the Supreme Court to test the jurisdiction of the court below upon the rendition of an interlocutory judgment by it affirming its jurisdiction. The onl}' decision of the Supreme Court wliich construes the appellate courts act of March 3, 1891, and which has been officially published, to the time of p'-eparing this appendix for the press, is In re C^aasen, 140 U. S., 200, holding, inter alia, that the Supreme Court and the justices thereof have power since March 3, 1891, to grant a snjjersedeas in a criminal case of which that court can take appellate jurisdiction ; and that the right of a party to a bill of exceptions stands as it did at the time of the trial to which the bill of exceptions refers. Rule 1. Name. The court adopts " United Stcates Circuit Court of Appeals for the First Circuit " as the title of the court. [Change the word "First" as necessary.] Adopted in the first eight circuits as proposed, with the necessary numerical changes in the names of the circuits. Rule 2. Seal. The seal shall contain the words "United States" on the upper part of the outer edge ; and the words " Circuit Court ot Appeals" on the lower part of the outer edge, running from left to right ; and the words " First Circuit " in two lines, in the centre, with a dash heneath. [Ciiange the word " First " as necessary.] [See specimen of seal below.] lDefi?f/n of Seal.] Adopted in the first circuit f>mitting the words in brackets, and adding "as follows:" Adopted in the second, third, fourth, fifth, sixth, sevcntli and eighth cir- cuits a.s proposed witli the uecessaiy numerical changes in the names of the circuits. 14 f •210 appendix. Rule 3. Terms. One term of this court shall be held aniinally at tlie city of IJoston on the of October, and shall be adjourned to such times and ])laces as the court may from time to time designate. [Fill the blank and change the word "Boston" as necessary, according to the act.] Adopted in the first circuit as proposed, omitting the words in brackets, and inserting " first Tuesday '' in the blank. Adopted in the second circuit as proposed, substituting " New York " for " Boston," and filling the blank with the words " last Tuesday." Rule ;] in the third circuit is as follows : The terms of this court will commence and be held on the third Tuesday of March and tlie third Tuesday of September in each year, excei)t the pres- ent term, at the city of Philadelphia. Adopted in the fourth circuit as proposed by the justices of the Supreme Court, with "Richmond" substituted for "Boston," and the time of meeting left blank. The clerk announces that the court will meet in regular session on Tuesday after the first Monday of February, 1892, and that the annual term day mentioned in Rule 3 will be fixed at that time. Adopted in the fifth circuit as proposed, with " New Orleans " substituted for " Boston." and "the third Monday of November" inserted as the date on wliich the annual term shall begin. Adopted in the sixth circuit as proposed, substituting " Cincinnati " for "Boston," and filling the blank with the words "first Monday." In the seventh circuit Rule 3 is as follows : A term of this court shall be held, annually, at the city of Chicago, on the first Monday in October, and continue until the first Monday in October of the succeeding year. Each term shall be adjourned to such times and places as the court may from time to time designate. The first regular term shall commence on the first Monday in October, 1891. Adoi)ted in the eighth circuit as proposed, substituting " St Louis " for " Boston," and filling the blank with the words " second Monday." Rule 4. Quorum. 1. If, at any term, a quorum does not attend on any day appointed for holding it, any judge who does attend may ad- journ the court from time to time, or, in the absence of any judge, the clerk may adjourn the court from day to day. If, dui'ing a term, after a quorum has assembled, less than that number attend on any day, any judge attending may adjourn the court from day to day until there is a quorum, or may ad- journ without day. 2. Any judge attending when le.ss than a quorum is present may make all necessary orders touching any suit, proceeding or process depending in or returned to the court, preparatory to hearing, trial, or decision thereof. Adopted in the first eight circuits aa proposed. circuit courts of appeals rules. 211 Rule 5. Clerk. 1. The clerk's office shall be kept at the place designated in the act creating the court at which a term shall be held an- nually, 2. The clerk shall not practice, either as attorney or coun- sellor, in this court or in any other court while he shall con- tinue to be clerk of this court. 3. He shall, before he enters on the execution of his office, take an oath in the form prescribed by section 794 of the Re- vised Statutes, and shall give bond in a sum to be fixed, and with sureties to be approved, by the court, faithfully to dis- charge the duties of his office and seasonably to record the decrees, judgments, and determinations of the court. A copy of such bond shall be entered on the journal of the court, and the bond shall be deposited for safe-keeping as the court may direct. 4. He shall not permit any original record or paper to be taken from the court-room or from the office, without an order from the court. Adopted in the first, second, third, fourth, sixth, seventh and eighth cir- cuits as proix)sed. In tlie fifth circuit Rule 5 is the same, except that it designates the city of New Orleans by name as the place of keeping the clerk's office, and fixes his bond at $10,000, Rule 6. Marshal, Crier, and Other Officers. 1. Every marshal and deputy marshal shall, before he enters on the duties of liis appointment, take an oath in the form pre- scribed by section Ts2 of the Revised Statutes, and the mar- shal shall, before he enters on the duties of his office, give bond in a sum to be fixed, and with sureties to bo approved, by the court, for the faithful performance of said duties by himself and liis deputies. Said bond shall be filed and recorded in the office of the clerk of the court. 2. The marshal and crier shall be in attendance during the sessions of the court, with such number of bailiffs and mes- sengers as the court may, from time to time, order. Adopted in the first, second, third, fourth, sixth, seventh and eiglith cir- cuits as i)r(ipos('d. In the fifth circuit Rule 6 is the same, except that it fixes the marshal's bond at $10,000. Rule 7. Attorneys and Counsellors. All attorneys and counsellors admitted to practico in the Supreme Court of the United States, or in any Circuit Court 2 1 2 APPENDIX. of tho United States, shall become attorneys and connsellors in this court on takino^ an oath or allirniation in the form pre- scribed bv liulo 2 of the Supreme Court of the United States and on subscribing the roll ; but no fee shall be charged there- for. Adopted in the first, second, fourth, fifth and seventh circuits as proposed. In the third circuit Rule 7 is the same, with words added as follows ; And all attorneys and counsellors of the Circuit Court of the United States for the Third Circuit shall be attorneys and counsellors of tliis court without taking any further oath. In the sixth circuit Rule 7 is as proposed by the justices of the Supreme Court, with words added as follows : " A certificate of such admission, if demanded, shall be furnished upon the payment of a clerk's fee of two dol- lars and fifty cents." In the eighth circuit Rule 7 is as follows : All attorneys and counsellors admitted to practice in the Supreme Court of the United States, or in any Circuit Court of the United States, or in the Supreme Court of any State in this circuit may, upon motion of some mem- ber of the bar of this court, be admitted as attorneys and counsellors in this court on taking an oath or afiirmation in the form prescribed by Rule 2 of the Supreme Court of the United States, and on subscribing the roll ; but no fee shall be charged therefor. KuLE 8. Practice. The practice shall be the same as in the Supreme Court of the United States, as far as the same shall be applicable. Adopted in the first eight circuits as proposed. Rule 9. Pkocess. All process of this court shall be in the name of the Presi- dent of the United States, and shall be in like form and tested in the same manner as process of the Supreme Court. Adopted in the first eight circuits as proposed. Rule 10. Bill of Exceptions. The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. ]]ut the party excepting shall be required to state distinctly the several mat- ters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. Adopted in the first eight circuits as proposed. circuit courts of appeals rules. 213 Rule 11. Assignmext of Errors. The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or ap- peal, 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 assign- ment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assign- ment of errors shall quote the full substance of the evidence admitted or rejected, uiien the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shaU 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. Adopted in tlie first eight circuits as proposed. Rule 12. Objections to Evidence in the Record. In all cases of equity or admiralt}^ jurisdiction, heard in this court, no objection shall be allowed to be taken to the admis- sibility of any deposition, deed, grant, exhibit, or translation found' in the record as evidence, unless objection was taken thereto in the court below and entered of record ; but the same shall otherwise be deemed to have been admitted by consent. Adopted in the fii"st eight circuits as proposed. Rule 13. Supersedeas and Cost Bonds. 1, Supersedeas bonds in the circuit and district courts must be taken, with good and sufficient security, that the plaintiff in error or ai)pcllant sliall ])rosecutc his writ or appeal to effect, and answer all dauuiges and custs if he fail to nudce his plea good. Such indemnity, where the judgment or decree is lor the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the apjieal; but in all suits where the property in controversy necessarily fol- lows the suit, as in real actions and replevin, and in suits on mortgages, or where the i)roperty is in the custody of the nuir- shal under admiralty process, or where the jiroceeds thereof, or a bond for the value thereof, is in the custody of the court, indemnity in all such cases will be i-e(|uired only in an amount L> 1 I APPENDIX. siiiru-itMit to sjM'uiv tlio sum rccovorcd for the iiso niul doton- tit)ti ol" tho pi-opei-ty, and tlio costs of tlio suit and just daui- agos for d(»lay, and costs aiul intcj-cst on the apjx'al. 2. On all aj)i)i>als fi-oni any intci-locutoi-y order or decree granting" or contiiiuiui;- an injunction in a circuit or district court, the a])pellant shall, at the time of the allowance of said appeal, tile with the clerk of such ciiruit or district court a bond to the oj)posite party in such sum as such court shall direct, to answer all costs if he shall fail to sustain his apj)eal. Adopted in the fii-st eight circuits as proposed. Rule 14. Wkits of Error, Appeals, Keturn, and Record. 1. The clerk of the court to which any writ of error may be directed * shall make a return of the same by transmitting a true copy of the record, bill of exceptions, assignment of errors, and all proceedings in the case, under his hand and the seal of the court. 2. In all cases brought to this court, by writ of error or aj)- peal, to review any judgment or decree, the clerk of the court tjy which such judgment or decree was rendered shall annex to and transmit with the record a copy of the opinion or opin- ions tiled in the case. 3. ]So case will be heard until a complete record, containing in itself, and not by reference, all the papers, exhibits, deposi- tions, and other proceedings, which are necessary to the hear- ing in this court, shall be tiled. 4. Whenever it shall be necessary or proper, in the opinion of the presiding judge in any circuit or district court, that original papers of any kind should be inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safe-keeping, transporting, and" return of such original papers as to him may seem proper; and this court will receive and consider such original papers in connec- tion with the transcript of the proceedings. 5. All appeals, writs of error, and citations must be made returnable not exceeding thirty f days from the day of sign- ing the citation, whether the return day fall in vacation or in tprm time, and be served before the return day. 6. The record in cases of admiralty and maritime jurisdic- tion shall be made up as provided in General Admiralty Rule No. 52 of the Supreme Court. Adopted in the first, second, fourth, fifth, sixth and seventh circuits as proposed. In the third circuit Rule 14 is the same except that the words "upon being paid or tendered his fees therefor" are inserted at the asterisk (*). In the eighth circuit Rule 14 is the same except that the number "sixty " is substituted for " thirty " at the dagger (f ). cieccit courts of appeals rules. 215 Iaule 15. Translations. "Whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testi- mony, or other proceeding in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding, made under the author- ity of the inferior court, or admitted to be correct, the record shall not be printed ; but the case shall be reported to this court by the clerk, and the court will thereupon remand it back to the inferior court, in order that a translation may be there supplied and inserted in the record. Adopted in the first eight circuits as proposed. BuLE 10. Docketing Cases. 1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof Avith the clerk of this court by or before the return day whether in vacation or in term time. But for good cause shown the justice or judge who signed the citation, or any judge of this court, may enlarge the time by or before its expiration, the order of en- largement to be tiled Avith the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a 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 ap])eal has been duly sued out (;r allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall liave been docketed and dismissed under this rule, unless by order of the court. 2. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of this court ; and if the case is docketed and a copy of the record filed witii the clerk of this court by the plaintiff in error or ap])ellant within the period of time above limited and pre- scribed by tliis rule, or by the defendant in error or ai)p('lU'e at any time thereafter, the case shall stand for argument at the term. 3. Upon the filing of the transcrii)t of a record brought up by writ of error or ap[)eal, the a])i)earance of the counsel for the ])arty d(jcketing the case shall be entered. Adopted in the first eiglit circuits a.s proposed. Rule 17. Docket. Tlie clerk shall enter upon a docket all cases brought to and pending in the court in their jn-upcr chronological order, -\i'> ArrKN'Dix. am] such doi-kc^t shall ho callt'd at cvory tci-m, or adjourned tonii : and if a case is called for hearinp; at two terms succes- sively, aiul uj)on the call at the second tei'm neither ])ai'ty is ])repared to ar^ue it, it will be dismissed at the cost of the ])laintitV in eiTor or ap|)ellant, unless sullicient cause is shown for further ])ost])onenient. Adopted iu the llist eight circuits as proposed. KuLE 18. Certioeari. No cerhorari for diminution of the record Avill be hereafter awarded in any case, unless a motion therefor shall be made iu writing-, and the facts on which the same is founded shall, if not admitted by the other i)arty, be verilied by affidavit. And all motions for such certiorari must be made at the first term of the entry of the case ; otherwise, the same will not be granted, unless upon special cause shown to the court, account- ing satisfactorily for the delay. Adopted in the first eight cii'cuits as proposed. Rule 19. Death of a Party. 1. "Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the per- sonalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereu})on the case shall be heard and determined as in other cases ; and if such representatives shall not volun- tarily become pai-ties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within sixty days, the party moving for such order, if defend- ant in error, shall be entitled to have the writ of error or appeal dismissed, and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and, on hear- ing, have the judgment or decree reversed, if it be erroneous: Provided, however, That a copy of every such order shall be- personally served on said representatives at least thirty days before the expiration of such sixty days. 2. "When the death of a party is suggested, and the repre- sentatives of the deceased do not ajipear within ten days after the expiration of such sixty days, and no measures are taken by the opposite party within that time to compel their ajjpear- ance, the case shall abate. 3. "When either party to a suit in a circuit or district court of the United States shall desire to prosecute a writ of error or appeal to this court, from any final judgment or decree rendered in the circuit or district court, and at the time of suing out such writ of error or appeal, the other party to the CIECUIT COURTS OF APPEALS KULES. 217 suit shall be dead and have no proper representative within the jurisdiction of the court which rendered such final judg- ment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, or in the District of Columbia, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirtv days after the filing of the record in this court the plaintiff in error or a])pellant shall make a suggestion to . the court, supported by allidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered such judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, or in the District of Columbia, and stating therein the name and character of such representative, and the State or Territory or District in which such representative resides ; and upon such suggestion, he may on motion obtain an order that, unless such repi-esentative shall make himself a *party within ninety days, tlie plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed if the same be erroneous : Vro- vided^ hov>evei\ That a proper citation reciting the substance of such order shall be served upon such rei)resentative, either personally or by being left at his residence, at least thirty days before the expiration of such ninety days : Promded, also, That in every such case, if the representative of the deceased party does not a})pear within ten days after the expiration of such ninety days, and the measures above provided to compel the appearance of such representative liave not been taken within the time as above required, by the opposite party, the case shall abate: Andjjrovided, aUo, That the said representa- tive may at any time before or after said suggestion come in and be made a l)arty to the suit, and thereupon the case shall proceed, and be lieard and determined as in other cases. Adopted in the first eiglit circuits as proposed. KuLE 20. Dismissing Cases. Whenever the plaiulilV ami (Icl'cndaut in a writ of crr<»r pending in this court, or the ajipcllant and ajipcUee in an ap- peal, shall by their attorneys of record, sign and lile with tlio clerk an agreement in wi-iting direct in*'' the case; to be dis- missed, and s|)C('irying the terms on wiiicli it is to be dismissed, as to costs, and shall pay U) the clerk any fees that may be 21S APrENDIX. iliu' t«» him, it shall he the tliity of the cUmIc to (-ntor the case ilismissrd, and to o-ivo to either ]>arty requesting it a copy of the agreenuMit tiled ; but no mandate or other process shall issue without an order of the court. Adopted in the fii'st i-ight ciriuits as proposed. Rule 21. Motions. 1. All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. One hour on each side shall be allowed to the argument of a motion, and no more, without special leave of the court, granted before the ai'gument begins. 3. Xo motion to dismiss, excei)t on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. Adopted in the first eight circuits as proposed. EuLE 22. Parties Not Ready. 1. "Where no counsel appears, and no brief has been filled for the plaintiff in error or appellant, when the case is called for trial, the defendant may have the plaintiff called and the writ of error or appeal dismissed. 2. Where the defendant fails to appear when the case 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. 3. When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff. Adopted in the first eight circuits as proposed. Rule 23. Pkinting Records. The counsel for the plaintiff in error or appellant shall print and file wnth the clerk of the court, at least six days before the case is called for argument, twenty copies of the record, unless a different order as to such printing is made by the court, either of its own motion, or upon application made at least ten days before the case is called for argument ; and shall furnisl/three copies of the printed record to the adverse ])arty, at least six days before the argument. The parties may stipulate in writing that parts only of the record shall be ])rinted, and the case may be heard on the parts so printed, but the court may direct the printing of other parts of the CIRCUIT COURTS OF APPEALS RULES. 219 record. If the record shall not have been printed when the case is reached in the regular call of the docket, the case may be dismissed. In case of reversal, affirmance, or dismissal, with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given. Adopted in the first seven circuits as proposed. In the eighth circuit Rule 23 is as follows : On the filing of the transcript in every case the clerk shall forthwith cause the same to be printed, and sliall furnish three copies of the printed record to each party at least tliirty days before the argument. The parties may stipulate in writing that parts only of the record shall be printed, and the case may be heard on the parts so printed, but the court may direct the printing of other parts of the record. The clerk shall be entitled to demand of tlie appellant, or plaintiff in error, the cost of printing the record before ordering the same to be done. If the record shall not have been printed w-hen the case is reached for argument, for failure of a party to advance the costs of printing, the case maybe dismissed. In case of reversal, affirmance, or dismissal, with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given. Rule 24. Briefs. 1. The counsel for the plaintiff in error or appellant shall file with the clerk of this court, at least six * days before the case is called for argument, twenty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged ujion the opposite side. 2. This brief shall contain, in order here stated — (1.) A concise abstract, or statement of the case, presenting succintly the questions involved, in the manner in which they are raised. ? (2.) A specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and ])articu- larly each error asserted and intended to bo urged ; and in cases brought u|) l)v ajjpeal the specification shall state, as particularly as may be, in what the decree is alleged to be erroneous. When the error alleged is to the admission or to the rejection of evidence, the s])eciiication shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specidoation shall set out the part referred to totidem verhis, whether it Ix^ in instructions given or in instructions refused. AVIkmi the error allegctl is to a ruling upon the rejiort of a mast(M', tluj sp(!cification shall state the exception to tlw; report and the action of the court upon it. (3.) A brief of the argument, exhibiting a clear statement of the points of law or fact to Im) discussed, with a reference to the pages of the record and tiie authorities relied upon in 2-20 APPENDIX. snp]H">rt of each point. AVhon a statute of a State is cited, so much thereof as may be deemed nect'ssary to the (hH-isioii of the case shall be printed at length. 3. The counsel for a defendant in ei-ror or an appellee shall ri\c with the clei'k twenty printed copies of his brief, at least tiuve days before the case is called for hearini^. His brief shall be of a like cliaracter with that recpiired of the plaintiff in (M-ror or ap})»?llant, except that no sp(H'i(ication of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or ap])ellant is contro- verted. 4. AVhere there is no assignment of errors, as required by section 99T of the Revised Statutes, counsel -will not be heard, except at the request of the court ; and errors not specified according- to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified. 5. When, according to this rule, a ])laintitf in error or an api)ellant is in default, the case may be dismissed on motion ; anil when a defendant in error or an a|)pellee is in default he will not be heard, except on consent of liis adversary, and by request of the court. 0. When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party ; but if a printed brief or argu- ment is filed, the adverse party will be entitled to be heard by two counsel. Adopted in the first seven circuits as proposed. lu the eighth circuit, Rule 24 is the same, except that the number twenty- is substituted for six at the asterisk (*). E.ULE 25. Okal Arguments. 1. The plaintiff in error or appellant in this court shall be entitled to open and conclude the ai'gument of the case. But when there are cross-a])peals they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. 2. Only two counsel will be heard for each party on the ar- gument of a case. 3. Two hours on each side will be allowed for the argu- ment, and no more, without special leave of the court, granted before the argument begins. The time thus allowed may be a]i])ortioned between the counsel on the same side at their discretion; provided, always, that a fair opening of the case shall be made by the party having the opening and closing arguments. Adopted in rhe first eight circuits as proposed. CIKCDIT COURTS OF APPEALS RULES. 221 EuxE 26. Form of Printed Records, Arguments, and Briefs. All records, arguments, and briefs printed for the use of the court must be in such form and size that they can be conven- iently bound together, so as to make an ordinary octavo vol- ume. Adopted in the first eight circuits as proposed. EuLE 27. Copies of Records and Briefs. The clerk shall carefully preserve in his office one copy of the printed record in every case submitted to the court for its con- sideration, and of all printed motions, briefs, and arguments filed therein. Adopted ID the first eight circuits as proposed. Rule 28. Opinions of the Court. 1. All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be recorded. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. Opinions printed under the supervision of the judge de- livering the same need not be copied by the clerk into a book of records ; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. Adopted in the first, second, fourth, fifth, seventh and eighth circuits as proposed. In the third circuit Rule 28 is as follows : 1. All written opinions delivered by the court shall be delivered to the clerk and recordecl. 2. Opinions nrinted under the supervision of the judge delivering the same need not oe copied by the clerk into a book of records ; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when ho bound they shall be deemed to have been recorded within the meaning of this i-ule. In the sixth circuit Rule 28 is as proposed by the justices of the Supreme Court, except that it omits section 3. Rule 29. REnEARiNO. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by spccinl leave granted dni-ing the term; and must be printed, and l»ri<>lly and distinctly state its grounds, and Ixi supjjoi-tcd by certificate of counsr-l ; and will not l)egranteaid before a transcript of the record shall be transmitted to the Supreme Court. Adopted in the first seven circuits as proposed. In the eighth circuit Rule 31 is the same, exceiJt that it omits the words between asterisks (* — *; in the first section. cikcdit courts of appeals rules. 223 Rule 32. Mandate. In all cases finally determined in this court, a mandate or other proper process in the nature of a procedendo, shaU be issued, on the order of this court, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. Adopted in the first eight circuits as proposed. Rule 33. Custody of Prisoners on Habeas Corpus. 1. Pending an appeal from the final decision of any court or Judge declining to grant the writ of habeas corpus, the cus- tody qI the prisoner shall not be disturbed. 2l Pending an appeal from the final decision of any court or judge discharging the writ after it has been issued, the prisoner shaU be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided. 3. Pending an appeal from the final decison of any court or judge discharging the prisoner, he shall be enlarged upon re- cognizance, with surety, for appearance to answer the judgment of Ihe appellate court^ except where, for special reasons, sure- ties ought not to be required. • Adopted in the first eight circuits as proposed. Rule 34. Models, Diagrams, and Exhibits of Material. 1. IVIodols. diagrams, and exhibits of material forming part of the evidence t7dcen in the court below, in any case pending in this court, on writ of error or aj^peal, shall be ])lac(!d in the custody of the marshal of this court at least ten days before the case is heard or submitted. 2. All models, diagrams, and exhibits of material placed in the custodv of the marshal for the inspection of the court on the hearing of a case, must be taken away by the parties within one monti? after the case is decided. When this is not done, it shall be the dutv of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule; and, ifthe articles are not removed within a rcasonal)le tim(! after the notice is given, he shall destroy them, or make such other dis|)osition of them as to him may seem best. Adopted in the first eight circuits as proposed. LAW LIBRARY LOS AKGELES COUNTY LAW JJRRARY UNIVERSITY OF CALIFORNU LOS ANGELES 7a 000 744 270 \>W UBR^^"^ y^ KNGELES COUNTV i ' hill],