THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE By CHARLES C. MONTGOMERY, B. A., LL. B. IU OF THE Los ANGELES, CALIFORNIA, BAR. INSTRUCTOR, EQUITY JURISPRUDENCE, EQUITY PLEADING AND FEDERAL PROCEDURE, COLLEGE OF LAW, UNIVERSITY OF SOUTHERN CALIFORNIA. FORMERLY PRO- FESSOR CONSTITUTIONAL LAW, CREIGHTON UNIVERSITY, OMAHA, NEBRASKA. SAN FRANCISCO BANCROFT- WHITNEY COMPANY 1914. r it r - lv>^ Copyright 1914 by Bancroft- Whitney Co. DEDICATION. To My Father, C. S. Montgomery, of the Omaha Bar, in token of affectionate esteem, and admiration for his learning in the subject herein treated. 66V685 PREFACE This manual contains in one volume, of convenient size for office or court room use, verbatim all the Federal statutes and court rules (except district courts) relating to the practice and procedure of the ordinary law, equity, or criminal case in the Federal courts, with many forms and suggestions as to the steps to be taken in such cases. Many statutes on procedure are not included in the new Judi- cial Code, particularly statutes of limitations, evidence, wit- nesses, depositions, and costs and fees. These are included ver- batim in the text, as well as the provisions of the Judicial Code annotated, and with amendments to date. The Judicial Code is also set out in its original form in the Appendix, with references to the places where its various provisions may be found in the text. The new equity rules are set out and annotated in the Appendix, and quoted verbatim in the text whenever bearing on the subject thereof. The Supreme Court rules and rules of all the Circuit Courts of Appeals are set out in the Appendix, and, where necessary, are quoted and referred to in the text. The verbatim quoting of the statutes and rules is in such form that there can be no confusion as to what is and what is not a part of the statute or rule quoted. The forms are scattered through the work in juxtaposition to the laws or rules on which they are based. There are threefold, and in many instances fourfold, references to other works, authoritative publications containing such statutes or rules. With the assistance of the Manual, the practitioner may, with the present law in convenient form at hand, quickly refer to its former condition, and note the similarities or changes therein. The references and annotations will also be useful in working out some of the finer points of practice, the work being designed as a guide book rather than an exhaustive treatise. v VI PREFACE I am gratefully indebted to Mr. Claire T. Van Etten, of the Los Angeles Bar, for Chapters 11, 28, 39, 40, and 41, relating to appellate jurisdiction and procedure of the Supreme Court and Circuit Court of Appeals, and also Chapter 37, on "Keceivers and Injunctions," and for other valuable assistance in the work. I ana likewise indebted to Mr. Paul Valles, of the Los Angeles Bar, for the annotations to the Judicial Code, the arrangement of the rules of the Circuit Court of Appeals in the Appendix, and for much other useful aid in the preparation of the work. CHARLES C. MONTGOMERY. Los Angeles, California, May 1, 1914. TABLE OF CONTENTS CHAPTER 1. Federal Courts and Their Jurisdiction In General, 1-12. 2. District Courts Organization Officers, 20-42. 3. District Court Organization Further as to, 60-73. 4. Judicial Districts Terms and Places of Holding Court in the Several States, 100-148. 5. Venue of Actions in the District Court Territorial Jurisdiction, 160- 180. 6. District Court Jurisdiction Original and Appellate, 190-209. 7. Federal Question Ground of Jurisdiction, 215-226. 8. Diverse Citizenship Ground of Jurisdiction, 230-250. 9. Amount in Controversy as Affecting Jurisdiction, 260-271. 10. "Removal of Causes Jurisdiction and Procedure, 285-311. 11. Removal from State Court of Last Resort to U. S. Supreme Court by Writ of Error Jurisdiction, 330-339. 12. Summaries Original Jurisdiction, Removal, Amount, Venue for the Several Matters of District Court Cognizance, 350-381. 13. Statutes of Limitations, 390-412. 14. Evidence, 420-461. 15. Witnesses, 470-497. 16. Depositions, 500-525. 17. Costs and Fees, 530-568. 18. An Action at Law Summary, 580-593. 19. Initial Pleading Law Actions, 600-604. 20. Attachment and Garnishment in Law Actions, 610-642. 21. Process Law Actions, 650-658. 22. Defensive Pleadings Law Actions, 670-676. / 23. Continuances and Adjournments, 690-696. 24. Miscellaneous Incidental Matters Consolidation Discovery at Law Dis- missal Verification Oaths Acknowledgments, 710-714. 25. Trial of Law Actions, 730-749. 26. Verdict Motion for New Trial Bill of Exceptions, 760-766. 27. Judgment and Executions Law Actions, 780-804. 28. Appellate Procedure Law Actions, 820-845. 29. A Suit in Equity Summary, 860-879. 30. The Bill in Equity, 890-900. 31. Process Equity Suits, 910-919. vii Vlll TABLE OF CONTENTS CHAPTER 32. Decree Pro Confesso, 930-937. 33. Defensive Pleadings Equity Suits, 950-958. 34. The Answer Equity Suits, 970-983. 35. Trial of Equity Suits, 1000-1012. 36. Masters in Chancery, 1030-1034. 37. Receivers and Injunctions, 1051-1074. 38. Decree Equity Suits, 1080-1083. 39. Appellate Jurisdiction Supreme Court, 2000-2021. 40. Appellate Jurisdiction C. C. A., 2030-2037. 41. Appellate Procedure Equity Suits, 2050-2091. 42. Criminal Procedure, 2100-2167. 43. Extradition, 2180-2197. 44. Habeas Corpus, 2200-2212. 45. Miscellaneous Provisions, 2220-2243. 46. Court of Customs Appeal, 2250-2261. 47. Court of Claims, 2300-2332. 48. Circuit Court of Appeals, 2400-2409. 49. Supreme Court, 2450-2459. APPENDIX. 1. Judicial Code in force January 1, 1912. 2. Supreme Court Rules. 3. Circuit Courts of Appeals Rules. 4. Equity Rules in force February 1, 1913. Annotated. MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE. CHAPTER 1. FEDERAL COURTS AND THEIR JURISDICTION IN GENERAL. Sec. 1. The Place of the Federal Courts in Our Judicial System. 2. Judicial Power under the United States Constitution. 3. Federal Courts Enumerated. 4. District Courts Jurisdiction In General. 5. The Federal System Is Double Legal and Equitable. 6. Differences in Procedure at Law and in Equity in the Federal Courts. 7. Actions at Law Wherein Conform to State Practice. 8. A Suit in Equity Rules Governing Procedure. 9. A Blended Federal Procedure a Future Possibility. 10. Summary Differences of Practice and Procedure in Federal and State Courts. 11. Why a Special Study of Federal Procedure Required. 12. Desirability of Special Study of Federal Procedure. 1. The Place of the Federal Courts in Our Judicial System. In framing the national Constitution the theory pre- vailed that the national government should have only such powers as were expressly given by, or necessarily implied from, the Con- stitution, and that all other sovereign powers were retained by the several states. This theory prevailed in providing for the national judiciary. Each state had its own system of courts. These courts had a general jurisdiction over persons and things within their terri- torial limits. It was determined that this jurisdiction be kept intact, except where the national courts should be given control, expressly or by necessary implication. In the nature of things, controversies arising under the Federal Constitution, laws, and treaties, should be determinable in a na- tional court of last resort. The establishment of such court insured uniformity of decision and gave national sanction thereto. Montg. 1. 2 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2 The same considerations apply to cases affecting ambassadors, other public ministers and consuls, admiralty and maritime cases, and controversies to which the United States or states might be parties. As a result of the doctrine of state sovereignty, which flourished so strongly when our Constitution was adopted, there also existed a necessity for an impartial tribunal of national authority to de- termine controversies involving diverse citizenship. This neces- sity still exists because of the natural tendency to favor a citizen opposing a nonresident, particularly if his opponent be a foreign corporation. The framers of the Constitution provided for such a court of last resort, and wisely left the development of a system of inferior courts to be determined by Congress as expediency might require. 1, art. 3, U. 8. Const. "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish." Generally speaking, the place of the Federal courts in our two- fold judicial system Federal and state is (1) to give uniform- ity and national dignity to the determination of Federal or na- tional questions, and (2) to furnish impartial tribunals in cases of diverse citizenship. 2. Judicial Power under the United States Constitution. The Constitution in defining the judicial power of the Federal courts recognized both classes of cases mentioned in the preceding section, (1) those involving Federal questions and national dig- nity, and (2) those where there might be a diversity of citizenship. Cl. 1, 2, art. S, U. S. Const. "The judicial power shall extend to all cases in law and equity arising under this Con- stitution, the laws of the United States, and treaties made, or which shall be made, under their authority, to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to con- troversies to which the United States shall be a party; to controversies between two or more states; between citizens 3 FEDERAL COURTS AND THEIR JURISDICTION 3 of different states ; between citizens of the same state claim- ing lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." On account of the tender consideration of states' rights, the above provision was modified by the llth Amendment to the Con- stitution as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." 3. Federal Courts Enumerated. District courts. Each state in the United States constitutes one or more Federal judicial districts in each of which is located a Federal district court. These courts are the courts of general, original jurisdiction. The con- sideration of their jurisdiction, practice, and procedure occupies the first and larger part of this book. The other inferior and appel- late courts are treated respectively in separate chapters devoted to each. The court of claims., with five judges, sits at Washington to take jurisdiction of claims against the United States other than pensions and sounding in tort. The commerce court, with five judges, sits at Washington and may sit in other places. It has authority to enforce orders (ex- cept for payment of money) of the Interstate Commerce Commis- sion, but not by forfeitures, penalties, or criminal remedies. It also has power to enjoin, annul, or suspend orders of said Com- mission. By the urgent deficiencies appropriations act of October 22, 1913, 38 Stat. at L. pp. 219, 221, quoted in our Appendix, at the head of chapter 9, Judicial Code, the commerce court was abolished, and its jurisdiction transferred to the district court. The court of customs appeals, with five judges, sits at Wash- ington and may also sit in the several circuits. It reviews de- cisions of the board of general appraisers under the customs and duties or tariff laws. The circuit court of appeals consists of three or more judges 4 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 4 for each circuit. A justice of the supreme court is also assigned to each circuit, and district judges may be assigned to sit. These courts have final appellate jurisdiction over the district courts within their respective circuits, except where a direct appeal ia allowed exclusively to the supreme court or on certification of a question from the circuit court of appeals to the supreme court. The supreme court, with nine judges, sits at Washington. It has original jurisdiction of matters in which a state is a party, and of cases brought by ambassadors or other public ministers or in which a consul or vice consul is a party. It has original and exclusive jurisdiction of cases between states and between a state and the United States, and of cases against ambassadors, other public ministers, and their domestics. It has appellate juris- diction on writ of error or appeal from the district courts in certain cases, and on writ of error from the courts of last resort of the several states in certain cases. It has appellate jurisdic- tion of certain cases from the circuit court of appeals, court of claims, commerce court, from United States district court and supreme court of Porto Rico, the supreme court of Hawaii, district court of Alaska, the supreme court of the Philippine Islands, the court of appeals of the District of Columbia, and certain cases where a territory has become a state. 4. District Courts Jurisdiction In General. Although the jurisdiction of the Federal courts is limited, the number and importance of cases involving some ground of Federal jurisdiction is considerable and is constantly increasing. By the Judicial Code which took effect January 1, 1912, the United States circuit courts were abolished and the district courts were made the Federal courts of general, original juris- diction. As one or more of these Federal district courts is located in every state in the United States, the general practitioner should be concerned with the scope of its jurisdiction and mode of pro- cedure. (1) Such court may be available to him as the best or most convenient court in which to bring a suit; (2) it may inter- fere with the trial of a case brought by him in the state court by his adversary's removal of the case thereto; (3) on account of the 5 FEDERAL COURTS AND THEIR JURISDICTION 5 locality or bias of a state court, the practitioner may find it desirable to remove the suit for a defendant to the Fed- eral court; (4) he may be called upon to defend a suit brought in the Federal court; (5) he may be employed to pass upon a title litigated in the Federal courts. The original jurisdiction of the Federal district court is defined in 24 of the Judicial Code. Part of that jurisdiction is ex- clusive of the state courts as coming under the provision of 256 of the Judicial Code, and part is concurrent with that of the state courts; and in all cases of original concurrent jurisdiction the suit, if brought in the state court, may be removed under certain conditions to the Federal district court for the proper dis- trict. These subjects are treated in chapter 6, entitled, "District Court Jurisdiction, Original and Appellate," and in chapter 10, entitled, "Removal of Causes Jurisdiction and Procedure." 5. The Federal System Is Double Legal and Equitable. In the Federal courts there are two systems of pleadings and practice, viz.., law and equity. The same judge may sit at one time as a law judge and try a case, with a jury to deter- mine questions of fact, and at another time he may sit as a chancellor or equity judge determining the questions of law and fact without a jury, unless he calls one in an advisory capacity. As an equity judge he will not give an equitable remedy if the remedy at law is adequate, but under new Equity Rule 22, he may transfer the case to the law side, if improperly brought on the equity side, instead of dismissing as formerly. The Federal Constitution, in various provisions, recognizes and fixes the distinction between common law and equity, especially in the 7th Amendment, preserving the right of trial by jury in suits at common law where the value in controversy shall exceed $20. This double system was inherited from England, where former- ly there were separate courts of law and equity, with a chancellor or equity judge sitting on the equity bench and a common-law judge on the common-law bench. In most of the states to-day the same form of action is used in an equity case as in a law case and the system is a blending of law and equity. But the main distinctions between law and equity G MONTGOMERY'S MANUAL OF FEDERAL, PROCEDURE 7 are nevertheless maintained: (1) Preserving the right to trial by jury in law cases; (2) refusing to give equitable remedies where the legal remedies of possession or compensation are ade- quate; and (3) enforcing equitable decrees in certain cases by process for contempt for neglect or refusal to obey. The reason for the original separation of the two systems is historical and not in the essential nature of these branches of the law, but the distinction will remain an essential element of our system, even in the blended or reform procedure, so long as the right to trial by jury is preserved for common law cases. 6. Differences in Procedure at Law and in Equity in the Federal Courts. In the Federal courts an action at law dif- fers from a suit in equity in a number of particulars, in the main as follows: (1) Pleading: at law, conforms "as near as may be" to state practice; in equity is governed by equity rules. (2) Production of proof: at law, depositions may be taken at any time after filing the complaint to the time of trial ; in equity, as a general rule only after issue joined and within a limited time. (3) Trial: at law, defendant entitled to a jury to determine issues of fact ; in equity, issues both of law and fact are determined by the judge. (4) Re- lief granted: at law, compensation or possession; in equity, pre- ventive, specific, foreclosure, receiverships and all other remedies except legal, but including compensation and possession as inci- dental to the equitable relief sought. Equitable remedies are not given where legal remedies are adequate and complete. (5) En- forcing final orders: a judgment at law is enforceable by execution and writ of assistance; equitable decree by execution for money judgments, by contempt proceedings for specific or preventive relief when necessary under Equity Rule 8, and writ of assistance for possession under Equity Rule 9. (6) Review in appellate court: at law by writ of error; in equity by appeal. 7. Actions at Law Wherein Conform to State Prac- tice. Generally speaking, an action at law is an action wherein is sought the remedy of possession or compensation without any equitable elements requiring the interposition of equity. 9 FEDERAL COURTS AND THEIR JURISDICTION 7 Under 914 et seq., K. S., Comp. Stat. 1901, p. 684, 4 F. S. A. 563, the conduct of an action at law conforms "as near as may be" to that existing at the time in like causes in the courts of record of the state within which such district court is held. Pleading and practice in a law case in the Federal courts are governed by the state statutes and state court rules, except in those matters where there has been congressional action by statutory en- actments, or which involve the judge's personal administrative powers, or where the Federal district court rules have established such minor changes as the difference in jurisdiction and organ- ization of the state or Federal courts may require. In addition to a good cause of action there must always be an affirmative showing (1) of grounds of Federal jurisdiction; (2) that the requisite amount in controversy is involved, which in cases of concurrent jurisdiction with the state courts, must exceed, exclusive of interest and costs, the sum or value of $3,000, ex- cept in certain cases set out 24, Judicial Code ; ( 3 ) that the ac- tion is one at law as distinguished from equity; and it must also appear, (4) that the venue of the action is properly laid under the Federal statutes. 8. A Suit in Equity Rules Governing Procedure. Suits in equity are governed by the equity rules promulgated by the United States Supreme Court, with such minor variations not inconsistent with those rules as the district judges, with the concurrence of a majority of the circuit judges for the circuit, may, from time to time, establish under Equity Kule 79. In a suit in equity, as in an action at law, regard must be paid to (1) the ground of Federal jurisdiction, (2) that there is the requisite amount in controversy, (3) that the cause is equitable as distinguished from legal, (4) and the proper venue. 9. A Blended Federal Procedure a Future Possibility. Considering the simple practice and procedure established for suits in equity by the equity rules that went into effect February 1, 1913, there seems to be no good reason why there should be maintained any differences between actions at law and suits in equity in the Federal courts, if Congress should see fit to amend 8 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 10 914, Revised Statutes, so as to allow the procedure at law to be governed by Supreme Court rules. Very few rules would be required for a law action additional to those now existing for the conduct of a suit in equity. It would be necessary to make provision (1) to preserve the right of a jury trial for questions of fact in law actions; (2) to adjust the giving of equitable remedies and legal remedies in the same suit or separate suits determinable at the same time; and (3) to provide for the enforcement of state statutory remedies wherein same may not be conformable to the Federal practice. The adop- tion of such a system would be a strong influence towards uniform- ity and simplicity in state systems. 10. Summary Differences of Practice and Procedure in Federal and State Courts. The differences between Federal and state practice and procedure are due: (1) to the limited nature of Federal jurisdiction requiring (a) some ground of Fed- eral jurisdiction to be involved in all actions in the Federal court, and (b) that in certain cases the amount in controversy must exceed $3,000 exclusive of interest and costs; (2) to the dis- tinctions maintained in Federal courts between actions at law and suits in equity; (3) to the Federal statutes relating to venue. It will be seen from the above that there are always four points- for consideration in determining the jurisdiction and consequent procedure in actions brought in Federal courts. First, whether or not a Federal ground of jurisdiction is in- volved, because some such ground must appear in addition to the facts necessary generally to constitute a cause of action. These grounds of Federal jurisdiction are treated in chapters 7 and 8, respectively entitled, "Federal Questions Ground of Jurisdic- tion;" "Diverse Citizenship Ground of Federal Jurisdiction." Second, whether or not there is the requisite amount in con- troversy. Congress, having power in its discretion to establish inferior courts, necessarily has power to define their jurisdiction. In defining the jurisdiction of the district court, the Federal stat- utes have fixed a limitation based on the amount in controversy. This subject is treated in chapter 9, entitled, "Amount in Con- troversy as Affecting Jurisdiction." 11 FEDERAL COURTS AND THEIR JURISDICTION 9 Third, whether or not the suit is at law or in equity. A sepa- rate system of procedure has been rendered necessary in Federal equity suits, because a number of states have adopted . a blended form of procedure, combining legal and equitable causes of action and defenses, while the Federal system has maintained the dis- tinctions between law and equity. Under the Federal practice, legal and equitable causes are not permitted to be united in the same suit, nor are equitable defenses, except in a few cases, per- mitted to be set up in law actions. Chapters 18 to 28 inclusive give the main proceedings for an action at law in the Federal court, and chapters 29 to 41 inclusive give the procedure for a suit- in equity in the Federal court. Fourth, certain restrictions have been adopted in the Federal courts respecting the place of trial of actions, or venue. These restrictions are not jurisdictional if waived by the parties, but may defeat the action. On removal, timely objection on this ground may cause the case to be remanded. This subject is treated in chapter 5, entitled, "Venue of Actions in the District Court Territorial Jurisdiction." The statutory provisions respecting jurisdiction, original and on removal, the amount or value required to be in controversy and the place of trial of actions, are summarized under the several jurisdictional headings of 24, Judicial Code, and- placed in chap- ter .12, entitled, "Summaries Original Jurisdiction, Removal, Amount, Venue for the Several Matters of District Court Cog- nizance." 11. Why a Special Study of Federal Procedure Re- quired. Federal equity procedure is now wonderfully simplified under the equity rules which took effect February 1, 1913, and the Judicial Code which took effect January 1, 1912. There will be but little difficulty in mastering the present equity procedure, if the practitioner will bear in mind the points men- tioned in the preceding section respecting jurisdiction, Federal and equitable, amount in controversy and venue. But special study of the subject is required because the Fedrnil equity procedure is a complete, separate system differing in many vital particulars from state systems. 10 MONTGOMERY'S MANUAL OF FEDERAL, PROCEDURE 12 In chapter 29, entitled, "A Suit in Equity Summary," are set out the main points in the conduct of a suit in equity and the time within which each step must be taken. For an action at law in the Federal court, the practitioner must search out those matters wherein the Federal statutes, Federal court rules and decisions have changed the mode of procedure from that in the state court. In chapter 18, post, "An Action at Law Summary," it is endeavored to indicate the main points in conformity and those not in conformity with state practice. 12. Desirability of Special Study of Federal Procedure. The number of cases coming under Federal jurisdiction, particu- larly the concurrent jurisdiction of the Federal district court, is greatly increasing with the consolidation and combination of businesses and with the growth of national control of matters formerly left to state legislation. Time devoted to the study of Federal jurisdiction and procedure will be well spent in view of the strong tendency toward national control of numerous matters affecting the different business inter- ests in every community. A special study of Federal procedure is required if the lawyer desires to be equipped to handle business of importance. The larger the interests involved, the greater liability there is of such matters being in litigation in the Federal rather than the state court, either by being brought there originally, or on removal. The necessity is undoubtedly increasing for the state practitioner to become conversant with the judicial system, jurisdiction and procedure not only of his own state (and to some extent of other states), but also of the nation. CHAPTEK 2. DISTRICT COURTS ORGANIZATION OFFICERS. Sec. 20. General Statement. 21. Judges General Statement. 22. Number of District Judges in the Several Districts. 23. Division of Business in Districts with More than One Judge. 24. Assigning Another District Judge in Case of Disability of Regular Judge. 25. Assigning Additional Judge in Case of Accumulation of Business or in Aid of District Judge. 26. Designation of Additional Judge by Chief Justice. 27. Change of Appointment. 28. Circuit Judge, When to Act as District Judge. 29. Duties aoid Powers of Judges Designated in Place or Aid of District Judges. 30. Outside Judge in Case of Interest or Relationship of Incumbent. 31. Designation of Another Judge on Affidavit of Personal Bias or Prejudice of Incumbent Filed. 32. Clerks, Marshals, District Attorneys General Statement. 33. Clerks. 34. Deputy Clerks. 3f>. Marshals. 3(5. Deputy Marshals. 37. Marshal's Field Deputies. 38. Criers and Bailiii's. 39. United States District Attorney. 40. Assistant District Attorney. 41. Court Commissioners, Receivers, Masters in Chancery General State- ment. 42. Court Commissioners. 20. General Statement. In every state in the United States there is at least one Federal judicial district 1 with not less than one district judge for each district except in Alabama, Mis- sissippi, South Carolina, and Tennessee. 8 Besides the judge, there are : a clerk, deputy clerks, a marshal, deputy marshals, field deputy marshals, bailiffs, court crier, a 1 Ch. 4. 22. 11 12 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 22 district attorney, assistant district attorneys, and sometimes coun- sel to aid the district attorney. 8 There are also court commissioners, receivers, masters in chan- cery, and officers appointed under the bankruptcy laws not covered in this work. 4 21. Judges General Statement. Except in Alabama, Mississippi, South Carolina, and Tennessee, there is always at least one district judge for every district. 5 Sometimes there is more than one judge, in which case it is necessary that there be a division of business. 6 Often it is necessary to call in outside district judges in case of disability of regular judge, 7 or accumulation of business, or when otherwise necessary to aid a district judge. 8 In some cases the chief justice may be required to designate such addi- tional judge, 9 or a new appointment and revocation of the old appointment may be required. 10 In some cases it may even be necessary to call in one of the circuit judges to serve as district judge. 11 It is also often necessary to obtain an outside judge where the incumbent is interested or related to the parties, 12 or where he has a personal bias or prejudice. 18 Where an outside judge serves, his acts have the same effect and validity as those of the district judge of the district. 14 22. Number of District Judges in the Several Districts. 1, Judicial Code,* 36 Stat. at L. 1081, Comp. St. 1911, p. 129,1912 Supp. F.S.A.v.l,p. 132. "In each of the dis- tricts described in chapter 5, 15 there shall be a court called a district court, for which there shall be appointed one judge, to be called a district judge ; except that in the northern dis- 3 32. 4 41. 22. 6 23. 7 24. 25. 26. l 27. 11 28. 12 30. 13 31. l* 29. 15 Ch. 4, post. a "All acts and parts of acts authorizing the appointment of United States circuit or district judges, . . . enacted prior to February first, nineteen hundred and eleven," repealed by 297, Judicial Code. Circuit courts abolished by 289 of the Judicial Code. Judicial Code does not repeal expe- dition act of Feb. 11. 1903, 32 Stat. at L. 823, Comp. St. 1911, p. 1383, 10 F. S. A. 199. Ex parte United States, 226 U. S. 420, 57 L. ed. 281, 33 Sup. Ct. Rep. 170. 24 DISTRICT COURTS ORGANIZATION OFFICERS 13 trict of California, the northern district of Illinois, the dis- trict of Maryland, the district of Minnesota, the district of Nebraska, the district of New Jersey, the eastern district of New York, the northern and southern district of Ohio, the district of Oregon, the eastern and western district of Penn- sylvania, and the western district of Washington, there shall be an additional district judge in each, and in the southern district of New York, three additional district judges : Pro- vided, That whenever a vacancy shall occur in the office of the district judge for the district of Maryland, senior in commis- sion, such vacancy shall not be filled, and thereafter there shall be but one district judge in said district: Provided further, That there shall be one judge for the eastern and western districts of South- Carolina, one judge for the eastern and middle districts of Tennessee, and one judge for the northern and southern districts of Mississippi : Provided further, That the district judge for the middle district of Alabama shall continue as heretofore to be a district judge for the northern district thereof. Every district judge shall reside in the district or one of the districts for which he is appointed, and for offending against this provision shall be deemed guilty of a high misdemeanor." 23. Division of Business in Districts with More than One Judge. 28, Judicial Code* 36 8 tat. at L. 1090, Comp. St. 1911, p. 134, 1912 Supp. F. 8. A. i\ l,p. 138. "In districts having more than one district judge, the judges may agree upon the division of business and assignment of cases for trial in said district; but in case they do not so agree, the senior circuit judge of the circuit in which the district lies shall make all necessary orders for the division of business and the assign- ment of cases for trial in said district." 24. Assigning Another District Judge in Case of Dis- ability of Regular Judge. 13, Judicial Code* 36 8 tat. at L. 1089, Comp. St. 1911, p. 131, 1912 Supp. F. S. A. v. 1, p. 135. "When any district judge is prevented, by any disability, from holding any stated * Drawn from act of Feb. 20, 1907, ch. 2073, 2; Act of March 2, 1907, ch. 2575, 2, 34 Stat. at L. 1253; Act of March 2, 1909: and the act of Feb. 24, 1910. ch. 56, 3, 36 Stat. at L. 202. c Combining 591, R. S., Rose's Code, 172, Foster's Fed. Prac. 4th ed.) pp. 682, 683, Comp. St. 1901, p. 480, 4 F. S. A. 675. and amendment there- 14: MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 25 or appointed term of his district court, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, any such cir- cuit judge or justice may, if in his judgment the public in- terests so require, designate and appoint the judge of any other district in the same circuit to hold said court, and to discharge all the judicial duties of the judge so disabled, dur- ing such disability. Whenever it shall be certified by any such circuit judge or, in his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of another district within the circuit to perform the duties of such disabled judge, the chief justice may, if in his judg- ment the public interests so require, designate and appoint the judge of any district in another circuit to hold said court and to discharge all the judicial duties of the judge so dis- abled, during such disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said district court, and a certified copy thereof under the seal of the court shall be transmitted by the clerk to the judge so designated or appointed." 25. Assigning Additional Judge in Case of Accumulation of Business or in Aid of District Judge. 14, Judicial Code* 36 Stat. at L. 1089, Comp. St. 1911, p. 132, 1912 Supp. F. 8. A. v. 1, p. 135. "When, from the accumulation or urgency of business in any district court, the public interests require the designation and appointment here- inafter provided, and the fact is made to appear, by the certif- to, 36 Stat. at L. 1417, 1909 Supp. F. S. A. 293, which are repealed by 297, Judicial Code. Filing the paper is not necessary to the validity of the appointment of the judge. National Home of Soldiers v. Butler, 33 Fed. 374. This power does not extend to the case of a vacancy. 9 Op. Atty. Gen. 131. See 603, R. S. Appointment not subject to collateral attack. Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761. a Drawn from 592. R. S.. dose's Code, 173, Foster's Fed. Prac. (4th ed.) pp. 682, 683, Comp. St. 1901, p. 481, 4 F. S. A. 676, which section is re- pealed by 297, Judicial Code. In general, McDowell v. United States, 159 U. S 596, 40 L. ed. 271, 16 Sup. Ct. Rep. 111. Not subject to collateral attack. Ex parte United States, 226 U. S. 420, 57 L. ed. 281, 33 Sup. Ct. Rep. 170. See In Re Manning, 139 U. S. 504, 35 L. ed. 264, 31 Sup. Ct. Rep. 624; Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761. McDowell v. United States, 159 U. S. 596, 40 L. ed. 271, 16 Sup. Ct. Rep. 111. As to filing of appointment, see National Home for Soldiers v. Butler, 33 Fed. 374. 26 DISTRICT COURTS ORGANIZATION OFFICERS 15 icate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the ab- sence of all the circuit judges, to the circuit justice of the cir- cuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge thereof. Each of the said district judges may, in case of such appoint- ment, hold separately at the same time a district court in such district, and discharge all the judicial duties of the district judge therein." 17, Judicial Code* 36 Stat. at L. 1089, Comp. St. 1911, p. 133, 1912 Supp. F. 8. A. v. 1, p. 136. "It shall be the duty of the senior circuit judge then present in the circuit, when- ever in his judgment the public interest so requires, to desig- nate and appoint, in the manner and with the powers provided in section fourteen, the district judge of any judicial district within his circuit to hold a district court in the place or in aid of any other district judge within the same circuit." 26. Designation of Additional Judge by Chief Justice. 15, Judicial Code,* 36 Stat. at L. 1089, Comp. St. 1911, p. 132, 1912 Supp. F. 8. A. v. 1, p. 136. "If all the circuit judges and the circuit justice are absent from the circuit, or are unable to execute the provisions of either of the two pre- ceding sections, or if the district judge so designated is dis- abled or neglects to hold the court and transact the business for which he is designated, the clerk of the district court shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint in the manner afore- said the judge of any district within such circuit or within any other circuit ; and said appointment shall be transmitted to the clerk and be acted upon by him as directed in the pre- ceding section." e Superseding 596, R. S., Rose's Code, 177, Foster's Fed. Prac. (4th ed.) pp. 682, 683, Comp. St. 1901, p. 482, 4 F. S. A. 677, which section is repealed by 297, Judicial Code. McDowell v. United States, 159 U. S. 596, 40 L. ed. 271, 16 Sup. Ct. Rep. 111. In general, Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761. 'Superseding 593, R. S., 'Rose's Code, 174, Foster's Fed. Prac. (4th ed.) pp. 682, 683, Comp. St. 1901, p. 481, 4 F. S. A. 676, which section is re- pealed by 297, Judicial Code. In general, Ex parte N. K. Fairbanks Co. 104 Fed. 978. 16 MONTGOMERY'S MAM AL OF FEDERAL PROCEDURE 28 27. Change of Appointment. 16, Judicial Code* -if; >'//. at L. 1089, Comp. St. 1911, p. 132, 1912 Supp. F. S. A. v. 1, p. 130. "Any such circuit judge, or circuit justice, or the Chief Justice, as the case ma y be, may, from time to time, if in his judgment the public interests so require, make a new designation and appointment of any other district judge, in the manner, for the duties, and with the powers mentioned in the three preceding sections, and revoke any previous designation and appointment." 28. Circuit Judge, When to Act as District Judge. 18, Judicial Code, 11 36 Stat. at L. 1089, Comp. St. 1911 r p. 133,1912 Supp. F. S. A. v. 1, p. 137. "Whenever, in the judgment of the senior circuit judge of the circuit in which the district lies, or of the circuit justice assigned to such cir- cuit, or of the Chief Justice, the public interest shall require, the said judge, or associate justice, or Chief Justice, shall designate and appoint any circuit judge of the circuit to hold said district court." Amendment of act October 3. 1913, cli. 18, 38 Stat. (if L 203. 18 of the Judicial Code is amended by adding the following: "Whenever it shall be certified by the senior circuit judge of the second circuit, or, in his absence, by the circuit justice of said circuit, that on account of the accumu- lation or urgency of business in any district court in said circuit it is impracticable to designate and appoint a suffi- cient number of .district judges in other districts within said circuit to relieve such accumulation or urgency of business, the Chief Justice may, if in his judgment the public interests so require, designate and appoint the judge of any district court in another circuit to hold a district court within said second circuit, and to have and exercise within said district to which he is so assigned the same powers that are vested in the judge thereof: Provided, That said judge so designated and appointed shall have consented, in writing, to such designation and appointment: And provided further, That the senior circuit judge of the circuit within which such judge so designated and appointed resides shall certify, in Superseding 593, R. S., Rose's Code. 175, Foster's Fed. Prac. (4th ed.) pp. 423, 682, 683, Comp. St. 1901. p. 481, 4 F. S. A. 676, which section is repealed by 297, Judicial Code. In general, Ex parte N. K. Fairbanks Co., supra. h This section is new legislation. 30 DISTRICT COURTS ORGANIZATION OFFICERS 17 writing, that the business of the district of such judge will not suffer thereby. Such appointment shall be filed in the clerk's office and entered on the minutes of said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the clerk to the judge so designated and ap- pointed. Each of said district judges may, in case of such appointment, hold separately, at the same time, a district court in such district, and discharge all of the judicial duties of the district judge therein." 29. Duties and Powers of Judges Designated in Place or Aid of District Judges. 19, Judicial Code, 1 36 Stat. at L. 1090, Comp. St. 1911, p. 133, 1912 Supp. F. 8. A. v. 1, p. 137. "It shall be the duty of the district or circuit judge who is designated and ap- pointed under either of the six preceding sections, to dis- charge all the judicial duties for which he is so appointed, during the time for which he is so appointed ; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, shall have the same effect and validity as if done by or before the district judge of the said district." 30. Outside Judge in Case of Interest or Relationship of Incumbent. 20, Judicial Code,* 36 Stat. at L. 1090, Comp. St. 1911, p. 133, 1912 Supp. F. S. A. v. 1, p. 137. "When it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel or is a material witness for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on the records of the court; and also an order that an au- thenticated copy thereof shall be forthwith certified to the senior circuit judge for said circuit then present in the cir- cuit; and thereupon such proceedings shall be had as are provided in section fourteen (quoted 25, infra)." * Drawn from 595, R. S., Rose's Code, 176, Foster's Fed. Prac. (4th ed.) pp. 682, 683, Comp. St. 1901, p. 482, 4 F. S. A. 676, which section is re- pealed by 297, Judicial Code. J Superseding 601, R. S., Foster's Fed. Prac. (4th ed.) pp. 682, 969, Comp. St. 1901, p. 482, 4 F. S. A. 678, which section is repealed by 297, Judicial Code. As to judge being interested in suit, see Spencer v. Lapsley, 61 Montg. 2. 18 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 32 31. Designation of Another Judge on Affidavit of Per- sonal Bias or Prejudice of Incumbent Filed. 21, Judicial Code* 36 Stat. at L. 1090, Comp. St. 1911, p. 133, 1912 Supp. F. S. A. v. 1, p. 137. "Whenever a par- ty to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or pre- judice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner pre- scribed in section twenty-three (quoted 23, infra), to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit ; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a cer- tificate that he deems himself unable for any reason to pre- side with absolute impartiality in the pending suit or action." 32. Clerks, Marshals, District Attorneys General Statement. A clerk for each district is appointed by the judge. 16 Deputy clerks are appointed by the clerks, by and with the ap- proval of the judge. 17 Marshals for each district are appointed by the President. 18 Deputy marshals are appointed by the marshal. 19 Field marshals may also in some cases be appointed by the marshal. 20 Bailiffs not to exceed five as the judge may determine are ap- pointed by the marshal. 21 A court crier is appointed by the court. 81 U. S. 264. 15 L. ed. 902. As to judge showing partiality, see Glasgow v. Moyer, 225 U. S. 420, 56 L. ed. 1147, 32 Sup. Ct. Rep. 753. Construed in Ex parte N. K. Fairbanks Co. 194 Fed. 978. 16 33. 34. " 35. 19 36. 20 37. 21 38. k New legislation. In general, Glasgow v. Moyer, 225 U. S. 420, 56 L. ed. 33 DISTRICT COURTS ORGANIZATION OFFICERS 19 A United States district attorney is appointed by the Presi- dent for each district. 22 Assistant district attorneys are appointed by the Attorney Gen- i OQ eral. 23 Counsel to assist the District Attorney may be appointed by the Attorney General. 22 Disqualification for appointment. 67, Judicial Code, 1 36 Stat. at L. 1105, Comp. St. 1911, p. 155, 1912 Supp. F. S. A. v. 1, p. 159. "No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court." Amendment Dec. 21, 1911, 37 Stat. at L. 46. "Provided, That no such person at present holding a position or em- ployment in a circuit court shall be debarred from similar appointment or employment in the district court succeeding to such circuit court jurisdiction." 33. Clerks. 3, Judicial Code, m 36 Stat. at L. 1087, Comp. St. 1911, p. 130, 1912 Supp. F. S. A. v. 1, p. 133. "A clerk of the district court shall be appointed by the judge thereof, except as otherwise provided by law." The term of the clerk is at the will of the district judge. 24 The oath of the clerk is set out in 794, R. S., Comp. Stat. 1901, p. 619, 4 F. S. A. 75, Rose's Code, 570. A bond is required under 795, R. S., Comp. Stat. 1901, p. 619, 4 F. S. A. 82, and see 3, act Feb. 22, 1875, ch. 95, 18 Stat. at L. 333, Comp. Stat. 1901, p. 619, 4 F. S. A. 83. Additional bonds may be required, when the business of the court makes necessary, under the provisions of 2, act Feb. 22, 1147, 32 Sup. Ct. Rep. 753. The mere filing of the affidavit does not dis- qualify the judge. Ex parte N. K. Fairbanks Co. 194 Fed. 978. 22 39. 23 40. 24 Ex parte Hennen (1839) 13 Pet. (U. S.) 230, 10 L. ed. 138. 1 Re-enacting 7 of act of Aug. 13, 1888, ch. 866, 25 Stat. at L. 437, Comp. St. 1901, p. 579, 4 F. S. A. 69, which section is repealed by 297, Judicial Code. See Elgutter et al. v. Northwestern Mut. Life Ins. Co. 86 Fed. 500. :W C. C. A. 218. m A re-enactment of 555, R. S., Rose's Code, 567, Comp. St. 1901, p. 451, 4 F. S. A. 74, expressly repealed by 297, Judicial Code. 20 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 35 1875, ch. 95, 18 Stat. at L. 333, Comp. St. 1901, p. 620, 4 F. S. A. S3. If any clerk shall wilfully refuse or neglect to make any re- port, certificate, statement or other document required by law to be by him made, he may be removed by the President. 5, act Feb. 22, 1875, ch. 95, 18 Stat. at L. 333, Comp. St. 1901, p. 621, 4 F. S. A. 153-4, Rose's Code, 598. For failure to do as set out in 5 there is an additional pun- ishment provided, 6 same act making the neglect or refusal a misdemeanor. 34. Deputy Clerks. 4, Judicial Code? 36 Stat at L. 1081, Comp. St. 1911, p. ISO, 1912 Supp. F. 8. A. v. 1, p. 133. ''Except as other- wise specially provided by law, the clerk of the district court for each district may, with the approval of the district judge thereof, appoint such number of deputy clerks as may be deemed necessary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concur- rence of the district judge. In case of the death of the clerk, his deputy or Deputies shall, unless removed, continue in of- fice and perform the duties of the clerk, in his name, until a clerk is appointed and qualified ; and for the default or mis- feasances in office of any such deputy, whether in the life- time of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable ; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime." The bond of deputy clerks is required under 796, R. S., Comp. Stat. 1901, p. 620, 4 F. S. A. 83. The oath of the deputy clerk is the same as that of the clerk. 85 35. Marshals. 776, R. S., Comp. Stat. 1901, p. 604, 4 F. S. A. 76 f Rose's Code, 618. "(Marshals for all the districts.) A 26 See 33, supra. n Superseding 558, R. S., Rose's Code, 568, 1 Comp. St. 1901, p. 452 r ->(j DISTRICT COURTS ORGANIZATION OFFICERS 21 marshal shall be appointed in each district, except in the middle district of Alabama, and the northern district of Georgia, and the western district of South Carolina. The marshal of the southern district of Alabama shall perform the duties of marshal of the middle district of said state, and shall keep an office at Montgomery in said middle district. The marshal of the southern district of Georgia shall perform the duties of marshal of the northern district of said state. The marshal of the eastern district of South Carolina shall perform the duties of marshal of the western district of said state." itt... Tli e term of the marshal is four years, under 779, K. S., Comp. Stat. 1901, p. 605, 4 F. S. A. 76, Rose's Code, 617. Vacancies in marshal's office may be temporarily filled under 793, R. S., Comp. Stat. 1901, p. 610, 4 E. S. A. 72. The oath of the marshal is defined by 782, R. S., Comp. Stat. 1901, p. 606, 4 F. S:A. 78, Rose's Code, 625. The bond of the marshal is required under 783, R S., Comp. Stat. 1901, p. 607, 4 F. S. A. 84, Rose's Code, 627. Suit on marshal's bond is authorized under 784, R. S., Comp. Stat. 1901, p. 607, 4 F. S. A. 84, Rose's Code, 629. Bond to be further security after judgment is provided in 785, R. S., Comp. Stat. 1901, p. 607, 4 F. S. A. 85, Rose's Code, 630. Limitation of suit on bond is defined in 726, R. S., Comp. Stat. 1901, p. 584, 4 F. S. A. 85, Rose's Code, 631. 36. Deputy Marshals. 180, R. SI, Comp. Stat. 1901, p. 605, k F. S. A. 1Q, "(Deputy marshals.) Every marshal may appoint one or more deputies, who shall be removable from office by the judge of the district court, or by the circuit court for the district, at the pleasure of either." Oath of deputy marshal set out in 782, R. S., Comp. Stat. 1901, p. 606, 4 F. S. A. 78, Rose's Code, 625. 4 F. S. A. p. 74, Pierce, Code, 6989, repealed by 297, Judicial Code. Under the old section it was held that salary of deputy must be paid by the clerk from the earnings of the office under the fee bill. Erwin v. United States (1SS!). 37 Fed. 475, 2 L.R.A. 229. Deputy is a servant of the officer for whom the officer shall answer. 7 Bac. Ahr. 310 (T>). A deputy clerk is an officer of the court. Ex parte Simons. 32 Fed. 681. 22 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 38 The marshal may appoint bonded deputies without regard to the civil service laws. (38 Stat. at L. 208.) 37. Marshal's Field Deputies. 11, Act May 28, 1896, ch. 252, 29 Stat. at L. 182, Comp. St. 1901, p. 615, 4 F. 8. A. 77, as amended by act March 4, 1911, ch. 269, 86 Stat. at L. 1555, Comp. St. 1911, p. 263, 1912 Supp. F. S. A. v. 1, p. 130. "That at any time when, in the opinion of the marshal of any district, the public in- terest will thereby be promoted, he may appoint one or more deputy marshals for such district, who shall be known as field deputies, and who, unless sooner removed by the district court as now provided by law, shall hold office during the pleasure of the marshal, except as hereinafter pro- vided, and who shall each, as his compensation, re- ceive the gross fees, including mileage, as provided by law, earned by him, not to exceed one thousand five hun- dred dollars per fiscal year, or at that rate for any part of a fiscal year ; and in addition shall be allowed his actual neces- sary expenses, not exceeding two dollars a day, while en- deavoring to arrest, under process, a person charged with or convicted of crime : Provided, That a field deputy may elect to receive actual expenses on any trip in lieu of mileage: Provided further, That in special cases, where in his judg- ment justice requires, the Attorney General may make an additional allowance, not, however, in any case to make the aggregate annual compensation of any field deputy in excess of two thousand five hundred dollars nor more than the gross fees earned by such field deputy. The marshal, immediately after making any appointment or appointments under this section, shall report the same to the Attorney General, stating the facts as distinguished from conclusions constituting the reason for such appointment, and the Attorney General may at any time cancel any such appointment as the public inter- est may require. This act to take effect from and after July first, nineteen hundred and eleven." 38. Criers and Bailiffs. 5, Judicial Code, 36 Stat. at L. 1088, Comp. St. 1911, p. 130, 1912 Supp. F. S. A. v. 1, p. 133. "The district court for each district may appoint a crier for the court; and the o 715, R. S., Rose's Code. 687, 1 Comp. Stat. 1901, p. 579, 4 F. S. A. 81. Bailiffs entitled to per diem for attendance on days when court is ad- journed by written order of the judge as provided by R. S. 672. United States v. McCabe, 122 Fed. 653; United States v. Pitman, 147 U. S. 669, 37 40 DISTRICT COURTS ORGANIZATION OFFICERS 23 / marshal may appoint such number of persons, not exceeding five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes." 39. United States District Attorney. 767, R. S., Comp. St. 1901, p. 599, 4 F. S. A. 70, "(District attorneys for all the districts.) There shall be appointed in each district, except in the middle district of Alabama, and the northern district of Georgia, and the western district of South Carolina, a person learned in the law, to act as attorney for the United States in such dis- trict. The district attorney of the northern district of Ala- bama shall perform the duties of district attorney of the middle district of said state ; and the district attorney of the southern district of Georgia shall perform the duties of dis- trict attorney of the northern district of said state; and the district attorney of the eastern district of South Carolina shall perform the duties of district attorney for the western district of said state." Their term is four years and they are required to be sworn under 769, K. S., Comp. Stat. 1901, p. 600, 4 F. S. A. 71. Special Counsel may be retained to aid United States district attorneys under 363, R. S., Comp. Stat. 1901, p. 208, 4 F. S. A. 70, Rose's Code, 552, but heads of departments must call on de- partment of justice for counsel under 189, R. S., Comp. St. 1901, p. 94, 3 F. S. A. 63. Compensation and oath of such special counsel are provided for in 366, R. S., Comp, Stat. 1901, p. 209, 4 F. S. A. 71, Rose's Code, 555. Vacancies in office may be temporarily filled under 793, R. S., Comp. Stat. 1901, p. 610, 4 F. S. A. 72. 40. Assistant District Attorney. 8, Act May 28, 1896, ch. 252, 29 Stat. at L. 186, Comp. St. 1901, p. 613, 4 F. S. A. 71. "(Assistant district attorneys compensation expense allowance of district attorney and assistants.) That whenever, in the opinion of the district judge of any district or the chief justice L. ed. 324, 13 Sup. Ct. Rep. 425. Duties of messenger and crier are compat- ible and distinct in character, and compensation may be received for both by the one performing them. Preston v. United States, 37 Fed. 417 ; United States v. Saunders, 120 U. S. 126, 30 L. ed. 594, 7 Sup. Ct. Rep. 4<>7. 24 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 41 of any territory and the district attorney, evidenced by writing, the public interest requires it, one or more assistant district attorneys may be appointed, by the At- torney General; but such opinion shall state to the At- torney General the facts as distinguished from conclu- sions, showing the necessity therefor. Such assistant dis- trict attorneys shall be paid such salary as the Attorney General may from time to time determine as to each, which shall in no case exceed two thousand five hundred dollars per annum : Provided, That the necessary expenses for lodg- ing and subsistence actually paid, not exceeding four dollars per day and actual and necessary traveling expenses of the district attorney and his assistants, while absent from their respective official residences and necessarily employed in going to, returning from, and attending before any United States court, commissioner, or other committing magistrate, and while otherwise necessarily absent from their respective official residences on official business, shall be allowed and paid in the manner hereinbefore provided." 41. Court Commissioners, Receivers, Masters in Chan- cery General Statement. Court commissioners are officers with magisterial powers in both civil and criminal matters com- ing under the jurisdiction of the Federal laws. 26 Receivers are officers appointed in special cases with authority to operate and manage properties. This power must be exercised in conformity with valid state laws of the state where the prop- erty is situated. 27 They may be sued without leave of court in certain cases. 28 Masters in chancery are appointed under Equity Rule 68. 89 68, Judicial Code, 9 36 Stat. at L. 1105, Comp. St. 1911, p. 155, 1912 Supp. F. S. A. v. 1, p. 159. "Xo clerk of a dis- trict court of the United States or his deputy shall be ap- pointed a receiver or master in any case, except where the judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment." 26 42. 87 1052. infra. See also ch. 37, post. 28 1053. infra. 29 Ch. 36, post. i Re-enacting act of March 3, 1879, ch. 183, 20 Stat. at L. 415, Foster's Fed. Prac. (4th ed.) pp. 842, 985. Coriip. St. 1901, p. 591. 4 F. S. A. 81, which is repealed bv 297. Judicial Code. In general, Briggs v. Neal et al. 120 Fed. 224, 56 C.*C. A. 572. 42 DISTRICT COURTS ORGANIZATION OFFICERS 25 42. Court Commissioners. 19, Act May 28, 1896, ch. 252, 29 Stat. at L. 184, Comp. St. 1901, p. 499, 4 F. 8. A. 79. "(Circuit court commis- sioners abolished United States commissioners appointed- powers and duties.) That the terms of office of all commis- sioners of the circuit courts heretofore appointed shall ex- pire on the thirtieth day of June, eighteen hundred and ninety-seven ; and such office shall on that day cease to exist, and said commissioners shall then deposit all the records and other official papers appertaining to their offices in the office of the clerk of the circuit court by which they were ap- pointed. All proceedings pending, returnable, unexecuted, or unfinished at said date before any such commissioner shall be continued and disposed of according to laAv by such com- missioner appointed as herein provided, as may be designated by the district court for that purpose. It shall be the duty of the district court of each judicial district to appoint such number of persons, to be known as United States commis- sioners, at such places in the district as may be designated by the district court, which United States commissioners shall have the powers and perform the same duties as are now imposed upon commissioners of the circuit courts. The ap- pointment of such United States commissioners shall be en- tered of record in the district courts, and notice thereof at once given by the clerk to the Attorney General. That such United States commissioners shall hold their offices, respec- tively, for the term of four years, but they shall be at any time subject to removal by the district court; and no person shall at any time be a clerk or deputy clerk of a United States court and a United States commissioner without the approval of the Attorney General: Provided, That all acts and parts of acts applicable to commissioners of the circuit courts, except as to appointment and fees, shall be appli- cable to United States commissioners appointed under this act. Warrants of arrest for violations of internal revenue laws may be issued by United States commissioners upon the sworn complaint of a United States district attorney, assis- tant United States district attorney, collector or deputy collector of internal revenue, or revenue agent or private citizen, but no such warrant of arrest shall be issued upon the sworn complaint of a private citizen unless first approved in writing by a United States district attorney. That United States commissioners and all clerks and all deputy clerks of United States courts are hereby authorized to administer oaths." 26 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 42 61, Judicial Code, 86 Stot. at L. 1104, Comp. St. 1911, p. 15k, 1912 Supp. F. 8. A. v. 1, p. 158. "Any district judge may appoint commissioners, before whom appraisers of vessels or goods and merchandise seized for breaches of any law of the United States may be sworn ; and such oaths, so taken, shall be as effectual as if taken before the judge in open court." Arrests may be made by commissioners for offenses against the United States. 80 Bail may be fixed by a commissioner in criminal cases except where punishment is death. 31 He may receive a surrender under bail. 38 Civil rights laws special powers are conferred. 88 Other powers and duties are mentioned in the note, 4 F. S. A. 164 to 945, R. S. 30 1014, R. S., Comp. Stat. 1901, p. 716, 2 F. S. A. 32. 31 1015, R. S., Comp. Stat. 1901, p. 718, 1 F. S. A. 521, Rose's Code, 1544. 1016, R. S., Comp. Stat. 1901, p. 718, 1 F. S. A. 522, Rose's Code, 1595. 32 1018, R. S., Comp. Stat. 1901, p. 719, 1 F. S. A. 522, Rose's Code, 1549. 33 1982-1987, R. S., Comp. Stat. 1901, pp. 1264, 1265, 1 F. S. A. 798-800. PI> Re-enacting 570, R. S., Rose's Code, 679, Comp. St. 1901, p. 463, 4 F. S. A. 79, which section, is repealed by 297, Judicial Code. CHAPTER 3. DISTRICT COURTS ORGANIZATION, FURTHER AS TO. Sec. 60. General Statement. 61. Courts Always Open for Certain Purposes. 62. Special Terms. 63. Adjournment of Court When Judge Absent. 64. Continuance Where Office of Judge Becomes Vacant. 65. Trials Commenced May Be Concluded in New Terra. 66. Monthly Adjournments of Regular Term to Expedite Criminal Cases. 67. Effect of Altering Terms. 68. Places for Keeping Records. 69. Transfer and Deposit of Territorial Records on Becoming a State. Dis- trict Judge's Duty. 70. Reports of Decisions. 71. Admission to Practice Before. 72. Rules of Court Law Actions. 73. Rules of Court Equity Suits. 60. General Statement. Judicial officers for district courts have been treated in chapter 2, ante. The regular terms, sessions, and places of holding forth in the various districts are set out in chapter 4, post. The court is always open for certain purposes. 1 Special terms may be ordered by the district judge when busi- ness requires. 2 If the judge is absent, the marshal or clerk may adjourn court. 8 So also, if the office of judge becomes vacant, the clerk may con- tinue pending proceedings. 4 Trials commenced may be completed in a new term. They are not stayed or discontinued by the arrival of a new term. 6 Monthly adjournments of terms may be made to expedite crim- inal cases. 6 1 61 2 62 8 63 * 64 5 65 fl 66 27 28 MONTGOMERY'S MANUAL, OF FEDERAL PROCEDURE 61 The altering of terms does not affect the validity of proceedings already taken, and matters pending are thrown over to the next term following. 7 Records of district court are kept where the court is held, and, if more than one of such places, where the district judge desig- nates. On becoming a state, territorial records are transferred to the district court. 9 Reports of decisions are to be found in Federal Reporter and, before 1880, in the Federal Decisions. 10 Rules for admission to practice are provided in the several districts. 11 Rules of court in law actions may be established under 914 and 918, Revised Statutes. 12 Rules of court in equity suits are established by the Supreme Court under 917, Revised Statutes. 18 61. Courts Always Open for Certain Purposes. 9, Judicial Code, 11 36 Stat. at L. 1088, Comp. St. 1911, p. 131, 1912 Supp. F. 8. A. v. 1, p. 13k- "The district courts, as courts of admiralty and as courts of equity, shall be deemed always open for the purpose of filing any plead- ing, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court." 7 67 8 68 9?5 69 10 70 11 71 12 72 13 73 a Re-enacting 574, R. S., Comp. St. 1901, p. 475, Rose's Code, 368, 4 F. S. A. 671, which is repealed by 297, Judicial Code. Same as Equity Rule 1, omitting the words -< as courts of admiralty and." McDowell v. United States, 159 U. S. 596, 600, 40 L. ed. 271, 273/16 Sup. Ct. Rep. Ill; Central Trust Co. v. Sheffield & Birmingham Coal, I. R. Co. 60 Fed. 9: Butler v. United States, 87 Fed. 655. In general, United States v. Finnell, 185 U. S. 236, 46 L. ed. 890, 22 Sup. Ct. Rep. 633; United States v. Marvin, 212 U. S. 275, 53 L. ed. 510, 29 Sup. Ct. Rep. 2t)7. 04: DISTRICT COURTS ORGANIZATION, FURTHER AS TO 29 62. Special Terms. 11, Judicial Code? 36 Stat. at L. 1088, Comp. St. 1911, p. 131, 1912 Supp. F. S. A. v. 1, p. 134. "A special term of any district court may be held at the same place where any regular term is held, or at such other place in the dis- trict as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. Any business may be transacted at such special term which might be transacted at a regular term." 63. Adjournment of Court When Judge Absent. 12, Judicial Code* 36 Stat. at L. 1088, Comp. St. 1911, p. 131, 1912 Supp. F. S. A. v. 1, p. 135. "If the judge of any district court is unable to attend at the commencement of any regular, adjourned, or special term, or any time during such term, the court may be adjourned by the marshal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct." 64. Continuance Where Office of Judge Becomes Va- cant. 22, Judicial Code,* 36 Stat. at L. 1090, Comp. St. 1911, p. 134, 1912 Supp. F. S. A. v. 1, p. 138. "When- the office of judge of any district court becomes vacant, all process. b Re-enacting 581. R. S., Rose's Code, 359, Foster's Fed. Prac. (4th ed.) p. 226, 1 Comp. St. 1901, p. 477, 4 F. S. A. 672, which is repealed by 297, Judicial Code. Butler v. United States, 87 Fed. 655; United States v. Kessel, 63 Fed. 433. Orders made in chambers. United States v. The Schooner Little Charles. 1 Brock. (U. S.) 380, 26 Fed. Cas. No. 15,613. In general, American Railroad Co. of Porto Rico v. Castro, 204 U. S. 453. 51 L. ed. 564, 27 Sup. Ct. Rep. 466; Goll v. United States, 151 Fed. 412, 80 C. C. A. 642. e Re-enacting 583, R. S., Rose's Code, 364, Comp. St. 1901, p. 478. 4 F. S. A. 673, and 671, 672, R. S., 4 F. S. A. 688, which sections are re- pealed by 297, Judicial Code. This refers to any day on which the court is appointed to sit. Pitman v. United States, 4o' Fed.' 159. The term is that session of the court which begins at a time fixed by or under authority of law, and, having proceeded continuously, ends when the business then under consideration is concluded. Pitman v. United States, supra. In general. United States v. Pitman, 147 U. S. 669, 37 L. ed. 324. 13 Sup. Ct. Rep. 425. d Re-enacting 602, R. S., Rose's Code. 181, Foster's Fed. Prac. (4th ed.) p. 682, Comp. St. 1901, p. 484, 4 F. S. A. 67!), which section is repealed by $ 297, Judicial Code. In general. Ball v. United States, 140 U. S. 118. 35 L. ed. 377. 11 Sup. Ct. Rep. 761. 30 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 67 pleadings, and proceedings pending before such court shall, if necessary, be continued by the clerk thereof until such times as a judge shall be appointed, or designated to hold such court ; and the judge so designated, while holding such court, shall possess the powers conferred by, and be subject to the provisions contained in, section nineteen." 65. Trials Commenced May Be Concluded in New Term. 8, Judicial Code* 36 Stat. at L. 1088, Comp. St. 1911, p. 130, 1912 Supp. F. 8. A. v. 1, p. 134. "When the trial or hearing of any cause, civil or criminal, in a district court has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclu- sion in the same manner and with the same eifect as if another stated term of the court had not intervened." 66. Monthly Adjournments of Regular Term to Expe- dite Criminal Cases. 10, Judicial Code,* 36 Stat. at L. 1088, Comp. St. 1911, p. 131, 1912 Supp. F. S. A. v. 1, p. 134. "District courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases." 67. Effect of Altering Terms. 1, Judicial Code, K 36 Stat. at L. 1088, Comp. St. 1911, p. 130, 1912 Supp. F. S. A. v. 1, p. 134. "No action, suit, pro- ceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of e Re-enacting 746, R. S., Rose's Code, 370, Foster's Fed. Prac. (4th ed.) p. 227, Comp. St. 1901, p. 590, 4 F. S. A. 556, which is repealed by 297, Judi- cial Code. It has been held that a trial is commenced when the term ends, al- though a full jury has not been impaneled. United States v. Loughery, 13 Blatchf. 267, 26 Fed. Cas. No. 15,631. * Re-enacting without change R. S., 578, Rose's Code, 360, Comp. St. 1901, p. 476, 4 F. S. A. 672, which is repealed by 297, Judicial Code. In general, Pitman v. United States, 45 Fed. 159. Adjournment may be after prior adjournment by the judge. Clerk entitled to fees for attendance on day of adjournment. K Re-enacting 573, R. S., Rose's Code, 369, 1 Comp. St. 1901, p. 475, 4 F. S. A. 671. Similar provision as to circuit courts repealed, 660, 69 DISTRICT COURTS ORGANIZATION, FURTHER AS TO 31 holding such court, but the same shall be deemed to be re- turnable to, pending, and triable in the terms established next after the return day thereof." x 68. Places for Keeping Records. 6, Judicial Code, 11 36 Stat. at L. 1088, Comp. St. 1911, p. 130, 1912 Supp. F. 8. A. v. 1, p. 184- "The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge." 69. Transfer and Deposit of Territorial Records on Be- coming a State. District Judge's Duty. 62, Judicial Code, 1 36 Stat. at L. 1104, Comp. St. 1911, p. 154, 1912 Supp. F. S. A. v. 1, p. 158. "When any terri- tory is admitted as a state, and a district court is established therein, all the records of the proceedings in the several cases pending in the highest court of said territory at the time of such admission, and all records of the proceedings in the sev- eral cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the Supreme Court or to the circuit court of appeals, shall be transferred to and deposited in the district court for the said state." 63, Judicial Code* 36 Stat. at L. 1104, Comp. St. 1911, p. 154, 1912 Supp. F. S. A. v. 1, p. 158. "It shall be the duty of the district judge, in the case provided in the preced- ing section, to demand of the clerk, or other person having possession or custody of the records therein mentioned, the R. S., 1 Comp. St. 1901, p. 542, 4 F. S. A. 685. McGlashan v. United States, 71 Fed. 434, 18 C. C. A. 172. i Re-enactment of 562, R. S., Rose's Code, 382, act Sept. 24, 1789, ch. 20, 3, 1 Stat. at L. 73, 1 Comp. Stat. 1901, p. 454, 4 F. S. A. p. 218, repealed by 297, Judicial Code. i Re-enacting 567, R. S., Rose's Code, 383, Foster's Fed. Prac. (4th ed.) p. 1456, Comp. St. 1901, p. 462, 4 F. S. A. 237, which section is repealed by 297, Judicial Code. In general, Benner et al. v. Porter, 50 U. S. 235, 13 L. ed. 119, 9 How. (U. S.) 235. J Re-enacting 568, R. S., Rose's Code, 383, Foster's Fed. Prac. (4th 32 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 72 delivery thereof, to be deposited in said district court; and in case of the refusal of such clerk or person to comply with such demand, the said district judge shall compel the delivery of such records by attachment or otherwise, according to law." 70. Reports of Decisions. The decisions of the district courts are to be found in the Federal Keporter, containing in lit i:; some 200 volumes. This set also contains the United States cir- cuit court decisions up to the time said court was abolished, Jan- uary 1, 1912. It also contains the decisions of the circuit court of appeals, established in 1891, and the commerce court, established in 1911, and since abolished. (See ch. 9, Judicial Code, in our Appendix.) Decisions prior to 1880 are contained in the Federal Cases. 71. Admission to Practice Before. The rules for admis- sion to practice before the district courts of the United States are contained in the court rules adopted by the several district courts, and vary in the different districts. Generally, attorneys who have been admitted to practice in the state courts are eligible and admitted on motion. 72. Rules of Court Law Actions. 14 The rules govern- ing law actions under 914 and 918 of the Revised Statutes of the United States, quoted below, conform to those of state courts of record as modified by Federal statutes and rules of practice of the district courts in the several districts. 914, R. S., Comp. St. 1901, p. 684, 4 F. S. A. 563. (Practice and proceedings in other than equity and admiral- ty causes.) "The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiral- ty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit ed.) p. 1456, Comp. St. 1901, p. -162, 4 F. S. A. 238, which section is repealed by 297, Judicial Code. ' " See ch. 18. 73 DISTRICT COURTS ORGANIZATION, FURTHER AS TO 33 or district courts are held, any rule of court to the contrary notwithstanding." 918, R. 8., Comp. St. 1901, p. 685, 4 F. 8. A. 585, Rose's Code, 805. (Practice in the several courts to be regulated by their own rules.) "The several circuit and dis- trict courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the ad- vancement of justice and the prevention of delays in pro- ceedings." 73. Rules of Court Equity Suits. 15 Equity suits are governed by the United States Statutes, Supreme Court rules, and additional district court rules. Under 917, R. S., the Supreme Court is given power to prescribe rules in equity and admiralty suits, and under 918 and 913, R. S., and Equity Rule 79, the district courts may prescribe additional rules for their own prac- tice. 918, R. S., is quoted in 72, supra. The other sections and rule mentioned above are as follows : . 917, R. S., Comp. Stat. 1901, p. 684, 4 F. S. A. 583, Rose's Code, 802, 1196. (Power of the Su- .preme Court to regulate the practice of circuit and dis- trict courts.) "The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceed- ing before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or admiralty, by the circuit and district courts." 913, R. S., Comp. St. 1901, p. 683, 4 F. S. A. cb. 29. Montg. 3. 34 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 73 56 1, Rose's Code, 936, 1195. (Mesne process, and proceedings in equity and admiralty.) "The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime juris- diction in the circuit and district courts shall be ac- cording to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not in- consistent with the laws of the United States." Equity Rule 79. k (Additional rules by district court.) "With the concurrence of a majority of the circuit judges for the circuit, the district courts may make any other and fur- ther rules and regulations for the practice, proceedings, and process, mesne and final, in their respective districts, not in- consistent with the rules hereby prescribed, and from time to time alter and amend the same." it See Equity Rule 79, with Annotations, in Appendix. CHAPTER 4. JUDICIAL DISTRICTS TERMS AND PLACES OF HOLDING COURT IN THE SEVERAL STATES. Sec. 100. The United States. 101. Alabama. 102. Arkansas. 103. Arizona. 104. California. 105. Colorado. 106. Connecticut. 107. Delaware. 108. Florida. 109. Georgia. 110. Idaho. 111. Illinois. 112. Indiana. 113. Iowa. 114. Kansas. 115. Kentucky. 116. Louisiana. 117. Maine. 118. Maryland. 119. Massachusetts. 120. Michigan. 121. Minnesota. 122. Mississippi. 123. Missouri. 124. Montana. Sec. 125. Nebraska. 126. Nevada. 127. New Hampshire. 128. New Jersey. 129. New Mexico. 130. New York. 131. North Carolina. 132. North Dakota. 133. Ohio. 134. Oklahoma. 135. Oregon. 136. Pennsylvania. 137. Rhode Island. 138. South Carolina. 139. South Dakota. 140. Tennessee. 141. Texas. 142. Utah. 143. Vermont. 144. Virginia. 145. Washington. 146. West Virginia. 147. Wisconsin. 148. Wyoming. 100. The United States. Chapter 5 of the Judicial Code, contained in our Appendix, deals with the subject-matter in this chapter contained. The chapter heading of the Code reads, "Dis- trict Courts Districts, and Provisions Applicable to Particular States." No district contains territory of more than one state, although. 35 36 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 101 a state may contain more than one district, and always contains at least one. 1 Judicial officers for these district courts are treated of in chap- ter 2. Their organization in other respects, special terms, ad- journments, places of keeping records, reports of decisions, rules for admission to practice before, and their rules of practice, are treated in chapter 3. This chapter gives the territorial boundaries of the various di- visions and districts in the several states, the times and places for holding court. 101. Alabama. 70, Judicial Code,* Comp. St. 1911, p. 156, 1912 Supp. F. S. A. v. 1, p. 161, as amended act Feb. 28, 1913, ch. 89, 37 Stat. at L. 698, 699. "The state of Alabama is divided in- to three judicial districts, to be known as the northern, mid- dle, and southern districts of Alabama. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cullman, Jack- son, Lawrence, Limestone, Madison, and Morgan, which shall constitute the northeastern division of said district; also the territory embraced on the date last mentioned in the counties of Colbert, Franklin, and Lauderdale, which shall constitute the northwestern division of said district: also the territory embraced on the date last mentioned in the counties of Cherokee, Dekalb, Etowah, Marshall, and Saint Clair, which shall constitute the middle division of said district ; also the territory embraced on the date last men- tioned in the counties of Blount, Jefferson, and Shelby, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the coun- ties of Walker, Winston, Marion, Fayette, and Lamar, which shall constitute the Jasper division of said district; also the territory embraced on the date last mentioned in the counties of Calhoun, Clay, Cleburne, and Talladega, which shall constitute the eastern division of said district; also the ter- ritory embraced on the date last mentioned in the counties of Bibb, Greene, Pickens, Sumter, and Tuscaloosa, which 1 20, infra. a Drawn from 532, R. S.. Comp. St. 1901, p. 317, 4 F. S. A. 17, and other acts, 10 F. S. A. 177, and 1909 Supp. F. S. A. 298, which are re- pealed by 297, Judicial Code. 101 JUDICIAL DISTRICTS TERMS AND LOCALITIES 37 shall constitute the western division of said district. Terms of the district court for the northeastern division shall be held at Huntsville on the first Tuesday in April and the second Tuesday in October ; for the northwestern division, at Florence on the second Tuesday in February and the third Tuesday in October: Provided, That suitable rooms* and ac- commodations for holding court at Florence shall be fur- nished free of expense to the government; for the middle division, at Gadsden on the first Tuesdays in February and August : Provided, That suitable rooms and accommodations for the holding court at Gadsden shall be furnished free of expense to the government; for the southern division, at Birmingham on the first Mondays in March and September, which courts shall remain in session for the transaction of business at least six months in each calendar year; for the Jasper division, at Jasper on the second Tuesdays in Jan- uary and June ; Provided, That suitable rooms and accommo- dations for holding court at Jasper shall be furnished free of expense to the government; for the eastern division, at Anniston on the first Mondays in May and November; and for the western division, at Tuscaloosa, on the first Tuesdays in January and June. The clerk of the court for the north- ern district shall maintain an office in charge of himself or a deputy at Anniston, at Florence, at Jasper, and at Gadsden, which shall be kept open at all times for the transaction of the business of said court. The district judge for the northern district shall reside at Birmingham. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Autauga, Bar- bour, Bullock, Butler, Chilton, Coosa, Covington, Crenshaw, Elmore, Lowndes, Montgomery, and Pike, which shall con- stitute the northern division of said district; also the terri- tory embraced on the date last mentioned in the counties of Coffee, Dale, Geneva, Henry, and Houston, which shall con- stitute the southern division of said district; also the terri- tory embraced on the date last mentioned in the counties of Chambers, Lee, Macon, Randolph, Russell, and Talla- poosa, which shall constitute the eastern division of said middle judicial district. Terms of the district court for the northern division shall be held at Montgomery on the first Tuesdays in May and December; and for the southern di- vision, at Dothan on the first Mondays in June and December and for the eastern division, at Opelika on the first Mondays in April and November: Provided, That suitable rooms and 38 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 102 accommodations for holding court at Opelika shall be fur- nished free of expense to the government. The clerk of the court for the middle district shall maintain an office, in charge of himself or a deputy, at Dothan, and shall main- tain an office in charge of himself or a deputy at Opelika, which 'said offices at Dothan and Opelika shall be kept open at all times for the transaction of the business of said di- visions. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baldwin, Choctaw, Clarke, Conecuh, Escambia, Mobile, Monroe, and Washington, which shall constitute the southern division of said dis- trict ; also the territory embraced on the date last mentioned in the counties of Dallas, Hale, Marengo, Perry, and Wilcox, which shall constitute the northern division of said district. Terms of the district court for the southern division shall be held at Mobile on the fourth Mondays in May and Novem- ber ; and for the northern division at Selma on the first Mon- days in May and November." Act Jan.. 11, 1912, ch. 10, 87 Stat. at L. 53. "That all civil causes and proceedings now pending in the circuit or the district court of the United States for the middle dis- trict of Alabama, which arose in either of the counties now embraced in the southern division of the middle district of Alabama, as established in the act approved March seventh, nineteen hundred and eight, entitled, 'An Act to Provide for Circuit and District Courts of the United States at Dothan, Alabama,' shall, upon the application of either party, be transferred to the said southern division of the middle dis- trict of Alabama for trial and disposition." 102. Arkansas. 71, Judicial Code* Comp. St. 1911, p. 158, 1912 Supp. F. S. A. v. 1, p. 162. "The state of Arkansas is divided into two districts, to be known as the eastern and western districts of Arkansas. The western district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Sevier, Howard, Little River, Pike, Hempstead, Miller, Lafayette. Columbia, Nevada, Ouachita, ' Drawn from 533, R. S. U. S. Foster's Fed. Prac. (4th ed.) p. 233, Comp. St. 1001, p. 31 n. 4 F. S. A. 18. 556, R. S. U. S. Comp. St. 1901. p. 451, 4 F. S. A. 16(i. and other acts, 10 F. S. A. 211, which statutes are repealed by 297, Judicial Code, and also 100!) Supp. F. S. A. 301. 102 JUDICIAL DISTRICTS TERMS AND LOCALITIES 39 Union, and Calhoim, which shall constitute the Texarkana division of said district ; also the territory embraced on the date last mentioned in the counties of Polk, Scott, Yell, Logan, Sebastian, Franklin, Crawford, Washington, Benton, and Johnson, which shall constitute the Fort Smith division of said district ; also the territory embraced on the date last mentioned in the counties of Baxter, Boone, Carroll, Madison, Marion, iSTewton, and Searcy, which shall constitute the Harrison division of said district. Terms of the district court for the Texarkana division shall be held at Texarkana on the second Mondays in May and November ; for the Fort Smith division, at Fort Smith on the second Mondays in January and June; and for the Harrison division, at Harri- son on the second Mondays in April and October. The east- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Lee, Phillips, Saint Francis, Cross, Monroe, and Woodruff, which constitute the eastern division of said district; also the territory embraced on the date last mentioned in the coun- ties of Independence, Cleburne, Stone, Izard, Sharp, and Jackson, which shall constitute the northern division of said district; also the territory embraced on the date last men- tioned in the counties of Crittenden, Clay, Craighead, Greene, Mississippi, Poinsett, Fulton, Randolph, and Lawrence, which shall constitute the Jonesboro division of said district ; and also the territory embraced on the date last mentioned in the counties of Arkansas, Ashley, Bradley, Chicot, Clark, Cleveland, Conway, Dallas, Desha, Drew, Faulkner, Garland, Urant, Hot Spring, Jefferson, Lincoln, Lonoke, Montgomery, Perry, Pope, Prairie, Pulaski, Saline, Van Buren, and White, which shall constitute the western division of said district. Terms of the district court for the eastern division shall be held at Helena on the second Monday in March and the first Monday in October; for the northern division, at Batesville on the fourth Monday in May and the second Monday in December; for the Jonesboro division, at Jonesboro on the second Mondays in May and November; and for the west- ern division, at Little Rock on the first Monday in April and the third Monday in October. The clerk of the court for the eastern district shall maintain an office in charge of him- self or a deputy at Little Rock, at Helena, at Jonesboro, and at Batesville, which shall be kept open at all times for the transaction of the business of the court. And the clerk of the court for the w r estern district shall maintain an office in 40 MO.Vn;oMKUY's MANUAL OF FEDERAL PROCEDURE 104 charge of himself or a deputy at Fort Smith, at Harrison, and at Texarkana, which shall be kept open at all times for the transaction of the business of the court." 103. Arizona. Act Oct. 3, 1913, ch. 11, 38 Stat. at L. 203. "That the state of Arizona shall constitute one judicial district, to be known as the district of Arizona. Sec. 2. "That terms of the district court shall be held in Tucson on the first Mondays in May and November; at Phoenix on the first Mondays in April and October ; at Pres- cott on the first Mondays in March and September; and at Globe on the first Mondays in June and December. Causes, civil and criminal, may be transferred by the court or judge thereof from any of the aforesaid places, where court shall be held in said district, to any of the places herein above mentioned in said district, when the convenience of the par- ties or the ends of justice would be promoted by the transfer; and any interlocutory order made by the court or judge thereof in any of the above-mentioned places." 104. California. 72, Judicial Code* 36 Slat, at L. 1107, Comp. St. 1911 f p. 159, 1912 Supp. F. S. A. v. 1, p. 163. "The state of Cali- fornia is divided into two districts, to be known as the north- ern and southern districts of California. The southern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Fresno,. Invo, Kern, Kings, Madera, Mariposa, Merced, and Tulare. which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Fresno on the first Monday in May and the second Monday in November ; and for the southern division at Los Angeles, on the second Monday in January and the second Monday in July, and at San Diego on the second Mondays c Drawn from 531. R. S., Foster's Fed. Prac. (4th ed.) pp. 234. 238, 240, 241. 242, 243, 246, 249, 254, 25(5. 264, 266, Comp. St. 1901. p. 316. 4 F. S. A. 16. 572. R. S., Comp. St. 1901. p. 464. 4 F. S. A. 665. 58fi. R. S. T 4 F. S. A. 674, which sections are repealed by 97, Judicial Code, and Comp. St. 324, 4 F. S. A. 20, 4 F. S. A. C95, and 1909 Supp. F. S. A. p. 302. 107 JUDICIAL DISTRICTS TEEMS AND LOCALITIES 41 in March and September. The northern district shall in- clude the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra Costa, Del Norte, El Dorado, Glenn, Humboldt, Lake, Lassen, Marin, Mendo- cino, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plu- mas, Sacramento, San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Sis- kiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba. Terms of the district court for the northern district shall be held at San Francisco on the first Monday in March, the second Monday in July, and the first Monday in November ; at Sacramento on the second Monday in April; and at Eureka on the third Monday in July."' 105. Colorado. 73, Judicial Code* 36 8 tat. at L. 1108, Comp. St. 1911, p. 160, 1912 Supp. F. S. A. v. 1, p. 164. "The state of Col- orado shall constitute one judicial district, to be known as the district of Colorado. Terms of the district court shall be held at Denver on the first Tuesdays in May and No- vember ; at Pueblo on the first Tuesday in April ; and at Mon- trose on the second Tuesday in September." 106. Connecticut. 74, Judicial Code* 36 Stat. at L. 1108, Comp. St. 1911, p. 160, 1912 Supp. F. S. A. v. 1, p. 164. "The state of Con- necticut shall constitute one judicial district, to be known as the district of Connecticut. Terms of the district court shall be held at New Haven on the fourth Tuesdays in February and September, and at Hartford on the fourth Tuesday in May and the first Tuesday in December." 107. Delaware. 75, Judicial Code, 1 36 Stat. at L. 1108, Comp. St. 1911, p. 160, 1912 Supp. F. S. A. v. 1, p. 164- "The state of Del- * Re-enacting 19 Stat. at L. 61, Foster's Fed. Prac. (4th ed.) pp. 223, 234, Comp. St. 1901, p. 328, 4 F. S. A. 22. e Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 310, 4 F. S. A. 16, as to Connecticut. f Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 310, 4 F. S. A. 16, as to Delaware 42 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 109 aware shall constitute one judicial district, to be known as the district of Delaware. Terms of the district court shall be held at Wilmington on the second Tuesdays in March, June, September, and December." 108. Florida. 16, Judicial Code? 36 Stat. at L. 1108, Comp. St. 1911, p. 160, 1912 Supp. F. 8. A. v. 1, p. 164. "The state of Flori- da is divided into two districts, to be known as the northern and southern districts of Florida. The southern district shall include the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Baker, Bradford, Brevard, Citrus, Clay, Columbia, Dade, De Soto, Duva, Hamilton, Hernando, Hillsboro, Lake, Lee, Madison, Man- atee, Marion, Monroe, Xassau, Orange, Osceola, Palm Beach, Pasco, Polk, Putnam, Saint John, Sumter, Suwanee, Saint Lucie, and Volusia. Terms of the district court for the southern district shall be held at Ocala on the third Mon- day in January; at Tampa on the second Monday in Feb- ruary; at Key West on the first Mondays in May and Novem- ber; at Jacksonville on the fii'st Monday in December; at Fernandina on the first Monday in April ; and at Miami on the fourth Monday in April. The district court for the southern district shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. The northern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Alachua, Calhoun, Escambia, Frank- lin, Gadsden, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Santa Rosa, Taylor, Wakulla, Walton, and Washington. Terms of the district court for the northern district shall be held at Tallahassee on the second Monday in January ; at Pensacola on the first Mondays in May and Xo- vember ; at Marianna on the first Monday in April ; and at Gainesville on the second Mondays in June and December." 109. Georgia. 77, Judicial Code* 36 Stat. at L. 1108, Comp. St. K Re-enacting 534. R. S., Foster's Fed. Prac. (4th ed.) p. 234, Comp. St. ]901, p. 331, 4 F. S. A. 22, and amendments thereto. 20 Stat. at L. 280, 28 Stat. at L. 117. h Re-enacting 535, R. S., Foster's Fed. Prac. (4th ed.) p. 236, Comp. 109 JUDICIAL DISTRICTS TERMS AND LOCALITIES 43 1911, p. 161, 1912 Supp. F. 8. A. v. 1, p. 165, as amended March 4, 1913, ch. 167, 37 Stat. at L. 1017. "The state of Georgia is divided into two districts, to be known as the northern and southern districts of Georgia. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Camp- bell, Carroll, Clayton, Cobb, Coweta, Cherokee, Dekalb, Douglas, Dawson, Fannin, Fayette, Fulton, Forsyth, Gilmer, Gwinnett, Hall, Henry, Lumpkin, Milton, Newton, Pickens, Rockdale, Spalding, Towns, and Union, which shall con- stitute the northern division of said district; also the terri- tory embraced on the date last mentioned in the counties of Banks, Clarke, Elbert, Franklin, Greene, Habersham, Hart, Jackson, Morgan, Madison, Ogiethorpe, Oconee, Rabun, Stephens, Walton, and White, which shall constitute the east- ern division of said district ; also the territory embraced on the date last mentioned in the counties of Chattahoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Muscogee, Quit- man, Randolph, Schley, Stewart, Talbot, Taylor, Terrell, Troup, and Webster, which shall constitute the western divi- sion of said district ; also the territory embraced on the date last mentioned in the counties of Bartow, Chattooga, Catoosa, Dade, Floyd, Gordon, Haralson, Murray, Paulding, Polk, Walker, and Whitfield, which shall constitute the north- western division of said district. Terms of the district court for northern division of said district shall be held at Atlanta on the second Monday in March and the first- Monday in October and at Gainsville on the fourth Mondays in April and November, and it shall be the duty of the judge to assign such cases, both civil and criminal, as may in his judgment be most convenient to the parties to said cases, and as may be in the interest of economical ex- penditures by the government; for the eastern division at Athens on the second Monday in April and the first Monday in November; for the western division, at Columbus on the first Mondays in May and December; and for the northwestern division, at Rome on the third Mondays in May and November. The clerk of the court for the northern district shall maintain an oifice in St. 1901, p. 333. 4 F. S. A. 23, as amended by 21 Stat. at L. 62, 63, 25 Stat. at L. 071-2, 26 Stat. at L. 1110, 31 Stat. at L. 74, 31 Stat. at L. 818-9, 32 Stat. at L. 42, 32 Stat. at L. 550. 44 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 110 charge of himself or a deputy at Athens, at Columbus, and at Rome, which shall be kept open at all times for the transaction of the business of the court. The southern dis- trict shall include the territory embraced on the said first day of July, nineteen hundred and ten, in the counties of Appling, Bulloch, Bryan, Camden, Chatham, Emanuel, Effingham, Glynn, Jeff Davis, Liberty, Montgomery, Mclntosh, Screven, Tatnall, Toombs, and Wayne, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Hancock, Houston, Jasper, Jones, Laurens, Macon, Monroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, Wilcox, and Wilkinson, which shall constitute the western division ; also the terri- tory embraced on the date last mentioned in the counties of Burke, Columbia, Glascock, Jefferson, Jenkins, Johnson, Lincoln, McDuffie, Richmond, Taliaferro, Washington, Wilkes, and Warren, which shall constitute the northeast- ern division ; also the territory embraced on the date last mentioned in the counties of Berrien, Brooks, Charlton, Clinch, Coffee, Decatur, Echols, Grady, Irwin. Lowndes, Pierce, and Ware, which shall constitute the southwestern division ; and also the territory embraced on the date last mentioned in the counties of Baker, Ben Hill, Calhoun, Crisp, Colquitt, Dougherty, Lee, Miller, Mitchell, Thomas, Tift, Turner, and Worth, which shall constitute the Albany division. Terms of the district court for the western divi- sion shall be held at Macon on the first Mondays in May and October; for the eastern division, at Savannah on the second Tuesdays in February, May, August, and November; for the northeastern division, at Augusta on the firs f Monday in April and the third Monday in November; for the south- western division, at Valdosta on the second Mondays in June and December; and for the Albany division, at Albany on the third Mondays in June and December." 110. Idaho. 78, Judicial Code* 36 Stat. at L. 1109, Comp. St. 1911, p. 162, 1912 Supp. F. S. A. v. 1, p. 166. "The state of Idaho shall constitute one judicial district, to be known as the 1 Re-enacting 27 Stat. at L. 72. Foster's Fed. Prac. (4th ed.) p. 237, 30 Rtat. at L. 423, Comp. St 1901, 342, 4 F. S. A. 26, 27. 111 JUDICIAL DISTRICTS TERMS AND LOCALITIES 45 district of Idaho. It is divided into four divisions, to be known as the northern, central, southern, and eastern divi- sions. The territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Bonner, Kootenai, and Shoshone, shall constitute the northern division of said district ; and the territory embraced on the date last men- tioned in the counties of Idaho, Latah, and Nez Perce, shall constitute the central division of said district ; and the terri- tory embraced on the. date last mentioned in the counties of Ada, Boise, Elaine, Cassia, Twin Falls, Canyon, Elmore, Lincoln, Owyhee, and Washington, shall constitute the south- ern division of said district; and the territory embraced on the date last mentioned in the counties of Bannock, Bear Lake, Bingham, Custer, Fremont, Lemhi, and Oneida, shall consti- tute the eastern division of said district. Terms of the dis- trict court for the northern division of said district shall be held at Coeur d'Alene City on the fourth Monday in May and the third Monday in November; for the central division, at Moscow on the second Monday in May and the first Monday in November; for the southern division, at Boise City on the second Mondays in February and September; and for the eastern division, at Pocatello on the second Mondays in March and October. The clerk of the court shall maintain an office in charge of himself or a deputy at Coeur d'Alene City, at Moscow, at Boise City, and at Pocatello, which shall be open at all times for the transaction of the business of the court." 111. Illinois. 79, Judicial Code? 36 Stat. at L. 1110, Comp. St. 1911, p. 163, 1912 Supp. F. S. A. v. 1, p. 166. "The state of Illinois is divided into three districts, to be known as the northern, southern, and eastern districts of Illinois. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cook, Dekalb, Dupage, Grundy^ Kane, Kendall, Lake, La- salle, McHenry, and Will, w r hich shall constitute the eastern division; also the territory embraced on the date last men- tioned in the counties of Boone, Carroll, Jo Daviess, Lee, J Re-enacting 536, R. S., Rose's Code, 415, Foster's Fed. Prac. (4th ed.) p. 2.38, Comp. St. .190], p. 344, 4 F. S. A. 27, with amendments thereto, 24 Stat. at L. 442. 46 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 111 Ogle, Stephenson, Whiteside, and Winnebago, which shall constitute the western division. Terms of the district court for the eastern division shall be held at Chicago on the first Mondays in February, March, April, May, June, July, Sep- tember, October, and November, and the third Monday in I )'- cember; and for the western division, at Freeport on the third Mondays in April and October. The clerk of the court for the northern district shall maintain an office in charge of him- self or a deputy at Chicago and at Freeport, which shall be kept open at all times for the transaction of the business of the court. The marshal for the northern district shall main- tain an office in the division in which he himself does not reside, and shall appoint at least one deputy Avho shall reside therein. The southern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Bureau, Fulton, Henderson, Henry, Knox, Livingston, McDonough, Marshall, Mercer, Putnam, Peoria, Rock Island, Stark, Tazewell, Warren, and Woodford, which shall constitute the northern division ; also the territory em- braced on the date last mentioned in the counties of Adams, Bond, Brown, Calhoun, Cass, Christian, Dewitt, Greene, Hancock, Jersey, Logan, McLean, Macon, Macoupin, Madi- son, Mason, Menard, Montgomery, Morgan, Pike, Sangamon, Schuyler, and Scott, which shall constitute the southern divi- sion. Terms of the district court for the northern division shall be held at Peoria on the third Mondays in April and Oc- tober; for the southern division, at Springfield on the first Mondays in January and June, and at Quincy on the first Mondays in March and September. The clerk of the court for the southern district shall maintain an office in charge of him- self or a deputy at Peoria, at Springfield, and at Quincy, which shall be kept open at all times for the transaction of the business of the court. The marshal for said southern district shall appoint at least one deputy residing in the said northern district, who shall maintain an office at Peoria. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alex- ander, Champaign, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Ford, Franklin, Gallatin, Hamilton, Hardin, Iroquois, Jack- son, Jasper, Jefferson, Johnson, Kankakee, Lawrence, Mar- ion, Massac, Monroe, Moultrie, Perry, Piatt, Pope, Pulaski, Randolph, Richland, Saint Clair, Saline, Shelby, Union, Vermilion, Wabash, Washington, Wayne, White, and Wil- 113 JUDICIAL DISTRICTS TERMS AND LOCALITIES 47 liamson. Terms of the district court for the eastern district shall be held at Danville on the first .Mondays in March and September; at Cairo on the first Mondays in April and Octo- ber; and at East Saint Louis on the first Mondays in May and November. The clerk of the court for the eastern dis- trict shall maintain an office in charge of himself or a deputy at Danville, at Cairo, and at East Saint Louis, which shall be kept open at all times for the transaction of the business of the court, and shall there keep the records, files, and docu- ments pertaining to the court at that place." 112. Indiana. 80, Judicial Code* 36 Stat. at L. 1110, Comp. St. 1911, p. 164, 1912 Supp. F. S. A. v. 1, p. 168. "The state of Indiana shall constitute one judicial district, to be known as the district of Indiana. Terms of the district court shall be held at Indianapolis on the first Tuesdays in May and November ; at New Albany on the first Mondays in January and July; at Evansville on the first Mondays in April and October ; at Fort Wayne on the second Tuesdays in June and December ; and at Hammond on the third Tuesdays in April and October. The clerk of the court shall appoint four deputy clerks, one of whom shall reside and keep his office at New Albany, one at Evansville, one at Fort Wayne, and one at Hammond. Each deputy shall keep in his office full records of all actions and proceedings of the district court held at that place." 113. Iowa. 81, Judicial Code, 1 36 Stat. at L. 1111, Comp. St. 1911, p. 164, 1912 Supp. F. S. A. v. 1, p. 168, as .amended act March 8, 1913, 37 Stat. at L. 735. "The state of Iowa is divided into two judicial districts, to be known as the northern and southern districts of Iowa. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alla- makee, Dubuquc, Buchanan, Clayton, Delaware, Fayette, Winneshiek, Howard, Chickasaw, Brerner, Blackhawk, Floyd, k Re-enactinjr 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16. 1 Re-enacting act of July 20, 1822, ch. 312. 22 Stat. at L. 172, Comp. St. 1901, p. 316, with amendments thereto, 26 Stat. at L. 767, Foster's Fed. Prac. (4th ed.) 240, 31 Stat. at L. 249, 4 F. S. A. 28-30. 48 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 113 Mitchell, and Jackson, which shall constitute the eastern division of said district ; also the territory embraced on the date last mentioned in the counties of Jones, Cedar, Linn, Johnson, Iowa, Benton, Tama, Grundy, and Ilardin, which shall constitute the Cedar Eapids division ; also the territory embraced on the date last mentioned in the counties of Em- met, Palo Alto, Pochahontas, Calhoun, Carroll, Kossuth. Humboldt, Webster, Winnebago, Hancock, Wright, Hamilton, Worth, Cerro Gordo, Franklin, and Butler, which shall con- stitute the central division ; also the territory embraced on the date last mentioned in the counties of Dickinson, Clay, Buena Vista, Sac, Osceola, O'Brien, Cherokee, Ida, Lyon, Sioux, Plymouth, Woodbury, and Monona, which shall con- stitute the western division. Terms of the district court for the eastern division shall be held at Dubuque on the fourth Tuesday in April and the first Tuesday in December and at Waterloo on the second Tuesdays in May and September; for the Cedar Rapids division, at Cedar Rapids on the first Tuesday in April and the fourth Tuesday in Septem- ber; for the central division, at Fort Dodge on the second Tuesdays in June and November; and for the western division, at Sioux City on the fourth Tuesday in May and the third Tuesday in October. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Louisa, Henry, Des Moines, Lee, and Van Buren, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Marshall, Story, Boone, Greene, Guthrie, Dallas, Polk, Jasper, Poweshiek, Marion, Warren, and Madison, which shall constitute the cen- tral division of said district; also the territory embraced on the date last mentioned in the counties of Crawford, Harrison, Shelby, Audubon, Cass, Pottawattamie, Mills, and Montgomery, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Adair, Adams, Clarke, Decatur, Fremont, Lucas, Page, Ringgold, Taylor, L'nion, and Wayne, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Scott, Muscatine, Washington, and Clinton, which shall constitute the Davenport division of said district ; also the territory embraced on the date last mentioned in the counties of Davis, Appanoose, Mahaska, Keokuk, Jef- ferson, Monroe, and Wapello, which shall constitute the 114: JUDICIAL DISTRICTS TERMS AND LOCALITIES 49 Ottumwa division of said court. Terms of the district court for the eastern division shall be held at Keokuk on the second Tuesday in April and the third Tuesday in October; for the central division, at Des Moines on the second Tuesday in May and the third Tuesday in November ; for the western division, at Council Bluffs on the second Tuesday in March and the third Tuesday in September; for the southern division, at Creston on the fourth Tuesday in March and the first Tuesday in November; for the Davenport division, at Davenport on the fourth Tuesday in April and the first Tuesday in October; and for the Ottumwa division, at Ot- tumwa on the first Monday after the fourth Tuesday in March, and the first Monday after the third Tuesday in October. The clerk of the court for said district shall main- tain an office in charge of himself or a deputy at Daven- port and at Ottumwa, for the transaction of the business of said divisions." 114. Kansas. 82 f Judicial Code, 36 8 tat. at L. 1112, Comp. St. 1911, p. 165, 1912 Supp. F. 8. A. v. 1, p. 168. "The state of Kansas shall constitute one judicial district, to be known as the district of Kansas. It is divided into three divisions, to be known as the first, second, and third divisions of the district of Kansas. The first division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Atchison, Brown, Chase, Chey- enne, Clay, Cloud, Decatur, Dickinson, Doniphan, Douglas, Ellis, Franklin, Geary, Gove, Graham, Jackson, Jefferson, Jewell, Johnson, Leavenworth, Lincoln, Logan, Lyon, Marion, Marshall, Mitchell, Morris, Nemaha, Norton, Os- age, Osborne, Ottawa, Phillips, Pottawatomie, Rawlins, Re- public, Riley, Rooks, Russell, Saline, Shawnee, Sheridan, Sherman, Smith, Thomas, Trego, Wabaunsee, Wallace, Washington, and Wyandotte. The second division shall include the territory embraced on the date last mentioned in the counties of Barber, Barton, Butler, Clark, Comanche, Cowley, Edwards, Ellsworth, Finney, Ford, Grant, Gray, Greeley, Hamilton, Harper, Harvey, Hodgeman, Haskell, Kingman, Kiowa, Kearny, Lane, McPherson, Morton, n Re-enacting act of June 9, 1890, ch. 403, 26 Stat. at L. 129, with amend- ments thereto, 27 Stat. at L. 24, Foster's Fed. Prac. (4th ed.) pp. 208, 240, 4 F. S. A. 31. Montg. 4. 50 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 115 Meade, Kess, Pratt, Pawnee, Eeno, Rice, Rush, Scott, Sedg- wick, Stafford, Stevens, Seward, Sumner, Stanton, and Wichita. The third division shall include the territory em- braced on the said date last mentioned in the counties of Allen, Anderson, Bourbon, Cherokee, Coffey, Chautauqua, Crawford, Elk, Greenwood, Labette, Linn, Miami, Mont- gomery, Xeosho, Wilson, and Woodson. Terms of the dis- trict court for the first division shall be held at Leavenworth on the second Monday in October; at Topeka on the second Monday in April ; at Kansas City on the second Monday in January and the first Monday in October; and at Salina on the second Monday in May; but no cause, action, or pro- ceeding shall be tried or considered at any term held at Salina unless by consent of all the parties thereto, or by order of the court for cause. Terms of the district court for the second division shall be held at Wichita on the second Mondays in March and September; and for the third di- vision, at Fort Scott on the first Monday in May and the second Monday in November. The clerk of the district court shall appoint two deputies, one of whom shall reside and keep his office at Fort Scott, and the other at Wichita ; and the marshal shall appoint a deputy who shall reside and keep his office at Fort Scott." 115. Kentucky. 83, Judicial Code? 36 Stat. at L. 1112, Comp. St. 1911, p. 166, 1912 Supp. F. S. A. v. 1, p. 170. "The state of Kentucky is divided into two districts, to be known as the eastern and western districts of Kentucky. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Carroll, Trimble, Henry, Shelby, Anderson, Mercer, Boyle, Gallatin, Boone, Kenton, Campbell, Pendleton, Grant, Owen, Franklin, Bourbon, Scott, Woodford, Fayette, Jes- samine, Garrard, Madison, Lincoln, Rockcastle, Pulaski, W T ayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry, Owsley, Jackson, Estill, Lee, Breathitt, Knott, Pike, Floyd, Magoffin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, Elliott, Morgan, Wolfe, Powell, Menifee, Clark, Montgomery, Bath, Rowan, Lewis, Flem- ing, Mason, Bracken, Robertson, Nicholas, and Harrison, n Re-enacting 531, R. S. (see Ref. 104. supra) Comp. St. 1901, p. 360, 4 F. S. A. 16. with amendments thereto, 2;> Stat. at L. 389, 31 Stat. at L. 781-2-3, 4 F. S. A. -31, 32. 115 JUDICIAL DISTKICTS TERMS AND LOCALITIES 51 with the waters thereof. Terms of the district court for the eastern district shall be held at Frankfort on the second Monday in March and the fourth Monday in September; at Covington on the first Monday in April and the third Monday in October; at Richmond on the fourth Monday in April and the second Monday in November; at London on the second Monday in May and the fourth Monday in November; at Catlettsburg on the fourth Monday in May and the second Monday in December; and at Jackson on the first Monday in March and the third Monday in Sep- tember: Provided, That suitable rooms and accommodations are furnished for holding court at Jackson, free of expense to the government until such time as a public building shall be erected there. The western district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Oldham, Jefferson, Spencer, Bullitt, Nelson, Washington, Marion, Larue, Taylor, Cassey, Green, Adair, Russell, Clinton, Cumberland, Monroe, Met- calfe, Allen, Barren, Simpson, Logan, Warren, Butler, Hart, Edmonson, Grayson, Hardin, Meade, Breckinridge, Han- cock, Daviess, Ohio, McLean, Muhlenberg, Todd, Christian, Trigg, Lyon, Caldwell, Livingston, Crittenden, Hopkins, Webster, Henderson, Union, Marshall, Calloway, Mc- Cracken, Graves, Ballard, Carlisle, Hickman, and Fulton, with the waters thereof. Terms of the district court for the western district shall be held at Louisville on the second Mondays in March and October; at Owensboro on the first Monday in May and the fourth Monday in November; at Paducah on the third Mondays in April and November ; and at Bowling Green on the third Monday in May and the second Monday in December. The clerk of the court for the eastern district shall maintain an office in charge of him- self or a deputy at Frankfort, at Covington, at Richmond, at London, at Catlettsburg, and at Jackson; and the clerk for the western district shall maintain an office in charge of himself or a deputy at Louisville, at Oweusboro, at Paducah, and at Bowling Green, each of which offices shall be kept open at all times for the transaction of the business of said court. The clerks of the courts for the eastern and western districts, upon issuing original process in a civil action, shall make it returnable to the court nearest to the county of the residence of the defendant, or of that defendant whose county is nearest to a court, and shall, immediately upon payment by the plaintiff of his fees accrued, send the papers filed to 52 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 116 the clerk of the court to which the process is made return- able; and whenever the process is not thus made returnable, any defendant may, upon motion, on or before the calling of the cause, have it transferred to the court to which it should have been sent had the clerk known the residence of the defendant when the action was brought." 116. Louisiana. 84, Judicial Code, 36 8 tat. at L. 1113, Comp. St. 1911, p. 167, 1912 Supp. F. S. A. v. 1, p. 171. "The state of Louisiana is divided into two judicial districts, to be known as the eastern and western districts of Louisiana. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the parishes of Assumption, Iberia, Jefferson, Lafourche, Or- leans, Plaquemines, Saint Bernard, Saint Charles, Saint James, Saint John the Baptist, Saint Mary, Saint Tam- many, Tangipahoa, Terrebonne, and Washington, which shall constitute the New Orleans division; also the territory embraced on the date last mentioned in the parishes of Ascension, East Baton Rouge, East Feliciana, Livingston, Pointe Coupee, Saint Helena, West Baton Rouge, Iberville, and West Feliciana, which shall constitute the Baton Rouge division of said district. Terms of the district court for the New Orleans division shall be held at New Orleans on the third Mondays in February, May, and November; and for the Baton Rouge division, at Baton Rouge on the second Mondays in April and November. The. clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at New Orleans and at Baton Rouge which shall be kept open at all times for the transaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the parishes of Saint Landry, Evangeline, Saint Martin, Lafayette, and Vermilion, which shall con- stitute the Opelousas division of said district ; also the terri- tory embraced on the date last mentioned in the parishes of Rapides, Avoyelles, Catahoula, La Salle, Grant, and Winn, which shall constitute the Alexandria division of said dis- trict; also the territory embraced on the said date last men- tioned in the parishes of Caddo, De Soto, Bossier, Webster, Re-enacting act of March 3, 1881, ch. 144, 21 Stat. at L. 507, Comp. St. 1901, p. 363, with amendments thereto, 25 Stat. at L. 388. Foster's Fed. Prac. (4th ed.) pp. 208, 241, 242, 25 Stat. at L. 438, 4 F. S. A. 33. 118 JUDICIAL DISTRICTS TERMS AND LOCALITIES 53 Claiborne, Bienville, Natch itoches, Sabine, and Red River, which shall constitute the Shreveport division of said dis- trict ; also the territory embraced on the date last men- tioned in the parishes of Ouachita, Franklin, Richland, Morehouse, East Carroll, West Carroll, Madison, Tensas, Concordia, Union, Caldwell, Jackson, and Lincoln, which shall constitute the Monroe division of said district; also the territory embraced on the date last mentioned in the parishes of Acadia, Calcasieu, Cameron, and Vernon, which shall constitute the Lake Charles division of said district. Terms of the district court for the Opelousas division shall be held at Opelousas on the first Mondays in January and June; for the Alexandria division, at Alexandria on the fourth Mondays in January and June; for the Shreveport division, at Shreveport on the third Mondays in February and October; for the Monroe division, at Monroe on the first Mondays in April and October ; and for the Lake Charles division, at Lake Charles on the third Mondays in May and December. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Opelousas, at Alexandria, at Shreveport, at Mon- roe, and at Lake Charles, which shall be kept open at all times for the transaction of the business of the court." 117. Maine. 85, Judicial Code, 36 Stat. at L. 1114, Comp. St. 1911, p. 168, 1912 Supp. F. S. A. v. 1, p. 171, as amended act Dec. 22, 1911, cli. 7, 37 Stat. at L. 51. "The state of Maine shall constitute one judicial district, to be known as the district of Maine. Terms of the district court shall be held at the times and places following: At Portland, on the first Tuesday in April, on the third Tuesday in September, and on the second Tuesday in December; at Bangor, on the first Tuesday in June : Provided, however, That in the year nineteen hundred and twelve a session shall be also held at Portland on the first Tuesday in February." 118. Maryland. 86, Judicial Code, 9 36 Stat. at L. 1114, Comp. St. o Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1801, p. 310, 4 F. S. A. 16. P Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901. p. 31G. 4 F. S. A. 10. 54 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 120 1911, p. 168, 1912 Supp. F. 8. A. v. 1, p. 172. 'The state of Maryland shall constitute one judicial district, to be known as the district of Maryland. Terms of the district court shall be held at Baltimore on the first Tuesdays in March, June, September, and December; and at Cumber- land on the second Monday in May and the last Monday in September. The clerk of the court shall appoint a deputy who shall reside and maintain an office at Cumberland, un- less the clerk shall himself reside there ; and the marshal shall also appoint a deputy who shall reside and maintain an office at Cumberland, unless he shall himself reside there." 119. Massachusetts. 81, Judicial Code* 36 Stat. at L. Ill 4, Comp. St. 1911, p. 168, 1912 Supp. F. S. A. v. 1, p. 172. "The state of Massachusetts shall constitute one judicial district, to be known as the district of Massachusetts. Terms of the dis- trict court shall be held at Boston on the third Tuesday in March, the fourth Tuesday in June, the second Tuesday in September, and the first Tuesday in December; and at Spring-field, on the second Tuesdays in May and December: Provided, That suitable rooms and accommodations for hold- ing court at Springfield shall be furnished free of expense to the government until such time as a Federal building shall be erected there for that purpose. The marshal and the clerk for said district shall each appoint at least one deputy, to reside in Springfield and to maintain an office at that place." 120. Michigan. 88, Judicial Code* 36 Stat. at L. 1114, Comp. St. 1911, p. 169, 1912 Supp. F. S. A. v. 1, pp. 172, 173, as amended act July 9, 1912, ch. 222, 37 Stat. at L. 190. "The state of Michigan is divided into two judicial districts, to be known as the eastern and western districts of Michigan. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alcona, Alpena, Arenac, Bay, Cheboygan, Clare, Craw- ford, Genesee, Gladwin, Gratiot, Huron, losco, Isabella, a Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16. r Re-enacting 538, R. S., Foster's Fed. Prac. (4th ed.) p. 245, Comp. St. 1901, p. 368, 4 F. S. A 34, with amendments thereto, 20 Stat. at L. 175, 28 Stat. at L. 67. 120 JUDICIAL DISTRICTS TERMS AND LOCALITIES 55 Midland, Montmorency, Ogemaw, Oscoda, Otsego, Presque Isle, Roscommon, Saginaw, Shiawassee, and Tuscola, which shall constitute the northern division ; also the territory em- braced on the date last mentioned in the counties of Branch, Calhoun, Clinton, Hillsdale, Ingham, Jackson, Lapeer, Lena- wee, Livingston, Macomb, Monroe, Oakland, St. Clair, Sanilac, Washtenaw, and Wayne, which shall constitute the southern division of said district. Terms of the district court for the southern division shall be held at Detroit on the first Tuesdays in March, June, and November; for the northern division, at Bay City on the first Tuesdays in May and October, and at Port Huron in the discretion of the judge of said court and at such times as he shall appoint therefor. There shall also be held a special or adjourned term of the district court at Bay City for the hearing of admiralty causes, beginning in the month of February in each year. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alger, Baraga, Chippewa, Delta, Dick- inson, Gogebic, Houghton, Iron, Keweenaw, Luce, Mack- mac, Marquette, Menominee, Ontonagon, and Schoolcraft, which shall constitute the northern division ; also the terri- tory embraced on the said date last mentioned in the counties of Allegan, Antrim, Barry, Benzie, Berrien, Cass, Charle- voix, Eaton, Emmet, Grand Traverse, Ionia, Kalamazoo, Kalkaska, Kent, Lake, Leelanau, Manistee, Mason, Mccosta, Missaukee, Montcalm, Muskegon, Newaygo, Oceana, Osceola, Ottawa, St. Joseph, Van Buren, and Wexford, which shall constitute the southern division of said district. Terms of the district court for the western district of Michigan for the southern division shall be held at Grand Rapids commencing on the first Tuesdays in March, June, October, and Decem- ber ; and for the northern division at Marquette commencing on the first Tuesdays in April and September ; and at Sault Sainte Marie commencing on the second Tuesdays in Janu- ary and July. All issues of fact shall be tried at the terms in the division where such suit shall be com- . menced. Actions in rem and admiralty may be brought in whichever division of the eastern district service can be had upon the res. Nothing herein contained shall prevent the district court of the western division from regulating, by general rule, the venue of transitory actions either at law or in equity, or from changing the same for cause. The clerk of the court for the western district shall reside and 56 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 121 keep his office at Grand Rapids, and shall also appoint a deputy clerk for Said court held at Marquette, who shall reside and keep his office at that place. The marshal for said western district shall keep an office and a deputy mar- shal at Marquette. The clerk of the court for the eastern district shall keep his office at the city of Detroit, and shall appoint a deputy for the court held at Bay City, who shall reside and keep his office at that place. The marshal for said district shall keep an office and a deputy marshal at Bay City, and mileage on service of process in said north- ern division shall be computed from Bay City." 121. Minnesota. 89 f Judicial Code* 36 Stat. at L. 1115, Comp. St, 1911, p. 110, 1912 Supp. F. 8. A. v. 1, p. 173. "The state of Minnesota shall constitute one judicial district, to be known as the district of Minnesota. It is divided into six divisions, to be known as the first, second, third, fourth, fifth, and sixth divisions. TJie first .division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Winona, Wabasha, Olm- sted, Dodge, Steele, Mower, Fillmore, and Houston. The second division shall include the territory embraced on the date last mentioned in the counties of Freeborn, Faribault, Martin, Jackson, Cobles, Rock, Pipestone, Murray, Cotton- wood, Watonwan, Blue Earth, Waseca, Lesueur, ^icollet, Brown, Redwood, Lyon, Lincoln, Yellow Medicine, Sibley, and Lac qui Parle. The third division shall include the territory embraced on the date last mentioned in the counties of Chisago, Washington, Ramsey, Dakota, Goodhue, Rice, and Scott. The fourth division shall include the territory embraced on the date last mentioned in the counties of Hen- nepin, Wright, Meeker, Kandiyohl, Swift, Chippewa, Ren- ville, McLeod, Carver, Anoka, Sherburne, and Isanti. The fifth division shall include the territory embraced on the date last mentioned in the counties of Cook, Lake, Saint Louis, Itasca, Koochiching, Cass, Crow Wing, Aitkin, Carl- ton, Pine, Kanabec, Mille Lacs, Morrison, and Benton. The sixth division shall include the territory embraced on the date last mentioned in the counties of Stearns, Pope, Ste- Re-enacting 531, R. S., Foster's Fed. Prac. (4th ed.) pp. 208, 246, Comp. St. 1901, p. 316, 4 F. S. A. 16, with amendments thereto, 26 Stat. at L.' 2-3. 122 JUDICIAL DISTRICTS TERMS AND LOCALITIES 57 vens, Bigstone, Traverse, Grant, Douglas, Todd, Ottertail, Roseau, Wilkin, Clay, Becker, Wadena, Norman, Polk, Red Lake, Marshall, Kittson, Beltrami, Clearwater, Mahnomen, and Hubbard. Terms of the district court for the first di- vision shall be held at Winona on the third Tuesdays in May and November; for the second division, at Maiikato on the fourth Tuesdays in April and October; for the third division, at Saint Paul on the first Tuesdays in June and December; for the fourth division, at Minneapolis on the first Tuesdays in April and October; for the fifth division, at Duluth on the second Tuesdays in January and July ; and for the sixth division, at Fergus Falls on the first Tuesday in May and second Tuesday in November. The clerk of the court shall appoint a deputy clerk at each place where the court is now required to be held at which the clerk shall not himself reside, who shall keep his office and reside at the place appointed for the holding of said court." 122. Mississippi. 90, Judicial Code? 36 Stat. at L. 1116, Comp. St. 1911, p. 170, 1912 Supp. F. 8. A. v. 1, p. 174, as amended act May 27, 1912, ch. 136, 37 Stat. at L. 118, 119. "The state of Mississippi is divided into two judicial districts, to be known as the northern and southern districts of Mississippi. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alcorn, Attala, Chickasaw, Choctaw, Clay, Ita- wamba, Lee, Lowndes, Monroe, Oktibbeha, Pontotoe, Pren- tiss, Tishomingo, and Winston, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Benton, Coaho- ma, Calhoun, Carroll, De Soto, Grenada, Lafayette, Mar- shall, Montgomery, Panola, Tate, Tippah, Tunica, Union, Webster, and Yalobusha, which shall constitute the western division of said district. Also the territory embraced on the date last mentioned in the counties of Bolivar, Coahoma. Leflore, Quitman, Sunflower, Tallahatchie, and Funica, which shall constitute the Delta division of said district. The terms of the district court for the eastern division shall be held at Aberdeen on the first Mondays in April and October ; and for the western division, at Oxford on the first Mondays t Re-enacting act of June 15, 1882, ch. 218, 22 Stat. at L. 101, Comp. St. 1901, p. 377, 4 F. S. A. 37, with amendments thereto, 24 Stat. at L. 127, 24 Stat. at L. 430, 24 Stat. at L. 84, 25 Stat. at L. 78, 28 Stat. at L. 114, 30 Stat. at L. 995. 58 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 123 in June and December, and for the Delta division at Glarks- dale on the fourth Mondays in January and July : Provided, That suitable rooms and accommodations for holding court at Clarksdale are furnished free of expense to the United States. The southern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Adams, Amite, Copiah, Covington, Franklin, Hinds, Holmes, Jefferson, Jefferson Davis, Lawrence, Liu- coin, Madison, Pike, Rankin, Simpson, Smith, Scott, Wilk- inson, and Yazoo, which shall constitute the Jackson divi- sion ; also the territory embraced on the date last mentioned in the counties of Claiborne, Issaquena, Sharkey, Warren, and Washington, which shall constitute the western divi- sion ; also the territory embraced on the date last mentioned in the counties of Clarke, Jones, Jasper, Kemper, Lauder- dale, Leake, Neshoba, Newton, Noxubee, and Wayne, which shall constitute the eastern division ; also the territory em- braced on the date last mentioned in the counties of Forrest, Greene, Hancock, Harrison, Jackson, Lamar, Marion, Perry, and Pearl River, which shall constitute the southern division of said district. Terms of the district court for the Jackson division shall be held at Jackson on the first Mondays in May and Xovember; for the western division, at Vicksburg 011 the first- Mondays in January and July ; for the eastern division, at Meridian on the second Mondays in March and September; and for the southern division, at Biloxi on the third Mondays in February and August. The clerk of the court for each district shall maintain an office in charge of himself or a deputy at each place in his district at which court is now required to be held, at which he shall not him- self reside, w r hich shall be kept open at all times for the transaction of the business of the court. The marshal for each of said districts shall maintain an office in charge of himself or a deputy at each place of holding court in his district." 123. Missouri. 91, Judicial Code 36 Stat. at L. 1117, Comp. St. 1911, p. Ill, 1912 Supp. F. 8. A. v. 1, p. 175, as amended act Dec. 22, 1911,' ' ch. 8, 37 Stat. at L. 51, 52. "The state of Missouri is divided into two judicial districts, to be known as the eastern and western districts of Missouri. The eastern u Re-enacting act of Feb. 28, 1887, ch. 271, 24 Stat. at L. 424, Comp. St. 1901, p. 384, and amendments thereto, 29 Stat. at L. 502, Foster's Fed. Prac. (4th ed.) p. 244, 31 Stat. at L. 739. 123 JUDICIAL DISTRICTS TERMS AND LOCALITIES 59 district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the city of Saint Louis and the counties of Audrain, Crawford, Dent, Frank- lin, Gasconade, Iron, Jefferson, Lincoln, Maries, Montgom- ery, Phelps, Saint Charles, Saint Francois, Sainte Gene- vieve, Saint Louis, Warren, and Washington, which shall constitute the eastern division of said district ; also the terri- tory embraced on the date last mentioned in the counties of Adair, Chariton, Clark, Knox, Lewis, Linn, Macon, Marion, Monroe, Pike, Rails, Randolph, Schuyler, Scotland, and Shelby, which shall constitute the northern division of said district ; also the territory embraced on the date last men- tioned in the counties of Bellinger, Butler, Cape Girardeau, Carter, Dunklin, Madison, Mississippi, Xew Madrid, Pemis- cot, Perry, Reynolds, Ripley, Scott, Shannon, Stoddard. and Wayne,. which shall constitute the southeastern division of said district. Terms of the district court for the eastern division shall be held at Saint Louis on the third Mondays in March and September, and at Rolla on the second Mondays in January and June: Provided, That suitable rooms and ac- commodations for holding court at Rolla are furnished free of expense to the United States ; for the northern division, at Hannibal on the fourth Monday in May and the first Monday in December; and for the southeastern division, at Cape Girardeau on the second Mondays in April and Octo- ber. The western district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Bates, Caldwell, Carroll, Cass, Clay, Grundy, Henry, Jackson, Johnson, Lafayette, Livingston, Mercer, Putnam, Ray, Saint Clair, Saline, and Sullivan, which shall constitute the western division ; also the terri- tory embraced on the date last mentioned in the counties of Barton, Barry, Jasper, Lawrence, McDonald, Xewton, Stone, and Vernon, which shall constitute the southwestern division ; also the territory embraced on the date last mentioned in the counties at Andrew, Atchison, Buchanan, Clinton, Daviess, Dekalb, Gentry, Holt, Harrison, ^Todaway, Platte, and Worth, which shall constitute the Saint Joseph division ; also the territory embraced on the date last mentioned in the counties of Benton, Boone, Callaway, Cooper, Camden, Cole, Hickory, Howard, Miller, Moniteau, Morgan, Osage, and Pettis, which shall constitute the central division; also the territory embraced on the date. last mentioned in the counties of Christian, Cedar, Dade, Dallas, Douglas, Greene, Howell, Laclede, Oregon, Ozark, Polk, Pulaski, Taney, Texas, Web- ster, and Wright, which shall constitute the southern division. 60 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 124 Terms of the district court for the western division shall be held at Kansas City on the fourth Monday in April and the first Monday in November, and at Chillicothe on the fourth Monday in May and the first Monday in December : Provided. That suitable rooms and accommodations for holding court at Chillicothe are furnished free of expense to the United States; for the southwestern division, at Joplin on the second Mondays in June and January; for the Saint Joseph divi- sion, at Saint Joseph on the first Monday in March and third Monday in September; for the central division, at Jefferson City on the third Mondays in March and October; and for the southern division, at Springfield on the first Mondays in April and October. The clerk of the court at Saint Louis in the eastern district shall maintain an office in charge of himself or a deputy at Saint Louis and Hannibal, and at such other places of holding court in said district as may be deemed necessary to the judge, which shall be kept open at all times for the transaction of the business of the court. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Kansas City, at Jefferson City, at Saint Joseph, at Chillicothe, at Joplin, and at Springfield, which shall be kept open at all times for the transaction of the business of the court. The marshal for each district shall also maintain an office in charge of himself or a deputy at each place at which court is now held in his district." 124. Montana. 92, Judicial Code? 36 Stat. cut L. 1118, Comp. St. 1911, p. 113, 1912 Supp. F. 8. A. v. 1, p. 176. "The state of Montana shall constitute one judicial district to be known as the district of Montana. Terms of the district court shall be held at Helena on the first Mondays in April and No- vember; at Butte on the first Tuesdays in February and September; at Great Falls on the first Mondays in May and October; at Missoula on the first Mondays in January and June; and at Billings on the first Mondays in March and August. Causes, civil and criminal, may be transferred by the court or judge thereof from Helena to Butte or from Butte to Helena, or from Helena or Butte to Great Falls, or from Great Falls to Helena or Butte, in said district, when the convenience of the parties or the ends of justice would be promoted by the transfer; and any interlocutory order may be made by the court or judge thereof in either place." v Re-enacting 25 Stat. at L. 628, 4 F. S. A. 42. 125 JUDICIAL DISTRICTS TERMS AND LOCALITIES 61 125. Nebraska. 93, Judicial Code 36 Stat. at L. 1118, Comp. St. 1911, p. 113, 1912 Supp. F. 8. A. v. 1, pp. 116, 111. "The state of Nebraska shall constitute one judicial district, to be known as the district of Nebraska. Said district is divided into eight divisions. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Douglas, Sarpy, Washington, Dodge, Colfax, Platte, Nance, Boone, Wheeler, Burt, Thurston, Dakota, Cuming, Cedar, and Dixon, shall constitute the Omaha division ; the territory em- braced on the date last mentioned in the counties of Madison, Antelope, Knox, Pierce, Stanton, Wayne, Holt, Boyd, Eock, Brown, and Keya Paha, shall constitute the Norfolk divi- sion ; the territory embraced on the date last mentioned in the counties of Cherry, Sheridan, Dawes, Box Butte, and Sioux, shall constitute the Chadron division; the territory embraced on the date last mentioned in the counties of Hall, Merrick, Howard, Greeley, Garfield, Valley, Sherman, Buf- falo, Custer, Loup, Elaine, Thomas, Hooker, and Grant, shall constitute the Grand Island division; the territory em- braced on the date last mentioned in the counties of Lincoln, Dawson, Logan, McPherson, Keith, Deuel, Garden, Morrill, Cheyenne, Kimball, Banner, and Scott's Bluff, shall consti- tute the North Platte division ; the territory embraced on the date last mentioned in the counties of Cass, Otoe, Johnson, Nemaha, Pawnee, Eichardson, Gage, Lancaster, Saunders, Butler, Seward, Saline, Jefferson, Thayer, Fillmore, York, Polk, and Hamilton, shall constitute the Lincoln division ; the territory embraced on the date last mentioned in the counties of Clay, Nuckolls, Webster, Adams, Kearney, Franklin, Harlan, and Phelps, shall constitute the Hastings division ; and the territory embraced on the date last men- tioned in the counties of Gosper, Furnas, Eed Willow, Fron- tier, Hayes, Hitchcock, Dundy, Chase, and Perkins, shall constitute the McCook division. Terms of the district court for the Omaha division shall be held at Omaha on the first Monday in April and the fourth Monday in September; for the Norfolk division, at Norfolk on the third Monday in September; for the Chadron division, at Chadron on the second Monday in September ; for the Grand Island division, at Grand Island on the second Monday in January; for the North Platte division, at North Platte on the second ^Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 15)01, p. 316, 4 F. S. A. 16. 62 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 128 Monday in June; for the Lincoln division, at Lincoln on the second Monday in May and the first Monday in October ; for the Hastings division, at Hastings on the second Monday in March ; and for the McCook division, at McCook on the first Monday in March: Provided, That where provision is made herein for holding court at places where there are no Federal buildings, a suitable room in which to hold court, together with light and heat, shall be provided by the city or county where such court is held, without any expense to the United States. The clerk of the court shall appoint a deputy for each division of the district in which he does not himself reside, who shall keep his office and reside at the place of holding court in the division for which he is ap- pointed." 126. Nevada. 94, Judicial Code* 36 Stat. at L. 1118, Comp. St. 1911, p. Ilk, 1912 Supp. F. 8. A. v. 1, p. 111. "The state of Nevada shall constitute one judicial district, to be known as the district of Nevada. Terms of the district court shall be held at Carson City on the first Mondays in February, May, and October." 127. New Hampshire. 95, Judicial Code, 7 36 Stat. at L. 1119, Comp. St. 1911, p. 174, 1912 Supp. F. 8. A. v. 1, p. 177, as amended act August 23, 1912, ch. 344, 37 Stat. at L. 357. "The state of New Hampshire shall constitute one judicial district, to be known as the district of New Hampshire. Terms of the dis- trict court shall be held at Portsmouth on the last Tuesday in October; at Concord on the last Tuesday in April and sec- ond Tuesday in December; and at Littleton on the third Tuesday in September." 128. New Jersey. ; 96, Judicial Code,' 36 Stat. at L. 1119, Comp. St. 1911, p. 174, 1912 Supp. F. 8. A. v. 1, p. 177, as am.end.ed act Feb. 14, 1913, ch. 53, 37 Stat. at L. 675. The state of New x Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16. y Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 1 F. S. A. 16. 'Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16. 129 JUDICIAL DISTRICTS TERMS AND LOCALITIES 63 Jersey shall constitute one judicial district, to be known as the district of New Jersey. Terms of the district court shall be held at Newark on the first Tuesday in April and the first Tuesday in November ; and at Trenton on the third Tuesday in January and the second Tuesday in. September of each year. The clerk of the court for the district of New Jersey shall maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the busi- ness of the court ; and the marshal shall also maintain an office, in charge of himself or a deputy, at Newark and at Trenton, each of which offices shall be kept open at all times for the transaction of the business of the court." 129. New Mexico. 13, Ad June 20, 1910, ch. 310, Comp. St. 1911, p. 174, 1912 Supp. F. 8. A. p. 364. "That the state, when ad- mitted as aforesaid, shall constitute one judicial district, and the circuit and district courts of said district shall be held at the capital of said state, and the said district shall, for judicial purposes, be attached to the eighth judicial cir- cuit. There shall be appointed for said district one district judge, one United States attorney, and one United States marshal. The judge of said district shall receive a yearly salary the same as other similar judges of the United States, payable as provided for by law, and shall reside in the dis- trict to which he is appointed. There shall be appointed clerks of said courts, who shall keep their offices at the capital of said state. The regular terms of said courts shall be held on the first Monday in April and the first Monday in October of each year. The circuit and district courts for said district, and the judges thereof, respectively, shall pos- sess the same powers and jurisdiction and perform the same duties required to be performed by the other circuit and dis- trict courts and judges of the United States, and shall be governed by the same laws and regulations. The marshal, district attorney, and the clerks of the circuit and district courts of said district, and all other officers and persons per- forming duties in the administration of justice therein, shall severally possess the powers and perform the duties lawfully possessed and required to be performed by similar officers in other districts of the United States, and shall, for the services they may perform, receive the fees and compensation now allowed by law to officers performing similar services for the 64 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 130 United States in the Territory of New Mexico." (36 Stat. at L. 565.) 130. New York. '91, Judicial Code,* 36 Stat. at L. 1119, Comp. St. 1911, p. 175, 1912 Supp. F. S. A. v. 1, p. 177. "The state of New York is divided into four judicial districts, to be known as the northern, eastern, southern, and western dis- tricts of New York. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Albany, Broome, Cayuga, Chen- ango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Madison, Montgom- ery, Oneida, Onondaga, Oswego, Otsego, Rensselaer, Saint Lawrence, Saratoga, Schenectady, Schoharie, Tioga, Tomp- kins, Warren, and Washington, with the waters thereof. Terms of the district court for said district shall be held at Albany on the second Tuesday in February ; at Utica on the first Tuesday in December; at Binghamton on the second Tuesday in June; at Auburn on the first Tuesday in Octo- ber; at Syracuse on the first Tuesday in April; and, in the discretion of the judge of the court, one term annually at sach time and place within the counties of Saratoga, Onon- daga, Saint Lawrence, Clinton, Jefferson, Oswego, and Franklin, as he may from time to time appoint. Such ap- pointment shall be made by notice of at least twenty days published in a newspaper published at the place where said court is to be held. The eastern district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Richmond, Kings, Queens, Nassau, and Suffolk, with the waters thereof. Terms of the district court for said district shall be held at Brooklyn on the first Wednesday in every month. The southern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Columbia, Dutchess, Greene, New York, Orange, Putnam, Eockland, Sullivan, Ulster, and Westchester, with the waters thereof. Terms of the district court for said district shall be held at New York city on the first Tuesday in each month. The dis- trict courts of the southern and eastern districts shall have a Drawn from 597, R. S., Rose's Code, 473, Foster's Fed. Prac. (4th ed.) p. 682, Comp. St. 1901, pp. 394, 397, 4 F. S. A. 678, and 599, R. S. Comp. St. 1901, p. 395, 4 F. S. A. 716. 131 JUDICIAL DISTRICTS TEKMS AND LOCALITIES 65 concurrent jurisdiction over the waters within the counties of New York, Kings, Queens, Nassau, Richmond, and Suf- folk, and over all seizures made and all matters done in such waters; all processes or orders issued within either of said courts or by any judge thereof shall run and be executed in any part of said waters. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steubeh, Wayne, Wyoming, and Yates, with the waters thereof. Terms of the district court for said district shall be held at Elmira on the second Tuesday in January; at Buffalo on the second Tuesdays in March and November; at Rochester on the second Tuesday in May ; at Jamestown on the second Tuesday in July; at Lockport on the second Tuesday in October ; and at Canandaigua on the second Tuesday in Sep- tember. The regular sessions of the district court for the western district for the hearing of motions and for proceed- ings in bankruptcy and the trial of causes in admiralty, shall be held at Buffalo at least two weeks in each month of the year, except August, unless the business is sooner dis- posed of. The times for holding the same and such other special sessions as the court shall deem necessary shall be fixed by the rules of the court. All process in admiralty causes and proceedings shall be made returnable at Buffalo. The judge of any district in the state of New York may per- form the duties of the judge of any other district in such state upon the request of any resident judge entered in the minutes of his court; and in such cases such judge shall have the same powers as are vested in the resident judge." 131. North Carolina. 98, Judicial Code* 36 Stat. at L. 1120, Comp. St. 1911, p. 116, 1912 Supp. F. 8. A. v. 1, p. 118. "The state of North Carolina is divided into two districts, to be known as the eastern and w r estern districts of North Carolina. The east- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of b Re-enacting 543, R. S., Foster's Fed. Prac. (4th ed.) p. 252, Comp. St. 1901. p. 397, 4 F. S. A. 44, and amendment thereto, 28 Stat. at L. 274-5. Montg. 5. 66 MONTGOMERY'S MANUAL OF FEDERAL, PROCEDURE 131 Beaufort, Bertie, Bladen, Brunswick, Camden, Chatham, Cumberland, Currituck, Craven, Columbus, Chowan, Carter- et, Dare, Duplin, Durham, Edgecomb, Franklin, Gates, Granville, Greene, Halifax, Harnett, Hertford, Hyde, Johns- ton, Jones, Lenoir, Lee, Martin, Moore, Nash, New Han- over, Northampton, Onslow, Pamlico, Pasquotank, Fender, Perquimans, Person, Pitt, Robeson, Richmond, Sampson, Scotland, Tyrrell, Vance, Wake, Warren, Washington, Wayne, and Wilson. Terms of the district court for the eastern district shall be held at Elizabeth City on the second Mondays in April and October; at Washington on the third Mondays in April and October; at Newbern on the fourth Mondays in April and October ; at Wilmington on the second Monday after the fourth Mondays in April and October; and at Raleigh on the fourth Monday after the fourth Mon- days in April and October: Provided, That the city of Washington shall provide and furnish at its own expense a suitable and convenient place for holding the district court at Washington until a courthouse shall be constructed by the United States. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Raleigh, at Wilmington, at Newbern, at Elizabeth City, and at Washington, which shall be kept open at all times for the transaction of the business of the court. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alamance, Alexander, Ashe, Alleghany, Anson, Bun- combe, Burke, Caswell, Cabarrus, Catawba, Cleveland, Cald- well, Clay, Cherokee, Davidson, Davie, Forsyth, Guilford, Gaston, Graham, Henderson, Haywood, Iredell, Jackson, Lincoln, Montgomery, Mecklenburg, Mitchell, McDowell, Madison, Macon, Orange, Polk, Randolph, Rockingham, Rowan, Rutherford, Stanley, Stokes, Surry, Swain, Tran- sylvania, Union, Wilkes, Watauga, Yadkin, and Yancey. Terms of the district court for the western district shall be held at Greensboro on the first Mondays in June and De- cember; at Statesville on the third Mondays in April and October ; at Salisbury on the fourth Mondays in April and October ; at Asheville on the first Mondays in May and No- vember ; at Charlotte on the first Mondays in April and Octo- ber; and at Wilkesboro on the 'fourth Mondays in May and November. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at 132 JUDICIAL DISTRICTS TERMS AND LOCALITIES G7 Greensboro, at Asheville, at Statesville, and at Wilkesboro, which shall be kept open at all times for the transaction of the business of the court." 132. North Dakota. 99, Judicial Code* 36 8 tat. at L. 1121, Comp. St. 1911, p. Ill, 1912 Supp. F. 8. A. v. 1, p. 179, as amended Feb. 5, 1912, ch. 28, 37 Stat. at L. 59. "The state of North Da- kota shall constitute one judicial district, to be known as the district of North Dakota. The territory embraced on the first day of July, nineteen hundred and ten, in the counties of Burleigh, Stutsman, Logan, Mclntosh, Emmons, Kidder, Foster, Wells, McLean, Sheridan, Adams, Bowman, Dunn, Hettinger, Morton, Stark, and McKenzie, shall consti- tute the southwestern division of said district; and the ter- ritory embraced on the date last mentioned in the counties of Cass, Richland, Barnes, Dickey, Sargent, Lamoure, Ransom, Griggs, and Steele, shall constitute the southeastern division ; and the territory embraced on the date last mentioned in the counties of Grand Forks, Traill, Walsh, Pembina, Cavalier, and Nelson, shall constitute the northeastern division ; and the territory embraced on the date last mentioned in the counties of Ramsey, Eddy, Benson, Towner, Rolette, Bot- tineau, Pierce, and McHenry, shall constitute the northwest- ern division ; and the territory embraced on the date last mentioned in the counties of Ward, Williams, Montraille, Burk, and Renville, shall constitute the western division. The several Indian reservations and parts thereof within said state shall constitute a part of the several divisions within which they are respectively situated. Terms of the district court for the southwestern division shall be held at Bismarck on the first Tuesday in March ; for the southeastern division, at Fargo on the third Tuesday in May ; for the northeastern division, at Grand Forks on the second Tuesday in November ; for the northwestern division, at Devils Lake on the first Tuesday in July ; and for the western division, at Minot on the second Tuesday in October. The clerk of the court shall maintain an office in charge of himself or a- deputy at each place at which court is now held in his district." c Ee-enacting act of April 26, 1890, ch. 161, 26 Stat. at L. 67, Foster's Fed. Prac. (4th ed.) pp. 208, 252, Comp. St. 1901, p. 399, 4 F. S. A. 45. 08 .Mo.NTiii.MKRY's MANUAL OF FEDERAL PROCEDURE 133 133. Ohio. 100, Judicial Code? 36 Stat. at L. 1121, Comp. St. 1911, p. 178, 1912 Supp. F. 8. A. v. 1, p. 180. "The state of Ohio is divided into two judicial districts, to be known as the northern and southern districts of Ohio. The north- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Ashland, Ashtabula, Cuyahoga, Carroll, Columbiana, Craw- ford, Geauga, Holmes, Lake, Lorain, Medina, Mahoning, Portage, Richland, Summit, Stark, Tuscarawas, Truinbull, and Wayne, which shall constitute the eastern division ; also the territory embraced on the date last mentioned in the coun- ties of Auglaize, Allen, Defiance, Erie, Fulton, Henry, Han- cock, Hardin, Huron, Lucas, Mercer, Marion, Ottawa, Pauld- ing, Putnam, Seneca, Sandusky, Van Wert, Williams, Wood, and Wyandotte, which -shall constitute the western division of said district. Terms of the district court for the eastern division shall be held at Cleveland on the first Tuesdays in February, April, and October, and at Youngstown on the first Tuesday after the first Monday in March ; and for the western division, at Toledo on the last Tuesdays in April and October. Grand and petit jurors summoned for service at a term of court to be held at Cleveland may, if in the opinion of the court the public convenience so requires, be directed to serve also at the term then being held or author- ized to be held at Youngstown. Crimes and offenses com- mitted in the eastern division shall be cognizable at the terms held at Cleveland, or at Youngstown, as the court may direct. Any suit brought in the eastern division may, in the dis- cretion of the court, be tried at the term held at Youngs- town. The southern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Adams, Brown, Butler, Champaign, Clark, Clermont, Clinton, Darke, Greene, Hamilton, Highland, Lawrence, Miami, Montgomery, Preble, Scioto, Shelby, and Warren, which shall constitute the western division ; also the territory embraced on the date last mentioned in the counties of Athens, Belmont, Coshocton, Delaware, Fairfield, Fayette, Franklin, Gallia, Guernsey, Harrison, Hocking, Jackson, Jefferson, Knox, Licking, Logan, Madison, Meigs, Monroe, Morgan, Morrow, Muskingum, Noble, Perry, Pickaway, l Re-enacting 544. R. S., Comp. St. 1901, p. 401, 4 F. S. A. 46, with amendments thereto, 20 Stat. at L. 101, 21 Stat. at L. 63, 26 Stat. at L. 799. 13-i JUDICIAL DISTRICTS TERMS AXD LOCALITIES "69 Pike, Ross, Union, Vinton, and Washington, which shall constitute the eastern division of said district. Terms of the district court for the western division shall be held at Cin- cinnati on the first Tuesdays in February, April, and Octo- ber; and for the eastern division, at Columbus on the first Tuesdays in June and December: Provided, That terms of the district court for the southern district shall be held at Dayton on the first Mondays in May and November. Pros 4 - ecutions for crimes and offenses committed in any part of said district shall also be cognizable at the terms held at Dayton. All suits which may be brought within the south- ern district, or either division thereof, may be instituted, tried, and determined at the terms held at Dayton." 134. Oklahoma. 101, Judicial Code* 36 Stat. at L. 1122, Comp. St. 1911, p. 179, 1912 Supp. F. 8. A. v. 1, p. 181. "The state of Oklahoma is divided into two judicial districts, to be known as the eastern and the western districts of Oklahoma. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adair, Atoka, Bryan, Craig, Cherokee, Creek, Choctaw, Coal, Carter, Delaware, Garvin, Grady, Haskell, Hughes, Johnson, Jefferson, Latimer, Le Flore, Love, Mc- Clain, Mayes, Muskogee, Mclntosh, McCurtain, Murray, Marshall, Nowata, Ottawa, Okmulgee, Ofuskee, Pittsburg, Pushmataha, Pontotoc, Rogers, Stephens, Sequoyah, Sem- inole, Tulsa, Washington, and Wagoner. Terms of the dis- trict court for the eastern district shall be held at Muskogee on the first Monday in January ; at Vinita on the first Mon- day in March ; at Tulsa on the first Monday in April ; at South McAlester on the first Monday in June; at Ardmore on the first Monday in October; and at Chickasha on the first Monday in November in each year. The western dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Custer, Dewey, Ellis, Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, Logan, Majors, Noble, Oklahoma, Osage, Pawnee, Payne, Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods, and Woodward. Terms of the district court for the New legislation, Oklahoma being new state. 70 MONTGOMEKY'S MANUAL OF FEDERAL PROCEDURE 130 district shall be held at Guthrie on the first Monday in Janu- ary; at Oklahoma City on the first Monday in March; at Enid on the first Monday in June; at Lawton on the first Monday in September; and at Woodward on the first Mon- day in November: Provided, That suitable rooms and ac- commodations for holding court at Woodward are furnished free of expense to the United States. The clerk of the dis- trict court for the eastern district shall keep his office at Mus- kogee, and the clerk for the western district at Guthrie, and shall maintain an office in charge of himself or a deputy at Oklahoma City. 135. Oregon. 102, Judicial Code? 36 Stat. at L. 1122, Comp. St. 1911, p. 179, 1912 Supp. F. 8. A. v. 1, p. 181. "The state of Oregon shall constitute one judicial district, to be known as the district of Oregon. Terms of the district court shall be held at Portland on the first Mondays in March, July, and November ; at Pendleton on the first Tuesday in April ; and at Medford on the first Tuesday in October. The mar- shal and the clerk for said district shall each appoint, in the manner provided by law, at least one deputy at Pendleton and one at Medford, who shall reside and maintain an office at each of said places." 136. Pennsylvania. 103, Judicial Code* 36 Stat. at L. 1123, Comp. St. 1911, p. 180, 1912 Supp. F. S. A. v. 1, p. 182, as amended mi March 3, 1913, ch. 113, 37 Stat. at L. 730, 731. "The state of Pennsylvania is divided into three judicial districts, to be known as the eastern, middle, and western districts of Pennsylvania. The eastern district shall include the terri- tory embraced on the first day of July, nineteen hundred and ten, in the counties of Berks, Bucks, Chester, Delaware, Lancaster, Lehigh, Montgomery, Northampton, Philadel- phia, and Schuylkill. Terms of the district court shall be held at Philadelphia on the second Mondays in March and June, the third Monday in September, and the second Mon- day in December, each term to continue until the succeeding * Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16. K Re-enacting 545, R. S., Foster's Fed. Prac. (4th ed.) p. 255, Comp. St. 1901, p. 405, 4 F. S. A. 47, with amendments thereto, 31 Stat. at L. 880. 138 JUDICIAL DISTRICTS TERMS AND LOCALITIES 71 term begins. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Bradford, Cameron, Carbon, Cen- ter, Clinton, Columbia, Cumberland, Dauphin, Franklin, Ful- ton, Huntingdon, Juniata, Lackawanna, Lebanon, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northumberland, Perry, Pike, Potter, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming, and York. Terms of the district court shall be held at Scranton on the second Monday in March and the third Monday in October ; at Harrisburg on the first Mondays in May and December ; at Sanbury on the second Monday in January ; and at Williamsport on the first Monday in June. The clerk of the court for the middle dis- trict shall maintain an office in charge of himself or a deputy at Harrisburg; and civil suits instituted at that place shall be tried there, if either party resides nearest that place of holding court, unless by consent of parties they are removed to another place for trial. The western district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jef- ferson, Lawrence, McKean, Mercer, Somerset, Venango, Warren, Washington, and Westmoreland. Terms of the dis- trict court shall be held at Pittsburg on the first Monday in May and the third Monday in October; and at Erie on the third Monday in July and the second Monday in January." 137. Rhode Island. 10k, Judicial Code* 36 Stat. at L. 1123, Comp. St. 1911, p. 180, 1912 Supp. F. S. A. v. 1, p. 182, as amended Feb. 1, 1912, ch. 21, 37 Stat. at L. 59. "The state of Khode Island shall constitute one judicial district, to be known as the district of Rhode Island ; terms of the district court shall be held at Providence on the fourth Tuesday in May and the third Tuesday in November." 138. South Carolina. 105, Judicial Code, 1 36 Stat. at L. 1128, Comp. St. 1911, p. 180, 1912 Supp. F. S. A. v. 1, p. 182, as amended h Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16, amended Feb. 1, 1912, ch. 27, 37 Stat. at L. 59. * Re-enacting 546, R. S., Rose's Code, 285, Foster's Fed. Prac. (4th 72 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 139 February 5, 1912, ch. 28, 37 Stat. at L. 59, 60. "The state of South Carolina is divided into two districts, to be known as the eastern and western districts of South Carolina. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Abbeville, Anderson, Cherokee, Chester, Edgefield, Fair- field, Greenville, Greenwood, Lancaster, Laurens, Newberry, Oconee, Pickens, Saluda, Spartanburg, Union, and York. Terms of the district court for the western district shall be held at Greenville on the third Tuesdays in April and Oc- tober. The eastern district shall include the territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Aiken, Bamberg, Barnwell, Beaufort, Berkeley, Calhoun, Charleston, Chesterfield, Clarendon, Col- leton, Darlington, Dillon, Dorchester, Florence, Georgetown, Hampton, Horry, Kershaw, Lee, Lexington, Marion, Marl- boro, Orangeburg, Richland, Sumter, and Williamsburg. Terms of the district court for the eastern district shall be held at Charleston on the first Tuesdays in June and December; at Columbia on the third Tuesday in January and the first Tuesday in November, the latter term to be solely for the trial of civil cases ; and at Florence on the first Tuesday in March. The offices of the clerk of the district court shall be at Greenville, and at Charleston ; and the clerk shall re- side in one of said cities and have a deputy in the other." / 139. South Dakota. 106, Judicial Code* 36 Stat. at L. 1123, Comp. St. 1911, p. 181, 1912 Supp. F. S. A. v. 1, p. 183. "The state of South Dakota shall constitute one judicial district, to be known as the district of South Dakota. The territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Aurora, Beadle, Bon Homme. Brookings, Brule, Charles Mix, Clay, Davison, Douglas, Gregory, Han- son, Hutchinson, Kingsbury, Lake, Lincoln, McCook, Min- er, Minnehaha, Moody, Sanborn, Turner, Union, and Yank- ton, and in the Yankton Indian reservation, shall constitute the southern division of said district ; the territory embraced on the date last mentioned in the counties of Brown. Camp- bell, Clark, Codington, Corson, Day, Deuel, Edmunds, ed.) p. 256, Comp. St. 1901, p. 407, 4 F. S. A. 48, which section is expressly re- pealed by 297, Judicial Code. J Re-enacting act of November 3, 1893, ch. 10, 28 Stat. at L. 5, Foster's Fed. Prac. (4th ed.) pp. 237, 2.57, Comp. St. 1901, p. 410, 4 F. S. A. 49. JUDICIAL DISTRICTS TERMS AND LOCALITIES 73 Grant, Ilamlin, McPherson, Marshall, Roberts, Schnasse, Spink, and Walworth, and in the Sisseton and Wahpeton Indian reservation, and in that portion of the Standing Rock Indian reservation lying in South Dakota, shall con- stitute the northern division ; the territory embraced on the date last mentioned in the counties of Armstrong, Buffalo, Dewey, Faulk, Hand, Hughes, Hyde, Jerauld, Lyman, Pot- ter, Stanley, and Sully, and in the Cheyenne River, Lower Brule, and Crow Creek Indian reservations, shall constitute the central division ; and the territory embraced on the date last mentioned in the counties of Bennett, Butte, Custer, Fall River, Harding, Lawrence, Meade, Mellette, Penning- ton, Perkins, Shannon, Todd, Tripp, Washabaugh, and Washington, and in the Rosebud and Pine Ridge Indian reservations, shall constitute the western division. Terms of the district court for the southern division shall be held at Sioux Falls on the first Tuesday in April and the third Tuesday in October; for the northern division, at Aberdeen on the first Tuesday in May and the second Tuesday in November; for the central division, at Pierre on the second Tuesday in June and the first Tuesday in October; and for the western division, at Deadwood on the third Tuesday in May and the first Tuesday in September. The clerk of the district court shall maintain an office in charge of himself or a deputy at Sioux Falls, at Pierre, at Aberdeen, and at Deadwood, which shall be kept open for the transaction of the business of the court." 140. Tennessee. 101, Judicial Code* 36 Stat. at L. 1124, Comp. St. 1911, p. 182, 1912 Supp. F. 8. A. v. 1, p. 183, as amended ad August 20, 1912, eh. 306, 37 Stat. at L. 314, 315. "The state of Tennessee is divided into three districts, to be known as the eastern, middle, and western districts of Tennessee. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bledsoe, Bradley, Hamilton, James, McMinn, Marion, Meigs, Polk, Rhea, and Sequatchie, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the coun- ties of Anderson, Blount, Campbell, Claiborne, Grainger, Jefferson, Knox, London, Monroe, Morgan, Roane, Sevier, Scott, and Union, which shall constitute the northern divi- fc Re-onact.ing 547, R. S., Foster's Fed. Prac. (4th ed.) p. 2.~>fl. Ccmp 74 MONTGOMERY'S MANUAL, OF FEDERAL PROCEDURE 140 sion of said district ; also the territory embraced on the date last mentioned in the counties of Carter, Cocke, Greene, Hamblen, Hancock, Hawkins, Johnson, Sullivan, Unicoi, and Washington, which shall constitute the northeastern division of said district. Terms of the district court for the southern division of said district shall be held at Chatta- nooga on the fourth Monday in April and the second Monday in November ; for the northern division, at Knoxville on the fourth Monday in May and the first Monday in December; and for the northeastern division, at Greeneville on the first Monday in March and the third Monday in September. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bedford, Cannon, Cheatham, Coffee, Davidson, Dickson, Franklin, Giles, Grundy, Hickman, Humphreys, Houston, Lawrence, Lewis, Lincoln, Marshall, Maury, Mont- gomery, Moore, Robertson, Rutherford, Stewart, Sumner, Trousdale, Warren, Wayne, Williamson, and Wilson, which shall constitute the Nashville division of said district; also the territory embraced on the date last mentioned in the counties of Clay, Cumberland, Dekalb, Fentress, Jack- son, Macon, Overton, Pickett, Putnam, Smith, Van Buren, and White, which shall constitute the northeastern division of said district. Terms of the district court for the Nash- ville division of said district shall be held at Nashville on the second Monday in March and the fourth Monday in September; and for the northeastern division, at Cookeville on the third Monday in April and the first Monday in No- vember: Provided, That suitable accommodations for holding court at Cookeville shall be provided by the county or municipal authorities without expense to the United States. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Dyer, Fayette, Haywood, Lauder- dale, Shelby, and Tipton, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Benton, Carroll, Chest- er, Crockett, Decatur, Gibson, Hardeman, Hardin, Hender- son, Henry, Lake, McNairy, Madison, Obion, Perry, and Weakley, including the waters of the Tennessee River to low-water mark on the eastern shore thereof wherever such . St. 1901, p. 413, 4 F. S. A. 50, with amendments thereto, 20 Stat. at L. 235. 21 Stat. at L. 175, 22 Stat. at L. 402, 23 Stat. at L. 280, 29 Stat. at L. 91, 31 Stat. at L. 5, 31 Stat, at L. 183. 141 JUDICIAL DISTRICTS TERMS AND LOCALITIES 75 river forms the boundary line between the western and middle districts of Tennessee, from the north line of the state of Alabama north to the point in Henry county, Ten- nessee, where the south boundary line of the state of Ken- tucky strikes the east bank of the river, which shall con- stitute the eastern division of said district. Terms of the district court for the western division of said district shall be held at Memphis on the fourth Mondays in May and November; and for the eastern division, at Jackson on the fourth Mondays in April and October. The clerk of the court for the western district shall appoint a deputy who shall reside at Jackson. The marshal for the western dis- trict shall appoint a deputy who shall reside at Jackson. The marshal for the eastern district shall appoint a deputy who shall reside at Chattanooga. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Knoxville, at Chattanooga and at Greenville, which shall be kept open at all times for the . transaction of the business of the court." 141. Texas. 108, Judicial Code} 36 Stat. at L. 1125, Comp. St. 1191, p. 183, 1912 Sup p. F. 8. A. v. 1, p. 185. "The state of Texas is divided into four districts to be known as the northern, eastern, western, and southern districts of Texas. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Dallas, Ellis, Hunt, Johnson, Kaufman, Xav- arro, and Rockwall, which shall constitute the Dallas divi- sion ; also the territory embraced on the date last mentioned in the counties of Archer, Baylor, Clay, Comanche, Erath, Foard, Hardeman, Hood, Jack, Palo Pinto, Parker, Tar- rant, Wichita, Wilbarger, Wise, and Young, which shall constitute the Fort Worth division; also the territory em- braced on the date last mentioned in the counties of Arm- strong, Bailey, Briscoe, Carson, Castro, Childress, Cochran, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dick- ens, Donley, Floyd, Gray, Hale, Hall, Hansford, Hartley, Hemphill, Hockley, Hutchinson, King, Lamb, Lipscomb. Lubbock, Moore, Motley, Ochiltree, Oldham, Farmer, Pot- ter, Randall, Roberts, Sherman, Swisher, and Wheeler, 1 Re-enacting act of March 11, 1902, ch. 183, 32 Stat. at L. 64, 4 F. S. A. 54. 76 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 141 which shall constitute the Amarillo division; also the terri- tory embraced on the date last mentioned in the counties of Andrews, Borden, Callahan, Dawson, Eastland, Fisher, Gaines, Garza, Haskell, Howard, Jones, Kent, Knox, Lynn, Martin, Midland, Mitchell, Nolan, Scurry, Shackelford, Stephens, Stonewall, Taylor, Terry, Throckmorton, and Yoakum, which shall constitute the Abilene division; also the territory embraced on the date last mentioned in the counties of Brown, Coke, Coleman, Concho, Crockett, Glass- cock, Irion, Menard, Mills, Runnels, Schleicher, Sterling, Sutton, Tom Green, and Upton, which shall constitute the San Angelo division of the said district. Terms of the district court for the Dallas division shall be held at Dallas on the second Monday in January and the first Monday in May; for the Fort Worth division, at Fort Worth on the first Monday in November and the second Monday in March ; for the Amarillo division, at Amarillo on the third Monday in April and the fourth Monday in September; for the Abilene division, at Abilene on the first Monday in October and the second Monday in April ; and for the San Angelo division, at San Angelo on the third Monday in October and the fourth Monday in April. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Dallas, at Fort Worth, at Amarillo, at Abilene, and at San Angelo, which shall be kept open at all times for the transaction of the business of the court. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Anderson, Angelina, Cherokee, Gregg, Hender- son, Houston, Nacogdoches, Panola, Rains, Rusk, Smith, Van Zandt, and Wood, which shall constitute the Tyler division; also the territory embraced on the date last men- tioned in the counties of Hardin, Jasper, Jefferson, Liberty, Newton, Orange, Sabine, San Augustine, Shelby, and Ty- ler, which shall constitute the Beaumont division ; also the territory embraced on the date last mentioned in the coun- ties of Collin, Cook, Denton, Grayson, and Montague, which shall constitute the Sherman division; also the territory embraced on the date last mentioned in the counties of Camp, Cass, Harrison, Hopkins, Marion, Morris and Upshur, which shall constitute the Jefferson division; also the ter- ritory embraced on the date last mentioned in the counties of Delta, Fannin, Red River, and Lamar, which shall con- stitute the Paris division ; also the territory embraced on 141 JUDICIAL DISTRICTS TERMS AND LOCALITIES 77 the date last mentioned in the counties of Bowie, Franklin, and Titus, which shall constitute the Texarkana division. Terms of the district court for the Tyler division shall be held at Tyler on the fourth Mondays in January and April ; for the Jefferson division, at Jefferson on the first Monday in October and the third Monday in February ; for the Beau- mont division, at Beaumont on the third Monday in Nov- ember and the first Monday in April ; for the Sherman divi- sion, at Sherman on the first Monday in January and the third Monday in May ; for the Paris division, at Paris on the third Monday in October and the first Monday in March; and for the Texarkana division, at Texarkana on the third Monday in March and the first Mon- day in November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Sherman, at Beaumont, and at Tex- arkana, which shall be kept open at all times for the trans- action of the business of said court. The western district [see amendment below] shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bastrop, Blanco, Burleson, Burnet, Caldwell, Gil- lespie, Hays, Kimble, Lampasas, Lee, Llano, Mason, McCui loch, San Saba, Travis, Washington, and Williamson, which shall constitute the Austin division; also the territory em- braced on the date last mentioned in the counties of Atascosa, Bandera, Bexar, Comal, Dimmit, Edwards, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, and Wilson, which shall constitute the San Antonio division ; also the ter- ritory embraced on the date last mentioned in the counties of Brewster, Crane, Ector, El Paso, Jeff Davis, Loving, Reeves, Presidio, Ward, and Winkler, which shall constitute the El Paso division ; also the territory embraced on the date last mentioned in the counties of Bell, Bosque, Coryell, Falls, Hamilton, Freestone, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somervell, which shall constitute the Waco division; also the territory embraced on the date last mentioned in the counties of Kinney, Maverick, Pecos, Ter- rell, Uvalde, Valverde, and Zavalla, which shall constitute the Del Rio division. Terms of the district court for the Austin division shall be held at Austin on the fourth Mon- day in January and the second Monday in June; for the Waco division, at Waco on the fourth Monday in February and the second Monday in November; for the San Antonio division, at San Antonio on the first Monday in May and 78 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 141 the third Monday in December; for the El Paso division, at El Paso on the first Monday in April and the first Mon- day in October; and for the Del Rio division, at Del Rio on the third Monday in March and the fourth Monday in October. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Austin, El Paso, and at Del Rio, which shall be kept open at all times for the transaction of business. The south- ern district [see amendment below] shall include the territory embraced on the first of July, nineteen hun- dred and ten, in the counties of Duval, La Salle, Me- Mullen, Nueces, Webb, and Zapata, which shall con- stitute the Laredo division; also the territory embraced on the date last mentioned in the counties of Cam- eron, Hidalgo, and Starr, which shall constitute the Browns- ville division ; also the territory embraced on the date last mentioned in the counties of Austin, Brazoria, Chambers, Galveston, Fort Bend, Matagorda, and Wharton, which shall constitute the Galveston division ; also the territory em- braced on the date last mentioned in the counties of Brazos, Colorado, Fayette, Grimes, Harris, Lavaca, Madison, Mont- gomery, Polk, San Jacinto, Trinity, Walker, and Waller, which shall constitute the Houston division ; also the terri- tory embraced on the date last mentioned in the counties of Bee, Calhoun, Dewitt, Goliad, Jackson, Live Oak, Re- fugio, Aransas, San Patricio, and Victoria, which shall constitute the Victoria division. Terms of the district court for the Galveston division shall be held at Galveston on the second Monday in January and the first Monday in June; for the Houston division, at Houston on the fourth Mondays in February and September ; for the Laredo di- vision, at Laredo on the third Monday in April and the sec- ond Monday in November; for the Brownsville division, at Brownsville on the second Monday in May and the first Monday in December ; and for the Victoria division, at Vic- toria on the first Monday in May and the fourth Monday in November. The clerk of the court for the southern district shall maintain an office in charge of himself or a deputy at each of the places now designated for holding court in said district." Act February 5, 1913, ch. 28, 37 Stat. at L. 663, creates a new division of the western district. "That the counties of Reeves, Ward, Martin, Regan, Winkler, Ector, Gaines, 142 JUDICIAL DISTRICTS TEKMS AND LOCALITIES 79 Andrews, Upton, Midland, Loving, Jeff Davis, and Crane shall constitute a division of the western judicial district of Texas. "Sec. 2. That terms of the district court of the United States for the said western district of Texas shall be held twice in each year at the city of Pecos, in Reeves county, and that, until otherwise provided by law, the judge of said court shall fix the times at which said court shall be held at Pecos, of which he shall make proclamation and give due notice: Provided, however, That suitable rooms and accommodations shall be furnished for the holding of said court and for the use of the officers of said court at Pecos, free of expense to the government of the United States." Act May 29, 1912, ch. 144, 37 Stat. at L. 120, creates a new division of the southern district. "That the counties of Bee, Live Oak, Aransas, San Patricio, ^Tueces, Jim Wells, Duval, Brooks, and Willacy shall constitute a division of the southern judicial district of Texas. "Sec. 2. That terms of the district court of the United States for the said southern district of Texas shall be held twice in each year at the city of Corpus Christi, in Nueces county, and that, until otherwise provided by law, the judge of said court shall fix the times at which said court shall be held at Corpus Christi, of which he shall make publication and give due notice." 142. Utah. 109, Judicial Code, 36 Stat. at L. 1127, Comp. St. 19 J 1, p. 185, 1912 Supp. F. S. A. v. 1, p. 187. "The state of Utah shall constitute one judicial district, to be known as the district of Utah. It is divided into two divisions, to be known as the northern and central divisions. The north- ern division shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Boxelder, Cache, Davis, Morgan, Rich, and Weber. The central division shall include the territory embraced on the date last mentioned in the counties of Beaver, Carbon, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Piute, Salt Lake, San Juan, San Pete, Sevier, Summit, Tooele, Uinta, Utah, Wasatch, Washington, and Wayne. Terms of the district court for the northern division shall be held at M Re-enacting 28 Stat. at L. 110, 4 F. S. A. 57, with amendment thereto, 29 Stat. at L. 620, Foster's Fed. Prac. (4th ed.) pp. 208, 264. 80 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 144 Ogden on the second Mondays in March and September; and for the central division, at Salt Lake City on the second Mondays in April and November. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at each of the places where the court is now re- quired to be held in the district." 143. Vermont. 110, Judicial Code? 36 Stat. at L. 1127, Comp. St. 1911, p. 185, 1912 Supp. F. 8. A. v. 1, p. 187, as amended Feb. 1, 1912, ch. 26, 37 Stat at L. 58. "The state of Vermont shall constitute one judicial district, to be known as the district of Vermont. Terms of the district court shall be held at Burlington on the fourth Tuesday in February, at Windsor on the third Tuesday in May, at Rut- land on the first Tuesday in October, and at Brattleboro on the third Tuesday in December. In each year one of the stated terms of the district court may, when adjourned, be adjourned to meet at Montpelier, and one at Newport : Pro- vided, however, That suitable rooms and accommodations shall be furnished for the holdings of said court and for the use of the officers of said court at Brattleboro, free of expense to the government of the United States, until the public build- ing provided for by act of Congress shall be erected." 144. Virginia. 111, Judicial Code, 36 Stat. at L. 1127, Comp. St. 1911, p. 186, 1912 Supp. F. S. A. v. 1, pp. 187, 188. "The state of Virginia is divided into two districts, to be known as the eastern and western districts of Virginia. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Ac- comae, Alexandria, Amelia, Brunswick, Caroline, Charles City, Chesterfield, Culpepper, Dinwiddie, Elizabeth City, Essex, Fairfax, Fauquier, Gloucester, Goochland, Greens- ville, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Lou- doun, Louisa, Lunenberg, Mathews, Mecklenburg, Middle- sex^ Nansemond, New Kent, Norfolk, Northampton, North- n Re-enacting 531, R. S. (see Ref. 104, supra) Comp. St. 1901, p. 316, 4 F. S. A. 16. o Re-enacting 549, R. S., Foster's Fed. Prac. (4th ed.) p. 265, Comp. St. 1901, p. 437, 4 F. S. A. 57. 145 JUDICIAL DISTRICTS TERMS AND LOCALITIES 81 umberland, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Princess Anne, Richmond, Southampton, Spottsylvania, Stafford, Surry, Sussex, War- wick, Westmoreland, and York. Terms of the district court shall be held at Richmond on the first Mondays in April and October; at Norfolk on the first Mondays in May and November ; and at Alexandria on the first Mondays in Jan- uary and July. The western district shall include the ter- ritory embraced on the first day of July, nineteen hundred and ten, in the counties of Alleghany, Albermarle, Amherst, Appomattox, Augusta, Bath, Bedford, Bland, Botetourt, Buchanan, Buckingham, Campbell, Carroll, Charlotte, Clarke, Craig, Cumberland, Dickenson, Floyd, Fluvanna, Franklin, Frederick, Giles, Grayson, Greene, Halifax, Henry, Highland, Lee, Madison, Montgomery, Nelson, Page, Patrick, Pulaski, Pittsylvania, Rappahaimock, Roanoke, Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Tazewell, Warren, Washington, Wise, and Wythe. Terms of the district court shall be held at Lynchburg on the Tuesdays after the second Mondays in March and Sep- tember; at Danville on the Tuesdays after the second Mon- days in April and November ; at Abingdon on the Tuesdays after the first Mondays in May and October ; at Harrison- burg on the Tuesdays after the first Mondays in June and December; at Charlottesville on the second Monday in January and the first Monday in July; at Roanoke on the third Monday in February and the third Monday in June; and at Big Stone Gap on the fourth Monday in January and the second Monday in August. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Lynchburg, at Danville, at Char- lottesville, at Roanoke, at Abingdon, and at Big Stone Gap, which shall be kept open at all times for the transaction of the business of the court." 145. Washington. 112, Judicial Code? 36 Stat. at L. 1128, Camp. St. 19 11, p. 186, 1912 Supp. F. 8. A. v. 1, p. 188. "The state of Washington is divided into two districts, to be known as the eastern and western district of Washington. The east- ern district shall include the territory embraced on the first p Ro-onacting act of April 5, 1890, ch. 65, 26 Stat, ;it L. 45. Foster's Fed. Prac. (4th ed.) pp. 208, 265, Comp. St. 1901, p. 438 r 4 F. S. A. 57. Montg. 6. 82 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 146 day of July, nineteen hundred and ten, in the counties of Spokane, Stevens, Ferry, Okanogan, Chelan, Grant, Doug- las, Lincoln, and Adams, with the waters thereof, includ- ing all Indian reservations within said counties, which shall i constitute the northern division ; also the territory em- braced on the date last mentioned in the counties of Asotin, Garfield, Whitman, Columbia, Franklin, Walla Walla, Ben- ton, Klickitat, Kittitas, and Yakima, with the waters there- of, including all Indian reservations within said counties, which shall constitute the southern division of said district. Term's of the district court for the northern division shall be held at Spokane on the first Tuesdays in April and Sep- tember; for the southern division, at Walla Walla on the first Tuesdays in June and December, and at North Yak- ima, on the first Tuesdays in May and October. The west- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Whatcom, Skagit, Snohomish, King, San Juan, Island, Kitsap, Clallam, and Jefferson, with the waters thereof, in- cluding all Indian reservations within said counties, which shall constitute the northern division; also the territory embraced on the date last mentioned in the counties of Pierce, Mason, Thurston, Chehalis, Pacific, Lewis, Wahkiakum, Cowlitz Clarke, and Skamania, with the waters thereof, in- cluding all Indian reservations within said counties, which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Bellingham on the first Tuesdays in April and October; at Seattle on the first Tuesdays in May and November ; and for the southern division, at Tacoma on the first Tuesdays in February and July. The clerks of the courts for the eastern and western districts shall maintain an office in charge of himself or a deputy at each place in their respec- tive districts where terms of court are now required to be held." 146. West Virginia. 118, Judicial Code* 36 Stat. at L. 1129, Comp. 8t. 1911, p. 181, 1912 Supp. F. S. A. 1, p. 189, as amended March 23, 1912, cli. 63, 37 Stat. at L. 76. "The state of West Virginia is divided into two districts, to be known i Re-enacting act of Jan. 22, 1901, ch. 105, 31 Stat. at L. 736. Comp. St. t901, p. 440, 4 F. S. A. 58. 147 JUDICIAL DISTRICTS TEEMS AND LOCALITIES 83 as the northern and southern districts of West Virginia. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Hancock, Brooke, Ohio, Marshall, Tyler, Pleas- ants, Wood, Wirt, Ritchie, Dodridge, Wetzel, Monongalia, Marion, Harrison, Lewis, Gilmer, Calhoun, TJpshur, Bar- hour, Taylor, Preston, Tucker, Randolph, Pendleton, Hardy, Grant, Mineral, Hampshire, Morgan, Berkeley, and Jeffer- son, with the waters thereof. Terms of the district court for the northern district shall be held at Martinsburg on the first Tuesday of April and- the third Tuesday of September; at Clarksburg on the second Tuesday of April and the first Tuesday of October ; at Wheeling on the first Tuesday of May and the third Tuesday of October ; at Philippi on the fourth Tuesday of May and the second Tuesday of November; at Parkersburg on the second Tuesday of January and second Tuesday of June : Provided, That a place for holding court at Philippi shall be furnished free of cost to the United States by Barbour county until other provision is made therefor by law. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Jackson, Roane, Clay, Braxton, Web- ster, Nicholas, Pocahontas, Greenbrier, Fayette, Boone, Ka- nawha, Putnam, Mason, Cabell, Wayne, Lincoln, Logan, Mingo, Raleigh, Wyoming, McDowell, Mercer, Summers, and Monroe, with the waters thereof. Terms of the district court for the southern district shall be held at Charleston on the first Tuesday in June and the third Tuesday in Nov- ember ; at Hunting-ton, on the first Tuesday in April and the first Tuesday after the third Monday in September; at Bluefield on the first Tuesday in May and the third Tues- day in October; at Addison, on the first Tuesday in Sep- tember; and at Lewisburg, on the second Tuesday in July: Provided, That a place for holding court at Addison shall be furnished free of cost to the United States." 147. Wisconsin. 114, Judicial Code* 36 8 tat. at L. 1129, Comp. St. 1911, p. 188, 1912 Supp. F. 8. A. v. 1, p. 189. "The state of Wisconsin is divided into two districts, to be known as the eastern and western districts of Wisconsin. The east- Re-enacting 550. R. S., Foster's Fed. Prac. (4th ed.) p. 267, Comp. St. 1901, p. 443, 4 F. S. A. 59. 84 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 147 ern districts shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Brown, Calumet, Dodge, Door, Florence, Fond du Lac, For- est, Green Lake, Kenosha, Kewaunee, Langlade, Manitowoc, Marinette, Marquette, Milwaukee, Oconto, Outagamie, Oz- aukee, Racine, Shawano, Shehoygan, Walworth, Washing- ton, Waukesha, Waupaca, Waushara, and Winnebago. Terms of the district court for said district shall be held at Milwaukee on the first Mondays in January and October; at Oshkosh on the second Tuesday in June; and at Green Bay on the first Tuesday in April. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Adams, Ash- land, Barren, Bayfield, Buffalo, Burnett, Chippewa, ("lark, Columbia, Crawford, Dane, Dunn, Douglas, Eau Claire, Grant, Green, Iowa, Iron, Jackson, Jefferson, Juneau, La Crosse, Lafayette, Lincoln, Marathon, Monroe, Oneida, Pep- in, Pierce, Polk, Portage, Price, Richland, Rock, Rusk, Saint Croix, Sauk, Sawyer, Taylor, Trempealeau, Vernon, Vilas, Washburn, and Wood, Terms of the district court for said district shall be held at Madison on the first Tuesday in December; at Eau Claire on the first Tuesday in June; at La Crosse on the third Tuesday in September; and at Su- perior on the fourth Tuesday in January and the second Tuesday in July. The district court for each of said dis- tricts shall be open at all times for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction, so far as the same can be done without a jury. The clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Madison, at La Crosse, and at Superior, which shall be kept open at all times for the transaction of the business of the court. The marshal for the western district shall appoint a deputy marshal who shall reside and keep his office at Superior. All writs and other process, except criminal warrants, issued at Superior, may be made returnable at Superior; and the clerk at that place shall keep in his office the original records of all actions, prosecutions, and special proceedings so commenced and pending therein. Criminal warrants may be returned at any place within the district where court is held. Whenever warrants issued at Superior shall be returned at any other place, the clerk of the court wherein the warrant is re- turned, shall certify the same, under the seal of the court, together with the plea and other proceedings had thereon, 148 JUDICIAL DISTRICTS TERMS AND LOCALITIES 85 and the determination of the court upon such plea or pro- ceeding's, with all papers and orders filed in reference there- to, to the clerk of the court at Superior; and the clerk at Superior shall enter upon his records a minute of the proceed- ings had upon the return of said warrant, certified as afore- said. All causes and proceedings instituted in the court at Superior, shall be tried therein, unless by consent of the parties, or upon the order of the court, they are transferred to another place for trial." 148. Wyoming. 115, Judicial Code* 36 8 tat. at L. 1130, Comp. St. 1911, p. 189, 1912 Supp. F. S. A. v. 1, p. 190. "The state of Wyoming and the Yellowstone National Park shall con- stitute one judicial district, to be known as the district of Wyoming. Terms of the district court for said district shall be held at Cheyenne on the second Mondays in May and November ; at Evanston on the second Tuesday in July ; and at Lander on the first Monday in October; and the said court shall hold one session annually at Sheridan, and in said national park, on such dates as the court may order. The marshal and clerk of the said court shall each, respec- tively, appoint at least one deputy to reside at Evanston, and one to reside at Lander, unless he himself shall reside there, and shall also maintain an office at each of those places : Provided, That until a public building is provided at Land- er, suitable accommodations for holding court in said town shall be furnished the government at an expense not to ex- ceed three hundred dollars annually. The marshal of the United States for the said district may appoint one or more deputy marshals for the Yellowstone National Park, who shall reside in said park." Re-enacting 26 Stat. at L. 225, Foster's Fed. Prac. (4th ed.) p. 268, 4 F. S. A. 59. CHAPTER 5. VENUE OF ACTIONS IN THE DISTRICT COURT TERRITORIAL JURIS- DICTION. Sec. 160. In General. 161. Civil Suits In General. 162. Nonlocal Suits in State of More than One District. 163. Nonlocal Suits Where District Contains More than One Division. 164. Local Suits with Defendant in Another District Same State. 165. Local Suits with Subject-Matter Lying Partly in One District and Partly in Another. 166. Liens Clouds on Title Absent Defendant. 167. Receiver's Jurisdiction over Real Property Outside District in Circuit. 168. Transfer to Another Division on Stipulation. 169. On Creation of New District or Division or Transfer of Territory. 170. Same Preservation and Enforcement of Liens. 171. Infringement of Letters Patent. 172. To Enjoin Comptroller of Currency. 173. Part of Several Defendants Not Found. 174. Crimes and Offenses. 175. Penalties and Forfeitures. 176. Taxes and Internal Revenue. 177. Condemnation Insurrectionary Property. 178. Seizures for Forfeiture Embargo or Insurrection. 179. Prosecutions for Failure to File Tariffs, Giving Rebates, etc. 180. Venue of Suits Affecting Orders of Interstate Commerce Commission. 181. Issue of Venue How Raised. 160. In General. In considering the subject of venue, the Federal district or division corresponds to the county in state systems. The distinctions exist in the Federal as in the state practice respecting suits of local and suits transitory in their nature. Suits of a local nature must be brought in the district in which lies some part of the land or other property of a fixed character, the subject of the suit. 86 100 VENUE OF ACTIONS IN THE DISTRICT COURT 87 Suits not of a local nature should be brought in the district whereof the defendant is an inhabitant, 1 except where the juris- diction is founded only on the fact that the action is between citi- zens of different states, in which case the suit shall be brought only in the district of residence of either the plaintiff or the defend- ant. 8 Where there is more than one district in a state and several de- fendants in a suit not of a local nature, it may be brought where any of the defendants reside and process issued to the other de- fendants residing in other districts in the state. 3 In like manner, where there is more than one division in a dis- trict and several defendants in a suit not of local nature, the suit may be brought in the division of the residence of any of the de- fendants and process issued to the other defendants in other di- visions and districts in the state. 4 Suits of local nature should be brought where the land lies, and if a defendant resides in a different district in the same state, or- iginal process may be served on him therein. 6 If the suit is of local nature and the subject-matter lies partly in one district and partly in another within the same state, suit may be brought in either district. 6 In suits to enforce any legal or equitable lien upon, or claim to, or to remove any encumbrance or lien or cloud upon the title to, real or personal property within the district where the suit is brought, service may be made on nonresident or absent defendants by publication. 7 In a suit in which a receiver is appointed, where the land or other property of a fixed character, the subject of the suit, lies within different states in the same circuit, the receiver upon proper proceedings may control same, although outside the district of his appointment. 8 There are special provisions relating to crimes and offenses; 8 penalties and forfeitures ; 10 taxes and internal revenue ; u seiz- ures, 12 patent cases, 18 suits against the Comptroller of Currency. 14 1 161, infra. 2 Ibid. 8 162, infra. * 163, infra. 5 164, infra. 1^5, infra. ' 166, infra. 8 167, infra. 174, infra. 10 175, infra. " 176, infra. 12 177, 178, infra 13 171, infra, " 172, infra. 88 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 162 161. Civil Suits In General. 51, Judicial Code,* 36 Stat. at L. 1101, Comp. St. 1911, p. 150, 1912 Supp. F. 8. A. v. 1, p. 153. "Except as pro- vided in the five succeeding sections, no person shall be arrest- ed in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any dis- trict court against any person by any original process or pro- ceeding in any other district than that whereof he is an in- habitant ; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." This section is substantially what was already the law, except that circuit courts have been abolished. Rose's Code treats the sub- ject in 401-401a-b-c-cc-ccc-d-f. 162. Nonlocal Suits in State of More than One District. 52, Judicial Code? 36 Stat. at L. 1101, Comp. St. 1911, p. 150, 1912 Supp. F. 8. A. v. 1, pp.153-4. "When a state contains more than one district, every suit not of a local na- ture, in the district court thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides ; but if there are two or more defendants, residing in different districts of the state, it may be brought in either district, and a duplicate writ may be issued against the de- fendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the dupli- cate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district ; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same state." a Embracing 739. R. S., 4 F. S. A. 554, as modified in 25 Stat. at L. 434, Comp. St. 1901, p. 508, 4 F. S. A. 265, which are repealed by 297, Judicial Code. Macon Grocery Co. v. Atlantic Coast Line R. R. Co. 215 U. S. 501, 54 L. ed. 300, 30 Sup. Ct. Rep. 184. 1 Re-enacting 740. R. S., Rose's Code, 402, 854, Foster's Fed. Prac. (4th ed.) p. 206, Comp. St. 1901, p. 587, 4 F. S. A. 554. which section is repealed bv 297, Judicial Code. In general, Matter of Albert N. Moore, An Infant, 209 U. S. 490, 52 L. ed. 904, 28 Sup. Ct. Rep. 585, 14 Ann. Cas. 1164. 164 VENUE OF ACTIONS IN THE DISTRICT COURT 89 163. Nonlocal Suits Where District Contains More than One Division. 53, Judicial Code? 36 Stat. at L. 1101, Comp. St. 1911, p. 150, 1912 Supp. F. 8. A. v. 1, p. 154. "When a district contains more than one division, every suit not of a local na- ture against a single defendant must be brought in the di- vision where he resides ; but if there are two or more defend- ants residing in different divisions of the district it may be brought in either division. All mesne and final proc- ess subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the state contains more than one dis- trict, then in any of such districts, as provided in the preceding section. All prosecutions for crimes or of- fenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. When a transfer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall be transmitted by the clerk, under the seal of the court, to the division to which the cause is so ordered transferred ; and thereupon the cause shall be proceeded with in said division in the same manner as if the offense had been committed therein. In all cases of the removal of suits from the courts of a state to the district court of the United States such removal shall be to the United States district court in the division in which the county is situated from which the removal is made; and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms of United States courts, shall be deemed to refer to the terms of the United States district court in such di- vision." This section supersedes a great many acts creating divisions of districts mentioned in Rose's Code, 405, 406-412. 164. Local Suits with Defendant in Another District Same State. 54, Judicial Code? 36 Stat at L. 1102, Comp. St. 1911, c Superseding a number of particular sections, 31 Stat. at L. 220, 21 Stat. at L. 63, 31 Stat. at L. 818, 34 Stat. at L. 207, 1909, Supp. F. S. A. 301. d Re-enacting 741, R. S., Rose's Code, 855, Foster's Fed. Prac. (4th 90 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 16G p. 151, 1912 Supp. F. 8. A. v. 1, p. 155.' "Any suit of a local nature, where the defendant resides in a different dis- trict, in the same state, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides." 165. Local Suits with Subject-Matter Lying Partly in One District and Partly in Another. 55, Judicial Code* 36 Stat. at L. 1102, Comp. St. 1911, p. 151, 1912 Supp. F. 8. A. v. 1, p. 155. "Any suit of a local nature, at law or in equity, where the land or other sub- ject-matter of a fixed character lies partly in one -district and partly in another, within the same state, may be brought in the district court of either district; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and execut- ed, as fully as if the said subject-matter were wholly within the district for which such court is constituted." 166. Liens Clouds on Title Absent Defendant. 57, Judicial Code,* 36 Stat. at L. 1102, Comp. St. 1911, p. 152, 1912 Supp. F. S. A. v. 1, pp. 155-6. "When in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any encumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day cer- tain to be designated, which order shall be served on such absent defendant or defendants, if practicable, whenever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such per- ed.) pp. 206, 437, Comp. St. 1901, p. 588, 4 F. S. A. 555, which section is re- pealed bv 297, Judicial Code. In general, Greeley v. Lowe, 155 U. S. 58, 39 L. ed.* 69, 15 Sup. Ct. Eep. 24. e Re-enacting 742. R. S., Rose's Code, 403, Foster's Fed. Prac. (4th ed.) pp. 206, 437, Comp. St. 1901, p. 588, 4 F. S. A. 555, which section is re- galed bv 297, Judicial Code. In general, Greeley v. Lowe, supra. 'Re-enacting 18 Stat. at L. 472, Foster's Fed. Prac. (4th ed.) pp. 449, 958, 1016, 1022, 1457. 1614, Comp. St. 1901, p. 513, 4 F. S. A. 380, which statute is 167 VENUE OF ACTIONS IN THE DISTRICT COURT 91 sonal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six con- secutive weeks. In case such absent defendant shall not ap- pear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain juris- diction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adju- dication shall, as regards said absent defendant or defend- ants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district ; and when a part of the said real or personal property against which such pro- ceedings shall be taken shall be within another district, but within the same state, such suit may be brought in either dis- trict in said state : Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and per- mitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just ; and thereupon said suit shall be proceeded with to final judgment according to law." 167. Receiver's Jurisdiction over Real Property Outside District in Circuit. 56, Judicial Code* 36 Stat. at L. 1102, Comp. St. 1911, p. 151, 1912 Supp. F. 8. A. v. 1, p. 155. "Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different states in the same judicial circuit, the re- ceiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and repealed by 297, Judicial Code. In general, Ladew v. Tonn. Copper Co. 218 U. S. 357/54 L. ed. 1069, 31 Sup. Ct. Rep. 81; Chase v. Wetzlar Excr. 225 U. S. 79, 56 L. ed. 990, 32 Sup. Ct. Rep. 659. K This is new legislation. 92 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 168 control over all the property, the subject of the suit, lying or being within such circuit ; subject, however, to the disapprov- al of such order, within thirty days thereafter, by the circuit court of appeals for such circuit, or by a circuit judge there- of, after reasonable notice to adverse parties and an oppor- tunity to be heard upon the motion for such disapproval; and subject, also, to the filing and entering in the district court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appoint- ment. The disapproval of such appointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein re- quired, shall devest such receiver of jurisdiction over all such property except that portion thereof lying or being within the state in which the suit is brought. In any case coming within the provisions of this section, in which a re- ceiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall 'be entered of record in each district in which the property af- fected may lie or be." 168. Transfer to Another Division on Stipulation. 58, Judicial Code* 36 Stat. at L. 1103, Com p. St. 1911, 152, 1912 Supp. F. 8. A. v. 1, p. 156. "Any civil cause, at law or in equity, may, on written stipulation of the parties or of their attorneys of record signe'd and filed with the papers in the case, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term,, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred to a court in any other division, it shall be the duty of the clerk of the court from which the transfer is made to care- fully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all docu- ments and deposits in his court pertaining thereto, together h Drawn from 24 Stat. at L. 425, 4 F. S, A. 647 ; 34 Stat. at L. 206, 1909 Supp. F. S. A. 301. 169 VENUE OF ACTIONS IN THE DISTRICT COURT 93 with a certified transcript of the record of all orders, inter- locutory decrees, or other entries in the cause; and he shall certify, imder the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmit- ting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature." 169. On Creation of New District or Division or Trans- fer of Territory. 59, Judicial Code* 36 8 tat. at L. 1103, Comp. St. 1911, p. 153, 1912 Supp. F. S. A. v.'l, p. 157. "Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prose- cutions for crimes and offenses committed within such dis- trict, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial. Civil actions pending at the time of the creation of any such dis- trict or division, or the transfer of any such county or terri- tory, and arising within the district or division so created or the county or territory so transferred, shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or territory is or shall be so transferred, as may be agreed upon by the parties, or as the court shall direct. The transfer of such prosecutions and actions shall be made in the manner provided in the section last pro- ceeding." * Drawn from a number of acts creating new districts or divisions. 94 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 171 170. Same Preservation and Enforcement of Liens. 60, Judicial Code,* 36 Stat. at L. 1108, Comp. St. 1911, p. 153, 1912 Supp. F. 8. A. v. 1, p. 157. "The creation of a new district or division, or the transfer of any county or terri- tory from one district or division to another district or divi- sion, shall not affect or devest any lien theretofore acquired in the circuit or district court by virtue of a decree, judgment, execution, attachment, seizure, or otherwise, upon property situated or being within the district or division so created, or the county or territory so transferred. To enforce any such lien, the clerk of the court in which the same is ac- quired, upon the request and at the cost of the party desir- ing the same, shall make a true and certified copy of the record thereof, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall constitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof ; and thereafter like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court. The provisions of this section shall apply not only in all cases where a dis- trict or division is created, or a county or any territory is transferred by this or any future act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted." 171. Infringement of Letters Patent. 48, Judicial Code* 36 Stat. at L. 1100, Comp. St. 1911, p. 149, 1912 Supp. F. S. A. v. 1, p. 153. "In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of in- fringement and have a regular and established place of busi- J Embracing 24 Stat. at L. 309, Foster's Fed. Prac. (4th ed.) p. 234, 4 F. S. A. 20, and 31 Stat, at L. 881. 4 F. S. A; 654. k Re-enacting 29 Stat. at L. 695, Foster's Fed. Prac. (4th ed.) pp. 200. 210, 710, Comp. St. 1901, p. 588. 5 F. S. A. 566, which statute is repealed by 297, Judicial Code. For jurisdiction, see Consolidated Rubber Tire Co. et al. v. Republic Rubber Co. 195 Fed. 768; note to Bailey v. Mosher, 63 Fed. 488, 11 C. C. A. 313; Smith v. Farbenfabriken of Elberfe'ld Co. 203 Fed. 476. 174 VENUE OF ACTIONS IN THE DISTRICT COURT 95 ness. If such suit is brought in a district of which the de- fendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in con- ducting such business in the district in which suit is brought." 172. To Enjoin Comptroller of Currency. 49 1 Judicial Code, 1 36 Slot, at L. 1100, Comp. St. 1911, p. 149, 1912 Supp. F. S. A. -v. 1, p. 153. "All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking associations, shall be had in the district where such association is located." 173. Part of Several Defendants Not Found. 50, Judicial Code, 36 Stat. at L. 1101, Comp. St. 1911, p. 149, 1912 Supp. F. S. A. v. 1, p. 153. "When there are sev- eral defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily ap- pear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it ; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regu- larly served with process nor voluntarily appearing to an- swer; and nonjoinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not consti- tute matter of abatement or objection to the suit." 174. Crimes and Offenses. Capital offenses. 40, Judicial Code," 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 151. "The trial of of- 1 Re-enacting 736, R. S. U. S., Comp. St. 1901, p. 586, 5 F. S. A. 197, which flection is repealed by 297, Judicial Code. m Re-enacting 737, R. S., Rose's Code, 817, Foster's Fed. Prac. (4th ed.) p. 326, Comp. St. 1901, p. 587, 4 F. S. A. 552, which section is repealed by 297, Judicial Code. In general, Waterman v. Canal-Louisiana Bank Co. 215 U. S. 33, 54 L. ed. 80, 30 Sup. Ct. Rep. 10, and other cases cited in notes 4 F. S. A. pp. 552-4. n Re-enacting 729, R. S., Rose's Code, 427, Foster's Fed. Prac. (4th ed.) pp. 210, 1430, Comp. St. 1901, p. 585, 2 F. S. A. 354, which section is re- 96 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 174 fenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience." Committed outside state jurisdiction. 41 f Judicial Code, 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 151. "The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first brought." Committed in two districts. 42, Judicial Code, 9 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 151. "When any of- fense against the United States is begun in one judicial dis- trict and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly com- mitted therein." Sale of arms and intoxicants in Pacific islands deemed on high seas. 309, Penal Code, Comp. St. 1911, p. 1680, 1909 Supp. F. S. A. p. 490. "All offenses against the provisions of the section last preceding, committed on any of said islands or on the waters, rocks, or keys adjacent thereto, shall be deemed committed on the high seas on board a merchant ship or vessel belonging to the United States, and the courts of the United States shall have jurisdiction accordingly." "Vessel defined. 810, Penal Code, Comp. St. 1911, p. 1680, 1909 Supp. F. S. A. p. 490. "The words, Vessel of the United States,' pealed by 297, Judicial Code. In general, Hendrix v. United States, 219 U. S. 79, 55 L. ed. 102, 31 Sup. Ct. Rep. 193. o Re-enacting 730, R. S., Rose's Code, 428. Foster's Fed. Prac. (4th ed.) p. 1428, Comp. St. 1901, p. 585, 2 F. S. A. 345, which section is repealed by 297, Judicial Code. As to definition of "high seas," and jurisdiction on the high seas, see United States v. Rodgers, 350 U. S. 249. 37 L. ed. 1071, 14 Sup. Ct. Rep. 109. P Re-enacting 731, R. S., Rose's Code, 430, Comp. St. 1901, p. 585, 176 VENUE OF ACTIONS IN THE DISTRICT COURT 97 wherever they occur in this chapter, shall be construed to, mean a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any state, terri- tory, or district thereof." 175. Penalties and Forfeitures. Pecuniary penalties and forfeitures. 48, Judicial Code* 36 Stat. at L. 1100, Comp. 8t. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 152. "All pecuniary penalties and forfeitures may be sued for and recovered either in the district where they accrue or in the district where the offender is found." Seizures made on high seas for forfeitures. 45, Judicial Code* 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 152. "Proceedings on seizures made on the high seas for forfeiture under any law of the United States, may be prosecuted in any district into which the property so seized is brought and proceedings insti- tuted. Proceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided." 176. Taxes and Internal Revenue. 44, Judicial Code, m 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 152. "Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent re- sides." 2 F. S. A. 347, which section is repealed by 297, Judicial Code. In general, Hyde & Schneider v. United States, 225 U. S. 347, 56 L. ed. 1114, 32 Sup. Cfc. Rep. 793. i Re-enacting 732, R. S., Rose's Code, 421, Comp. St. 1901, p. 585, 3 F. S. A. 95, which section is repealed by 297, Judicial Code. In general, Lee v. United States, 150 U. S. 476, 37 L. ed. 1150, 14 Sup. Ct. Rep. 163. ' Re-enacting 734, R. S., Rose's Code 422, Comp. St. 1901, p. 586, 3 F. S. A. 95, which section is repealed by 2^)7, Judicial Code. * Re-enacting 733, R. S., Rose's Code, 420, Comp. St. 1901, p. 586, 3 F. S. A. 595, which section is repealed by 297, Judicial Code. In general, Taylor v. Holmes and others, 14 Fed. 498. Montg. 7. 98 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 170 177. Condemnation Insurrectionary Property. 46, Judicial Code? 36 Stat. at L. 1100, Comp. St. 2911, p. 148, 1912 Supp. F. 8. A. v. 1, p. 152. "Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial dis- trict, or within any district, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abet- ting, or promoting any insurrection against the government of the United States, or knowingly 'so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted." 178. Seizures for Forfeiture Embargo or Insurrection. 47, Judicial Code 36 Stat. at L. 1100, Comp. St. 1911, p. 149, 1912 Supp. F. S. A. v. 1, p. 152. "Proceedings on seizures for forfeiture of any vessel or cargo entering any port of entry which has been closed by the President in pursuance of law, or of goods and chattels coming from a state or section declared by proclamation of the President to be in insurrec- tion into other parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such state or section, or of any vessel belonging, in whole or in part, to any inhabitant of such state or section, may be prosecuted in any district into which the property so seized may be taken and proceedings instituted ; and the district court thereof shall have as full jurisdiction over such proceed- ings as if the seizure was made in the district." 1 79. Prosecutions for Failure to File Tariffs, Giving Re- bates, etc. 1, Act Feb. 19, 1903, ch. 708, 32 Stat. at L. 847, Comp. St. 1911, p. 1310, 10 F. S. A. 171. "Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted ; and whenever the offense is begun in one jurisdiction and completed in another * Re-enacting 735, R. S., Comp. St. 1901, p. 586, 6 F. S. A. 70, which section is repealed by 297, Judicial Code. Re-enacting 564, R. S., Rose's Code, 423, Comp. St. 1901, p. 460, C F. S. A. 236, which section is repealed by 297, Judicial Code. 181 VE3ST1JE OF ACTIONS IN THE DISTRICT COURT 99 it may te dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein." >. i 180, Venue of Suits Affecting Orders of Interstate Com- merce Commission. Ft. Act October 22, 1913, ch. 32, 38 Stat. at L. 219. "The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission, shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transportation, or is not made upon the petition of any party, the venue shall be in the dis- trict where the matter complained of in the petition before the Commission arises, and except that where the order does not relate to either transportation or to a matter so com- plained of before the Commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its prin- cipal operating office. In case such transportation relates to a through shipment, the term 'destination' shall be construed as meaning the final destination of such shipment." For payment of money. PL 16, Interstate Commerce Act 1912, Supp. F. 8. A. v. 1, p. 123. Suits to enforce payment of money may be brought in the district court "for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any state court of general jurisdiction having jurisdic- tion of the parties." 181. Issue of Venue How Raised. Objections as to the venue of actions must be raised at the earliest possible moment, as this is a personal privilege, and may be waived by the de- fendant's failure to seasonably object. In cases of removal the question of venue may be important in determining whether or not the suit was one of which the dis- trict court had original jurisdiction. But the defect will be waived if not put in issue by the plaintiff in his motion to remand. 100 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 181 The filing of petition and bond for removal is a waiver by the defendant. The issue should be raised in the motion to remand. If a suit is originally brought in the Federal court and it is not brought in the district of which the defendant is an inhabitant (except in the special cases heretofore indicated), or if, in case of diversity of citizenship, the suit is not brought in the residence district of the plaintiff or defendant, the issue as to venue would be raised in a suit in equity under Rule 29 by motion to dismiss, if apparent on the face of the record, or in the answer and sep- arately heard, if the defect is not apparent on the face of the record. In a suit at law the issue would be raised in that form of plead- ing used to raise jurisdictional questions in the state court of record of the state wherein the district is situated. Generally the pleading would be a demurrer for defects apparent on the face of the record, and a plea or answer where not apparent on the face of the record. If a motion to dismiss is filed, the following form is suggested : "IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF , DIVISION. John Doe, j. Plaintiff, -vs.- II i chard Roe, Defendant. .MOTION TO DISMISS Now comes the defendant in the above-entitled action and moves the court to dismiss same on the ground that, as appears on the face of the bill, at the commencement of this action he was not, and is not now, an inhabitant of nor residing in the district of , where this suit ia brought, but that at the commencement of this action and now, he was and is an in- habitant of and resides in County which is in the District of the State of and not the district where this suit ia brought. Solicitor." If the objection be that he is not sued in the proper division of the district, the word "division" may be substituted for district in the above form. 181 VENUE OF ACTIONS IN THE DISTRICT COUKT 101 In case of a corporation, the allegation may be: "That it is not an inhabitant of or residing in the County of , District of , but is an inhabitant of and residing in County in the District of , where its prin- cipal office or headquarters are situated, its corporate meetings held and its corporate business transacted." "IN THE DISTRICT COURT OF THE UNITED STATES IN THE DISTRICT OF , DIVISION. John Doe, 1 Plaintiff, I vs J.ANSWER Richard Roe, I Defendant. I Defendant answering plaintiff's complaint, alleges: As a separate defense, denies 'that plaintiff at the commencement of this suit was or is now, an inhabitant of or resident of the Division of where this suit is brought, but alleges that at the com- mencement of the suit he was and now is an inhabitant of and resides in County, which is in the District of the State of , and, therefore, this action is not properly within the jurisdiction of this court. . . . ." CHAPTER 6. DISTRICT COURT JURISDICTION, ORIGINAL AND APPELLATE. Sec. 190. In General. 191. District Court Jurisdiction Exclusive of State Courts. 192. Exclusive Jurisdiction. 193. District Court Jurisdiction Concurrent with That of State Courts. 194. Original Jurisdiction. 195. Jurisdiction by Assignment. 196. Agriculture. 197. Alien Enemies. 198. Same Duties of Marshal. 199. Customs Duties. 200. Rivers, Harbors, and Canals Actions to Remove Obstructions. 201. White Slave Traffic. 202. Appellate Jurisdiction Chinese Exclusion Laws. 203. Appellate Jurisdiction Yellowstone National Park. 204. Jurisdiction of Crimes on Indian Reservations South Dakota. 205. Power to Enforce Foreign Consular Awards. 206. Powers of Foreign Consuls over Disputes between Seamen. 207. Arrest of Seamen on Application of Consul. 208. Commitment and Discharge. 209. Jurisdiction in Cases Transferred from Territorial Courts. 210. Jurisdiction under Reclamation Act. 211. Jurisdiction under Income Tax Law. 212. Jurisdiction in Arbitration of Disputes between Common Carriers and Employees. 190. In General. The original jurisdiction of the Federal district court is set out in 24, Judicial Code, 1 part of which is made exclusive by 256, Judicial Code, 2 and part by other provisions, 8 the remainder being concurrent with that of state courts of record in the various states. 4 Under 24, the jurisdiction of the district courts is limited to cases involving a Federal question 6 or diverse citizenship, 6 also l 194, infra. 192, infra. 3 191, m f ra . 4 193, infra. 6 Ch. 7, post. Ch. 8, post. 102 190 DISTRICT COURT JURISDICTION 103 with respect to the amount in controversy 7 and the denial of the right of certain assignees to sue unless their assignors could have brought the suits in the Federal courts. 8 Considerable volume of business comes into the Federal district courts through its jurisdiction on removal of cases from the state courts. This jurisdiction on removal under 28 et seq., Judicial Code, is limited to those cases of concurrent jurisdiction of which the district court has original jurisdiction. This subject is treated in a separate chapter, chapter 10, entitled, "Removal of Causes Jurisdiction and Procedure." Under special provisions of the Federal statutes giving juris- diction to the United States courts, several include the United States district court. The United States district court has jurisdiction of various matters under the titles, "Agriculture," 9 "Alien Enemies," 10 "Customs Duties," " "Rivers, Harbors, and Canals," 12 and "White Slave Traffic," 13 "Income Tax Law," 13a "Arbitration Disputes Common Carriers and Employees," 13b "Reclamation Act," 13 and others. The appellate jurisdiction of the district court is given by the Chinese exclusion laws, 25, Judicial Code, 14 over Yellow- stone National Park by 26, Judicial Code; 15 over crimes in Indian Reservation in South Dakota by 27, Judicial Code. 16 The district courts are given power to enforce awards of foreign consuls by 271, Judicial Code. 17 In this connection we set out the powers of foreign consuls under 4079-4080-4081, R. S. 18 By 64, Judicial Code, the district court is given jurisdiction of cases transferred from territorial courts. 19 The grounds of Federal jurisdiction are treated separately as above suggested in chapters 7 and 8, entitled respectively, "Federal Question Ground of Jurisdiction," "Diverse Citizenship Ground of Jurisdiction." 7Ch. 9, post. 8 195, infra. 196, infra. 10 197-8, infra. 11 199, infra. 12 200, infra. 13 201. infra. I3a 211, infra. I3b 212, infra. 13c 210, infra. l* 202, infra. 15 203, infra. 16 204. infra. 17 205, infra. 18 206-207-208, infra. 19 210, infra. 104 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 192 Chapter 9 treats of "Amount in Controversy as Affecting Juris- diction." Chapter 5 treats of "Venue of Actions in the District Court Territorial Jurisdiction," while chapter 4 gives the bound- aries of the judicial districts and divisions, the times and places of holding court. 191. District Court Jurisdiction Exclusive of State Courts. The district court's exclusive jurisdiction extends over those matters peculiarly within the scope of national control, such as cases against consuls and vice consuls, 20 admiralty and maritime causes, 21 seizures and prizes, 22 patents and copyrights, 23 penalties and forfeitures under the Federal laws, 24 crimes and offenses of Federal cognizance, 25 and also cases where Congress has legislated to the exclusion of state control, as under the bankruptcy laws. 28 So, also, though not mentioned in 256, Judicial Code, it would have jurisdiction, exclusive of the state courts, of suits against the United States, concurrently with the court of claims. 27 It also has jurisdiction exclusive of the state courts, of suits for the un- lawful inclosure of public lands, 28 and against trusts, monopolies, and unlawful combinations. 29 The amount involved is not material in these cases of exclusive jurisdiction. 80 24, Judicial Code, is quoted 194, infra, and 256 is quoted 192, infra. See also chapter 12, entitled, "Summaries Origi- nal Jurisdiction, Removal, Amount, Venue For the Several Mat- ters of District Court Cognizance." 192. Exclusive Jurisdiction. 256, Judicial Code* 36 Stat. at L. 1160, Comp. St. 1911, pp. 233, 234, 1912 Supp. F. S. A. v. 1, pp. 238-9. 20Subd. 18th, 24, Judicial Code, Subd. 8th, 256, Judicial Code. 21 Subd. 3d, 24, Judicial Code, Subd. 3d, 25(i, Judicial Code. 22 Subd. 3d, 24, Judicial Code, Subd. 4th, 256, Judicial Code. 23 Subd. 7th, 24, Judicial Code, Subd. 5th, 256, Judicial Code. 24 Subd. 9th, 24, Judicial Code, Subd. 2d, 256, Judicial Code. 25 Subd. 2d, 24, Judicial Code, Subd. 1st, 256, Judicial Code. 26 Subd. 19th, 24, Judicial Code, Subd. 6th, 256, Judicial Code. 27 Subd. 20th, 24, Judicial Code, 145, Judicial Code. 28 Subd. 21st, 24, Judicial Code. 29 Subd. 23d, 24, Judicial Code, Loewe v. Lawler, 130 Fed. 633. 30 Last part subd. 1, 24, Judicial Code. The general clause is from 711, R. S., Rose's Code, 15, Foster's Fed. Prac. (4th ed.) p. 2068, Comp. St. 1901, p. 577, 4 F. S. A. 493. 103 DISTRICT COURT JURISDICTION 105 "The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states : "First. Of all crimes and offenses cognizable under the authority of the United States. "Second. Of all suits for penalties and forfeitures in- curred under the laws of the United States. "Third. Of all civil causes of admiralty and maritime jurisdiction ; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. "Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and mari- time jurisdiction ; of all prizes brought into the United States ; and of all proceedings for the condemnation of prop- erty taken as prize. "Fifth. Of all cases arising under the patent-right, or copyright laws of the United States. "Sixth. Of all matters and proceedings in bankruptcy. "Seventh. Of all controversies of a civil nature, where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens. "Eighth. Of all suits and proceedings against ambassa- dors, or other public ministers, or their domestics, or domes- tic servants, or against consuls or vice consuls." 193. District Court Jurisdiction Concurrent with That of State Courts. The Federal district courts also have an exten- Paragraph one re-enacts paragraph one of 711, R. S., Comp. St. 1901, p. 577, 4 F. S. A. 493. Paragraph two re-enacts paragraph two of 711, R. S., Comp. St. 1901, p. 577, 4 F. S. A. 493. Paragraph three re-enacts paragraph three of 711, R. S., Comp. St. 1901, p. 577, 4 F. S. A. 493. Paragraph four re-enacts paragraph four of 711, R. S., Comp. St. 1901, p. 577, 4 F. S. A. 494; part of paragraph eight of 563, R. S. U. S., Comp. St. 1901, p. 547, 4 F. S. A. 220; part of paragraph six of 629, Comp. St. 1901, p. 504, 4 F. S. A. 247. Paragraph five re-enacts paragraph five of 711, R. S., Comp. St. 1901, p. 578, 4 F. S. A. 494. Paragraph six re-enacts paragraph six of 711, R. S., Comp. St. 1901, p. 578, 4 F. S. A. 497. Paragraph seven re-enacts paragraph seven of 711, R. S., Comp. St. 1901, p. 578, 4 F. S. A. 497. Paragraph eight re-enacts paragraph eight of 711, R. S., Comp. St. 1901, p. 578, 4 F. S. A. 497. All of these old sections are repealed by 297, Judicial Code. 106 MONTGOMERY'S MANUAL or FEDERAL PROCEDURE 193 sive jurisdiction which is not exclusive but concurrent with that of the state courts of record in the various states where the sever- al districts lie. Cases where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and involving either a Federal question or diverse citizenship, may be brought either in the Federal district court of the proper district, or on proper proceedings may be removed thereto from state court wherein such district is located. In many cases under 24, Judicial Code, the amount in con- troversy is immaterial. The provision as to value of the matter in controversy is expressly stated in 24 not to apply to the cases already mentioned as coming under the exclusive jurisdiction of the Federal courts, and also not to apply to suits under any law relating to slave trade ; 32 cases under internal revenue, customs and tonnage laws ; 33 suits under postal laws ; 84 suits for violation of interstate commerce laws ; 36 suits on debentures for drawback of duties; 36 suits for injuries on account of acts done under laws of the United States ; 37 suits concerning civil rights ; 38 suits against persons having knowledge of conspiracy under civil rights laws ; 39 suits to redress the deprivation under color of law of civil rights ; 40 suits to recover certain offices ; 41 suits involving national banking association ; * 2 suits by aliens for torts ; 43 suits under immigration and contract labor laws ; ** suits concerning allot- ment of lands to Indians ; 45 partition suits where United States is a joint tenant. 46 In criminal prosecutions under the foregoing classification or suits for penalties and forfeitures the jurisdiction would be exclusive of the state courts, under 256, Judicial Code, subds. 1 and 2. 47 The amount or value in controversy is also immaterial in all suits in law or in equity, brought by the United States or by any officer thereof authorized by law to sue, or be- tween citizens of the same state claiming lands under grants from different states. 48 But if in any action commenced in a 32Subd. 4th. 33 Subd. 5th. 34 Subd. 6th. 35 Subd. 8th. S6Subd. 10th. 7 Subd. llth. 38 Subd. 12th. 39 Subd. 13th. 40 Subd. 14th. Subd. 15th. 42 Subd. 16th. 43 Subd. 17th. 44 Subd. 22d. 45 Subd. 24th. Subd. 25th. 47 192, infra. 48 Subd. 1st, 24, Judicial Code, 194, infra. 19-i DISTRICT COURT JURISDICTION 107 state court the title of land be concerned, and the parties are citi- zens of the same state claiming under land grants of different states, the matter in dispute must exceed $3,000, exclusive of interest and costs, to entitle a party to remove to the Federal court. 49 194. Original Jurisdiction. 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, pp. 135-140, 1912 Supp. F. 8. A. v. 1, pp. 139-142. "The district courts shall have original jurisdiction as fol- lows : "First. (Where the United States are plaintiffs; and of civil suits at common law or in equity.) Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is be- tween citizens of different states, or (c) is between citizens of a state and foreign states, citizens, or subjects. No dis- trict court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bear- er, and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made: Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the suc- ceeding paragraphs of this section. 30, Judicial Code, 262, infra. b Drawn from 563, R. S., Rose's Code, 210, Foster's Fed. Prac. (4th ed.) pp. 219, 220, 221, 222, 1672, 1678, Comp. St. 1901, p. 455, 4 F. S. A. 218. and 629, R. S., Comp. St. 1901, p. 507, 4 F. S. A. 245, which are repealed by 297, Judicial Code. Civil suits at law or in equity, see Williams v. Molther et al. 198 Fed. 460, 117 C. C. A. 220. Amount in controversy, see notes to Tennent-Stribling Shoe Co. v. Roper, 94 Fed. 739, 36 C. C. A. 459, and notes to Auer v. Lombard, 19 C. C. A. 75; 0. J. Lewis Mercantile Co. v. Klepner, 176 Fed. 343, 100 C. C. A. 288. See chapter 9, post. United States as a party, see Heckman v. United States, 224 U. S. 413, 56 L. ed. 820, 32 Sup. Ct. Rep. 424. Diverse citizenship, see ch. 8, infra, notes 10 C. C. A. 249, 27 C. C. A. 29S. District for suit, see United States v. Congress Construction Co. 222 U. S. 199, 56 L. ed. 163, 32 Sup. Ct. Rep. 44. See chapter 5, supra. 108 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 194 "Second. (Of crimes and offenses.) Of all crimes and offenses cognizable under the authority of the United States. "Third. (Of admiralty causes, seizures, and prizes.) Of all civil causes of admiralty and maritime jurisdiction, sav- ing to suitors in all cases the right of a common-law remedy where the common law is competent to give it ; of all seizures on land or waters not within admiralty and maritime juris- diction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. "Fourth. (Of suits under any law relating to the slave trade.) Of all suits arising under any law relating to the slave trade. "Fifth. (Of cases under internal revenue, customs, and tonnage laws. ) Of all cases arising under any law providing for internal revenue, or from revenue from imports or ton- nage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been con- ferred upon the court of customs appeals. "Sixth. (Of suits under postal laws.) Of all cases aris- ing under the postal laws. "Seventh. (Of suits under the patent, the copyright, and the trademark laws.) Of all suits at law or in equity arising under the patent, the copyright, and the trademark laws. "Eighth. (Of suits for violation of interstate commerce laws.) Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the commerce court. (Commerce court now abolished and juris- diction transferred to district court. See ch. 9 of the Ju- dicial Code, in our Appendix.) "Xinth. (Of penalties and forfeitures.) Of all suits and proceedings for the enforcement of penalties and for- feitures incurred under any law of the United States. "Tenth. (Of suits on debentures.) Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the per- son to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such deben- ture. "Eleventh. (Of suits for injuries on account of acts done under laws of the United States.) Of all suits brought by any person to recover damages for any injury to his person or 194 DISTRICT COURT JURISDICTION 100 property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several states. "Twelfth. (Of suits concerning civil rights.) Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in further- ance of any conspiracy mentioned in section nineteen hun- dred and eighty, Revised Statutes. "Thirteenth. (Of suits against persons having knowledge of conspiracy, etc.) Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to.be done, and having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. "Fourteenth. (Of suits to redress the deprivation, under color of law, of civil rights.) Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privi- lege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. "Fifteenth. (Of suits to recover certain offices.) Of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or dele- gate to Congress, or member of a state legislature, author- ized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude: Provided) That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the states. "Sixteenth. (Of suits against national banking associa- tions.) Of all cases commenced by the United States, or by 110 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 194 direction of any officer thereof, against any national bank- ing association, and cases for winding up the affairs of any such bank ; and of all suits brought by any banking associa- tion established in the district for which the court is held, under the provisions of title, "National Banks," Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purpose of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located. "Seventeenth. (Of suits by aliens for torts.) Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States. "Eighteenth. (Of suits against consuls and vice consuls.) Of all suits against consuls and vice consuls. "Nineteenth. (Of suits and proceedings in bankruptcy.) Of all matters and proceedings in bankruptcy. "Twentieth. (Of suits against the United States.) Con- current with the court of claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regula- tion of an Executive Department, or upon any contract, ex- press or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sound- ing in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands what- soever on the part of the government of the United States against any claimant against the government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the court of claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and de- termine the same, or to hear and determine claims for pen- sions ; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official 194: DISTJUCT COUET J L'KISDICTION 111 services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety- eight, shall abate or be affected by this provision: And pro- vided, further, That no suit against the government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, en- titled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabili- ties operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. "Twenty-first. (Of suits for the unlawful inclosure of public lands.) Of proceedings in equity, by writ of injunc- tion, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the in- closure. "Twenty-second. (Of suits under immigration and con- tract labor laws.) Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. "Twenty-third. (Of suits against trusts, monopolies, and unlawful combinations.) Of all suits and proceedings aris- ing under any law to protect trade and commerce against restraint and monopolies. "Twenty-fourth. (Of suits concerning allotments of land to Indians.) Of all actions, suits, or proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. And the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Inter- ior, as if such allotment had been allowed and approved by 112 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 195 him ; but this provision shall not apply to any lands now or heretofore held by either of the Five Civilized Tribes, the Osage Nation of Indians, nor to any of the lands within the Quapaw Indian Agency : Provided, That the right of appeal shall be allowed to either party as in other cases. (Subd. 24 as amended act Dec. 21, 1911, ch. 5, 37 Stat. at L. 46.) "Twenty-fifth. (Of partition suits where United States is joint tenant.) Of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate." The separate heads of jurisdiction in the section above quoted are set out in connection with statutory provisions on exclusive jurisdiction, removal, amount in controversy, and venue in chapter 12, entitled, "Summaries Original Jurisdiction, Removal, Amount, Venue, for the Several Matters of District Court Cogniz- ance." 195. Jurisdiction by Assignment. 51 In the latter part of subdivision first, 24, Judicial Code, quoted in 194, supra, it is provided as follows: "No district court shall have cognizance of any suit (ex- cept upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any as- signee, or of any subsequent holder, if such instrument be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made." The purpose of this provision is to prevent the conferring of jurisdiction on the district courts by fraudulent assignments creating an apparent diversity of citizenship. 82 The exceptions permitting assignees to bring suit are: 1st, Suits upon foreign bills of exchange; 2d, suits that might have been prosecuted in such courts if no assignment had been made; 51 See note to 4 F. S. A. 306, 311; Simpkin's Federal Equity Suit, 2d ed. pp. 208-222. 52 See Barclay v. Levee's Commissioners. 1 Woods, U. S. 254, 2 Fed. Cas. No. 977. 195 DISTKICT COURT JURISDICTION 113 3d, suits upon choses in action made by a corporation payable to bearer. 53 Another exception is where the assignor is merely the nominal owner. 54 The objection may be raised at any time. 55 The matter being jurisdictional, where the citizenship of the original payee is material, it should be shown in the bill, distinct- ly alleged, and not by inference. The form of allegation may be as follows : "John Doe, plaintiff alleges that at all times since the assignment to him of the within cause of action, he was and is a citizen of the State of , and a resident of the County of in said State ; that his assignor, Henry Smith, at all times hereinafter mentioned was and is a citizen of the State of and a resident of the County of in said State, and competent to have prosecuted in this Court a suit upon the cause of action herein set out if no assignment had been made; that defendant, Richard Roe, at all times hereinafter mentioned, was and is a citizen of the State of residing in said County of said state." It is not enough to allege in the complaint that the assignor was a citizen of a different state from defendant, but there must be shown diverse citizenship of the assignor and the defendant at the time of bringing the suit. 56 In order to remove a case from a state to the Federal court, the bill filed in the state court must show proper citizenship of the assignors. 57 Objection may be made by motion to dismiss if the defect ap- pears on the face of the complaint, or in the answer, under Equity Rule 29, in equity suits; or in an action at law by an appropriate form of state pleading provided to raise jurisdictional points. The following is suggested as matter to be incorporated in whatever form of pleading is used to raise the objection : "Defendant further alleges that the bill of complaint shows that plaintiff 53 See Xewgass v. New Orleans, 33 Fed. 196, 198; Wilson v. Knox Co. 43 Fed. 481; New Orleans v. Quinlan, 173 U. S. 191, 43 L. ed. 664, 19 Sup. Ct. Rep. 329; Quinlan v. New Orleans, 92 Fed. 695; Skinner v. Bar, 77 Fed. 816. 54 Kirven v. Virginia Carolina Chemical Co. 145 Fed. 288, 7 Ann. Gas. 219, 76 C. C. A. 172. 58 Utah-Nevada Co. v. De Lamar, 133 Fed. 113, 66 C. C. A. 179. 66 Benjamin v. City of New Orleans, 71 Fed. 758; same case circuit court of appeals, 74 Fed. 417, 20 C. C. A. 591, 41 U. S. Appeal, 178. 57 Simkin's Fed. Equity Suit 2d ed. p. 220. Montg. 8. ll-i MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 198 derives title and right to sue through an assignment from Henry Smith, that said Henry Smith was and is now a citizen of the State of ; and, therefore, that there is no diversity of citizenship on which to base the jurisdiction of this court in this suit." 196. Agriculture. 5, Act of April 26, 1910, Ch. 191, Comp. St. 1911, p. 1370, 1912 Supp. F. 8. A. v. 1, p. 4- "That it shall be the duty of each district attorney to whom the Secretary of Agriculture shall report any violation of this act, or to whom any director of experiment station or agent of any state, territory, or the District of Columbia, under authority of the Secretary of Agriculture, shall present satisfactory evi- dences of any such violation, to cause appropriate proceed- ings to be commenced and prosecuted in the proper courts ofHhe United States, without delay, for the enforcement of the penalties as in such case herein provided. (36 Stat. at L. 332.) " 197. Alien Enemies. 4069, R. S., Comp. St 1901, pp. 2762, 2763, 1 F. S. A. 436. "After any such proclamation has been made, the sev- eral courts of the United States having criminal jurisdiction, and the several justices and judges of the courts of the Unit- ed States, are authorized, and it shall be their duty, upon complaint against any alien enemy resident and at large with- in such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, con- formably to the proclamation or regulations established as aforesaid, and to imprison or otherwise secure such alien, until the order which may be so made shall be performed." 198. Same Duties of Marshal. 4070, R. S., Comp. St. 1901, p. 2763, 1 F. 8. A. 436. "When an alien enemy is required by the President, or by order of any court, judge, or justice, to depart and to be re- 200 DISTRICT COURT JURISDICTION 115 moved, it shall be the duty of the marshal of the district in which he shall be apprehended to provide therefor, and to execute such order in person, or by his deputy, or other discreet person to be employed by him, by causing a removal of such alien out of the territory of the United States; and for such removal the marshal shall have the warrant of the President, or of the court, judge, or justice ordering the same, as the ca^e may be." 19C. Customs Duties. 3, Act June 10, 1910, Ch. 283, Comp. St. 1911, pp. 893, 894, 1912 Si/pp. F. S. A. v. 1, p. 49. "That any licensed custom-house broker aggrieved by the decision of the Sec- retary of the Treasury may, within thirty days thereafter, and not afterwards, apply to the United States circuit court for the circuit in which the collection district is situated for a review of such decision. Such application shall be made by filing in the office of the clerk of said court a petition praying relief in the premises. Thereupon the court shall immediately give notice in writing of such application to the Secretary of the Treasury, who shall forthwith transmit to said court the record and evidence taken in the case, to- gether with a statement of his decision therein. The filing of such application shall operate as a stay of the revocation of the license. The matter may be brought on to be heard before the said court in the same manner as a motion, by either the United States district attorney or the attorney for the custom-house broker, and the decision of said United States circuit court for the circuit in which the collection district is situated shall be upon the merits as disclosed by the record and be final, and the proceedings remanded to the Secretary of the Treasury for further action to be taken in accordance with the terms of the decree. (36 Stat. at L. 465.) " See subd. 5, 24, Judicial Code, quoted 194, infra, giving the district court original jurisdiction of cases arising under the customs laws. 200. Rivers, Harbors, and Canals Actions to Remove Obstructions. Ft. 5, Act June 23, 1910, Ch. S60, 86 Stat. at. L. 595, 110 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 203 Comp. St. 1911, p. 1561, 1912 Supp. F. S. A. v. 1, p. 348. "And the removal or (of) any structures erected or main- tained in violation of the provisions of this act or the order or direction of the Secretary of War or the Chief of Engi- neers made in pursuance thereof may be enforced by in- junction, mandamus, or other summary process, upon appli- cation to the circuit court in the district in which such structure may, in whole or in part, exist, and proper pro- ceedings to this end may be instituted under the direction of the Attorney General of the United States at the request of the Chief of Engineers or the Secretary of War; and in case of ally litigation arising from any obstruction or al- leged obstruction to navigation created by the construction of any dam under this act the cause or question arising may be tried before the circuit court of the United States in any district in which any portion of said obstruction or dam touches." 201. White Slave Traffic. 5, Act June 25, 1910, Ch. 395, 36 Stat. at L. 826, Comp. St. 1911, p. 1345. "That any violation of any of the above sections two, three, and four shall be prosecuted in any court having jurisdiction of crimes within the district in which said violation was committed, or from, through, or into which any such woman or girl may have been carried or transported as a passenger in interstate or foreign com- merce, or in any territory, or the District of Columbia, con- trary to the provisions of any of said sections." 202. Appellate Jurisdiction Chinese Exclusion Laws. 25, Judicial Code, c 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 143. "The dis- trict courts shall have appellate jurisdiction of the judg- ments and orders of United States commissioners in cases arising under the Chinese exclusion laws." 203. Appellate Jurisdiction Yellowstone National Park. 26 } Judicial Code,* 36 Stat. at L. 1094, Comp. St. c Drawn from act of Sept. 13, 1888, ch. 10]5, 13. Rose's Code 2405 Foster's Fed. Prac. (4th ed.) p. 222, 25 Stat. at L. 479, Comp. St. 1901 p.' 1317, 1 F. S. A. 772. <1 Re-enactinpr act of May 7, 1894, ch. 72, 28 Stat. at L. 74, Comp. St. 1801, p. 1563, 6 F. S. A. 620. 205 DISTRICT COURT JURISDICTION" 117 1911, p. 140, 1912 Supp. F. 8. A. v. 1, p. 144. "The dis- trict court of the district of Wyoming shall have jurisdiction of all felonies committed within the Yellowstone National . s Park, and appellate jurisdiction of judgments in cases of con- viction before the commissioner authorized to be appointed under section five of an act entitled, "An Act to Protect the Birds and Animals in Yellowstone National Park, and to Punish Crimes in Said Park, and for Other Purposes," ap- proved May seventh, eighteen hundred and ninety-four." 204. Jurisdiction of Crimes on Indian Reservations South Dakota. 27, Judicial Code* 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 F. S. A. v. 1, p. 144- "The district court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and determine all actions and proceedings in which any person shall be charged with the crime of murder, manslaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a dangerous weapon, committed within the limits of any Indian reserva- tion in the state of South Dakota." 205. Power to Enforce Foreign Consular Awards. 271, Judicial Code,* 36 Stat at L. 1163, Comp. St. 1911, p. 237, 1912 Supp. F. S. A. v. 1, p. 244> "The dis- trict courts and the United States commissioners shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the cap- tains and crews of the vessels belonging to the nation whose interests are committed to his charge, application for the exercise of such power being first made to such court or commissioner, by petition of such consul, vice consul, or com- mercial agent. And said courts and commissioners may e Re-enacting act of February 2, 1903, ch. 351, Rose's Code, 155, 32 Stat. at L. 793, Foster's Fed. Prac. (4th ed.) pp. 257, 258, 10 F. S. A. 121. In general, Hollister v. United States, 145 Fed. 733, 76 C. C. A. 337. 'Re-enacting of 728, R. S., Rose's Code, 158, (540, 1286, Comp. St.. 1901, p. 584, 4 F. S. A. 551, which section is repealed by 297, Judicial Code. In jreueral, United States v. Allred, 155 U. S. 591, 39 L. ed. 273, 15 Sup. ft. Rep. 231. 118 MONTGOMERY'S MANUAL or FEDERAL PROCEDURE 207 issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration, or decree, and to en- force obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise dis- charged therefrom, by the consent in writing of such consul, vice consul, or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice consul, or commercial agent : Provided, how- ever, That the expenses of the said imprisonment and main- tenance of the prisoners, and the cost of the proceedings, shall be borne by such foreign government, or by its consul, vice consul, or commercial agent requiring such imprison- ment. The marshals of the United States shall serve all such process, and do all other acts necessary and proper to carry into effect the premises under the authority of said courts and commissioners." 206. Powers of Foreign Consuls over Disputes between Seamen. 4079, R. 8., Comp. St. 1901, p. 2766, 2 F. 8. A. 817, Rose's Code, 1524. "Whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul general, consuls, vice consuls, or con- sular or commercial agents of each nation, shall have ex- clusive jurisdiction of controversies, difficulties, or disorders arising at sea or in the waters or ports of the nation, between the master or officers and any of the crew, or between any of the crew themselves, of any vessel belonging to the nation represented by such consular officer, such stipulations shall be executed and enforced within the jurisdiction of the United States as hereinafter declared. But before this sec- tion shall take effect as to the vessels of any particular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, and shall issue his proclamation to that effect, declaring this section to be in force as to such nation." 207. Arrest of Seamen on Application of Consul. 4080, R. 8., Comp. St. 1901, pp. 2766, 2767, 2 F. 8. A. 208 DISTRICT COUET JURISDICTION 119 818, Rose's Code, 1525. "In all cases within the pur- view of the preceding section, the consul general, consul, or other consular or commercial authority of such foreign nation charged with the appropriate duty in the particular case, may make application to any court of record of the United States, or to any judge thereof, or to any commis- sioner of a circuit court, setting forth that such controversy, difficulty, or disorder has arisen, briefly stating the nature thereof, and when and where the same occurred, and ex- hibiting a certified copy or extract of the shipping-articles, roll, or other proper paper of the vessel, to the effect that the person in question is of the crew or ship's company of such vessel ; and further stating and certifying that such per- son has withdrawn himself, or is believed to be about to with- draw himself, from the control and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of such consular or commercial authority in the premises; and further stating and certifying that, to the best of the knowl- edge and belief of the officer certifying, such person is not a citizen of the United States. Such application shall be in writing and duly authenticated by the consular or other sufficient official seal. Thereupon such court, judge, or com- missioner shall issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district, or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring such person to be brought before him for examination at a certain time and place." 208. Commitment and Discharge. 4081, R. S. f Comp. St. 1901, p. 2161, 2 F. 8. A. 818, Rose's Code, 1526. "If, on such examination, it is made to appear that the person so arrested is a citizen of the Unit- ed States, he shall be forthwith discharged from arrest, and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge, or commissioner finds, upon the papers hereinbefore referred to, a sufficient prima facie case that the matter concerns only the internal order and discipline of such foreign vessel, or, whether in its nature civil or criminal, does not affect directly the execu- tion of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthwith, by 120 MONTGOMERY'S MANUAL, OF FEDERAL PROCEDURE 211 his warrant, commit such person to prison, where prisoners under sentence of a court of the United States may be law- fully committed, or, in his discretion, to the master or chief officer of such foreign vessel, to be subject to the lawful or- ders, control, and discipline of such master or chief officer, and to the jurisdiction of the consular or commercial au- thority of the nation to which such vessel belongs, to the ex- clusion of any authority or jurisdiction in the premises of the United States or any state thereof. No person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty and shall not again be arrested for the same cause. The expenses of the arrest and the detention of the person so arrested shall be paid by the consular officers making the application." 209. Jurisdiction in Cases Transferred from Territorial Courts. 64, Judicial Code* 36 Stat. at L. 1104, Com,p. St. 1911, p. 155, 1912 Supp. F. S. A. v. 1, p. 158. "When any territory is admitted as a state, and a district court is es- tablished therein, the said district court shall take cognizance of all cases which were pending and undetermined in the trial courts of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court or to the cir- cuit court of appeals, and shall proceed to hear and determine the same." 210. Jurisdiction under Reclamation Act. 5, Act August 9, 1912, Ch. 218, 37 Stat. at L. 67. "That jurisdiction of suits by the United States for the enforcement of the provisions of this act is hereby con- ferred on the United States district courts of the districts in which the lands are situated." 211. Jurisdiction under Income Tax Law. 3176, subd. K, Act Oct.. 3, 1913, Ch. 16, 38 Slat, at L. 179. "That jurisdiction is hereby conferred on the district courts of the United States within which any per- son summoned under this section to appear to testify or to produce books shall reside, to compel such attendance, production of books, and testimony, by appropriate process. ar Re-enacting substantially 569, R. S., Rose's Code. 213, Foster's Fed. Prac. (4th ed.) p. 1455, Comp. St. 1901, p. 462, 4 F. S. A. 238, which section is repealed by 297, Judicial Code. In general, Dunton et al. v. Muth et a!. 45 Fed. 390. 212 DISTRICT COURT JURISDICTION 121 212. Jurisdiction in Arbitration of Disputes between Common Carriers and Employees. Ft. 5, Act July 15, 1913, Ch. 6, 38 Stat. at L. 106. Arbitrators under the above act "may invoke the aid of the United States court to compel witnesses to attend and testi- fy and to produce such books, papers, contracts, agreements, and documents to the same extent and under the same conditions and penalties as is provided for in the act to regulate commerce approved February fourth, 1887, and amendments thereto." 8, Act July 15, 1913, Ch. 6, 38 Stat. at L. 107. "That the award, being filed in the clerk's office of a district court of the United States as hereinbefore provided, shall go into practical operation, and judgment shall be entered thereon accordingly at the expiration of ten days from such filing, unless within ten days either party shall file exceptions thereto for matter of law apparent on the face of the record, in which case said award shall go into practical operation, and judgment be entered accordingly, when such exceptions shall have been finally disposed of either in the district court or on appeal therefrom. At the expiration of ten days from the decision of the district court upon exceptions taken to said award as aforesaid, judgment shall be entered in accordance with said decision, unless during said ten days either party shall appeal therefrom to the circuit court of appeals. In such case only such portion of the record shall be transmitted to the appellate court as is necessary to the proper understanding and consideration of questions of law presented by said exceptions and to be decided. The determination of the circuit court of appeals upon said ques- tions shall be final, and, being certified by the clerk thereof to the district court, judgment pursuant thereto shall there- upon be entered by said district court. If exceptions to an award are finally sustained, judgment shall be entered set- ting aside the award in whole or in part; but in such case the parties may agree upon a judgment to be entered dis- posing of the subject-matter of the controversy, which judg- ment when entered shall have the same force and effect as judgment entered upon an award. Xothing in this act shall be construed to require an employee to render personal serv- ice without his consent, and no injunction or other legal process shall be issued which shall compel the performance by any employee against his will of a contract for personal labor or service." CHAPTER 7. FEDERAL QUESTION GROUND OF JURISDICTION. Sec. 215. What Is a Federal Question? 216. Arises in Suits with Federal Officers Involving Official Acts. 217. Arises in Suits with Federal Corporations Existing under Federal Laws. 218. Exception Suits with National Banks Other Than by or against Officers of the United States. 219. Arising under the Constitution. 220. As a Ground of Original Jurisdiction. 221. As a Ground for Removal. 222. Citizenship not Material in Suits Involving a Federal Question except When Affecting Venue. 223. Amount Required to Be in Controversy. 224. Question Must Appear on the Face of the Bill in the Federal Court. 225. How Question Must Appear in a State Court to Be Removed to Federal Court. 226. Raising the Issue as to Federal Question. 7 ; t , ' i ,j.^^. . [ f . 215. What Is a Federal Question? A Federal question is one arising under the Constitution or a law of the United States or treaties made, whenever the correct decision of the suit depends upon the construction of either, or when the title or right set up by the party may be defeated by one construction or sustained by the opposite construction. 1 A Federal question does not arise merely because it becomes necessary in the progress of the litigation to construe the Federal Constitution, laws, or treaties. 8 1 Cohens v. Virginia, 6 Wheat. 379, 5 L. ed. 285; Osborn v. Bank, 9 Wheat. 822, 6 L. ed. 224; Oregon v. Three Sisters Irrigation Company, 158 Fed. 346; Hall v. Chicago, etc., Railroad Company. 149 Fed. 564. 2 .Miller v. Illinois Central R. Co. 168 Fed. 982; Leggett v. Great Northern R. Co. 180 Fed. 314. 122 216 FEDERAL QUESTION GROUND OF JURISDICTION 123 216. Arises in Suits with Federal Officers Involving Of- ficial Acts. Pt. 24, Judicial Code,* 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 139. "The dis- trict court shall have original jurisdiction as follows : "First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by an officer there- of authorized by law to sue. ..." Suits brought by Federal officers find their authority in this section and preceding provisions of the law of like character. Suits against Federal officers stand on a different footing and are discussed hereafter. A receiver of a national bank appointed by a Comptroller of Currency comes within this clause, and may sue without regard to the citizenship of the parties or the amount involved. 3 So, also, an agent of a national bank who has dis- placed a receiver comes under the rule,* and a Postmaster General suing under the official bond of a postmaster. 5 Suits against United States officers do not come under the above quoted provision, 6 but are held to arise under the laws of the United States as necessarily involving the construction thereof. "An action against a United States marshal and his deputy, growing out of their acts in executing the process of a court of the United States, is, regardless of citizenship of the parties, -within the jurisdiction of the United States circuit (now district) court for the proper district; and this is so even where there is no dis- puted question of Federal law in the case." 7 "A case in which an attack upon the official acts of a United States marshal is made covertly, by suppressing the facts which constitute an essential part of the res gestce in the first pleading, is none the less a case arising under the laws of the United States." 3 Gibson v. Peters, 150 U. S. 342, 37 L. ed. 1104, 14 Sup. Ct. Rep. 134; Schofield v. Palmer, 134 Fed. 753; Murray v. Chambers, 151 Fed. 142. 4 McCbnville v. Gilmour, 36 Fed. 277, 1 L.R.A. 498. 5 Postmaster General v. Early, 12 Wheat. 136, 6 L. ed. 577; Postmaster General v. Furber, 4 Mason, 333, 19 Fed. Cas. No. 11,308. SHallam v. Tillinghast, 75 Fed. 849. 1 Wood v. Drake, 70 Fed. 882, citing Bock v. Perkins, 139 U. S. 628, 35 L. ed. 314, 11 Sup. Ct. Rep. 677; Grant v. Bank, 47 Fed. 673. 8 Ibid. For annotation of this 24, Judicial Code, see footnote b, ante, 194. 124 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 210 "The national government must be permitted to exercise its pow- er within the states through its own agencies. The national courts are the proper tribunals for adjudicating of questions as to the validity of their own process, and the lawfulness of the acts of their own ministers in executing the same." ' The following are illustrations of suits by and against Federal officers held to involve Federal question by reason of the character of the party: Action against executors and heirs of an internal revenue col- lector to recover taxes alleged to have been illegally collected by such collector ; 10 a suit upon a bond of the clerk of the circuit court ; n on bond of a marshal ; 12 to recover damages for wrongful levy by marshal ; 18 suit on government contractor's bond. 14 Special provision is made for removal of cases against a United States officer acting under the civil rights laws, PL 31, Judicial Code* 36 Stat. at L. 1906, Comp. St. 1911, p. US, 1912 Supp. F. 8. A. v. 1, p. 147. "When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, . . . against any officer, civil or military, or other person, for any arrest or imprison- ment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the 9 Wood v. Drake, 70 Fed. 881-883, and cases cited. 10 Sinking Fund Commissioners v. Buckner, 48 Fed. 533; see also Orner v. Saunders, 3 Dill 284-18, Fed. Cas. No. 10,584. "Howard v. United States, 184 U. S. 681, 46 L. ed. 754, 22 Sup. Ct. Rep. 543. l2Feiberman v. Packard, ]09 U. S. 421, 27 L. ed. 984, 3 Sup. Ct. Rep. 289. 13 Hurst v. Cobb, 61 Fed. 1. But see McKee v. Rains, 10 Wall. 22, 19 L. ed. 860, where a suit against a marshal for trespass is levying on goods for a third party, held not to involve a Federal question. "Mullin v. United States, 109 Fed. 817, 48 C. C. A. 677. b Re-enacting 641, R. S., Rose's Code, 137, 1149, 1150, 1151, Fos- ter's Fed. Prac. (4th ed.) pp. 43, 1201, 1458, 1463, 1511, 1514, 1528, 1531,. 1576, Comp. St. 1901, p. 520, 4 F. S. A. 258, which section is repealed by 297, Judicial Code. Constitutional. Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; Strauder v. West Virginia, 100 U. S. 310, 25 L. ed. 667; California v. Chue Fan, 42 Fed. 865. 217 FEDERAL QUESTION GROUND OF JURISDICTION 125 trial or final hearing of the cause stating the facts and veri- fied by oath, be removed for trial into the next district court to be heard in the district where it is pending. . . ." Federal receivers. It was formerly held that a Federal question arose in the case of receivers appointed by Federal courts by virtue of a Federal appointment. But it is now held that such appointment does not raise a Federal question so as to allow removal to a Federal court on that ground. 16 66 of the Judicial Code permits a Federal receiver to be sued without previous leave of the court in respect to any act or transaction of his in carrying on the business connected with the property. 217. Arises in Suits with Federal Corporations Existing under Federal Laws. A Federal corporation is organized un- der and depends upon a Federal law. It is held that a suit against a Federal corporation therefore involves a Federal ques- tion irrespective of the citizenship of the parties or any other law involved. If a complaint filed in the state court shows on its face that the defendant corporation is one organized under Fed- eral laws, except in cases of national banks, 16 the suit may be re- moved to the Federal court as presenting a Federal question. 17 It has even been held that the suit is removable, though there is nothing in the plaintiff's pleading showing that defendant is a Federal corporation. 18 But a different holding appears in Ore- gon Short Line v. Skottoee, 162 U. S. 490, 16 Sup. Ct. Kep. 869, 40 L. ed. 1048. 15 Pope v. Louisville R. R.-Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Rep. 500, and other cases cited in Simkin's Federal Equity Suit, 2d ed. p. 163; Dale v. Smith, 182 Fed. 360; People v. Bleecker St. R. Co. 178 Fed. 156; Pepper v. Rogers, 128 Fed. 987 ; Rural Home Telephone Co. v. Powers, 176 Fed. 986. 16 213, post. 17 Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113, 29 L. d. 319; Simkin's Fed. Eq. Suit (2d ed.) eh. 25. "Texas etc. R. R. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. Rep. 703, 41 L. ed. 1132; Supreme lodge, etc., v. Wilson, 66 Fed. 785, 14 C. C. A. 264; Sulli- van v. Barnard, 81 Fed. 886; Pitkin v. Cowen, 91 Fed, 599; Water v. Keves, 00 U. S. 199, 24 L. ed. 656. 126 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 21D 218. Exception Suits with National Banks Other Than by or against Officers of the United States. Subd. 16, 24, Judicial Code, 36 Stat. at L. 1091, Comp. St. 1911, p. 138, 1912 Supp. F. S. A. v. 1, p. 140. "Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank ; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title 'Xational Banks,' Revised Statutes, to enjoin the Comp- troller of the Currency, or any receiver acting under his direction, as provided by said title. And all national bank- ing associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located." 9*1 mrw 8*1 ;. The latter part of this section places national banks on the same footing as individuals of other corporations with respect to the right to sue and be sued in the Federal courts. There must be either diversity of citizenship, or a Federal question other- wise involved, to permit suits by or against national banks under this provision. 19 219. Arising under the Constitution. Questions too nu- merous to discuss in this work, arise under the Federal Consti- tution. 10, art. 1, U. 8. Const. "K"o state shall . . . pass any . . . law impairing the obligation of contracts 20 1, art. 4, U. S. Const. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every state . . ." 21 19 American National Bank .v. Tappan, 174 Fed. 431 ; State Nat. Bank v. Kuroka Springs Water Co. 174 Fed. 827; Continental Nat. Bank v. Buford, 191 U. S. 123, 48 L. ed. 119, 24 Sup. Ct. Rep. 54; and other cases cited in 5 F. S. A. p. 195. 20 8 F. S. A. pp. 748 to 889. 21 9 p. S. A. pp. 141 to 157. 220 FEDERAL QUESTION GROUND OF JURISDICTION 127 2, art. If, U. S. Const. "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." 22 x Pt. 1, 14th Amendment U. 8. Const. ". . . no state shall make or enforce any law which shall abridge the priv- ileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty, or prop- erty without due process of law ; 23 nor deny to any person within its jurisdiction the equal protection of the laws." 24 ' 1, 15th Amendment U. 8. Const. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." 25 220. As a Ground of Original Jurisdiction. Cl 1, 1, art. 3, U. 8. Const. "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior court as Congress may from time to time ordain and establish. . . ." Cl. 1, 2, art. 3, U. 8. Const. "The judicial powers shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; . . ." Under the foregoing provisions of the United States Constitu- tion, Congress establishes the United States district courts as the courts of original jurisdiction with certain limitations as to grounds of jurisdiction and as to the amount in controversy. One of those grounds of jurisdiction is the existence of a Federal question. Pt. 24, Judicial Code. "The district courts have original jurisdiction as follows: First. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United 22 9 F. S. A. pp. 158 to 183. 23 9 F. S. A. pp. 416 to 537. 24 Ibid. pp. 538 to 624. 25 9 F. S. A. pp. 636-639. 128 MONTGOMERY'S MANUAL OF FEDEEAL PROCEDURE 221 States, or treaties made, or which shall be made, under their authority, . . . Provided, hoivever, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section. . . ." 221. As a Ground for Removal. Under the constitutional provision quoted in the preceding section, Congress has power to provide for the removal of suits from state courts to the Federal courts when such courts have original or appellate jurisdiction in such suits. 26 The jurisdiction on removal depends upon the original juris- diction in the district court, and therefore separate consideration is unnecessary, except in so far as the general subject of removal is treated in chapter 10, entitled, "Removal of Causes Jurisdic- tion and Procedure." It should be noted, however, that under the last part of 28, Judicial Code, 36 Stat. at L. 1094, Comp. St. 1911, p. 141, 1912 Supp. F. S. A. v. 1, p. 145, actions based on Federal "Employers' liability law" are not removable although the district courts have original jurisdiction concurrent with that of the state courts in that kind of action. Pi. 28, Judicial Code, 36 Stat. at L. 1094, 1912 Supp. F. S. A. v. 1, p. 145. c "Any suit of a civil nature, at law 26 Mayor, etc., of Nashville v. Cooper, 6 Wall. 247, 18 L. ed. 851. c Re-enacting 25 Stat. at L. 434, Comp. St. 1901, p. 509, 4 F. S. A. 312, changing the words "circuit court" to "district court," which statute is re- pealed by 297, Judicial Code. The last proviso re-enacts 35 Stat. at L. 66. 1909 Supp. F. S. A. 585, which statute is repealed by 297. Judicial Code. Fou Ik v. Gray, 120 Fed. 156; Smith v. Lyon, 133 U.' S. 315, 33 L. ed. 635, 10 Sup. Ct. Rep. 303; In re Pennsylvania *Co. 137 U. S. 457, 34 L. ed. 741, 11 Sup. Ct. Rep. 143; Hanrick v. Hanrick, 153 U. S. 192, 38 L. ed. 685, 14 Sup. Ct. Rep. 835 ; In re Cilley, 58 Fed. 977 ; Gumbel v. Pitkin, 124 U. S. 131, 31 L. ed. 374, 8 Sup. Ct. Rep/379. Suits at law or in equity, Western Union Teleg. Co. v. Louisville & I. R. Co. et al. 201 Fed. 932; In re Silvies River, 199 Fed. 495. Constitution, laws, or treaties, Anaconda Copper Mining Co. v. Butte- Balaklava Copper Co. 200 Fed. 808. As to nonresidents, see Wind River Lumber Co. v. Frankfort Marine Acci- dent & Plate Glass Ins. Co. 196 Fed. 340. As to separable controversy, In re Silvies River, 199 Fed. 495. Diverse citizenship, Anaconda Copper Mining Co. v. Butte-Balaklava Cop- per Co. 200 Fed. 808. Remanding, Rice v. Boston & M. R. R. 203 Fed. 580. 223 FEDERAL QUESTION GROUND OF JURISDICTION 129 or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, un- der their authority, of which the district courts of the United States were given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or de- fendants therein to the district court of the United States for the proper district. . . ." 222. Citizenship Not Material in Suits Involving a Fed- eral Question except When Affecting Venue. The existence of a Federal question is sufficient to sustain jurisdiction of the Federal court independent of citizenship, provided the requisite amount or value is involved and the venue properly laid. Citizens of the same state may sue each other in the Federal courts if a Federal question is involved. 27 Equity Rule 25 requires the citizenship and residence of each party to be set out in the bill. 28 In suits based on a Federal ques- tion the citizenship and residence of the parties is immaterial ex- cept in transitory actions where the residence of the defendant fixes the venue of the action under 51, Judicial Code. The requirements ef the rule as to citizenship and residence in suits based on a Federal question are chiefly for the sake of uni- formity and to identify the parties. In such suits of a local nature, citizenship and residence of any of the parties are otherwise imma- terial. If the basis of the Federal court's jurisdiction is diverse citizen- ship as well as a Federal question, necessarily a proper showing of citizenship is essential. 223. Amount Required to Be in Controversy. 29 In that part of 24, Judicial Code, quoted in 220 above, it will be noted that, in cases based on a Federal question, the matter in contro- 27 San Joaquin, etc., River Canal Co. v. Stanislaus County, 90 Fed. 520 ; Lund v. Chicago, etc., R. Co. 78 Fed. 385; Jewett v. Whitcomb, 69 Fed. 417; United States Express Co. v. Allen, 39 Fed. 712; Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437; Owings v. Norwood. 5 Cranch, 344, 3 L. ed. 120; Patton v. Brady, 184 U. S. 611, 46 L. ed. 715, 22 Sup. Ct. Rep. 493. 28 892, infra. 29 "Amount in Controversy as Affecting Jurisdiction," ch. 9,' post. Montg. 9. 130 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 225 versy, exclusive of interest and costs, must exceed the sum or value of $3,000, except in certain cases arising under Federal laws enu- merated in subdivisions second to twenty-five of that section, or if brought by the United States, or its officers. To make diverse citizenship the ground of jurisdiction, the amount in controversy must always exceed $3,000, exclusive of interest and costs. Where less than such amount is involved diverse citizenship is not material ; there must be a Federal question on which to base jurisdiction. As the jurisdiction on removal depends on the original juris- diction conferred on the district court, the amount required to be in controversy on removal is the same as that necessary to sus- tain the case if originally brought in the Federal court. 224. Question Must Appear on the Face of the Bill in the Federal Court. To entitle a plaintiff to bring a suit orig- inally in the United States district court, the Federal question must appear on the face of his bill as a part of his cause of action. 80 It must be real, and not colorable merely. 81 It must be essen- tial to his cause of action, and not merely in anticipation of a de- fense based on that ground. 32 225. How Question Must Appear in a State Court to Be Removed to Federal Court. To entitle a defendant to re- move a case from the state court to the United States district court, the Federal question must appear on the face of the initial plead- ing in the state court. The defendant cannot, in his petition '}. (I'L sJT'oi Lfniupsi 30 City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; St. Paul, M. & M. R. Co. v. St. Paul & N. P. R. Co. 15 C. C. A. 167, 68 Fed. 2; New Orleans v. New Orleans Water Works, 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142: Hamblin v. Land Co. 147 U. S. 532, 37 L. ed. 267, 13 Sup. Ct. Rep.. 353: St. Louis, etc.. R. Co. v. State of Missouri, 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 443. 31 Tennessee v. Union, etc., Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654. and other cases cited in 4 F. S. A. 282. 32 Florida Central R. Co. v. Bell, 176 U. S. 321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399, and other cases cited in 4 F. S. A. 283. 226 FEDERAL QUESTION GROUND OF JURISDICTION 131 for removal, set up the facts supplementing- plaintiff's pleading so as to show a Federal question. 33 The defendant, however, is not precluded in such a case from ob- taining the determination of a Federal court as to a Federal ques- tion involved in the suit, for if the plaintiff's pleading does not show such question, the defendant may, nevertheless, set up the Federal question in his own pleading, and thus preserve the right of review by the Supreme Court of the United States on writ of error. This subject is treated more in detail in chapter 11, en- titled, "Removal from State Court of Last Eesort to United States Supreme Court by Writ of Error Jurisdiction." 226. Raising the Issue as to Federal Question. The want of a Federal question, being a matter of jurisdiction, may be raised under Equity Rule 29, either by a motion to dismiss or in the answer and separately heard, and in an action at law by the appropriate defensive pleading provided for raising jurisdictional questions in the state court, generally by demurrer if the defect appears on the face of the complaint, or by plea or answer if it does not so appear. In case of removal the objection would be made in a motion to remand. In the event that a Federal question is properly pleaded, but is fraudulently made for the purpose of giv- ing jurisdiction when no actual Federal question is involved it would be set up in the answer under Equity Rule 29 in some such form as follows : Defendant further answering alleges that this suit does not really and substantially involve a controversy within the jurisdiction of this court in that this suit is wholly based on the alleged existence of a Federal question; that the allegations in plaintiff's complaint that this suit is dependent (here state allegations mentioned in complaint as ground of Federal jurisdiction), are not made truly 'and in good faith but are stated with a false and fraudu- lent purpose of imposing upon the jurisdiction of this court and are there- fore fictitious and fraudulent. Wherefore defendant prays that the suit be dismissed or remanded with costs. 33 Tennessee v. Union & Planters Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; Chappell v. Waterworth, 155 U. S. 102, 39 L. ed. 85, 15 Sup. Ct. Rep. 34: Walker v. Collins, 1 C. 0. A. 642, 50 Fed. 737, 8 C. C. A. 1, 59 Fed. 70, reversed in Walker v. Collins, 167 U. S. 58, 42 L. ed. 76, 17 Sup. Ct. Rep. 738 ; Mayo v. Dockery, 108 Fed. 897. CHAPTER 8. DIVERSE CITIZENSHIP. Sec. 230. In General. 231. What Is Citizenship. 232. Territorial and District of Columbia Citizens Are Not Included. 233. States and Territories Are Not Citizens. 234. Corporations. 235. Joint Stock Companies. 236. Partnerships. 237. National Banks. 238. Married Women. 239. Personal Representatives. 240. Trustees. 241. Guardians. 242. Aliens. 243. Indians. 244. Term "Citizen" Collective. 245. Change of Domicil after Suit Commenced. 246. Change of Citizenship or Transfer of Subject-Matter to Give Jurisdiction. 247. Shifting Parties to Create Diversity. 248. Venue as Affecting Jurisdiction Based on Diverse Citizenship. 249. Issue of Citizenship How Raised. 250. When Want of Diversity Appears on the Trial. 230. In General. PL 24, Judicial Code? 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. 8. A. v. 1, p. 139. "The dis- trict courts shall have original jurisdiction "as follows: "First. Of all suits of a civil nature, at common law or in equity, . . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars and . . . (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens or subjects, . . ." For Annotation of this 24, Judicial Code, see footnote *, ante, 194. 132 231 DIVERSE CITIZENSHIP 133 Ft. 51, Judicial Code? 36 8 tat. at L. 1101, Comp. St. 1911, p. 150, 1912 Supp F. 8. A. v. 1, p. 153. ". . . but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." It will be seen from the above quotations that in suits based on diversity of citizenship that (1) the matter in controversy must exceed, exclusive of interest and costs, the sum or value of three thousand dollars; (2) that the controversy must be between citizens of different states or between citizens of a state and foreign states, citizens, or subjects; and (3) that, where the fact that the action is between citizens of different states is the sole ground of jurisdiction, the action should be brought in the district of the residence of either the plaintiff or the defendant. The existence of a Federal question in these cases is imma- terial except as bearing on the question of venue, which in ac- tions not local should be in the district of the residence of defend- ant where both grounds of jurisdiction exist. Where there is a Federal question of such character that the amount in controversy is not material and the suit involves less than three thousand dollars, then the fact that there is a diver- sity of citizenship is immaterial because the amount in contro- versy will not support diversity of citizenship as a ground of Federal jurisdiction. Where diversity of citizenship is a sole ground of jurisdiction, the existence of a proper diversity and a proper amount in con- troversy are jurisdictional, and cannot be waived. The matter of venue is not jurisdictional in the same sense, but may defeat the action if timely objection be made by the opposing party. 231. What Is Citizenship. Citizenship is residence with- in a particular state with a bona fide intention that such residence shall be permanent. The residence and intention together con- b For Annotation of this 51, Judicial Code, see footnote a, ante. 161. 134 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 232 stitute what is known as domicil. 1 Accordingly the mere aver- ment of residence, which may be transient or with the expecta- tion of not remaining, is not the equivalent of the averment of citizenship for the purpose of supporting jurisdiction in the Fed- eral court.* This ruling has been held to be unaffected by the definition of citizenship as contained in the 14th Amendment of the Consti- tution of the United States, wherein it is declared that "all per- sons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 3 232. Territorial and District of Columbia Citizens Are Not Included. The citizenship must be of that kind that identi- fies itself with a particular state. To be a citizen of the United States, and not of some state, is not enough.* Territorial and District of Columbia citizens are not citizens of a state, so as to base Federal jurisdiction on the ground of diverse citizenship. 5 Thus a citizen and resident of Indian territory against a citizen of a state 6 and an action between state citizens and citizens of Porto Rico do not present a diversity of citizenship. 7 On the ground of diverse citizenship the citizen of a territory cannot sue a citizen of a state in the Federal courts and vice versa, 9 1 Butler v. Farnsworth, 4 Wash. 101, 4 Fed. Cas. No. 2,240; Morris v. Gilmer, 129 U. S. 315, 32 L. ed. 690, 9 Sup. Ct. Rep. 289 ; Mitchell v. United States, 21 Wall. 350, 22 L. ed. 584; Marks v. Marks, 75 Fed. 324; Doyle v. Clark, 1 Flipp. 536, 7 Fed. Cas. No. 4,053. 2 Home v. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Rep. 167 ; Wolfe v. Insurance Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct. Rep. 602; Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Rep. 873; Everhart v. Huntsville Collese, 120 U. S. 223, 30 L. ed. 623. 7 Sup. Ct. Rep. 555; Grace v. Insurance Co. 109 U. S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207 ; Brown v. Keene, 8 Pet. 112, 8 L. ed. 885 ; Turner v. Bank, 4 Ball. 8, 1 L. ed. 718. . 3 .Marks v. Marks, 75 Fed. 324 ; Shaw v. Mining Co. 145 U. S. 444, 36 L. ed. 768, 12 Sup. Ct. Rep. 935; Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1078, 11 Sup. Ct. Rep. 449. 4 Prentiss v. Brennan, 2 Blatchf. 162, 19 Fed. Cas. No. 11,385. 6 Johnson v. Bunker Hill Co. 46 Fed. 417; Hooe v. Jameson, 166 U. S. 395, 41 L. ed. 1049, 17 Sup. Ct. Rep. 596, and other cases cited in 4 F. S. A. p. 290. 6 Kansas City S. R. Co. v. McGinty, 76 Ark. 356, 88 S. W. 1001. 7Healy v. McCormick, 157 Fed. 318. 8 Johnson v. Bunker Hill, etc., 46 Fed. 417. 234 DIVERSE CITIZENSHIP 135 nor can a citizen of the District of Columbia sue a citizen of a state in the Federal courts. 9 233. States and Territories Are Not Citizens. "A state is not a citizen of any state, and, under the judiciary acts of the United States, it is firmly settled that a suit between a state and a citizen or corporation of another state is not between citizens of different states; and that in such cases the circuit courts (now district courts) of the United States have no jurisdiction of it un- less it arises under the Constitution, laws, or treaties of the United States." 10 The District of Columbia and the territories have been held not citizens so as to create diversity of citizenship. 11 234. Corporations. Corporations, though artificial per- sons, are treated for the purpose of determining diverse citizen- ship as citizens of the state under which they are created. 12 A corporation does not become a citizen of another state than that of its incorporation by transacting business and having an office therein, or agreeing as a condition of being permitted to transact business in such other state that it may be sued therein. 13 Where a corporation is incorporated in two states, it is a citizen of both states for jurisdictional purposes. 14 Corporations of different states consolidated in each of the states is a citizen of each. 15 9Seddon v. Virginia, etc., 36 Fed. 8, 1 L.R.A. 108; Hepburn v. Ellzey, 2 Cranch, 445. 2 L. ed. 332; New Orleans v. Winter, 1 Wheat. 91, 4 L. ed. 44. 10 State of Indiana, etc., v. Alleghany Oil Co. 85 Fed. 870. See also Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437 ; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 39 L. ed. 231, 15 Sup. Ct. Rep. 192; State v. Tolleston Club, etc., 53 Fed. 18; Ayer, etc., Tie Co. v. Kentucky, 202 U. S. 409, 6 Ann. Cas. 205, 26 Sup. Ct. Rep. 679, 50 L. ed. 1082 ; O'Conor v. Texas, 202 U. S. 501, 26 Sup. Ct. Rep. 726, 50 L. ed. 1120; Southern R. Co. v. State, 165 Incl. 613, 75 N. E. 272; Darnell v. State. 174 Ind. 143, 90 N. E. 769; Ex parte Nebraska, 209 U. S. 436, 28 Sup. Ct. Rep. 581, 52 L. ed. 876. 11 Johnson v. Bunker Hill, etc., 46 Fed. 417; Mexwell v. Federal Gold & Copper Co. 155 Fed. 110, 83 C. C. A. 570. 12 Barrow Steamship Co. v. Kane, 170 U. S. 100, 42 L. ed. 964, 18 Sup. Ct. Rep. 526. 13 Baltimore, etc., Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; St. Louis, etc., R. Co. v. Quigley, 21 How. 202, 16 L. ed. 73. i* Memphis, etc., R. Co. v. Alabama, 107 U. S. 581, 27 L. ed. 518, 2 Sup. Ct. Rep. 432. 15 Baldwin v. Chicago, etc., R. Co. 86 Fed. 167. 130 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 234 A municipal corporation is a citizen of the state creating it the same as a private corporation. 16 Because a corporation is a citizen of the state wherein it is incorporated, the allegation of citizenship may read : Company a corporation, organized and existing under the laws of the state of with its principal place of business in the county of - said state." It has been held that the following statements were sufficient on which to base diverse citizenship: "Foreign corporation formed under and created by the laws of the state of New York." 17 "A corporation organized and domiciled in the state of New York." 18 "A body corporate by an act of the general assembly of Maryland.'" 19 "A body corporate in the state of Maryland incorporated by a law of the general assembly of Maryland." "The Covington Drawbridge Company of Covington is a corporation of the state of Indiana." 21 "Organized under and pursuant to the laws of the state of New Jersey." 22 The following averments were held insufficient: "A body politic in the law of and doing business in the state of California." 2S "A corporation duly established by law and having its principal place of business at Boston, in the state of Massa- chusetts." ** "Doing business in the state of Iowa." Other illustrations will be found in 4 F. S. A. pp. 296, 297. i6Ysleta v. Canada, 67 Fed. 6; Cowles v. Mercer Co. 7 Wall. 121, 19 L. ed. 87. 17 United States Express Co. v. Kountze, 8 Wall. 342, 19 L. ed. 457. Ward v. Blake Mfg. Co. 56 Fed. 437, 5 C. C. A. 538. 19 Marshall v. Baltimore, etc., R. Co. 16 How. 314, 14 L. ed. 953. 20 Covington, etc., Co. v. Shepherd, 21 How. 112, 16 L. ed. 38; Philadelphia, etc.. R. Co. v. Quigley, 21 How. 202. 16 L. ed. 73. 21 Covington Drawbridge Co. v. Shepherd, 21 How. 112, 16 L. ed. 38. 22 Block v. Standard Distilling Co. 95 Fed. 978. 23 Pennsylvania v. Quicksilver Co. 10 Wall. 553, 19 L. ed. 998. 24 New York, etc., Co. v. Hyde, 57 Fed. 188. 26 Brock v. North Western Fuel Co. 130 U. S. 342, 32 L. ed. 905, 9 Sup. Ct. Rep. 552. 236 DIVERSE CITIZENSHIP 137 A corporation organized under the laws of a foreign country is an alien. 26 >In Robertson v. Scottish Union etc., Insurance Company, 68 Fed. 173, the court held that the allegation in a petition for removal of a cause to a Federal court, that the defendant is "a company duly chartered and incorporated under the laws of Great Britain," is a sufficient statement of the citizenship of such de- fendant to give the Federal court jurisdiction. In Dunde Mort- gage etc., Investment Co. v. School District, 21 Fed. 705, held that an allegation that plaintiff is a foreign corporation duly incor- porated under the laws of Great Britain, in legal effect is the same as saying that it is a subject of Great Britain, and is sufficient. 235. Joint Stock Companies. Joint stock companies par- take both of the nature of partnerships and of corporations, and accordingly there has been a conflict of opinion as to whether the rule governing partnerships, or the rule governing corporations, should apply to these companies. It is now held that joint stock companies do not come under the rule governing corpora- tions, but that the citizenship of the company depends upon the citizenship of the members. 27 An allegation that certain com- pany was "a joint stock company organized under and by virtue of a law of the state of New York, and which said company is authorized by the laws of the state of New York to maintain and bring suits in the name of its president, for or on account of any right of action accruing to said company, and a citizen of the state of New York," was fatally defective in that it did not state that the company was a corporation. 28 236. Partnerships. A partnership is not a legal entity so as to have a citizenship of itself, but Federal jurisdiction of suits 26 Railroad Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; Steamship Co. v. Tugman, 106 U. S. 118, 27 L. ed. 87. 27 Thomas v. Ohio State University, 195 U. S. 211, 49 L. ed. 164, 25 Sup. Ct. Rep. 24; Saunders v. Adams Express Co. 136 Fed. 494. 28 Chapman v. Barney, 129 U. S. 079, 32 L. ed. 800, 9 Sup. Ct. Rep. 426. 138 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 238 by or against partnerships and voluntary associations depend upon the citizenship of the members composing them. 29 237. National Banks. PL subd. 16, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 138, 1912 Supp. F. 8. A. v. 1, p. 140. ". . . and all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the state in which they are respectively located." The above-quoted provision makes jurisdiction as to national banks, except when the United States or a Federal officer is a party, the same as any other corporation. 30 238. Married Women. The general rule is that the domicil of the husband is the domicil of the wife. But the rule does not apply when the wife is abandoned. 31 When an alien female marries a citizen, she becomes a citizen. 32 3, Act March 2, 1907, ch. 2534, 34 Stat. at L. 1228, Comp. St. 1911, p. 491, 1909 F. S. A. Supp. 69. "That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the mari- tal relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by con- tinuing to reside therein." 29 Adams v. May, 27 Fed. 908; Commonwealth v. Chicago R. Co. 48 Fed. 177; Sawyer v. Switzerland Marine Ins. Co. 14 Blatchf. 452, Fed. Cas. No. 12,408. 39 First Nat. Bank v. Forrest, 40 Fed. 705 ; George v. Wallace, 135 Fed. 286, G8 C. C. A. 40; American Nat. Bank v. Tappan, 174 Fed. 431; Continental Nat. Bank v. Buford, 191 U. S. 123, 48 L. ed. 119, 24 Sup. Ct. Rep. 54, and other cases cited in 5 F. S. A. p. 195. 31 Thompson v. Stalmann, 139 Fed. 93; Watertown v. Greaves, 56 L.R.A. 865, 112 Fed. 183, 50 C. C. A. 172. 32 1994, R. S., 1 F. S. A. 786. c For Annotation of this 24, Judicial Code, see footnote b , ante, our 194. 240 DIVERSE CITIZENSHIP 139 4, Act March 2, 1907, ch. 2534, 34 Stat. at L. 1228, Comp. St. 1911, p. 491, 1909^ F. 8. A. Supp. 69. "That any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal re- nunciation thereof before a court having jurisdiction to nat- uralize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation." 239. Personal Representatives. "The test of jurisdic- tional authority is to be found in the citizenship of the parties who are actually before the court; and, if either of such parties sue or is sued in a representative capacity, his own citizenship, and not the citizenship of him whom he represents, is the determining factor." In a suit against the administrator, there must be di- versity of citizenship between him and the complainant ; and the fact that his decedent possessed the requisite citizenship at the time of the transactions giving rise to the suit, and at the time of his death, is immaterial. 83 It is not material in what state letters testamentary or of administration are granted. 34 240. Trustees. "If a trustee, by his citizenship, is quali- fied to sue in a Federal court, the citizenship of the beneficiary under the trust is wholly unimportant. If the trustee is disquali- fied by reason of citizenship in the same state as that of the nec- essary defendants, the suit cannot be entertained, even though the beneficiary might be qualified. The jurisdiction is to be determined, in all such instances, by the citizenship of the trustee. Neither is the rule changed by the refusal of the trustee to act. His refusal may authorize the beneficiary to exhibit a bill against the debtor to obtain a decree of a foreclosure. But, if the legal title to the property conveyed in trust be 'in the trustee, then the 33 Bangs v. Loveridge, 60 Fed. 963; Dodges v. Perkins, Fed. Cas. No. 3,954, 4 Mason, 435; Susquehanna, etc., R. Co. v. Blatchford, 11 Wall. 172, 20 L. ed. 179. 34 Brisenden v. Chamberlin, 53 Fed. 310; Hess v. Reynolds, 113 U. S. 76, 28 L. ed. 927, 5 Sup. Ct. Rep. 377. 140 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 242 court cannot grant any relief until the trustee was made a party defendant, 85 But where the trustee is a naked trustee, and his sole duty is to hold the property until defeasance, with no power over it, and no right or duty to foreclose, the rule does not apply. 88 A non- resident cestui que trust may sue in the Federal court, when the trustee refuses to sue, by making the trustee a party defendant, where he is a resident of the same state as the other defendants. 87 241. Guardians. Where an infant sues or defends by a guardian or next friend, it has been held that the Federal juris- diction depends on the citizenship of the infant. 38 The domicil of the infant is that of its parents ; if the father is living, that of the father; if dead, that of the mother. Where the parents are divorced, the domicil will be governed by the domicil of the parent to whom the infant has been awarded. 39 It has been held that when the law of the state of the forum gives the general guardian a right to sue in his own name as such guardian, he is to be treated as the party plaintiff so far as Federal jurisdiction is concerned. 40 242. Aliens. Aliens are citizens or subjects of foreign states, and the district courts are given jurisdiction, when the con- troversy is between a citizen or citizens of a state and a citizen or citizens and subjects of foreign state. 41 An alien may sue a citizen or a citizen may sue an alien. 42 35Shipp v. Williams, 62 Fed. 4, 10 C. C. A. 247; Gardner v. Brown, 21 Wall. 36, 22 L. ed. 527; McRea v. Bank, 19 How. 376, 15 L. ed. 688: Knapp v. Railroad Co. 20 Wall. 117, 22 L. ed. 328; Watson v. Asbury Park Co. 73 Fed. 1. 36 D. A. Tompkins Co. v. Catawba Mills et al. 82 Fed. 780. 37 Einstein v. Georgia S. V. R. Co. 120 Fed. 1009; Omaha Hotel Co. v. Wade, 97 U. S. 13, 24 L. ed. 917; Reinach v. Atlanta G. W. R. Co. 58 Fed. 38. 38Woolridge v. McKanna, 8 Fed. 650. In re McClean, 26 Fed. 49; Wilcox- sen v. Chicago R. Co. 116 Fed. 444; Voss v. Neineber, 68 Fed. 947; Wiggins v. Bethune, 29 Fed. 51. 39 Marks v. Marks, 75 Fed. 325 ; Toledo Traction Company v. Cameron, 137 Fed. 49, 69 C. C. A. 28. 40 Mexican C. R. Co. v. Eckman, 187 U. S. 429, 23 Sup. Ct. Rep. 211, 47 L. ed. 245. Prentiss v. Brennan, 2 Blatchf. 162, 19 Fed. Cas. No. 11,385. Mossman v. Higginson, 4 Dall. 12, 1 L. ed. 720; Piquiqnot v. R. R. Co. 16 How. 104, 14 L. ed. 863; Sherwood v. Newport, etc., Co. 55 Fed. 5. 244 DIVERSE CITIZENSHIP 141 In this class of cases as in suits between citizens of different states, the citizenship of parties on one side of the controversy must be attached to a particular state or states with an alien on the otfier side. 43 The bare allegation that the opposing party is an alien is not sufficient. It must be alleged that he is a subject or citizen of some one foreign state. 44 Federal courts have no juris- diction of suits between aliens where no Federal question is in- volved either alone or by joining citizens. 45 A description of plaintiff as "a citizen of London, England," is not a sufficient averment that plaintiff is a citizen of Great Britain. 46 The declaration may be amended to show that the plaintiff was an alien when the suit was commenced, instead of a citizen as al- leged. 47 243. Indians. Indians are neither citizens nor aliens. An Indian residing within the United States is not "a foreign citizen or subject." M A member of an Indian tribe maintaining tribal relations is not a citizen of the United States, nor of the state of his residence, unless he has been naturalized in some manner. 49 A child deriving citizenship through its negro mother, though with an Indian father, is a citizen for the purpose of jurisdiction. 53 244. Term "Citizen" Collective. The word "citizen," as used in the statute, is used in a collective sense, and means all parties on one side of a suit. ''While the designation of a party 'plaintiff' or 'defendant' was in the singular number, it was in- tended to embrace all persons who were on one side, however nu- merous, so that distinct interest must be represented by persons all 43picquet v. Swan, 5 Mason, 35, 19 Fed. Gas. No. 11,134. 44 Wilson v. City Bank, 3 Sumn. 422, 30 Fed. Cas. No. 17,597. 45 Johnson v. Accident Ins. Co. of North America, 35 Fed. 376; Hodgson v. Bower Bank, 5 Cranch, 304, 3 L. ed. 108; Rateau v. Bernaurd, 3 Blatchf. 2444. 20 Fed. Cas. No. 11,579; Pooley v. Luco, 72 Fed. 561. Stuart v. Easton, 156 U. S. 46, 39 L. ed. 341, 15 Sup. Ct. Rep. 268. 47 Betzoldt v. American Ins. Co. 47 Fed. 705. 48Karrahoo v. Adams, 1 Dill. 344, 14 Fed. Cas. No. 7,614. 49 Paul v. Chilsoquie, 70 Fed. 401. &OAlberty v. United States, 162 U. S. 499, 40 L. ed. 1051, 16 Sup. Ct. Rep. 864. 142 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 245 of whom were entitled to sue or were liable to be sued, in the Federal court. 61 The reason for this is apparent when it is remembered that the original intent of making diverse citizenship a ground of Federal jurisdiction was to furnish an impartial tribunal for the determination of controversies betAveen such parties. If a citizen of a state is opposed to a citizen of the same state, presumably justice would be given in the state court to its own citizens, and the joinder of nonresidents on one side or the other would not affect the case. The Federal court's jurisdiction is limited, and if it cannot take jurisdiction of a case between citizens of the same state, the mere fact that there is diverse citizenship as to other parties would not confer jurisdiction. It must appear that every party on one side of the action is a citizen of a different state from every party on the other side. 52 If two causes of action are set out, di- versity must appear in both. 63 The same rule applies in suits between citizens and aliens. All the necessary parties on one side must be citizens of a state and all on the other side must have citizenship otherwise. 64 245. Change of Domicil after Suit Commenced. A change of citizenship after the suit is commenced will have no effect on the jurisdiction of the court, where the parties were cit- izens of different states at the commencement of the suit. 65 Nor will an assignment of the cause of action after the suit is begun, 51 Saginaw Gaslight Company v. City of Saginaw, 28 Fed. 529; Straw- bridge v. Curtiss, 3 Cranch 267, 2 L. ed. 435; Coal Co. v. Blatchford, 11 Wall. 172, 20 L. ed. 179. 52 Mexico C. R. Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. Rep. 859, 37 L. ed. 699; Anderson v. Bassman, 140 Fed. 10, 11; Penn. Iron Co. v. Stone, 121 U. S. 633, 7 Sup. Ct. Rep. 1010, 30 L. ed. 1020. 58 Howe & D. Co. v. Haugan, 140 Fed. 184-5; King v. Islander, 133 Fed. 416. 54 Tracy v. Morel, 88 Fed. 801; Sawyer v. Switzerland Marine Co. Fed. Cas. No. 12,408, 14 Blatchf. 452; Ex parte Girard, 3 Wall. Jr. 265, Fed. Cas. No. 5,457. 55 Pacific Mut. Life Ins. Co. v. Tompkins, 101 Fed. 539, 41 C. C. A. 488; Conally v. Taylor, 2 Pet. 556, 7 L. ed. 518; Anderson v. Watt, 138 U. S. 094, 11 Sup. Ct. Rep. 449, 34 L. ed. 1078; Morgan v. Morgan, 2 Wheat. 297, 4 L. ed. 244. See also cases cited 4 F. S. A. 292. 246 DIVERSE CITIZENSHIP 143 whereby the parties become citizens of the same state, affect the jurisdiction of the court once obtained. 56 . 246. Change of Citizenship or Transfer of Subject-Mat- ter to Give Jurisdiction. 56 * If a citizen removes from one state to another in order to prosecute suits in the courts of the United States, provided the removal be real, the motive of the act cannot be inquired into. 57 But the change must be bona fide, and not mere- ly ostensible. 58 A person who, residing in and transacting business in St. Louis, for the purpose of acquiring a residence for juris- dictional purposes crosses the river to East St. Louis, and there rents a room in which he sleeps at night while he continues to transact his business and also to take his meals in St. Louis, does not acquire a residence for jurisdictional purposes. 59 Another mode of securing Federal jurisdiction is to transfer the subject of litigation or the cause of action, to a nonresident. The test in this case is the same as that applied in a change of resi- dence, whether or not the transfer was made in good faith. The mere fact that the subject-matter of the suit has been transferred for the purpose of giving jurisdiction to the court will not defeat jurisdiction, provided there has been a bona fide sale and transfer, by which the transferee becomes the real owner and thereby the party to the suit. 60 But where it appears that a conveyance to plaintiff has been made without consideration for the sole pur- pose of making a case of diverse citizenship, the case w r ill be dis- missed on motion. 61 When all interest in the subject-matter is parted with upon good consideration, then the fact that the motive 56 Anderson v. Watt, supra; Hardenbergh v. Ray, 151 U. S. 112, 38 L. ed. 93, 14 Sup. Ct. Rep. 305. 66a See our 195 above as to jurisdiction by assignment. 57 Briggs v. French, 2 Sumn. 251, 4 Fed. Cas. No. 1,871. 58 Mitchell v. United States, 21 Wall. 352, 22 L. ed. 587. 69 Kingman v. Holthatis, 59 Fed. 305. 60 Manhattan L. Ins. Co. v. Broughton, 109 U. S. 125, 27 L. ed. 878, 3 Sup. Ct. Rep. 99; Colinson v. Jackson, 14 Fed. 309, 8 Sawy. 357; Hawley v. Kepp, 2 Flipp. 177, 11 Fed. Cas. No. 6,249; Briggs v. French, 2 Sumn. 251, 4 Fed. Cas. No. 1,871. 61 Williams v. Nottawa, 104 U. S. 209, 26 L. ed. 719; Bernards T. P. v. Stebbins, 109 U. S. 341, 27 L. ed. 956, 3 Sup. Ct. Rep. 252; Greenwalt v. Tucker, .10 Fed. 884, 3 McCrary, 450; Maxweld v. Levy, 2 DaH. 381, 1 L. ed. 424, 4 Dall. 330, 11 L. ed. 854. 16 Fed. Cas. No. 9,321. 144 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 247 was to get Federal jurisdiction will not be considered. 62 But if at any time it appears that the parties to the suit have been im- properly or collusively made or joined, either as plaintiffs or de- fendants, for the purpose of .creating a case cognizable or remov- able under the act, the circuit court will proceed no further, but shall dismiss the suit or remand it to the court from which it was removed. 68 247. Shifting Parties to Create Diversity. It should ap- pear in the bill that there is a diversity of citizenship to give juris- diction, and prior to the act of March 3, 1875, this was sufficient, and their position on the bill was conclusive. 68 * But since 1875 the rule is that jurisdiction does not lawfully attach until all nec- essary parties are made parties. It is not in the discretion of the pleader to arrange parties in the suit so as to confer jurisdiction. They must be arranged according to their interests in the suit, and the court, when passing on the question of jurisdiction, will do this. It will look to the real facts of the case, as developed by the pleadings, and will disregard the artificial arrangement of the parties by the pleader, and ascertain from the pleadings where the real controversy lies, and arrange the parties accordingly. Parties cannot, by arranging themselves as plaintiffs or defend- ants in a cause, create a fictitious ground of Federal jurisdiction. This is denominated a joinder of parties to confer jurisdiction. 64 AYhere there are several defendants to a suit some of whom have the required diverse citizenship to support the bill, and some who have not, jurisdiction may be retained over the defendants as to whom diversity of citizenship exists, and a dismissal of the complaint may, and in the proper case will, be permitted against defendants who are not found to be within the jurisdiction of 3 Norton v. European & N. A. R. Co. 32 Fed. 865 : Lake County v. Dudley, 173 U. S. 243, 43 L. ed. 684, 19 Sup. Ct. Rep. 398; Irvine Co. v. Bond, 74 Fed. 849: Alkire Grocery Co. v. Richesin, 91 Fed. 84; Ashley v. Presque Isle County, 54 U. S. App. 450. 83 Fed. 534, 27 C. C. A. 585; Board of Commis- sioners of Lake County v. Schradsky, 38 C. C. A. 17, 97 Fed. 2. 63 Fountain v. Town of Angelica, 12 Fed. 8, 20 Blatchf. 448; Havees v. Contra Costa Water Co. 25 Alb. Law J. 146 (S. C. 11 Fed. 93, note) ; Barney v. Baltimore City, 6 Wall. 280, 18 -L. ed. 825. 63a Bland v. Fleeman, 69 Fed. 672. * Bland v. Fleeman, 69 Fed. 672; Stephens v. Smartt, 172 Fed. 471. 247 DIVERSE CITIZENSHIP 145 the court, unless such defendants are indispensable to the entry of a decree against the remaining defendants, and when it may be done without prejudice. 65 When the parties are before the co\irt the court will, for the purpose of ascertaining the jurisdic- tion, arrange them according to their actual interests, and place them on the side of the controversy to which they belong, and, if it then appears that the controversy is not between citizens of different states, the court is without jurisdiction. 66 If some of the parties plaintiff have "interests identical with some of the parties defendant, and the interest is not separable, you cannot separate them because they are citizens of different states to get jurisdiction by diversity." 67 In Olst Colony Trust Co. v. Atlanta Ry. Co. 100 Fed. 798, which was a suit by a trust company against two railroad com- panies to enjoin the former company from enforcing a right which it said it had obtained by an ordinance of the city to condemn a certain portion of the track of the latter com- pany. The latter company came into court by cross bill, and adopted all of the allegations of the bill of the trust company, and arranged itself by all pleadings on the side of the litigation with the trust company. The court said: "The plead- ings put it on the side of the complainant necessarily ; its interests are there very clearly; the whole countenance of the case puts the latter railway company on the same side with the trust com- pany in this litigation. So, I think there can be no question here that it is not only the duty of the court, but it is its imperative 65 Horn v. Lockhart, 17 Wall. 570, 21 L. ed. 657 ; Oxley Stave Co. v. Coopers' International Union of America, 72 Fed. 695 ; Mason v. Dullagham, 27 C. C. A. 296, 82 Fed. 689; Grove v. Grove, 93 Fed. 865; Smith v. Oil Co. 30 C. C. A. 103, 86 Fed. 359; Delaware, L. & W. R. Co. v. Frank, 110 Fed. 689. 66 Martin v. Ellis, 9 Fed. 367; Covert v. Waldron, 33 Fed. 311; Rich v. Bray, 37 Fed. 273, 2 L.R.A. 225: Williams v. Nottawa, 104 U. S. 209, 26 L. ed. 719; Detroit City v. Dean, 106 U. S. 537, 27 L. ed. 300, 1 Sup. Ct. Rep. 560; Railway Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Rep. 510; Oashman v. Canal Co. 118 U. S. 58, 30 L. ed. 72, 6 Sup. Ct. Rep. 926; Cilley v. Patten, 62 Fed. 498; Walster v. United States, 42 Fed. 892; Patten v. Cilley, 1 C. C. A. 522, 50 Fed. 337; In re Cilley, 58 Fed. 977. 67 Carroll v. Chesapeake & O. Coal Agency Co* 61 C. C. A. 49, ]24 Fed. 309; /.laiigeles v. Donau Brewing Co. 53 Fed. 513; Dawson v. Columbia Ave. Sav. Fund, etc., Co. 197 U. S. 178, 49 L. ed. 713, 25 Sup. Ct. Rep. 420; Joseph Dry Goods Co. v. Hecht, 57 C. C. A. 64, 120 Fed. 761; Venner v. Great Northern R. Co. 209 U. S. 24, 52 L. ed. 666, 28 Sup. Ct. Rep. 328; Gage v. Riverside Truck Co. 156 Fed. 1003. Montg. 10. 146 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 247 duty, under the law, to put the latter railway company on the side with the complainant; and it being a citizen of Georgia, and the defendant railway company being a citizen of Georgia, nec- essarily the jurisdiction fails. It is well understood that this court, however, will not oust its own jurisdiction will not de- feat its own jurisdiction unless it is met squarely with a state of facts which requires it; that is, where litigation is brought into court, the court will not seek to rid itself of hearing the case, if it finds that, by dispensing with certain parties, it can relieve the existing situation, and have only proper parties before the court on the question of diverse citizenship. The question then arises here, whether or not the latter railway company is an indispensable party to this litigation. If it is not, of course the court, under the rule and practice just suggested, would dis- miss it from the litigation, and leave the case cognizable in the circuit court. Now, can this litigation be settled without the presence of the latter company? Will the court undertake to decree that A has a right against B at the instance of C, without having B before it? In my judgment, it is absolutely necessary to have the latter company before the court in order to determine and fully dispose of the issues presented in this case. In that view, there is but one course for the court to pursue, and that is to dismiss this litigation from the court for want of jurisdic- tion on account of the citizenship of the parties; and this with- out prejudice to the rights of the parties in the case." Where a copartnership is sued one or more of the partners may be left out, when they are citizens of the same state as the plaintiff, so as to give the Federal courts jurisdiction. 68 But previous to this in Ruble v. Hyde, 1 McCrary, 513, 3 Fed. 331, it had been held that a copartner could not be left out to give jurisdiction to the Federal courts, and as this case was not men- tioned in Smith v. Consumers' Cotton Oil Co. 86 Fed. 859, it would appear that it had been overlooked, or there would have been a different conclusion on a similar statement of facts. 8 50, Judicial Code, our 173, supra. Clearwater v. Meredith, 21 How. 489, 16 L. ed. 201; Inbusch v. Farwell, 1 Black, 566, 17 L. ed. 188; Smith v. Consumers' Cotton Oil Co. 86 Fed. 359, 30 C. C. A. 103; Barney v. Baltimore City, 6 Wall. 280, 18 L. ed. 825. 249 DIVERSE CITIZENSHIP 147 When a suit is brought in the name of a state on the relation of an individual, it is the citizenship and the residence of the individual that govern the jurisdiction of the circuit court. 69 248. Venue as Affecting Jurisdiction Based on Diverse Citizenship. PL 51, Judicial Code* 86 8 tat. at L. 1101, Comp. St. 1911, p. 150, 1912 Supp. F. 8. A. v. 1, p. 153. ". . . Where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." By reason of the provision of the statute above quoted, a suit by a citizen of one state against a citizen of another state brought in a third state, would not lie, because the venue would be improp- erly laid and on timely objection the suit would be dismissed. But venue not being jurisdictional, the defect might be waived by the defendant's failure to object at the outset of the action. This is a very different matter from that discussed in the pre- ceding section. The following illustration will show the difference in the two classes of cases : Supposing a citizen of California sued a citizen of Nevada to- gether with a citizen of California in the Federal district court in Arizona. The fact that there was a California citizen on each side of the controversy would be fatal to setting up diverse citizen- ship as a ground of Federal jurisdiction, unless the suit against the California defendant could be dismissed. Assuming that this could be done, leaving the contest between the California and a Nevada citizen, there would be the requisite diversity of citizen- ship as a ground of Federal jurisdiction, and the Arizona Federal court would not be deprived of jurisdiction unless the Nevada defendant moved to dismiss for defect in venue. 249. Issue of Citizenship How Raised. The required di- versity of citizenship must appear on the face of initial pleading 69 Indiana v. Glover, 155 U. S. 513, 39 L. ed. 243, 15 Sup. Ct. Rep. 186; McNutt v. Bland, 2 How. 9, 11 L. ed. 159. a For Annotation of this 51, Judicial Code, see footnote b, ante, our 161. 148 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 249 on the part of the complainant, and if it does not appear the court will assume that it has no jurisdiction and dismiss the bill. 70 If the suit is in equity the matter is governed by the Equity Rule 29, providing for a motion to dismiss if the fact that there is not a proper diversity of citizenship appears on the face of the bill, or in the answer if it does not appear on the face of the bill. If a motion to dismiss is filed it may be in the following form : IN THE DISTRICT COURT OF THE U. S. FOR THE DISTRICT OF , DIVISION. John Doe, Plaintiff, vs. Richard Roe, Defendant, MOTION TO DISMISS And now comes Richard Roe, the defendant, in the above entitled action, and moves the court to dismiss this action and that he take his costs in this suit incurred, for that it appears by the pleadings filed, (or by the evi- dence taken ) , in the cause that ( naming party ) is not a citizen of the State of , as alleged, and therefore no diversity of citizen- ship exists as alleged and upon which basis the court is alleged to have jurisdiction. A. B. Solicitor, etc. It is a practice to be recommended, that the question of diversity of citizenship should be raised in the answer, before the case goes to trial. If it is not raised, the court will not infer a want of ju- risdiction unless it affirmatively appears in the legitimate evidence taken on the main issues in the case. The court will not admit evi- dence on issues not raised in the pleadings. But if the issue is raised in the answer, all evidence tending to prove the issue will be admitted. If the answer raises the issue of diversity of citizen- ship, it may be substantially as follows : 70 Boston Safe-Deposit & Trust Co. v. City of Racine et al. 97 Fed. 817; Water Co. v. Babcock, 76 Fed. 243; First National Bank v. Radford Trust Co. 47 U. S. App. 692, 26 C. C. A. 1, 80 Fed. 569; Timmons v. Ely Town Land Co. 139 U. S. 378, 35 L. ed. 195, 11 Sup. Ct. Rep. 585; Home v." George H. Hammond Co. 155 U. S. 394, 39 L. ed. 197, 15 Sup. Ct. Rep. 167. 249 DIVERSE CITIZENSHIP 149 IN THE DISTRICT COURT OF THE U. S. FOR THE DISTRICT OF , DIVISION. John Doe, Plaintiff, vs. Richard Roe, Defendant. ANSWER Comes new the defendant, Richard Roe, and answers plaintiff's bill of com- plaint, as fellows, to wit: Denies that the plaintiff is now, or ever has been a citizen of the State of (naming State) or that he is now, or ever has been an in- habitant of said State of (naming State) or that he does now, or ever has resided therein. But defendant alleges that plaintiff is now, and at the commencement of this suit was, a citizen and resident of the State of (naming State) of which State, that is, the State of (naming State) the defendant Richard Roe is and was at the commencement of this action, a citizen and resident. (Then take up other defenses to the bill.) Wherefore defendant prays the said plaintiff, John Doe, take nothing by his bill, that the said bill be dismissed, and that the defendant have his costs herein incurred. A. B. Solicitor. If the action is at law the issue would be raised in the same manner as a question of jurisdiction in the state court in which that district court is situated. All defenses in an action at law are open to a defendant in the district court of the United States under any form of plea, answer, or demurrer, which would have been open to him under like pleading in the courts of the state within which the district court is held. This may be by general denial where the state law permits. 71 If the defense of no jurisdiction must be especially pleaded in the state court, it may be so pleaded in the Federal court, and testimony in reference to the citizenship of the parties is only admissible in support of allegations properly made in the pleadings. 72 If the issue is raised TlChemung Canal Bank v. Lowery, 93 U. S. 72, 23 L. ed. 806; Oscanyan v. Winchester Repeating Arms Co.' Fed. Cas. No. 10,600, 15 Blatchf. 7!), 17 Am. Law Reg. (N. S.) 626, 13 Amer. Law Rev. 161, affirmed, Oscanyan v. Arms Co. 10,3 U. S. 261, 26 L. ed. 539; Lafayette Bridge Co. v. Streator, 105 Fed. 729; Theroux v. Northern Pac. R. Co. 64 Fed. 87. 12 C. C. A. 52; Johnston v. Klopsch. 88 Fed. 692; Celluloid Mfg. Co. v. American Zylonite Co. 34 Fed. 744; Frank v. Chetwood, 9 Rep. 6, 9 Fed. Cas. No. 5,051. 72 Preferred Ace. Ins. Co. v. Barker, 93 Fed. 158, 35 C. C. A. 250. 150 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 250 by demurrer in the state court, the same rule applies in the dis- trict court. 78 250. When Want of Diversity Appears on the Trial. It may happen that the want of the required citizenship, when it does not appear in the pleadings, and is not raised in the answer, will appear on the trial of the case. If it should appear thus, it is the duty of the court sua sponte to dismiss the case without either motion or suggestion. But the defendant may take the initiative by filing a motion. 74 37, Judicial Code, 1912 Supp. F. 8. A. v. 1, p. 150. "If, in any suit commenced in a district court, or removed from a state court to a district court of the United States, it shall appear to the satisfaction of said district court, at any time after such suit has been brought or re- moved thereto, that such suit does not really and substan- tially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made -or joined, either as plaintiffs or defendants, for the purpose of creat- ing a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." Thus, the court must dismiss the case at once if it appears at any time during the progress of the case that it is without jur- isdiction. 76 When the issue is raised it may be tried by the judge or submitted to a jury. 76 73 Chemung Canal Bank v. Lowery, 93 U. S. 76, 23 L. ed. 806. See also Kent v. Bay State Gas. Co. 93 Fed. 88,7." 74 Williams v. Nottawa. 104 U. S. 212, 26 L. ed. 720: Farmington v. Pills- bury, 114 U. S. 144, 29 L. ed. 114, 5 Sup. Ct. Rep. 807; Little v. Giles, 118 U. S. 603, 604, 30 L. ed. 269. 7 Sup. Ct. Rep. 32; Hartog v. Memory, 116 U. S. 588, 29 L. ed. 725, 6 Sup. Ct. Rep. 521; Morris v. Gilmer, 129 U. S. 315, 32 L. ed. 690, 9 Sup. Ct. Rep. 289. 75 Turner v. Farmers' Loan & T. Co. 106 U. S. 555, 27 L. ed. 274, 1 Sup. Ct. Rep. 519; King Bridge Co. v. Otoe County, 120 U. S. 226, 30 L. ed. 624, 7 Sup. Ct. Rep. 552. 76Wetmore v. Rymer, 169 U. S. 115, 42 L. ed. 684, 18 Sup. Ct. Rep. 293; Canadian Pac. R. Co. v. Wenham, 146 Fed. 206, 207. CHAPTER 9. AMOUNT IN CONTROVERSY. Sec. 260. In General. 261. When Amount in Controversy Is Material. 262. Same Removal of Land Grant Cases. 263. When the Amount in Controversy Is Not Material. 264. What Is "Amount in Controversy." 265. Amount Stated in Declaration or Bill Controls Unless Pleaded Errone- ously or in Bad Faith. 266. Amount in Controversy Includes What. 267. Effect of Valid Set-Off or Payment. 268. Aggregating Amounts to Create Jurisdiction. 269. Amendment to Show. 270. State Statutes Do Not Control as to Splitting Demands. 271. Raising Issue as to Amount or Good Faith. 260. In General. The Federal statutes have made the sum or value of the matter in controversy an essential element of a large number of cases of which the district courts have jurisdic- tion both originally and on removal. The matter in controversy must exceed, exclusive of interest and costs, the sum or value of $3,000 in cases brought in the Federal court originally or on removal, and whether the action be based on the ground of diverse citizenship or a Federal ques- tion, but with certain exceptions in the latter class of cases. Cases in which the amount in controversy is material are specifically enumerated in 261 following. The amount in controversy is not material in suits brought by the United States. 1 The amount is not material in suits be- 1 United States v. Sayward, 160 U. S. 493. 40 L. ed. 508, 16 Sup. Ct. Rep. 371: United States v. Reid, 90 Fed. 522; United States v. Flourney Live Stock, etc., Co. 71 Fed. 576; United States v. Kentucky River Mills, 4*5 Fed. 273; United States v. Shaw, 39 Fed. 433, 3 L.R.A. 232. 151 152 MONTGOMERY'S MANUAL OP FEDERAL PROCEDURE 261 twccn citizens of the same state claiming under land grants from different states in cases originally brought in the Federal court, 2 but is material on removal under 30, Judicial Code. 8 The amount is not material in cases of which the Federal courts have exclusive jurisdiction and in other cases especially excepted in paragraphs 2 to 25 of 24, Judicial Code. The provisions of 24, Judicial Code, setting out the cases in which the amount in controversy is not material, are quoted in 263 hereafter, and the subject under the several jurisdictional heads is also treated in detail under chapter 12, hereafter, entitled, "Summaries Or- iginal Jurisdiction, Removal, Amount, Venue for the Several Matters of the District Court Cognizance." The present chapter gives some suggestions as to what is meant by the sum or value of the matter in controversy and as to the pleading and determination of the issue of "amount in controversy." 261. When Amount in Controversy Is Material. 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 139. "The dis- trict court shall have original jurisdiction as follows : First. Of all suits of a civil nature, at common law or in equity, . . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of state and foreign states, citizens or subjects. . . . Provided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section. . . ." 28, Judicial Code? 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144. "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 2 United States v. Sayward, 160 U. S. 493, 40 L. ed. 508, 16 Sup. Ct. Rep. 371. 3 262, infra. For Annotation of this 24, Judicial Code, see footnote b, ante, our 194. b For Annotation of this 28, Judicial Code, see footnote , ante, our 221. 202 AMOUNT IN CONTROVERSY 153 be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed. . . . Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending on which may here- after be brought, in any state court, may be removed. . . ." See Amendment Jan. 20, 1914, quoted 299, post. 262. Same Removal of Land Grant Cases. SO, Judicial Code* 36 Stat. at L. 1096, Comp. St 1911, p. 142, 1912 Supp. F. 8. A. v. 1, p. 146. "If in any action commenced in a state court the title of land be con- cerned, and the parties are citizens of the same state and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on peti- tion and bond, as hereinbefore mentioned in this chapter, re- move the cause for trial to the district court of the United States next to be holden in such district ; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stat- ed as aforesaid as the ground of his or their claim." Re-enacting part of R. S. 647, Foster's Fed. Prac. (4th ed.) p. 1457, Comp. St. 1901, p. 524, 4 F. S. A. 265, amended by 25 Stat. at L. 435, Comp. St. 1001, p. 510, 4 F. S. A. 386, which is repealed by 297, Judicial Code. This act substitutes $3,000 for $2,000 as the 'jurisdictional amount, and substitutes the words "district court" for the words "circuit court." Paw let. v. Clark, 9 Cranch, 292, 3 L. ed. 735. In general, Stevenson v. Fain, 195 U. S. 165, 49 L. ed. 142, 25 Sup. Ct. Rep. 6. 154 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 203 263. When the Amount in Controversy Is Not Material. Pt. 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, pp. 135-139, 1912 Supp. F. S. A. v. 1, p. 139. "The district courts shall have original jurisdiction as follows : "First. Of all suits of a civil nature at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, . . . provision as to the sum or value of the matter in controversy, shall not be con- strued to apply to any of the cases mentioned in the succeed- ing paragraphs of this section. "Second. (Of crimes and offenses.) Of all crimes and offenses cognizable under the authority of the United States. "Third. (Of admiralty causes, seizures and prizes.) Of all civil causes of admiralty and maritime jurisdiction, sav- ing to suitors in all cases the right of a common law remedy where the common law is competent to give it ; of all seizures on land or waters not within admiralty and maritime juris- diction ; of all prizes brought into the United States ; and of all proceedings for the condemnation of property taken as prize". "Fourth. (Of suits under any law relating to the slave trade.) Of all suits arising under any law relating to the slave trade. "Fifth. (Of cases under internal revenue, customs, and tonnage laws. ) Of all cases arising under any law providing for internal revenue, or from revenue from imports or ton- nage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been con- ferred upon the court of customs appeals. "Sixth. (Of suits under postal laws.) Of all cases arising under the postal laws. "Seventh. (Of suits under the patent, the copyright, and the trademark laws.) Of all suits, at law or in equity, aris- ing under the patent, the copyright, and the trademark laws. "Eighth. (Of suits for violation of interstate commerce laws.) Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the commerce court. (Commerce court now abolished. See ch. 9, Judicial Code, in our Appendix. But see amendment, 28, Judicial Code, quoted 299, post.) "Ninth. (Of penalties and forfeitures.) Of all suits and d For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. 263 AMOUNT IN CONTROVERSY 155 proceedings for the enforcement of penalties and forfeitures incurred under any law of the United States. "Tenth. (Of suits on debentures.) Of all suits by the assignee of any debenture for drawback of duties issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. "Eleventh. (Of suits for injuries on account of acts done under laws of the United States.) Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several states. "'Twelfth. (Of suits concerning civil rights.) Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or prop- erty, or of the deprivation of any right or privilege of a cit- izen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revised Statutes. "Thirteenth. (Of suits against persons having knowledge of conspiracy, etc.) Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and having, power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. "Fourteenth. (Of suits to redress the deprivation, under color of law, of civil rights.) Of all suits, at law or in equity, authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regu- lation, custom, or usage of any state, of any right, privilege, or immunity secured by the Constitution of the United States, or of any right secured by any law of the United States pro- viding for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. "Fifteenth. (Of suits to recover certain offices.) Of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or delegate to Congress, or member of a state legislature, authorized by- law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of 156 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 263 the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude : Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citi- zens of the United States to vote in all the states. "Sixteenth. (Of suits against national banking associa- tions.) Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title "National Banks, ' Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed and all suits in equity, be deemed citizens of the states in which they are re- spectively located. "Seventeenth. (Of suits by aliens for torts.) Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States. "Eighteenth. (Of suits against consuls and vice consuls.) Of all suits against consuls and vice consuls. "Nineteenth. (Of suits and proceedings in bankruptcy.) Of all matters and proceedings in bankruptcy. "Twentieth. (Of suits against the United States.) Con- current with the court of claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regula- tion of an Executive Department, or upon any contract, ex- press or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands what- soever on the part of the government of the United States against any claimant against the government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the court 263 AMOUNT IN CONTROVERSY 157 of claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as 'war claims,' or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pensions ; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States, or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty- seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision : And-provided further, That no suit against the government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during mi- nority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumu- latively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. "Twenty-first. (Of suits for the unlawful inclosure of public lands.) Of proceedings in equity, by writ of injunc- tion, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands ; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil proceeding on any agent or employee having charge or control of the in- closure. "Twenty-second. (Of suits under immigration and con- tract labor laws.) Of all suits and proceedings arising under any law regulating the immigration of aliens or under the contract labor laws. "Twenty-third. (Of suits against trusts, monopolies, and unlawful combinations.) Of all suits and proceedings aris- ing under any law to protect trade and commerce against restraints and monopolies. 158 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 264 "Twenty-fourth. (Of suits concerning allotments of land to Indians.) Of all actions, suits, or proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. And the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Inte- rior, as if such allotment had been allowed and approved by him ; but this provision shall not apply to any lands row or heretofore held by either of the Five Civilized Tribes, the Osage Nation of Indians, nor to any of the lands within the Quapaw Indian Agency : Provided, That the right of appeal shall be allowed to either party as in other cases. "Twenty-fifth. (Of partition suits where United States is joint tenant.) Of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate." 264. What Is "Amount in Controversy." The statutes and decisions use the terms interchangeably, "amount in contro- versy," "matter in dispute," "amount in dispute." By such terms are meant either the amount sued for in good faith or the value of the property or right involved, depending upon the nature of the case. Generally speaking, when there is a definite amount that can be determined as being in dispute between the parties, this will fix the jurisdiction. But where a particular matter of itself less than the jurisdictional amount or value involves a right or estate as the subject of the dispute, which right or estate depends upon the determination of the controversy, the value of the right or estate will fix the jurisdiction. Thus, the specific amount or value involved governs in a suit to enjoin an illegal property tax, the amount of the tax ; * or to re- move as a cloud on title a claim for a specified amount 5 or enforce * Douglas Co. v. Stone, 191 U. S. 557, 48 L. ed. 301, 24 Sup. Ct. Rep. 843; Turner v. Jackson Lumber Co. 159 Fed. 926, 87 C. C. A. 106; Purnell v. Page, 128 Fed. 496. 5 Cooper v. Preston, 105 Fed. 403. 265 AMOUNT IN CONTROVERSY 159 a lien, 6 or partition of a specified interest, 7 or to obtain specific per- formance of contract. 8 But there are many cases where a specific amount or value does not measure the amount or value of the matter in controversy, but the value of the object to be obtained and right to be protected, controls. For instance, the maintenance of a schedule rate, 9 preventing the establishment of a new schedule, 10 the property right of board of trade in its market quotations ; n prevention of ticket scalping; 12 enforcement of a joint interest in a fund as on the dissolution of a partnership or corporation, 13 suit to quiet title or to remove cloud from title, where the value of the land is generally the determining element. 14 If the matter in controversy has no pecuniary measure, the Federal courts can take no jurisdiction, as in habeas corpus pro- ceedings by a father to obtain possession of his infant child, 16 or an action for divorce, alimony being within the discretion of the court. 16 265. Amount Stated in Declaration or Bill Controls Un- less Pleaded Erroneously or in Bad Faith. If the sum de- manded is so manifestly fictitious as to make it legally certain that the amount alleged was only to get jurisdiction and is not the real amount in controversy, the court will dismiss. 17 The 6 Stillwell & Bierce & S. V. Co. v. Williamson Oil & Fertilizer Co. 80 Fed. 68. 7 Rich v. Bray, 37 Fed. 276, 2 L.R.A. 225. 8 Johnston v. Trippe, 33 Fed. 530. 9 Texas & P. R. Co. v. Kuteman, 54 Fed. 547, 4 C. C. A. 503, 13 U. S. App. 99. 10 Northern P. R. Co. v. Pacific Coast, etc. Asso. 165 Fed. 2, 91 C. C. A. 39; Chesapeake & D. Canal Co. v. Gring, 159 Fed. 662, 86 C. C. A. 530; Southern P. Co. v. Bartine, 170 Fed. 725. n Board of Trade v. Cella Commission Co. 145 Fed. 28, 76 C. C. A. 28; John D. Park & Sons Co. v. Hartman, 153 Fed. 24, 82 C. C. A. 158, 12 L.R.A. (N.S.) 135. 12 Nashville, C. & St. R. R. Co. v. McConnell, 82 Fed. 65; Delaware, L. & W. R. Co. v. Frank, 110 Fed. 689. 18 Kent v. Honsinger, 167 Fed. 620; Taylor v. Decatur Mineral & Land Co. 112 Fed. 449. 14 Holland v. Challan, 110 U. S. 15, 28 L. ed. 52, 3 Sup. Ct. Rep. 594; Smith v. Adams, 130 U. S. 167, 32 L. ed. 895, 9 Sup. Ct. Rep. 566. 15 Ex parte Everts, 1 Bond, 197, 8 Fed. Gas. No. 4,581, 7 Amer. Law Reg. 79. 16 Bowman v. Bowman, 30 Fed. 849. 17 Jones v. McCormick Harvester Machine Co. 82 Fed. 295, 27 C. C. A. 133, 53 U. S. App. 408; Battle v. Alkinson, 115 Fed. 384. 160 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 268 same is true where it appears from the nature of the case stated in the pleadings that there could not legally be a judgment for an amount necessary to the jurisdiction. Thus, where a demand for one thousand dollars was alleged to be the value of certain property, and in addition ten thousand dollars damages was claimed, the court reached the conclusion that the claim for damages could not be sustained as a matter of law, and the suit was dismissed. 18 266. Amount in Controversy Includes What. The stat- ute says, "Exclusive of interest and costs." Hence, items of ex- pense in connection with a cause of action cannot be included unless the contract sued on covers same. 19 Attorneys' fees may be added when a part of the contract. 20 But where a statute makes attorneys' fees a part of the costs, they may not be considered. 81 A suit on a bond and matured interest coupons which are no longer a mere incident of the principal indebtedness but have become a principal obligation, will give the jurisdictional amount. 22 267. Effect of Valid Set-Off or Payment. A party, in alleging the amount of his claim, is presumed to know of any payments made on the claim or valid set-offs existing against it, and hence if such payment or set-off appears from the record un- disputed the court will not have jurisdiction. 23 But if the pay- ment or set-off is disputed the mere pleading thereof will not de- feat the claim, because, as the court says, "who can say in advance that the defense will be insisted on, or, if presented, would be sus- tained by the court ? " 24 268. Aggregating Amounts to Create Jurisdiction. If the claims are joint claims, they may be aggregated to create "Vance v. Vandercook Co. 170 U. S. 468, 42 L. ed. 1111, 18 Sup. Ct. Rep. 645. 19 Less v. English, 85 Fed. 471, 29 C. C. A. 275, 56 U. S. App. 16. 20 Rogers v. Riley, 80 Fed. 762; Swofford v. Cornucopia Mines, 140 Fed. 958. 21 Peters v. Queen Ins. Co. 182 Fed. 113. 22 Edwards v. Bates Co. 163 U. S. 269. 41 L. ed. 155, 16 Sup. Ct. Rep. 967. 23 Bedford Quarries Co. v. Welch. 100 Fed. 513. 24Schunk v. Moline M. & S. Co. 147 U. S. 500, 37 L. ed. 255, 13 Sup. Ct. Rep. 416. 271 AMOUNT IN CONTROVERSY 161 the jurisdictional amount, 25 but not if they are separable. 26 So, also, an assignee of several claims against single defendant may sue in the Federal court, provided the several assignors had the requisite diversity of citizenship necessary to confer jurisdiction. This is so even though the claim of each assignor was less than the jurisdictional amount. 27 269. Amendment to Show. Amendments are permitted to show jurisdictional allegations, and this is true of the. allega- tions as to the amount in controversy when the facts warrant such an amendment. 28 270. State Statutes Do Not Control as to Splitting De- mands. The general rule that the Federal court will not follow the state laws and decisions in matters which affect their jur- isdiction applies to a state statute requiring demands to be split up into separate suits, which would defeat the jurisdiction of the court by reducing the demand below the jurisdictional amount. 29 271. Raising Issue as to Amount or Good Faith. The issue as to the amount in controversy, when it appears from the face of the record as a matter of law that the proper amount is not involved, may be raised in equity suits under Equity Rule 29, by a motion to dismiss or in the answer, and at law by de- murrer or other appropriate pleading authorized by state statutes. Where such defect does not appear from the face of the record, the objection should be made under Equity Rule 29 in the answer when it may be separately heard. In an action at law objection would be by a plea or other appropriate pleading under the state practice. 25 Holt v. Bergevin, 60 Fed. 2. 28 Jones v. Mutual Fidelity Co. 123 Fed. 510. 27Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248; Bernheim v. Birnbaum, 30 Fed. 885; Davis v. Mills, 99 Fed. 39. 28 Bowden v. Durnham, 59 Fed. 754. 8 C. C. A. 249, 19 U. S. App. 448. 29O'Connell v. Reed, 56 Fed. 531, 5 C. C. A. 586; Tfxas, etc., R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186, 16 Sup. Ct. Rep. 1104. Montg. 11. 162 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 271 Raising the issue of "amount" as a matter of law, the following allegation is suggested: "Defendant alleges that it appears on the face of the bill of complaint that this case does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court, in that the matter in contro- versy, as appears from the bill of complaint, does not exceed the sum or value of three thousand dollars exclusive of interest and costs." If the issue is as to goooVfaith, the following allegation may be used : "That this suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of this court in that the amount sued for as alleged in the complaint is not truly stated and is not alleged in good faith, and defendant alleges that the matter in controversy does not exceed the sum or value of three thousand exclusive of interest and costs." CHAPTEK 10. REMOVAL OF CAUSES JURISDICTION AND PROCEDURE. Sec. 285. In General. 286. Jurisdiction First Four Classes of Removal Cases. 287. Class One; Removal by Defendant or Defendants on Ground of Federal Question. 288. Class Two; Removal by Nonresident Defendant or Defendants on Ground of Diverse Citizenship. 289. Class Three; Removal of a Separable Controversy Wholly between Citi- zens of Different States. 290. Procedure on Removal Class One, Two, and Three Petition for Re- moval to be Filed before Appearance Day in State Court. 291. Bond on Removal in Classes One, Two, and Three. 292. Duty of State Court in Such Cases. 293. Notice to Adverse Party in Such Cases. 294. Procedure after Removal in Classes One, Two, and Three. 295. Class Four; Removal on Ground of Prejudice. 296. Remanding Separable Controversy in Class Four. 297. Remanding upon Failure to Show Prejudice Class Four. 298. Remanding in Classes One, Two, Three, and Four. 299. Common Carrier Employer's Liability Cases Not Removable, Nor for Property Damages, unless $3,000 Involved. 300. Class Five; Suits between Citizens of a State under Land Grants from Different States. 301. Class Six; Removal of Suits of Aliens against Officers. 302. Class Seven; Removal Civil Rights Cases. 303. Habeas Corpus Proceedings where Civil Rights Denied, and Other Cases. 304. Class Eight; Removal in Cases against Revenue and Congressional Officers. 305. Procedure on Removal under Class Eight Cases against Revenue and Congressional Officers. 306. Procedure after Removal in Class Eight. 307. Certiorari and Habeas Corpus Proceedings in Class Eight Suits against Revenue and Congressional Officers. 308. Proofs of Records When Copies Refused by State Court Clerks. 309. Enforcement of Return of Record from State to Federal Courts. 310. Remand or Dismissal of Case Fraudulently or Improperly Removed. 311. Provisional Remedies of State Court Preserved Bonds Given in State Suit Valid on Removal. 312. Proceedings after Removal Generally. 163 104 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 285 285. In General. There are eight classes of cases in which there may be a removal from the state to the Federal court. Cases arising under the employers' liability act are specifically denied removal in the closing paragraph, 28, Judicial Code, quoted in 299, following. Class one includes cases involving a Federal question. These may be removed by the defendant or defendants therein without regard to his or their residence. 1 Class two includes cases based on diverse citizenship. These may be removed by a nonresident defendant or defendants. 2 Class three includes separable controversies between citizens of different states of either classes one or two. Thus any defend- ant with a separable controversy based on a Federal question, or any nonresident defendant relying on diverse citizenship and with a separable controversy, may remove. 3 The procedure is the same for classes one, two, and three. 4 Class four includes cases between a citizen of a state and a citizen of another state, where such nonresident defendant may remove on the ground of prejudice or local influence. 5 The time for removal 6 and procedure in this class of cases differs from that in the first three classes of cases. 7 All four classes of cases may be remanded to the state court if improperly removed, either under 28 8 or 37, 9 Judicial Code. Class five includes cases between citizens of the same state claiming under land grants from different states. These are removable by either party under 30, Judicial Code, and must involve $3,000 exclusive of interest and costs, although such amount is not required to give the Federal court original jurisdic- tion. 10 Class six includes cases removable by defendant nonresident civil officers in suits brought against them by aliens under 34, T j- i ruj 11 Judicial Code. Class seven includes cases arising under the civil rights laws. 1 287, infra. 2 288, infra. 3 289, infra. 4 290-1-2-3-4, infra. 295. infra. 6 Ibid. ? 295-296. infra. 8 98, infra. 310, infra. 10 300, infra. " 301, infra. 286 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 165 These are removable by a defendant denied such civil rights under 31, Judicial Code. 12 Class eight includes cases against revenue or congressional of- ficers. These cases may be removed by them at any time before trial. 13 There are general provisions respecting proofs of state court records where copies are refused by the clerks of such court ; 14 for enforcing the return of the record from the state court ; 15 for preserving on removal attachment and sequestration liens, injunc- tional orders, bonds and undertakings, 16 and for proceedings after removal. 17 Kemanding cases fraudulently or improperly re- moved, lacking jurisdictional grounds, may be done under 37, Judicial Code. 18 The changes made in the practice by the Judicial Code are very few. It is now required under 29, Judicial Code, what before was the general practice, that the petition for removal be verified. 19 The bond for removal is now conditioned to enter in the district court "within thirty days from the date of filing said petition, a. certified copy of the record, etc.," 20 where formerly the condi- tion was to enter suit "on or before the first day of the next reg- ular session." The old practice of giving notice is now obligatory under 29, Judicial Code, requiring "written notice of said peti- tion and bond" prior to filing same. 21 The forms given in this chapter are adapted from Desty's Fed- eral Procedure. 286. Jurisdiction First Four Classes of Removal Cases. 28, Judicial Code? 36 Stat. at L. 1094, Comp. St. 1911, pp. 1^0, 141, 1912 Supp. F. 8. A. v. 1, pp. 144-5. "(Re- moval of suits from state to United States district courts.) Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original ju- risdiction by this title, which may now be pending or which 12 302, infra. W 304, infra. " 308, infra. 309, infra. 16 311, infra. " 812, infra. " 310, infra. " 290, infra. 20 291. infra. 293, infra. a For Annotation of this 28, Judicial Code, see footnote c, ante, our 221. 166 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 286 may hereafter be brought, in any state court, may be re- moved by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may here- after be brought, in any state cotirt, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when, in any suit mentioned in this sec- tion, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper dis- trict. And where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controver- sy 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 dis- trict court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that, from prejudice or local in- fluence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be preju- diced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is now pend- ing in any district court, or may hereafter be entered there- in, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had rea- son to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in 288 UEMOVAL OF CAUSES JURISDICTION AND PROCEDURE 167 said state court, it shall cause the same to be remanded there- to. Whenever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediate- ly carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: Provided, That no case arising under an act entitled, "An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases," approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction, shall be removed to any court of the United States." 287. Class One; Removal by Defendant or Defendants on Ground of Federal Question. Cl. 1, 28, Judicial Code* (above quoted in full) 36 8tat. at L. 1094, Comp. 81. 1911, p. 140, 1912 Supp. F. 8. A. v. 1, p. 144- "Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defend- ants therein to the district court of the United States for the proper district." 288. Class Two ; Removal by Nonresident Defendant or Defendants on Ground of Diverse Citizenship. Cl 2, 28, Judicial Code, 36 8 tat. at L. 1094, Comp. St. 1911, pp. 140, 141, 1912 Supp. F. 8. A. v. 1, p. 144- ". . . Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdic- tion by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed in- to the district court of the United States for the proper dis- trict by the defendant or defendants therein, being nonresi- dents of that state. . . ." b For Annotation of this 28, Judicial Code, see footnote c, ante, our 221. For Annotation of this 28, Judicial Code, see footnote , ante, our 221. 168 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 289 289. Class Three ; Removal of a Separable Controversy Wholly between Citizens of Different States. Any defend- ant or defendants with a separable controversy wholly between citizens of different states may remove same from the state to the Federal court, in cases of which the district court might have taken jurisdiction originally on the ground of a Federal question. Likewise any nonresident defendant or defendants may remove his or their separable controversies where the district courts might have taken jurisdiction originally on account of diverse citizenship. (Aliens may not remove a separable contro- versy.) Both classes of cases are included in the following stat- utory provision : Cl 3, 28, Judicial Code* 36 Stat. at L. 1094, Comp. St. 1911, p. 141, 1912 Supp. F. S. A, v. 1, p. 144- ". . And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district. . . ." To constitute a separable controversy, the case must be one capable of separation into parts, so that in one of the parts a con- troversy will be presented with citizens of one or more states, on one side, and citizens of other states, on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun. 22 It must appear from the record that, upon the allegation of plaintiff's petition, there arises in the cause a controversy capable of separation from the other issues or questions presented by the petition, which, when separated, would be between citizens of different states. 28 When the cause of action is single, the fact that different defendants have dif- 22 Eraser v. Jennison, 106 U. S. 191, 27 L. ed. 131, 1 Sup. Ct. Rep. 171 ; Avers v. Wiswall, 112 U. S. 187. 28 L. ed. 693, 5 Sup. Ct. Rep. 90. '23 Stanbrough v. Cook, 38 Fed. 369, 3 L.R.A. 400; Earth v. Coler. 19 U. S. App. 646, 9 C. C. A. 81, 60 Fed. 466; Thurber v. Miller, 14 C. C. A. 432, 67 Fed. 371. d For Annotation of this 28, Judicial Code, see footnote <, ante, our 221. 289 KEMOVAL OF CAUSES JURISDICTION AND PROCEDURE 109 ferent defenses does not create separable controversies. 2 * In Bates v. Carpentier, 98 Fed. 452, the court said "that, in order to justify a removal of a cause on the ground of a separate C^N- troversy between citizens of different states, the whole subject- matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate causes of action, without the presence of others, originally made parties to the suit." In Goldsmith v. Gilliland, 24 Fed. 154, 10 Sawy. 606, it was decided that a suit to quiet title to real property presented a subject-matter capable of such separable determina- tion, and, "where a number of persons claim undivided interests in real property adversely to one in possession of the same, the latter may maintain a suit to quiet his title against any or all of such claims, and neither of said persons or adverse claimants is a necessary party to a suit for that purpose against the other." Where an action is brought by one plaintiff against several defend- ants, not because they claim any joint interest or are subject to any joint liability in respect to the subject-matter of the ac- tion, but merely for convenience, it will generally be capable of resolution into separable controversies between the plaintiff and the individual defendants. 25 A bill in equity to quiet title to real property, brought under the above conditions, has been decided to include a separable controversy with each of the defendants, so that, if one of them is a nonresident, he may remove the suit. 26 The fact that separate answers are filed, which raise separate issues - in defending against one cause of action, does not create sep- arable controversies, within the meaning of that term as used in the statute. They simply present different questions to be settled in determining the rights of the parties in respect to the one cause of action for which the suit was brought. 27 In Shain- 24 Rohbins v. Ellenbogen, 71 Fed. 4, 18 C. C. A. 83. 25 Black, Dill, Rem. Causes, par. 148: Bates v. Carpentier, 98 Fed. 452. 26 Field v. Lownsdale, Deady, 288, Fed. Gas. No. 4,769; Goodenough v. Warren. 5 Sawy. 494, Fed. Cas. No. 5,534; Stanbrough v. Cook, 38 Fed. 3<>9, 3 L.R.A. 400. 27 Hyde v. Ruble. 104 U. S. 407, 26 L. ed. 823; Winchester v. Loud, 108 U. S. 130, 27 L. ed. 677, 2 Sup. Ct. Rep. 311; Shainwald v. Lewis, 108 U. S. 158, 27 L. ed. 691. 2 Sup. Ct. Rep. 385; Deposit Co. v. Huntington, 117 U. S. 280, 29 L. ed. 8D8, 6 Sup. Ct. Rep. 733; Graves v. Corbin, 132 U. S. 571, 33 L. ed. 402, 10 Sup. Ct. Rep. 196; Torrence v. Shedd, 144 U. S. 527, 36 L. ed. 528, 12 Sup. Ct. Rep. 726. 170 MONTGOMERY'S MANUAL OF FEDERAL PROCEIU'KK ::'s'. wald v. Lewis, 108 U. S. 158, 27 L. ed. 691, 2 Sup. Ct. Rep. 385, the suit was brought for the dissolution and settlement of an al- leged partnership. The court said there was no separable or removable controversy. "The main dispute," said the court, "is about the existence of the partnership. All the other questions in the case are dependent on that. If the partnership is estab- lished, the rights of the defendants are to be settled in one way ; if not, in another. There is no controversy in the case which now can be separated from that about the partnership, and fully de- termined by itself." In Deposit Co. v. Huntington, 117 U. S. 280, 29 L. ed. 898, 6 Sup. Ct. Rep. 733, the suit was a creditors' bill to subject encumbered property to the payment of the creditors' judgment, by sale and distribution of the proceeds among lien hold- ers according to their priority. One lien holder sought to remove the suit, as to him, to a United States court, upon the ground that as to him there was a wholly separable controversy. The court said : "There is but a single cause of action, and that is the equit- able execution of a judgment against the property of the judgment debtor. This cause of action is not divisible. Each of the defend- ants may have a separate defense to the action, but we have held many times that separate defenses do not create separate contro- versies, within the meaning of the removal act." In Graves v. Corbin, 132 U. S. 571, 33 L. ed. 528, 12 Sup. Ct. Rep. 726, the suit was a bill in equity filed in a state court by a judgment creditor of a partnership to reach its entire property. Certain judgments confessed by the firm, on which levies had been made, were attached for fraud. One of the judgment creditors re- moved the cause to the circuit court upon the ground that as to him there was a separable controversy. After a final decree for the plaintiff, the supreme court, on an appeal therefrom, held that the case was not removable. A suit to try title to land is not a separable controversy. 28 An action to foreclose a mortgage where there are several defendants is not a separable controversy. 29 The rule as illustrated by these cases in concise form is that if a nonresident party has an interest in a controversy which is sepa- 28 Lomax v. Foster Lumber Co. 99 C. C. A. 463, 174 Fed. 959. 29 Thompson v. Dixon, 28 Fed. 6. 289 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 171 rate and distinct, and does not necessarily involve the interest of the other defendants in the issue, or the other party on the same side, he can remove the whole case into the Federal court. On the otlier hand, if the interests of the other party are so identified and so mixed up that they must and should be decided together, and depend on the final decree, which must depend upon and in- volve the rights of both parties, then it cannot be removed when one of the parties is a citizen of the same state with the plaintiff or defendant. 80 Another class of cases in which the question of separable controversy arises is where there is a joint and several H'lfi-ility. Where the plaintiff's cause of action is joint and several, he has the option whether to sue the defendants individu- ally or to join them in one action. If he elects to pursue the latter course, his choice determines the character of the suit, and no one of the defendants can treat the suit as it concerns him as several, for the purpose of a removal to the Federal court. 81 In Pirie v. Tvedt, 115 U. S. 41, 29 L. ed. 331, 5 Sup. Ct. Rep. 1034, the court said : "The cause of action is several as well as joint, and the plaintiffs might have sued each defendant separately, or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this defendants are not permitted to object. The fact that a judg- ment in the action may be rendered against a part of the de- fendants only does not divide a joint action in tort into sepa- rate parts, any more than it does a joint action in contract." A defendant has no right to say that an action shall be several which the plaintiff elects to make joint. A separate defense may de- 30 Wilson v. St. Louis, etc., Ry. Co. 22 Fed. 3, Affirmed St. Louis, etc., Ry. Co. v. Wilson, 114 U. S. 60, 29 L. ed. 66, 5 Sup. Ct. Rep. 738; Central R. Co. v. Mills, 113 U. S. 249, 28 L. ed. 949, 5 Sup. Ct. Rep. 456; Louisville & N. R. Co. v. Ide, 114 U. S. 52, 29 L. ed. 63, 5 Sup. Ct. Rep. 735; Putnam v. Ingraham, 114 U. S. 57, 29 L. ed. 65, 5 Sup. Ct. Rep. 746; Pirie v. Tvedt. 115 U. S. 41, 29 L. ed. 331, 5 Sup. Ct. Rep. 1034; Crump v. Thurber, 115 U. S. 56, 29 L. ed. 328, 5 Sup. Ct. Rep. 1154; Price v. Foreman, 11 Biss. 328, 1-2 Fed. 801; Mitchell v. Tillotson, 11 Biss. 325, 12 Fed. 737; Winchell v. Carli. 24 Fed. 865. 31 Black, Dill, Rem. Causes, par. 145 : Brown v. Coxe Bros. & Co. 75 Fed. 689; Boyd v. Gill, 19 Fed. 145, 21 Blatchf 543; Telegraph Co. v. Brown, 32 Fed. 337: Mutual Reserve Fund Life Ass'n v. Farmer. 23 C. C. A. 574, 77 Fed. 929: Railroad Co. v. Ide, 114 U. S. 52, 29 L. ed. 63, 5 Sup. Ct. Rep. 735; Pirie v. Tvedt, 115 U. S. 41, 29 L. ed. 331, 5 Sup. Ct. Rep. 1034: Little v. Giles, 118 U. S. 596, 30 L. ed. 269, 7 Sup. Ct. Rep. 32; Torrence v. Shedd, 144 U. S. 527, 36 L. ed. 528, 12 Sup. Ct. Rep. 726. 172 M".N T<;< MICKY'S MANUAL OF FEDERAL PROCEDURE 290 lent a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the con- troversy; and that is for all purposes of the suit, whatever the plaintiff declares it to be in his pleadings. 38 And if a per- son has a cause of action on which he may properly sue either one or two parties, and he chooses to sue both, he may do so though his motive in joining them is to prevent a removal to a Federal court. That is, the motive is not considered. 88 In this case, Deere, Wells & Co. v. Chicago, M. & S. V. Ry. Co. 85 Fed. 876, it was held that an action fo/ damages against a railroad company incorporated by another state, and one of its section foremen, who is a citizen of the same state with plaintiff, charging them jointly with setting out a fire on the railroad right of way to clear it of dry grass and weeds, and negligently permitting it to spread to plaintiff's premises, does not disclose a separable con- troversy which would enable the railroad company to remove the cause. In one action against a railroad company for negligence in handling a train and against a Pullman company for negligence in constructing the berth out of which the plaintiff was thrown, the court said.: "In the first count of the declaration there is a separate and distinct cause of action stated against each one of the defendants, and neither one of the defendants could be held liable on the facts specifically averred against the other." The contro- versy is separable. 290. Procedure on Removal Class One. Two, and Three Petition for Removal to be Filed before Appearance Day in State Court. Cl. 1, 29, Judicial Code,* 36 Stat. at L. 1095, Comp. St. 1911, p. 142, 1912 Supp. F. S. A. v. 1, p. 145. "Whenever 32 Railroad Co. v. Ide. supra; Sloane v. Anderson. 117 U. S. 275, 29 L. ed. 899. 6 Sup. Ct. Rep. 730: Little v. Giles, supra; Hedge Co. v. Fuller, 122 I". S. 535, 30 L. ed. 1235, 7 Sup. Ct. Rep. 1265. 83 Deere Well & Co. v. Chicago. M. & S. V. P. Ry. Co. 85 Fed. 876. Part of this section is new legislation, the remainder is a re-enactment of 25 Stat. at L. 433. Foster's Fed. Prac. (4th ed.) pp. 86. 138, 200, 1197. 14SS. 1510-14. 1517. 1524. 1529, 1531. 1549, 1556-7. 1565-9, 1581, 1594, 1596. ( ..nip. St. 1901. p. 510. 4 F. S. A. 349, without material change, which section is repealed by 297, Judicial Code. 290 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 173 any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a state court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such state court at the time, or any time before the de- fendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the re- moval of such suit into the district court to be held in the district where such suit is pending. . . ." The party removing is also required to file a bond and transcript and give notice as set out in the following sections: FORM 1. PETITION FOB REMOVAL WHERE CAUSE INVOLVES A FEDERAL QUESTION. In the District Court of, etc., State of Idaho. [Title of Cause.] To the Honorable Judge of the Court aforesaid: Your petitioners, defendants in the above-entitled action, respectfully rep- resent and show to your honorable court: That this is a civil action brought in this court in pursuance of an adverse claim, filed in the United States land office at Cceur d' Alene city, state of Idaho, by the plaintiff herein, to the application of the petitioners for a United States patent to a certain parcel of mineral land, situated in Shoshone county, in said state. That said action is in pursuance of the provisions of 2326 of the Revised Statutes of the United States, for the determination of controversies arising between claimants to the right of possession of min- eral lands claimed for patent by the parties thereto. Your petitioners allege that they are each citizens of the United States and residents and citizens of the county of Shoshone, state of Idaho, and that the Shoshone Mining Company is a corporation doing business and claiming to be organized and existing under the laws of the state of Idaho. Consent of counsel does not give district court jurisdiction. In re Foley, 76 Fed. 390. But facts may be admitted which will give the court jurisdic- tion. Pittsburg. etc., R. Co. v. Ramsey, 22 Wall. 322, 22 L. ed. 823 ; 'Hyde v. Victoria Land Co. 125 Fed. 970. In general, Fayette Title & Trust Co. v. Maryland, P. & W. V. Tel. & Teleg. Co. 180 Fed. 928. Petition, time for filing, Lewis v. Cincinnati, N. 0. & T. P. Ry. Co. 102 Fed? 654. Grounds for remand, Western Union Teleg. Co. v. Louisville & N. R. Co. et al. 201 Fed. 932. Procedure, Coins, v. S. P. Co. 108 Fed. 4.32. Application, notice, Cayce v. Southern R. Co. 195 Fed. 786. 174 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 290 That the value of the premises described in the complaint, exclusive of in- terest and costs, exceeds the sum of three thousand ($3,000) dollars. That this action is a special action created and authorized by the. statutes of the United States, to facilitate the sale and disposition of the public min- eral lands by the land department, and involves the right of possession con- ferred by said statutes on claimants of the same who desire to obtain patents for the lands claimed by them, and is therefore within the jurisdiction of the courts of the United States. That this action involves the questions of what is a lawful location of a mineral claim; what discovery of mineral is required to support such lo- cation, and what rights follow such location, discovery, and attempted appro- priation, and the proper construction of the acts of Congress relating thereto. That your petitioners are claimants of the title to the premises in con- troversy and the plaintiff is an adverse claimant thereto under the statute. Your petitioners herewith present a good and sufficient bond as provided by the statute in such cases, that they will enter in such district court for the Northern Division of the District of Idaho, within thirty days from the filing of this petition a certified copy of the record in this suit and for the payment of all costs which may be awarded by the said court, if the said district court shall hold that this suit was wrongfully or improperly removed thereto. (If special bail was originally requisite in said cause add here, "and shall then and there appear and enter special bail in said suit.") Your petitioners therefore pray that this court proceed no further herein, except to make the order of removal as required by law and to accept the bond presented herewith, and direct a transcript of the record herein to be made for said court as provided by law, and as in duty bound your petition- ers will ever pray. State of , J County of ( V\Y and XY, being each duly sworn according to law, severally depose and say : I am one of the petitioners in the above-written petition and have read said petition, and the same is true of my own knowledge, except such matters as are therein stated on information and belief, and as to such statements I believe it to be true. Subscribed and sworn to, etc. FORM 2. VERIFICATION BY ATTORNEY. State or , ) 88. County of J VP, being first duly sworn, on oath says that he is one of the attorneys of the defendant in the above-entitled cause and of the petitioner named in the foregoing petition ; that he has read the same and believes the same to ho true, and affiant further says that said petitioner is absent from and is a nonresident of the county of , State of in which 290 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 175 said suit is brought, and that affiant makes this affidavit for the reason that the defendant is absent from and is a nonresident of the said county of , in which said suit is brought. VP. Sworn, etc. FORM 3. N PETITION FOB REMOVAL. INVOLVING FEDERAL QUESTION. In the Superior Court, etc. State of California. [Title of Cause.] Now at the time of filing his first appearance in said entitled cause comes the said defendant and presents to this Honorable Court his petition for re- moval of this suit to the District Court of the United States, in and for the northern district of California, held at the City of San Francisco, and as grounds therefor respectfully shows: First. That as shown by plaintiff's complaint on file herein, this suit arises under the laws of the United States providing for the disposition and sale of the public gold-bearing mineral lands. Second. That each of the plaintiffs is and for more than five years last past has been a citizen of the state of California. Third. That the defendant is and for more than five years last past has been a citizen of Minnesota. Fourth. That the lands in controversy in this suit are of the value of $3,000. Conclusion as in form 1. Verification as in form 1 or 2. FORM 4. PETITION FOB REMOVAL INVOLVING FEDERAL QUESTION. In the Superior Court of, etc. State of California. [Title of Cause.] Your petitioners respectfully show that they are the defendants in this action, which is of a civil nature, in equity, and that the matter or amount in dispute exceeds the sum of $3,000, exclusive of interest and costs. That said action is in equity, of a civil nature, and arises under the Con- stitution and laws of the United States. That the defendants, at and about the time of the commencement of the above-entitled action, were in the possession and occupancy of the mining ground known as the St. Lawrence Mine, near Moore's Flat, in Nevada county, state of California, and were engaged in working said property by the hydraulic process under a license or permit duly and regularly made and issued to the defendant Ah Wing as the owner of the property by the commissioners appointed and acting under and in pursuance of an act of the Congress of the United States, approved March 3, 1893, entitled, "An 17U MOJS'TGOMKKY's MANUAL OF FEDERAL PROCEDURE 290 Act to Create the California Debris Commission, and to regulate Hydraulic- Mining in the State of California." That said mining was carried on by said defendants in conformity to the license or permit aforesaid, and the rules, regulations, and requirements of said commission, and the provisions of said act of Congress. That said action is brought to restrain and enjoin the defendants and rach and all of them from working said mine by the hydraulic process; that the question of the force and effect of the said act of Congress and of the power and authority of said debris commission under said act of Congress, and of the legal effect of the license or permit granted by said commission to the defendant Ah Wing, and other acts performed by said commission relating to the subject-matter of this action, are involved in said action; that said defense rests mainly upon said act of Congress and upon the power and authority of the said commission thereunder, as will more fully appear from the complaint on file, and from the answer of the de- fendants thereto, filed herewith, to which reference is hereby made. Conclusion as in form ]. Verification as in form 1 or 2. FORM 5. PETITION FOB REMOVAL CITIZENS OF DIFFERENT STATES. (Nonresident Plaintiff v. Nonresident Defendant.) In the Superior Court of, etc. State of Washington. [Title of Cause.] To the Honorable Judges of the above-entitled court: Comes now your petitioner, the above-named defendant, by his attorneys, and respectfully represents to this honorable court : 1. That on the day of , . . . ., the above-named plaintiff filed a complaint in the superior court of King county, state of Washington, praying for a judgment against the defendant upon a promissory note for the sum of three thousand ($3000.00) dollars, with interest at 10 per cent per annum from , with costs, and attorneys' fees of 5 per cent of the amount due. 2. That on said date, and immediately after filing said complaint, the said plaintiff caused to be sued out a writ of attachment, and caused said writ of attachment to be delivered to the sheriff, who thereupon levied upon property of your petitioner in King county. Washington. 3. Your petitioner further avers that the time has not elapsed wherein your petitioner is allowed under the practice and laws of the state of Wash- ington and the rules of said court to appear, plead, demur, or answer said r-omplaint. 4. Your petitioner further avers that at the time of the commencement of said suit, and ever since then, and at the present time the plaintiff in said action, the Harrisburg Trust Company, was and is a corporation organ- ized and existing under and by virtue of the laws of the commonwealth of 290 KEMOVAL OF CAUSES JURISDICTION AND PROCEDURE. 177 Pennsylvania, and was a citizen and resident of the state of Pennsylvania, having its principal place of business at the city of Harrisburg in said state, and the defendant, at the time of the commencement of said suit was, and ever since has been, and still is, a citizen of the state of Wisconsin and a resident thereof, residing at the city of Oconomowoc in said state of Wis- consin. . 5. Your petitioner further avers that this is a controversy between citizens of different states and more than three thousand ($3,000) dollars, exclusive of interest and costs, is involved therein. Conclusion as in form 1. Verification as in form 1 or 2. FORM 6. PETITION FOB REMOVAL CITIZENS OF DIFFERENT STATES. (Resident Plaintiff v. Nonresident Defendant.) In the Superior Court of, etc. State of California. [Title of Cause.] To the Honorable Superior Court of Humboldt County, State of California. The petition of and defendants in the above- entitled action, respectfully show to this honorable court. That your petitioners are defendants in the above-entitled action. That said action lias been commenced against them in said court by said plaintiff, and that said action is of a civil nature. That said plaintiff, in his complaint herein, claims in substance that on the .... day of , . . . . , your petitioner entered into a contract in writing with plaintiff for the purchase and acquisition of certain timber lands situate in said county and state, and that in such purchase and acquisition said plaintiff rendered certain services for defendants upon an agreed price, amounting to the sum of $5,479.46, for which he demands judgment against said defendants. That your petitioners dispute said claim and deny all liability under the contract set out in the complaint herein. That the matter in dispute in this action exceeds the sum of three thousand dollars, exclusive of interest and costs. That the controversy in this action and every issue of fact and law therein is wholly between citizens of different states, and which can be fully de- termined as between them that is to say, the plaintiff, . . , is now, and was at the time of the filing of the complaint in this action, a citizen and resident of the state of California, and the defendants, and , were then and still are citizens and residents of the state of New York. That the time for your petitioners, as defendants in this action, to answer or plead to the complaint in said action has not yet expired and will not so expire until the day of , . . . . , and your petitioners have not yet filed or in any way appeared therein. Conclusion as in form 1. Verification as in form 1 or 2. Montg. 12. 178 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2 'JO FORM 7. PETITION FOB REMOVAL. (Resident Plaintiff v. Nonresident Defendant and Resident Defendant who has Disclaimed All Interest in the Action.) In the Superior Court of, etc. State of California. [Title of Cause.] The petition of , one of the above-named defendants, shows to the court as follows: That the above suit was begun against your petitioner, and , in the superior court of the city and county of San Francisco, state of California, by the filing of a complaint and the service of a sum- mons and copy of the complaint therein, on the . . day of . ., That the defendant, , filed his answer in said cause on the day of , That your petitioner has not yet filed his answer; but that, as to your petitioner, said cause is now pending on his motion to strike out portions of the complaint herein; that said cause has not been tried, and that this is the first term of said superior court at which the same could by any probability be tried. That at the time said suit was begun, and at the present time, the plain- tiff was and is a citizen and resident of the state of California, and the defendant, , was and is a citizen and resident of the state of Xevada; and that the said defendant, , was and is a citizen and resident of the state of California. That the matters in dispute in said suit, and for which said suit is brought, exceed the sum of three thousand dollars, exclusive of costs. That the defendant. , has no interest in said action or the matters in dispute therein, or in any of the property therein mentioned, and has filed his answer disclaiming any interest of any name or nature in the same, or in the property described therein, and the same is wholly and solely the property of the defendant, Conclusion as in form 1. Verification as in form 1 or 2. FORM 8. PETITION FOB REMOVAL. (Citizens v. Aliens.) In the Superior Court of, etc. State of California. [Title of Cause.] The petition of one of the above-named defendants, shows to the court as follows: That the above suit was begun against your petitioners, and , in the superior court of the county of Marin, state of 290 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 179 California, by the filing of a complaint, and the service of a summons and a copy of the complaint herein on the defendants. That your petitioners have not yet filed their answer, but that, as to your petitioners, said cause is now pending, that said cause has not been tried, and that this is the first term of said superior court at which the same could by any probability be tried. That at the time said suit was begun, and at the present time, the plain- tiffs are citizens and residents of the state of California, and the defend- ants are aliens and subjects of the United Kingdom of Great Britain and Ireland; the said defendant, , being a resident of the county of Marin, and the said residents of the county of Alameda, state of California. That the matters in dispute in said suit, and for which said suit is brought, exceed the sum of three thousand dollars, exclusive of interest and costs. Conclusion as in form 1. Verification as in form 1 or 2. FORM 9. PETITION FOE REMOVAL FROM STATE COURT TO DISTRICT COUBT. (Resident Plaintiff v. Alien Defendant.) In the Superior Court of, etc. State of Washington. [Title of Cause.] To the Honorable, the Superior Court of the State of Washington, in and for the county of Jefferson, and to the Honorable Judge thereof: The petition of , the defendant in the above-entitled act, re- spectfully shows: I. That said action is a suit of a civil nature at common law, of which the district court of the United States has original jurisdiction, and has been brought and is now pending in this honorable court, and has not yet been tried, nor has the time at or before which the defendant, this petitioner, is required, by laws of the state of Washington, or any rules or rule of this honorable court, to answer or plead to the complaint of plaintiff elapsed, and the matter in dispute in said suit exceeds, exclusive of interest and costs, the sum and value of three thousand dollars, and said suit is a con- troversy between the plaintiff, who, at the time of the commencement of said suit, was and now is a citizen of the state of Washington, and this de- fendant, who is not a citizen of the state of Washington, but was, at the time of the commencement of said suit, and now is, a foreign citizen and subject; that is to say, a citizen of the British Empire and a subject of her Britannic Majesty, Queen Victoria, and that there are no other parties to said suit. 180 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 290 II. That by reason of the premises this petitioner, said defendant, desires and is entitled to have said suit removed from said superior court of the state of Washington into the district court of the United States for the proper district at this time. III. That the district court of the United States for the ninth circuit, and in and for the northern division of the district of Washington, holding terms at the city of Seattle, is the district court of the United States for the proper district, being the district court of the United States held in the district \viiere said suit is pending. Conclusion as in form 1. Verification as in form 1 or 2. FORM 10. PETITION FOB REMOVAL SEPARABLE CONTROVERSY. In the Superior Court of, etc. State of California. [Title of Cause.] To the Honorable, the Superior Court of the city and county of San Francisco, State of California: The petition of 7 one of the above-named defendants, shows as follows : Your petitioner shows to this honorable court that he is one of the de- fendants in this suit, which is of a civil nature, and that the matter or amount in dispute in this cause exceeds the sum or value of three thousand dollars, exclusive of interest and costs. That the controversy herein is between citizens of a state and of a foreign state; that the plaintiff, , was at the time of the commencement of this suit, and still is, a citizen of the state of California, residing in the county of Sonoma, in said state, and that your petitioner, , was, at the time of the commencement of this suit, and for seventeen years last past has been, a resident of the city of Denver, in the state of Colorado, and that your petitioner desires to remove this suit before the trial thereof into the next district court of the United States to be held in the northern district of California. Your petitioner further shows that the causes of action that the plaintiff herein lias against the two defendants for damages for the death of are separable controversies. That on the .... day of , , your petitioner was engaged as an independent contractor to do certain work in the construction of a building on the lot of land situate at the southwest corner of Market and Third streets; that in the prosecution of said work it became and was necessary to place a certain piece, of timber in an upright position, so that one end of said timber was against the under part of said cornice, and the other end was on the roof of the building on the lot next adjoining on the west. 290 REMOVAL, OF CAUSES JURISDICTION AND PROCEDURE 181 That the defendant , is the owner of said last-mentiom-d lot. That it is claimed by the plaintiff that the aforesaid piece of timber fell from its place and struck the said , who was on the street beneath, and so injured him that he subsequently died. That the cause of action that the plaintiff, has, if she has any, against your petitioner, is for his negligence, through his agents and serv- ^ants, in improperly placing the said piece of timber. That the cause of action that plaintiff, , has, if she has any, against the defendant, , is for maintaining a nuisance upon his said premises. That therefore the said two causes of action are separable. Conclusion as in form 1. Verification as in form 1 or 2. FORM 11. PETITION FOR REMOVAL SEPARABLE CONTROVERSIES AFTER DISMISSAL OF SUIT AGAINST OTHER DEFENDANTS. [Title of Court and Cause.] To the Honorable, the Court of State of Your petitioner respectfully shows that it is one of the defendants in the above-entitled suit, and that the matter and amount in dispute in said suit exceeds, exclusive of interest and costs, the sum or value of three thousand dollars. That there is in said suit a controversy which is wholly between citizens of different states, and which can be fully determined as between them, to wit, between your petitioner, the Ry. Co., defendant in said suit, who avers that it was at the commencement of this suit, and still is, a corporation organized under the laws of the states of Virginia and West Virginia, and of no other state, and that it was then and still is a citizen and resident of the states of Virginia and West Virginia, and of no other state, and that it was not then, and is not now, a resident or citizen of the state of Kentucky and the plaintiff, , who was, at the com- mencement of this suit, and still is, a resident and citizen of the state of Kentucky. Your petitioner further says that the said defendants, , and , are all and every of them, citizens and residents of the state of Kentucky, and that they are fraudulently and improperly joined as parties defendant for the sole purpose of defeating the right of petitioner to remove to the United States circuit court. That because of said joinder of said and , being citizens of the same state as said plaintiff, said cause was remanded to the state court. Your petitioner says that the said suit as to said and was, on the day of , dismissed, that the said cause is now, for the first time, pending as to the said alone. Conclusion as in form 1. Verification as in form 1 or 2. 182 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 291 291. Bond on Removal in Classes One, Two, and Three. Pt. 29, Judicial Code,' 36 Stat. at L. 1095, Comp. St. 1911, p. 142, 1912 Supp. F. S. A. v. 1, p. 146. ''Whenever any parties entitled to remove any suit mentioned in the pre- ceding section, except suits removable on the ground of preju- dice or local influence, . . . (he) shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite there- in." FORM 12. BOND ON REMOVAL. [Title of State Court and Cause.] Know all men by these presents, that we, XY and Z, as principals, and M and N, as sureties, residents, and of the county of , State of , are held and firmly bound unto AB, plaintiff in the above-entitled cause, his successors and assigns, in the sum of five hundred ($500) dollars, lawful money of the United States of America, for the pay- ment of which well and truly to be made, we and each of us bind our- selves, and each of us, our heirs, executors, and administrators, jointly and severally, by these presents. The conditions of this obligation are such that: Whereas, the said XY and Z have applied by petition to the (superior) court of the state of , in and for the county of , for the removal of a certain caus therein pending wherein AB is plaintiff and the said XY and Z are defendants, to the district court of the United States for the district of , division, for further proceedings on grounds in the said . petition set forth, and that all further proceedings in said action in said court be stayed. Now, therefore, if your petitioners, the said XY and Z shall enter in said district court of the United States for the district of , aforesaid, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and shall pay or cause to be paid all costs that may be awarded therein by said district court of the United States if said court shall hold that said suit was wrongfully or improperly removed thereto [Note. If special bail was originally requisite in said cause add here: * For Annotation of this 29, Judicial Code, see footnote , ante, our 290. 293 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 183 "And shall then and there appear and enter special bail in said suit"], then this obligation shall be void; otherwise shall remain in full force and effect. Signed, subscribed and sworn, etc. Sureties' Justification. "State of County of M and N, the sureties named in the foregoing bond, being first duly sworn, each for himself, deposes and says as follows: I am the same person whose name is subscribed to the foregoing bond, and I state I am a householder and resident of the county and State aforesaid, and that I am worth the sum of five hundred ($500) dollars named therein as the penalty thereof, over and above all my just debts and liabilities, exclusive of property which is exempt from execution. M. N. Subscribed and sworn, etc. 292. Duty of State Court in Such Cases. Pi. 29, Judicial Code* 36 Stat. at L. 1095, Comp. St. 1911, p. 142, 1912 Supp. F. 8. A. v. 1, p. 146. ". . . It shall then be the duty of the state court to accept said pe- tition and bond and proceed no further in such suit." 293. Notice to Adverse Party in Such Cases. PL 29, Judicial Code* 36 Stat. at L. 1095, Comp. St. 1911, p. 142, 1912 Supp. F. S. A. v. 1, p. 146. ". . . Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same." FORM 13. NOTICE OF PETITION AND BOND FOB ORDER OF REMOVAL. [Title of State Court and Cause.] To Messrs. P and Q, Attorneys for Plaintiff: Please take notice that the defendants will on ........ , the .... day of ........ , . . . . , at 10 o'clock, A. M., or as soon thereafter as counsel can be heard, move the court for an order removing said ca\ise to the district court of the United States for the .......... district of .......... in ac- s For Annotation of this 29, Jiidicial Code, see footnote *, ante, our 290. h For Annotation of this 29, Judicial Code, see footnote , ante, our 290. 184 MONTOO.MEKY'S MANUAL OF FEDERAL PROCEDURE 293 ronlance with the petition and bond of defendants, copies of which are hereto attached. Dated the .... day of , Attorney for defendants. FORM 14. OBDEB OF REMOVAL. [Title of State Court and Cause.] This cause coming on for hearing upon petition and bond of the defend- ant herein for an order transferring this cause to the United States district court for the district of , division, and it appearing to the court that the defendant has filed his petition for such removal in due form of law, and that the defendant has filed his bond duly conditioned, with good and sufficient sureties, as provided by law, and that defendant has given plaintiff due and legal notice thereof, and it appearing 1o the court that this is a proper cause for removal to said district court. Xow, therefore, said petition and bond are hereby accepted and it is hereby ordered and adjudged that this cause be and it hereby is removed to the United States district court for the district of , division, and the clerk is hereby directed to make up the record in said cause for transmission to said court forthwith. Done in open court, this .... day of , Judge. FORM 15. CLEBK'S CEBTIFICATE WITH RECORD. [Title of State Court and Cause.] State of , } County of J I, F, county clerk of said county of , and ex-officio clerk of the superior court in and for said county, hereby certify the above and fore- going to be a full, true, and correct copy of the record, and the whole there- of, in the above-entitled suit heretofore pending in said superior court, being the suit numbered No , wherein AB is plaintiff and XY are defendants, said record consisting of the complaint, filed by said plaintiff in said suit on the .... day of , ..; the summons and return thereon, filed in said suit on the .... day of , .... (here add any other proceedings that may have been filed) the petition for removal of said suit to the United States district court, filed by said defendant in said suit on the .... day of . . . . , the bond for removal, the notice of petition and bond, and the order of removal of said suit to said United States district court, entered of record 295 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 185 in said suit on the .... day of , . . . ., all as appears on the files and of record in my office. In testimony, etc. Clerk. [Seal] FORM 16. NOTICE OF REMOVAL. In the District Court of, etc., of the United States. (Title of Cause.] You and each of you will please take notice that on the .... day of , . . . . , the above-entitled cause was duly transferred from the court of the county of , state of , to the district court of the United States, in and for the district of , and that the record in said cause has this day been duly filed in the said United States district court. Dated , P. & Q, Attorneys for Defendant. To the above-named plaintiff and to Messrs and , At- torneys for Plaintiff. 294. Procedure after Removal in Classes One, Two, and Three. PL 29, Judicial Code* 36 Stat. at L. 1095, Comp. St. 1911, p. 142, 1912 Supp. F. 8. A.v.l, p. 146. ". . . The said copy being entered within said thirty days as aforesaid in said district court of the United States, the parties so re- moving the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court." 295. Class Four; Removal on Ground of Prejudice. Pt. 28, Judicial Code} 36 Stat. at L. 1094, Comp. St. 1911, p. 141, 1912 Supp. F. 8. A. v. 1, p. 145. ". . . And where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen i For Annotation of this 29, Judicial Code, see footnote , ante, our 200. J For Annotation of this 28, Judicial Code, see footnote c, ante, our 221. 186 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 295 of another state, any defendant, being such citizen of another state, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause. . . ." The petition or affidavit in this class of cases is addressed to the Federal district court, instead of the state court, as in classes one, two, and three discussed above. No notice of the filing of the petition seems to be required, nor need a bond be given al- though both notice and bond are the usual practice. The district court enters an order of removal, which order should be filed in the state court (form 14, above, may be used by entitling in the Federal court), and a transcript of the record obtained from the state court (form 19 gives the writ to obtain same) should be filed in the Federal court. 34 Removal in these cases, instead of being required before the defendant is obligated under state practice to plead, may be "at any time before trial thereof," to wit, "before or at the term at which the cause could first be tried and before trial thereof." 8S FORM 17. PETITION FOB REMOVAL ON GROUND OF PBEJUDICE OB LOCAL INFLUENCE. In the District Court of the United States, etc. [Title of Cause.] Petition for removal from the Superior Court of the State of , in and for the county of To the Honorable, the Judge of the District Court of the United States for the District of : Your petitioner, the above-named Z, respectfully shows to this honorable 3 Pennsylvania Co. v. Bender, 148 U. S. 255, 37 L. ed. 411, 13 Sup Ct Ren 501. 35 McDonnell v. Jordan, 178 U. S. 229, 44 L. ed. 1048, 20 Sup Ct Ren 880. 295 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 187 court that A, as plaintiff, brought suit of a civil nature in the superior court of the state of , in and for the county of , against your petitioner Z, and that the matter or amount in dispute in said cause exceeds the sum or value of three thousand dollars, exclusive of interest and costs. That the said controversy is between citizens of different states; that the plaintiff A was, at the time of the commencement of this suit and still is a citizen of the state of , the state wherein such suit is pending, and is residing at in said state; and that your petitioner Z was, at the time of the commencement of this suit, and still is, a citizen of the state of , and of no other state, residing in the city of in said state, and that your petitioner desires to remove this suit which is now pending and undetermined in said state court, before the trial thereof, into the district court of the United States to be held in the , district of Your petitioner further shows unto this honorable court that from preju- dice and local influence in favor of. the plaintiff and adverse to this de- fendant he will not be able to obtain justice in said court or in any other state court to which said defendant may, under the laws of the state, have a right to remove said cause, on account of such prejudice or local influence. Wherefore your petitioner prays that an order be entered for the removal of said case from the court of said state to this court, and that a writ of certiorari issue for the return to this court of a certified copy of the record in said state court. Petitioner. Verification as in form 1 or 2. FORM 18. AFFIDAVIT FOB REMOVAL OF CAUSE FOB PREJUDICE, ETC. [Title of Federal Court and Cause.] United States of America, ) S3 District of J I, Z, being duly sworn, do say that I am the defendant [or one of the defendants] in the above-entitled cause which is now pending for trial in the superior court of the state of in and for the county of , and that from prejudice and local influence I shall not be able to obtain justice in said state court or in any other state court to which I may, under the laws of said state, have the right, on account of such prejudice or local influences, to remove said cause. Subscribed and sworn to, etc. 188 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE :2:M> FORM 19. WRIT OF CERTIORABI FOB REMOVAL ON GROUND OF PREJUDICE OR LOCAL INFLUENCE. The President of the United States of America to the Superior Court of the State of , in and for the County of , Greeting : It being represented to us that there is now pending before you a certain cause No , wherein A is plaintiff and Z is defendant, which cause was commenced in the superior court of the state of , in and for the county of by A against the said Z, for the purpose of (state object of suit), and that on the .... day of , a summons was issued out of said court and that no trial ha? yet been had; and, whereas, said defendant has caused to be filed, in our district court for the district of , his petition for the removal of the said cause from the said superior court to the District Court of the United States for the district of , and a bond with good and sufficient surety, according to the statutes of the United States in such case made and pro- vided; and has made it appear to us that, from prejudice or local influence lie will not be able to obtain justice in such state court or any other state court to which the defendant may, under the laws of the state, have the right to remove the said cause, we are willing to remove the said cause, and that the records and proceedings therein should be certified by said superior court and removed into our district court of the United States in and for the district of , and do hereby command you to certify and send the records and proceedings aforesaid, with all things concerning the same, to the said district court of the United States, to- gether with this writ, so that you may have the same at the United States courthouse in the city of , in the said district of , on the .... day of in the said district court to be then and there held, that the said district court may cause to be done thereupon what of right, according to the laws of the United States, should be done. Witness, the Honorable . I'/ 1 . '.': . '.'.., Judge of said District Court, and the seal of the said District Court hereto affixed, the .... day of , Clerk of said District Court. 296. Remanding Separable Controversy in Class Four. Pt. 28, Judicial Code* 36 Stat. at L. 1094, Comp St. 1911, p. 141, 1912 Supp. F. 8. A. v. 1, p. 145. ". Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local in- fluence, and that no party to the suit will be prejudiced by a k For Annotation of this 28, Judicial Code, see footnote , ante, our 221. 299 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 189 separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other defend- ants, to the state court, to be proceeded with therein. . . ." 297. Remanding upon Failure to Show Prejudice Class Four. Ft. 28, Judicial Code, 1 86 Stat. at L. 1094, Comp. St. 1911, p. 141, 1912 Supp. F. 8. A. v. 1, p. 145. ". . . At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the dis- trict court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said state court, it shall cause the same to be remanded thereto. . . ." 298. Remanding in Classes One, Two, Three, and Four. PL 28, Judicial Code, 36 Stat. at L. 1094, Comp. St. 1911, p. 141, 1912 Supp. F. S. A. v. 1, p. 145. ". . . Whenever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the de- cision of the district court so remanding such cause shall be allowed. . . ." (See 37, Judicial Code, in 310, infra.) 299. Common Carrier Employer's Liability Cases Not Removable, Nor for Property Damages, unless $3,000 In- volved. Pi. 28, Judicial Code? 36 Stat. at L. 1094, Comp. St. 1911, p. 141, 1912 Supp. F. S. A. v. 1, p. 145. ". . . Provided, That no case arising under an act entitled, "An 1 For Annotation of this 28, Judicial Code, see footnote , ante, our 221. n For Annotation of this 28, Judicial Code, see footnote , ante, our 221. n For Annotation of this 28, Judicial Code, see footnote c, ante, our 221. 190 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 300 Act Relating to the Liability of Common Carriers by Rail- road to Their Employees in Certain Cases," approved April twenty-second, nineteen hundred and eight, or any amend- ment thereto, and brought in any state court of competent jurisdiction, shall be removed to any court of the United States." Act January 20, 191k, ch. 48, amending 28, Judicial Code, by inserting at the conclusion thereof, "And provided further, That no suit brought in any state court of competent jurisdiction against a railroad company, or other corpora- tion, or person, engaged in carrying on the business of a com- mon carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under section twenty of the act to regulate commerce, approved February fourth, eighteen hundred and eighty- seven, as amended June twenty-ninth, nineteen hundred and six, April thirteenth, nineteen hundred and eight, February twenty-fifth, nineteen hundred and nine, and June eighteenth, nineteen hundred and ten, shall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000." 300. Class Five ; Suits between Citizens of a State under Land Grants from Different States. SO, Judicial Code, 36 Stat. at L. 1096, Comp. St.. 1911, p. 142, 1912 Supp. F. S. A. v. 1, p. 146. "If in any action commenced in a state court the title of land be concerned, and the parties are citizens of the same state, and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and pro- duce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the ad- verse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or <* For Annotation of this 30, Judicial CoJe, see footnote c, ante, our 262. 302 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 191 otherwise not be allowed to plead such grant or give it in evi- dence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evi- dence of any other title than that by him or them stated as aforesaid as the ground of his or their claim." 301. Class Six; Removal of Suits of Aliens against Of- ficers. 84, Judicial Code, 9 36 8 tat. at L. 1098, Comp. St. 1911, p. 145, 1912 Supp. F. S. A. v. 1, p. 149. "Whenever a per- sonal action has been or shall be brought in any state court by an alien against any citizen of a state who is, or at the time the alleged action accrued was, a civil officer of the United States, being a nonresident of that state wherein ju- risdiction is obtained by the state court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the de- fendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a state court by the provisions of the preceding section." 302. Class Seven ; Removal of Civil Rights Cases. 81, Judicial Code* 36 8 tat. at L. 1096, Comp. St. 1911, p. 143, 1912 Supp. F. S. A. v. 1, p. 147. "When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or can not enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecu- tion is pending, any right secured to him by any law provid- ing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority P Re-enacting 644, R. S., Rose's Code, 160, Foster's led. Pra'c. (4th ed.) p. 1457, Comp. St. 1901, p. 523, 4 F. S. A. 264, which section is repealed by 297. Judicial Code. In general, Hall et al. v. Great Northern Ry. Co. 197 Fed. 488. a For Annotation of this 31, Judicial Code, see footnote b, ante our 216. 192 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 303 derived from any law providing for equal rights as afore- said, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified 'by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition all further pro- ceedings in the state courts shall cease, and shall not be re- sumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in i,he state court. It shall be the duty of the clerk of the state court to furnish such defend- ant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, under the seal of the district court, stating such failure, shall be given, and upon the production thereof in said state court the cause shall proceed therein as if no petition for removal had been filed." 303. Habeas Corpus Proceedings where Civil Rights De- nied, and Other Cases. 32, Judicial Code,* 36 8 tat. at L. 1097, Comp. St. 1911, p. 143, 1912 Supp. F. 8. A. v. 1, p. UT. "When all the T?p-onacting 642, R. S.. Rose's Code, 1152, Foster's Fed. Prac. (4th ed.) pp. 1200. 1458, 1576, Comp. St. 1901, p. 521, 4 F. S. A. 260, changing the words 304 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 193 acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual cus- tody on process issued by said state court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said state court a duplicate copy of said writ." 304. Class Eight; Removal in Cases against Revenue and Congressional Officers. Pt. 33, Judicial Code* 36 Slot, at L. 1097, Comp. St. 1911, p. 144, 1912 Supp. F. 8. A. v. 1, p. 148. "When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or' other person under any such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law ; or when any suit is commenced against any person for (sic) on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any order of such House, the said suit or prosecu- tion may, at any time before the trial or final hearing there- of, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court. . . ." "circuit court," to "district court," which section is repealed by 297, Judicial Code. These proceedings are to be used when the state court does not recognize the defendant's right to remove. Ex parte Wells, Fed. Cas. No. 17,386, 3 Woods, 128. In general, Commonwealth of Kentucky v. Wendling, supra. Combining 643, R. S., Rose's Code, 138, 1145, 1146, 1147, 1148, Foster's Fed. Prac. (4th ed.) pp. 43, 1200, 1201, 1462, 1511, 1514, 1528, 1531, 1555, 1571, 1573, Comp. St. 1901, p. 521, 4 F. S. A. 260, and first part of 8, Sundry Civil Appropriation Act, 18 Stat. at L. 401, 6 F. S. A. 613, which are repealed by 297, Judicial Code. In general, City of Stanfield v. Umatilla River Water Users. Montg. 13. 194 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 305 305. Procedure on Removal under Class Eight Cases against Revenue or Congressional Officers. Pt. SS, Judicial Code* 36 Stat. at L. 1097, Comp. St. 1911, p. 144 f 1912 Supp. F. 8. A. v. 1, p. 148. ". . . . the said suit or prosecution (i. e., against revenue or con- gressional officers) may, at any time before the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court, and in the following manner : Said petition shall set forth the na- ture of the suit or prosecution and be verified by affidavit, and, together with a certificate signed by an attorney or coun- selor at law of some court of record of the state where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office." FORM 20. PETITION FOB REMOVAL BY CERTIORABI IN ACTION AGAINST REVENUE OFFICERS. In the District Court of, etc., of the United States. [Title of Cause.] To the Honorable Judges of the District Court of the United States, for the Northern District of California. The petition of , and , the defendants above- named, respectfully showeth: -;,i; That before the commencement of the suit above-named, and at all the times hereinafter mentioned, the said and were and now are the duly appointed and qualified collector of internal revenue of the United States and deputy internal revenue agent of the United States, respectively, for the first revenue district of California, and the said was at such times and is the United States marshal for the northern district of California, all of your petitioners acting under and by the authority of the internal revenue laws of the United States. That heretofore, and on the .... clay of , . . . . , one Avas the occupant and lessee of the premises, No. 624 Market street, and the owner and in control of certain personal property therein contained, to wit : certain machinery, tools, implements, apparatus, fixtures, boxes, barrels, tobacco and cigars, shelving and counters, and other articles and things. * For Annotation of this 33, Judicial Code, see footnote , ante, 304. 305 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 195 That said on or about said day, and continuously theretofore and thereafter, and while in the occupancy of said premises and in the owner- ship and control of said personal property as aforesaid, having bonded the same as a cigar and tobacco manufactory, then and there committed certain violations against the said internal revenue laws of the United States in the use and management of said property, to wit, the said did then and there and upon said premises wrongfully, unlawfully, and know- ingly, and contrary to the provisions of sections 3372, 3374, 3397, and 3400 of the Revised Statutes of the United States, remove from said manufactory, without the proper stamps denoting the tax therein, tobacco made therein, made false and fraudulent entries of manufactures and sales of tobacco (etc.; other charges specified), and committed other offenses against said revenue laws of the United States. That thereafter a suit for divorce was instituted in the superior court of the city and county of San Francisco within the state and district afore- said by against the said , her husband, and such pro- ceedings were thereupon had that a decree of said superior court was made and entered granting the divorce and awarding said personal property to said , subject to the payment of certain claims alleged to have been established in said court against her, and on the .... day of , . . . . , a receiver, , was appointed by said court for said property. That said receiver thereupon duly qualified and acted as such. That thereafter the said receiver and , the latter having, since the appointment and with the consent of said receiver, bonded the said premises as a cigar and tobacco manufactory, committed certain violations against the said internal revenue laws of the United States, to wit: did then and there and upon the said premises (repeats the charges as above), and committed other offenses against the said revenue laws of the United States. That heretofore, and on the .... day of , your petitioners, as such collector, and as such internal revenue agent, seized said personal property for the violations aforesaid of said laws, and thereafter, on the day of , said collector delivered the same into the custody of your petitioner , as such United States marshal, who now holds the same by virtue of such delivery. That said receiver has not yet been discharged by said superior court. That heretofore, and on the .... day of , the suit above en- titled was commenced in said superior court by said receiver, against your petitioners for $20,000 damages for an alleged wrongful con- version of said property by reason of the seizure and acts hereinbefore men- tioned. That at all of such times your petitioners were acting under color of their said respective officers and by authority of the internal revenue laws afore- said. That your petitioners have been served with process in said suit, to wit: with summons and complaint inaugurating the same, and said process has been served as aforesaid within this said northern district of California, and that there has not been as yet any trial or final hearing of said suit. 196 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 300 Your petitioners therefore pray that, in pursuance of the statute of said United States in such case made and provided, the said suit, so commenced in said superior court of the city and county aforesaid against your peti- tioners, may be removed therefrom into this honorable court for trial and determination, and thereupon proceed as a cause originally commenced in the same; and that a writ of certiorari in this behalf, for the record and proceedings heretofore had in said cause in said superior court, may issue from this honorable court to the said superior court of said city and county as by the same statute is provided. State and Northern District ) S3. of California f , and , the above-named petitioners, make oatli and say that the matters set forth in the foregoing petition are true in substance and in fact, the said making oath upon informa- tion and belief. (Signatures.) Subscribed and sworn to, etc. Certificate. I, , an attorney and counselor at law of the supreme court of said state, and assistant United States attorney for the northern district of California, do hereby certify that as counsel for the petitioners above- named I have examined the proceedings against them in the foregoing peti- tion mentioned, and have carefully inquired into all the matters set forth in said petition, and that I believe the same to be true. Assistant United States Attorney. 306. Procedure after Removal in Class Eight. PL S3, Judicial Code," 36 Stat. at L. 1097, Comp. St. 1911, p. 144, 1912 Su.pp. F. S. A. v. 1, p. 148. "The cause shall thereupon be entered on the docket of the district court, and shall proceed as a cause originally commenced in that court ; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court." For Annotation of this 33, Judicial Code, see footnote , ante, 304. 307 KEMOVAL OF CAUSES JURISDICTION AND PROCEDURE 197 307. Certiorari and Habeas Corpus Proceedings in Class Eight Suits against Revenue or Congressional Officers. Last Part 33, Judicial Code* 36 Stat. at L. 1097, Comp. St. 1911, p. 144, 1912 Supp. F. 8. A. v. 1, p. 148. ". . . When the suit is commenced in the state court by summons, subpoena, petition, or other process except capias, the clerk of the district court shall issue a writ of certiorari to the state court, requiring it to send to the district court the record and proceedings in the cause. When it is commenced by capias or by any other similar form or proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court, or left at his office, by the marshal of the district or his deputy, or by some person duly author- ized thereto ; and thereupon it shall be the duty of the state court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial, or judg- ment therein in the state court shall be void. If the defend- ant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the dis- trict court that no copy of the record and proceedings therein in the state court can be obtained, the district court may al- low and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to proceed, judg- ment of non prosequitur may be rendered against him, with costs for the defendant." FORM 21. ORDEE FOB WRIT OF CERTIORARI IN ACTION AGAINST REVENUE OFFICERS. In the District Court, etc., of the United States. In re the Petition of et al., for Writ | of Certiorari in v et al. $ Upon motion of , Esq., assistant United States attorney, and on v For Annotation of this 33, Judicial Code, see footnote , ante, 304. 198 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 307 filing petition of and ordered, that a writ of certiorari issue herein to the superior court of the city and county of San Francisco, requiring said court to transmit the record and proceedings in said cause of v et al., to this court within ten days. Further ordered, that said writ be served by delivering to said superior court and to the clerk thereof each a certified copy and that be and he hereby is appointed an elisor to serve said writ of certiorari, the marshal of this district, being a party to this proceeding. FORM 22. WRIT OF CERTIORABI IN ACTION AGAINST REVENUE OFFICERS. In the District Court of the United States, within and for Northern District of California, Northern District of California. ) S3 United States of America, j To the Superior Court in and for the City and County of San Francisco, State of California, Greeting: Being informed that there is now pending before you a suit wherein is plaintiff, and and are defendants, which said suit is brought for damages alleged to have been suffered by said plaintiff by reason of an alleged wrongful conversion of certain property by said defendants, the said alleged wrongful conversion occurring while said defendants were in discharge of their duties as officers of the United States, under the revenue laws of the United States, and which said suit has been commenced by the service of process, to wit, summons and complaint upon said and and said suit has not yet been heard and determined. Therefore, we being willing for certain reasons that said case and the records and proceedings heretofore had therein should be certified by said superior court and removed into our district court of the United States in and for the northern district of California do hereby command you. that you send, without delay and within ten days, to the said district court as aforesaid, the records and proceedings in said case, so that the said district court may act thereon as of right and according to law ought to be done. Witness, the Honorable Judge said District Court this day of A. D Clerk of the United States District Court, in and for the Northern District of California. [Seal] 309 REMOVAL OF CAUSES JURISDICTION AND PROCEDURE 199 308. Proofs of Records When Copies Refused by State Court Clerks. 35, Judicial Code 36 Stat. at L. 1098, Comp. St. 1911, p. 145, 1912 Supp. F. S. A. v. 1, p. 14.9. "In any case where a party is entitled to copies of the records and pro- ceedings in any suit or prosecution in a state court, to be used in any court of the United States, if the clerk of said state court, upon demand, and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such records and proceedings are needed may, on proof by affidavit that the clerk of said state court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court." 309. Enforcement of Return of Record from State to Federal Courts. 39, Judicial Code* 36 Stat. at L. 1099, Comp. St. 1911, p. 146, 1912 Supp. F. 8. A. v. 1, p. 150. "In all causes removable under this chapter, if the clerk of the state court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The district court to which any cause shall be remov- able under this chapter shall have power to issue a writ of certiorari to said state court commanding said state court to make return of the record in any such cause removed as afore- said, or in which any one or more of the plaintiffs or defend- ants have complied with the provisions of this chapter for the w Re-enacting 645, R. S., Rose's Code, 396, 1805, Comp. St. 1901, p. 523, 4 F. S. A. 264, which section is repealed by 297, Judicial Code. In general, Sherman v. Grinnell, 123 U. S. 679, 31 L. ed. 278, 8 Sup. Ct. Rep. 260. x Re-enacting 18 Stat. at L. 472, Comp. St. 1901, p. 512, 4 F. S. A. 378, which statute is repealed by 297, Judicial Code. In general, Goldberg, Bowen & Co. Inc. v. German Ins. Co. of Freeport, 111.. 152 Fed. 831. 200 MON I(i()MKIY's MANUAL OF FEDERAL PROCEDURE 309 removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing any cause under this chapter, or complying with the pro- visions for the removal thereof, to obtain such copy, for the reason that the clerk of said state court refuses to furnish a copy, on payment of legal fees, or for any other reason, the district court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty, as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said district court shall require the other party to plead, and said action or proceeding shall pro- ceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid." FORM 23. WRIT OF CEBTIORARI UNDER 39, JUDICIAL CODE. The President of the United States of America to the Judge of the [describe the court], Greeting: Whereas, it has been represented to the district court of the United States for the district of , that a certain suit was commenced in the [state court], wherein A, a citizen and resident of the state of was plaintiff, and Z, a citizen of the state of was defendant, and that the said Z duly tiled in the said state court his petition for the re- moval of said cause into the said district court of the United States, and filed witli said petition the bond with surety required by law, and that the clerk of said state court has refused to said petitioner for the removal of said cause a copy of the record therein, though his legal fees therefor were tendered by said petitioner. You, therefore, are hereby commanded that you forthwith certify or cause to be certified to the said district court of the United States for the , district of , a full, true, and complete copy of the record and proceedings in said cause in which the said petition for removal was filed as aforesaid, plainly and distinctly, and in as full and ample a manner as the same now remain before you, together with this writ; so that the said district court may be able to proceed thereon and do what shall appear to them of right ought to be done. Herein fail not. Witness, the Honorable Judge of said district court, and the seal of the said court hereto affixed, the .... day of , Clerk of the said District Court. 310 REMOVAL OF CAUSES JURISDICTION AND PEOCEDURE 201 310. Remand or Dismissal of Case Fraudulently or Im- properly Removed. 37, Judicial Code* 36 8 tat. at L. 1098, Comp. St. 1911, p. 146, 1912 Supp. F. 8. A. v. 1, p. 11+9. "If in any suit commenced in a district court, or removed from a state court to a district court of the United States, it shall appear to the satisfaction of said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy prop- erly within the jurisdiction of said district court, or that the parties to said suit have improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said district court shall proceed no farther therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." FORM 24. MOTION TO REMAND ON THE GROUND OF No JURISDICTION, UNDER 37, JUDICIAL CODE. [Title of Federal Court and Cause.] Now comes the plaintiff and moves this court to remand the above-entitled cause to the superior court in and for the county of , in the state of , on the. ground that this court is without jurisdiction to hear and determine the cause. (Set out in what respects jurisdiction is lacking.) Attorneys for plaintiff. FORM 25. ORDER REMANDING CAUSE. At a Stated Term, etc. Present, The Honorable, etc. [Title of Federal Court and Cause.] Plaintiff's motion to remand heretofore heard and submitted to the court for consideration and decision having been fully considered, and the opinion of the court having been delivered, it is in accordance with said opinion. y Re-enacting 18 Stat. at L. 472, Foster's Fed. Prac. (4th ed.) pp. 449, 958, 1016, 1022, 1457, 1614, Comp. St. 1901, p. 511, 4 F. S. A. 371, which section is repealed by 297, Judicial Code. In general, Atlantic Dynamite Co. v. Reger et al. 200 Fed. 1002. 202 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 312 Ordered that said motion bo, and the same is, granted, and that this cause be, and the same is hereby, remanded to the superior court of the county of Amador, state of California, for further proceedings. Judge United States District Court. 311. Provisional Remedies of State Court Preserved Bonds Given in State Suit Valid on Removal. 86, Judicial Code* 36 Stat. at L. 1098, Comp. St. 1911, pp. 145, 146, 1912 Supp. F. 8. A. v. 1, p. 149. "When any suit shall be removed from a state court to a district court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the state court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which said suit was commenced. All bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual notwithstanding said removal ; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed." 312. Proceedings after Removal Generally. 38, Judicial Code, 9 - 36 Stat. at L. 1098, Comp. St. 1911, p. 146, 1912 Supp. F. S. A. v. 1, p. 150. "The district court of the United States shall, in all suits removed under the provisions of this chapter, proceed therein as if the suit had been originally commenced in said district court, and the same proceedings had been taken in such suit in said district court as shall have been had therein in said state court prior to its removal." "Drawn from 18 Stat. at L. 471, Foster's Fed. Prac. (4th ed.) p. 1456, Comp. St. 1901, p. 511, 4 F. S. A. 370, which section superseded 646, R. S. Comp. St. 1901, p. 523, 4 F. S. A. 264, which are repealed by 297, Judicial Code. In general, Wolf et al. v. Cook et al. 40 Fed. 432. a Re-enacting 18 Stat. at L. 472, Comp. St. 1901, p. 512, 4 F. S. A. 378, which section is repealed by 297, Judicial Code. In general, Leo v. Union Pac. Ry. Co. 19 Fed. 283, and another, Leo v. Union Pac. R. Co. 17 Fed. 273. CHAPTEK 11. REMOVAL FROM STATE COURT OF LAST RESORT TO UNITED STATES SUPREME COURT BY WRIT OF ERROR JURISDICTION. See. ,330. In General. 331. Statute Regulating Removal by Writ of Error. 332. Only Appellate Review of State Courts. 333. What Judgment and Decrees Removable. 334. Classification of Cases Reviewable. 335. Decision of State Court against the Validity of a Federal Treaty, Statute, or Authority Their Validity Having Been Drawn in Question. 330. Decisions in Favor of State Statutes whose Authority Drawn in Question as Repugnant to the Federal Constitution, Laws, or Treaties. 337. Decision against Right, Title, Privilege, or Immunity Claimed under United States Constitution, Treaty, Statute, Authority, or Com- mission, 338. General Propositions Flowing from 237, Judicial Code. 339. Procedure on Removal from State Courts of Last Resort. 330. In General. In addition to the removal of causes from state to Federal courts as treated in chapter 10, cases may be removed to the Supreme Court of the United States under 237, Judicial Code, after they have been finally decided by the highest state court having jurisdiction of the cause. The grounds of removal under this section are more restricted than those previously enumerated, extending only to cases in which the decision of a state court is adverse to the Federal Con- stitution, treaties, laws, or authority, or to a right, title, priv- ilege, or immunity claimed thereunder, the purpose of the re- view by the Supreme Court being to preclude any possibility of unconstitutional legislation by state courts. The procedure upon removal under this section is identical with that upon writ of error to the Federal courts, 1 and the lOur 825, post. 203 204: MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE discussion of appellate procedure at law in chapter 28, applies to procedure here. 331. Statute Regulating Removal by Writ of Error. 287, Judicial Code,* 36 Stat. at L. 1156, Comp. St. 1911, p. 227, '1912 Supp. F. 8. A. v. 1, p. 230. "A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the de- cision is against the title, right, privilege, or immunity es- pecially set up or claimed, by either party, under such Con- stitution, treaty, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgments or de- cree of such state court, and may at their discretion award execution or remand the same to the court from which it was removed by the writ." 332. Only Appellate Review of State Courts. This sec- tion re-enacts 709, R. S., the language of that section being un- changed. It provides the only method by which the judgments or decrees of the highest courts of the states having jurisdiction of the suits can be reviewed by the United States Supreme Court, and conse- quently writs of error can only issue to the state courts in cases Re-enacting 709, R. R.. Rose's Code, 2120, 2018, Foster's Fod Prae (4th ed.) pp. 1588, 158!), 1028, 1620. 15)63. 1!)68, 19!)9, 2001, 2044, 2132, 21f>8. Comp. St. 1901, p. 575, 4 F. S. A. 467, which section is repealed by 297,' Judicial Code. Writ of Error, see chap. 28, infra. 333 WKITS OF ERROR TO STATE COURTS 205 within its purview. 2 Stipulation by parties to the cause cannot confer jurisdiction upon the Supreme Court. 8 333. What Judgment and Decrees Removable. It is only ''final judgments or decrees 4 of the highest court of a state in which a decision of the suit could be had/' that are reviewable under this section. This does not limit the jurisdiction to the high- est court of the state, but only to the highest court having jurisdic- tion of the particular cause to be reviewed. 6 If, however, the state court to which the writ of error is to be addressed is not the highest court of the state, the record must affirmatively show that a decision of the case could not have been had in such court. 6 "Any suit," within the meaning of this sec- tion, has been held to include a proceeding for mandamus ; 7 a pro- ceeding for a writ of prohibition to restrain a municipal corpora- tion from carrying an ordinance into effect ; 8 but an order made by a judge in chambers, remanding a prisoner in habeas corpus pro- ceedings, is not reviewable. 9 2 Cohens v. Virginia, 6 Wheat. 264, 5 L. ed. 257 ; Verden v. Coleman, 22 How. 192, 16 L. ed. 336: Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452, 17 Mor. Min. Rep. 704; Capitol Nat. Bank v. Cadiz Nat. Bank, 172 U. S. 425, 43 L. ed. 502, 19 Sup. Ct. Rep. 202. 3 Mills v. Brown, 16 Pet. 525, 10 L. ed. 1055. McKnight v. James, 155 U. S. 687, 39 L. ed. 310, 15 Sup. Ct. Rep. 248; Great Western Tel. Co. v. Burnham, 162 U. S. 341, 40 L. ed. 991, 16 Sup. Ct. Rep. 850. 5 Sullivan v. Texas, 207 U. S. 416, 52 L. ed. 274, 28 Sup. Ct. Rep. 215 ; Bacon v. Texas, 163 U. S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep. 1023; Fisher v. i'erkins, 122 U. S. 522, 30 L. ed. 1192, 7 Sup. Ct. Rep. 1227; Great Western Tel. Co. v. Burnham, 162 U. S. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850; Clark v. Com. 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 113; Gregory v. McVeigh, 23 Wall. 294, 23 L. ed. 156; Stanley v. Schwalby, 162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct. Rep. 754; Williams v. Bruffy, 102 U. S. 248, 26 L. ed. 135; Downham v. Alexandria, 9 Wall. 659, 19 L. ed. 807; Tinsley v. Anderson, 171 U. S. 101, 43 L. ed. 91, 18 Sup. Ct. Rep. 805; Pepke v. Cronan, 155 U. S. 100, 39 L. ed. 84, 15 Sup. Ct. Rep. 34; Newport Lt. Co. v. Newport, 151 U. S. 527, 38 L. ed. 259, 14 Sup. Ct. Rep. 1150, but see Olney v. Arnold, 3 Dall. 308, 1 L. ed. 614, as to what is "highest court of State." 6 Fisher v. Perkins, 122 U. S. 522, 30 L. ed. 1192, 7 Sup. Ct. Rep. 1227; Mullen v. Western Union Beef Co. 173 U. S. 116, 43 L. ed. 635, 19 Sup. Ct. Rep. 404. 'McPherson v. Blacker, 146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct. Rep. 3; Hartman v. Greenhow, 102 U. S. 672, 26 L. ed. 271; American Exp. Co. v. .Michigan, 177 U. S. 404, 44 L. ed. 823, 20 Sup. Ct. Rep. 695. 8 Weston v. Charlestown, 2 Pet. 449, 7 L. ed. 481. SMcKnight v. James, 155 U. S. 685, 39 L. ed. 310. 15 Sup. Ct. Rep. 248. See also Holmes v. Jennison, 14 Pet. 540, 10 L. ed. 579. 206 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 335 334. Classification of Cases Reviewable. It is to be not- ed that this section confers appellate jurisdiction in three classes of cases: 1. Where the decision of the state court is against the validity of a treaty or statute of, or an authority exercised under the United States, their validity having been drawn in question. ( 335.) 2. Where the decision of the state court is in favor of the valid- ity of a statute or authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, the validity of such statute or author- ity having been drawn in question. ( 336.) 3. Where the decision of the state court is against the title, right, privilege, or immunity claimed under the Constitution or any treaty or statute of, or commission held, or authority ex- ercised under the United States. ( 337.) 335. Decision of State Court against the Validity of a Federal Treaty, Statute, or Authority, Their Validity Having Been Drawn in Question. The state court must have decided against the validity of the treaty or statute; otherwise there is no right of review. 10 The validity of the statute, treaty, or authority must be "drawn in question" if there is to be a review of the decision thereon by writ of error. In order to be "drawn in question," within the meaning of the section, it is not enough that rights claimed under a treaty or statute are controverted, or that acts are done which dispute the authority. 11 But the validity of a statute is "drawn 10 Gordon v. Coldcleugh, 3 Cranch, 268, 2 L. ed. 436; Mclntire v. Wood, 7 Cranch, 504, 3 L. ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. ed. 340; Williams v. Norris, 12 Wheat. 117, 6 L. ed. 571; Montgomery v. Hernan- dez, 12 Wheat. 129, 6 L. ed. 575; Menard v. Aspasia, 5 Pet. 505, 8 L. ed. 207; Strodler v. Baldwin, 9 How. 261, 13 L. ed. 130; Ableman v. Booth, 21 How. 506, 16 L. ed. 169; Reddall v. Bryan. 24 How. 420, 16 L. ed. 740; Ryan v. Thomas, 4 Wall. 603, 18 L. ed. 460; Baker v. Baldwin, 187 U. S. 61, 47 L. ed. 75, 23 Sup. Ct. Rep. 19. "Kennard v. Nebraska, 186 U. S. 304, 46 L. ed. 1175, 22 Sup. Ct. Rep. 879; Florida Cent. R. Co. v. Bell, 176 U. S. 321, 44 L. ed. 486, 20 Sup. Ct. Rep. 399; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222. 20 Mor. Min. Rep. 358: Telluride Power Trans. Co. v. Rio G. W. R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245; 335 WKITS OF EKKOli TO STATE COURTS 207 in question" whenever the power to enact it as it is by its terms, or is made to read by construction, is fairly open to denial and is denied. 12 "Authority exercised under the United States" must be real and existing, not merely asserted. "Authority," as used ^in the section, stands upon the same footing as a treaty or statute ; and if from the record it appears that the authority did not exist or was not in force, the decision of the state court will not be re- viewed. 13 But the validity not the exercise of the authority merely must be drawn in question. 14 And there is a palpable difference between the denial of the validity of the authority and a denial of a title, privilege, or right or immunity claimed under it. A denial of the latter does not present a Federal qiiestion. 15 "Authority," as used in the section, is construed to mean personal authority, and not an abstract righi created under a statute. 16 Consequently this clause has been applied in those cases in which the authority exercised by a public officer of the United States has been called in question, not where a general right is set up under a statute. 17 Thus, a decision against the validity of the authority of the President of Columbia W. P. Co. v. Col. E. S. R. C. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247; Borgmeyer v. Idler, 159 U. S. 408, 40 L. ed. 199, 16 Sup. Ct. Rep. 34; Bushnell v. Crooke Min., etc., Co. 148 U. S. 682, 37 L. ed. 610, 13 Sup. Ct. Rep. 771; Cook County v. Calumet C., etc., Co. 138 U. S. 635, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; Ferry v. King County, 14 U. S. 668 ; Baltimore Ry. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908," 9 Sup. Ct. Rep. f>03. 12 Baltimore Ry. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908. 9 Snp. Ct. Rep. 503; Miller* v. Cornwall Ry. Co. 138 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34. 13 Millinger v. Hartupee, 6 Wall. 258, 18 L. ed. 829. 14 Walsh v. Columbus R. Co. 176 U. S. 469. 44 L. ed. 548, 20 Sup. Ct. Rep. 393; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; New Orleans v. New Orleans Water Wks. Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; Millinger v. Hartupee, 6 Wall. 258, 18 L. ed. 829. 15 Baltimore R. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503; Abbot v. Tacoma Bank of Commerce, 175 U. S. 409, 44 L. ed. 217, 20 Sup. Ct. Rep. 153; Cook County of Calumet Canal Co. 138 U. S. 636. 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; 'United States v. Lynch, 137 U. S. 280, 34 L. ed. 700, 11 Sup. Ct. Rep. 114; Clough v. Curtis, 134 U. S. 361, 33 L. ed. 945, 10 Sup. Ct. Rep. 573. 16 Telluridc Power Transmission Company v. Rio Grande Western R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245. "McGuire v. Cora. 3 Wall. 387, 18 L. ed. 226: Millinger v. Hartupee. 6 Wall. 258, 18 L. ed. 829; Daniels v. Tearney, 102 U. S. 415, 26 L. ed. 187; Sharpp v. Doyle, 102 U. S. 686, 26 L. ed.' 277 ; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257. 208 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 336 the United States to approve a deed of Indian treaty lands is rc- vicwahlc under this clause; 18 as is the decision of a state court denying the claim of a disbursing officer of the United States that money in his hands due United States seamen could not be at- tached by process out of a state court. 19 A refusal by a state court to give effect to a judgment of a United States court rendered up- on the point in dispute, with jurisdiction of the case and of the parties, involves the denial of the validity of an authority exercised under the United States, and may be reviewed by the Supreme Court. 20 A judgment of the supreme court of the District of Columbia is subject to review under this clause. 81 336. Decisions in Favor of State Statutes whose Author- ity Drawn in Question as Repugnant to the Federal Constitu- tion, Laws, or Treaties. It is only the statute of a state which can be re-examined under this clause, 22 and a statute of a territory is not a statute of a state, nor is it an act of Congress, nor a statute of the United States, within the meaning of this section, and con- sequently the decision of the state courts, that the law of a terri- tory is not repugnant to the Constitution of the United States, is not reviewable. 23 In considering this clause, it is necessary, as it was in consider- ing the preceding one, to determine when the validity of a treaty, statute, or authority is "drawn in question." In order to give the Supreme Court jurisdiction to review a judgment rendered by the highest court of this state in favor of the validity of a statute or an authority exercised under a state, the validity of the statute 18 Pickering v. Lomax, 145 U. S. 310, 36 L. ed. 716, 12 Sup. Ct. Rep. 860. 19 Buchanan v. Alexander, 4 How. 20, 11 L. ed. 857. 20 Mutual L. Ins. Co. v. McGrew (1903), 188 U. S. 311, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, 63 L.R.A. 33: Hancock Nat. Bank. v. Farmun, 176 U. S. 640, 44 L. ed. 619, 20 Sup. Ct. Rep. 506; Dupaaseur v. Rochereau, 21 Wall. 130, 22 L. ed. 588: Pittsburgh, etc., R. Co. v. Long Island L. & T. Co. 172 U. S. 493, 43 L. ed. 528. 19 Sup. Ct. Rep. 238; Central Nat. Bank v. Stevens, 171 U. S. 109, 43 L. ed. 97, 18 Sup. Ct. Rep. 837; Cresent City Live Stock Co. v. Butcher's Union Slaughter House Co. 120 U. S. 141, 30 L. ed. 614. 7 Sup. Ct. Rep. 472; Palmer v. Hussey, 119 U. S. 96, 30 L. ed. 362, 7 Sup. Ct. Rep. 158. 21 Embry v. Palmer, 107 U. S. 3. 27 L. ed. 346, 2 Sup. Ct. Rep. 25. !2 Scott v. Jones, 5 How. 343, 12 L. ed. 181. 23 Messenger v. Mason. 10 Wall. 507, 19 L. ed. 1028; Miners Bank v. Iowa, 12 How. 1, 13 L. ed. 867. 336 WRITS OF ERROR TO STATE COURTS 209 or authority must have been drawn in question upon the ground of their being repugnant to the Constitution, laws, or treaties of the United States. When no such ground has been presented to or considered by the courts of the state, it cannot be said that those courts have disregarded the Constitution of the United States, and the Supreme Court has no jurisdiction. 24 Whether or not the Constitution of a state is violated by state law is not within the scope of this clause. 25 Xor is the question of the correct construc- tion of a state law, when its validity is admitted. 26 A decision in the state court must be in favor of the validity of the statute of or the authority exercised under the statutes drawn in question. 27 But it is not necessary that the state law be either in the form of a statute enacted by the legislature of the state or in the form of a Constitution established by people of the state; a by-law or ordinance of a municipal corporation may be such an exercise of legislative power that it may be properly considered as a law with- in the meaning of this clause of the section. 28 24Scmkler v. Coler, 175 U. S. 32. 44 L. ed. 62, 20 Sup. Ct. Rep. 26; Columbus Water Power Co. v. Columbia Elec. Street. R. R. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247 (cases therein cited); Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Levy v. Supreme Court, 167 U. S. 175, 42 L. ed. 126, 17 Sup. Ct. Rep. 769; Adams v. Preston, 22 How. 473, 16 L. ed. 273; Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429; Michigan Central R. R. Co. v. Michigan Southern R. R. Co. ]9 How. 378, 15 L. ed. 689. 25Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; Jackson v. Lamphire, 3 Pet. 280, 7 L. ed. 679; Withers v. Buckley, 20 How. 84, 15 L. ed. 816; Congdon Mining Co. v. Goodman, 2 Black, 574, 17 L. ed. 257; Salomon's v. Graham, 15 Wall. 208. 21 L. ed. 37; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Murray v. Louisiana, 163 U. S. 101, 41 L. ed. 87, 16 Sup. Ct. Rep. 990; East Hartford v. Hartford Bridge Co. 10 How. 511, 13 L. ed. 518; Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193; Missouri v. Harris, 144 U. S. 210, 36 L. ed. 407, 12 Sup. Ct. Rep. 838; Sage v. Louisiana Board of Liquidation, 144 U. S. 647, 36 L. ed. 577, 12 Sup. Ct. Rep. 755; Powell v. Brownsley Co. 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; In re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; MoElvaine v. Brush, 142 U. S. 155, 35 L. ed. 971, 12 Sup. Ct. Rep. 156. 26 Congdon Mining Co. v. Goodman, 2 Black, 574, 17 L. ed. 257 ; Scott v. Jones, 5 How. 343, 12 L. ed. 181; Lessiuer v. Price, 12 How. 59, 13 L. ed. 893; Commercial Bank v. Buckingham, 5 How. 317, 12 L. ed. 169; Smith v. Hunter, 7 How. 738, 12 L. ed. 894; Grand Gulf R. Co. v. Marshall, 12 How. 165, 13 L. ed. 938; Ferry v. King Co. 141 U. S. 668, 35 L. ed. 895, 12 Sup. Ct. Rep. 128; Snell v. Chicago, 152 U. S. 191, 38 L. ed. 408, 14 Sup. Ct. Rep. 489. 27McKinney v. Carroll, 12 Pet. 66, 9 L. ed. 1002; Commonwealth Bank v. Griffith, 14 Pet. 56, 10 L. ed. 352; Walker v. Taylor. 5 How. 64, 12 L. ed. 52. 28 Bacon v. Texas, 163 U. S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep. 1023; Montg. 14. 210 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 337 337. Decision against Right, Title, Privileges, or Immu- nity Claimed under United States Constitution, Treaty, Stat- ute, Authority, or Commission. To give the Supreme Court jurisdiction in this class of cases the right, title, or immunity which is denied by the decisions of the state court must grow out of the Constitution or a treaty or statute of the United States which has been relied upon. 29 The title, right, privilege, or immunity claimed under the Constitution or treaty or statute of or commission held under the United States, with possibly some rare exceptions, must be special- ly set up or claimed in the court below in order to vest the Supreme Court with jurisdiction. 80 An exception to this rule is found in a case where the validity of a treaty or statute of the United States is raised and a decision is against it, or where the validity of a state statute is drawn in question and the decision is in favor of its validity. In such cases the Federal question need not be specifically set up if it appears in the record, was decided and such decision was necessarily involved in the case so that it could not have been determined without deciding such question. 31 New Orleans Water Works Co. v. Louisiana Sugar Refining Co. 125 U. S. 18, 31 L. ed. 607, 8 Sup. Ct. Rep. 741. 29 Miller v. Lancaster Bank, 106 U. S. 542, 27 L. ed. 289, 1 Sup. Ct. Rep. 536; Long v. Converse, 91 U. S. 105, 23 L. ed. 233; Hale v. Gaines. 22 How. 160, 16 L. ed. 269; Wynn v. Morris, 20 How. 5, 15 L. ed. 800; Henderson v. Tennessee, 10 How. 323, 13 L. ed. 439; Verden v. Coleman, 1 Black, 472, 17 L. ed. 161; Montgomery v. Hernandez, 12 Wheat. 129, 6 L. ed. 575. 30 Home for Incurables v. New York, 187 U. S. 155, 47 L. ed. 117, 63 L.R.A. 329, 23 Sup. Ct. Rep. 84; Bollin v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287; Telluride Power Transmission Co. v. Rio Grande Western Railway Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245; Columbia Water Power Co. v. Columbia Electric Street Railway Co. 172 U. S. 475. 43 L. ed. 521, 19 Sup. Ct. Rep. 247; Levy v. Superior Court 167 U. S. 175, 42 L. ed. 126, 17 Sup. Ct. Rep. 769; Oxley Stave Co. v. Butler. Co. 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Chicago, etc., R. Co. v. Chicago, 164 U. S. 454, 41 L. ed. 511, 17 Sup. Ct. Rep. 129; Powell v. Brunswick Co. 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Roby v. Colehour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Baldwin v Kansas, 129 U. S. 52. 32 L. ed. 640. 9 Sup. Ct. Rep. 193; Chappell v. Bradshaw, 128 U. S. 132, 32 L. ed. 369, 9 Sup. Ct. Rep. 40; French v Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589; Spies v. Illinois 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Armstrong v. Treasurer 16 Pet. 281, 10 L. ed. 5)65; Missouri R. Co. v. Rock, 4 Wall. 177 18 L' ed. 381. 81 Miller v. Nicholls, 4 Wheat. 311, 4 L. ed. 578; Willson v. Blackbird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412; Satterlee v. Mathewson, 2 Pet 380, 7 L. ed. 458; Fisher v. Cockerell, 5 Pet. 248, 8 L. ed. 114; Crowell v! 337 WRITS OF ERROR TO STATE COURTS 211 Ordinarily, however, the right, title, privilege, or immunity relied upon must not only be specially set up or claimed, but it must be so claimed or set up at the proper time and in the proper manner. 32 The question must be raised in the state court by the individual who seeks to have it reviewed in the Supreme Court. The fact that someone else has raised it in the state court is of no avail to the appellant or plaintiff in error, if he himself fail to raise it in the court below. 33 Moreover the right, title, privilege, or immunity must be personal to the appellant or plaintiff in error. 34 A state officer, testing the constitutionality of a state law solely in the interest of third persons, has no standing to re- Randell, 10 Pet. 368, 9 L. ed. 458; Harris v. Dennie, 3 Pet. 292, 7 L. ed. 683; Farney v. Towle, 1 Black, 350, 17 L. ed. 216; Hoyt v. Shelden, 1 Black, 518, 17 L. ed. 65; Missouri, etc., R. Co. v. Rock, 4 Wall. 177, 18 L. ed. 381; Furman v. Nicnol, 8 Wall. 44, 19 L. ed. 370; Columbia Water Power Co. v. Columbia Elec. St. R. R. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247 ; Kaukauna Water Power Co. v. Green Bay, etc., Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Hickie v. Starke, 1 Pet. 94, 7 L. ed. 67; Bridge Prop. v. Hoboken Land Co. 1 Wall. 116, 17 L. ed. 571; Yazoo, etc., Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240; Telhiride Power Transmission Co. v. Rio Grande Western Railway Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245; Green Bay, etc., Canal Co. v. Patten Paper Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97; Chicago, etc., R. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Powell v. Brunswick County 150 U. S. 440, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Davis v. Packard, 6 Pet. 41, 8 L. ed. 312. 32 Mutual Life Ins. Co. v. McGrew, 188 U. S. 292, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, 66 L.R.A. 33; Sayward v. Denney, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Morrison v. Watson, 154 U. S. Ill, 38 L. ed. 927, 14 Sup. Ct. Rep. 995; Miller v. Texas, 153 U. S. 535, 38 L. ed. 81 '2, 14 Sup. Ct. Rep. 874; Maxwell v. Newbold, 18 How. 515, 15 L. ed. 508; Hoyt v. Sheldon, 1 Black, 518, 17 L. ed. 65. 3'3I)eLamar's Nevada Gold Mining Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715; Texas, etc., R. Co. v. Johnson. 151 U. S. 81, 38 L. ed. 81, 14 Sup. Ct. Rep. 250; Missouri v. Andriano, 138 U. S. 496, 34 L. ed. 1012, 11 Sup. Ct. Rep. 385; Linton v. Stanton. 12 How. 423, 13 L. ed. 1050; Stradler v. Baldwin, 9 How. 261, 13 L. ed. 130; Manning v. French, 133 U. S. 186, 33 L. ed. 582, 10 Sup. Ct. Rep. 258; McNulta v. Lochridge, 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Kizer v. Texarkana R. R. Co. 179 U. S. 199, 45 L. ed. 152, 21 Sup. Ct. Rep. 100; Conde v. York, 168 U. S. 642, 42 L. ed. 611, 18 Sup. Ct. Rep. 234; Northern P. R. Co. v. Patterson, ]54 U. S. 130, 38 L. ed. 934, 14 Sup. Ct. Rep. 977; Ludeling v. Chafl'e, 143 U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Rep. 439; Giles v. Little, 134 U. S. 645, 33 L. ed. 1062, 10 Sup. Ct. Rep. 62.3; Miller v. Lancaster Bank. 106 U. S. 542, 27 L. ed. 289, 1 Sup. Ct. Rep. 536; Long v. Converse, 91 U. S. 105, 23 L. ed. 233; Owings v. Norwood, 5 Cranch, 344, 3 L. ed. 120; Montgom- ery v. Hernandez, 12 Wheat. 129, 6 L. ed. 575; Hale v. Gaines, 22 How. 144, 16 L. ed. 264; Verden v. Coleman, 1 Black, 472, 17 L. ed. 161; Sully v. Amer- ican National Bank, 178 U. S. 289, 44 L. ed. 1072, 20 Sup. Ct. Rep. 935; Smith v. Indiana, 191 U. S. 138, 48 L. ed. 125, 24 Sup. Ct. Rep. 51. 34 Ibid. 212 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 337 \ ii \v the judgment, even though a judgment for costs was rendered against him personally. 88 "The proper time to present the ques- tion is in the trial court whenever that is required by state practice in accordance with which the highest court of a state will not re- vise the judgment of the court below on questions not therein laised." 86 And if it is not presented before decision by the court of last resort in the state, it then becomes too late to present it. 87 It is not sufficient, therefore, to make the claim for the first time in the petition for writ of error ; 88 or in a petition for rehearing after judgment, 89 except in a case where the highest state court 35 Smith v. Indiana, 191 U. S. 138, 48 L. ed. 125, 24 Sup. Ct. Rep. 51. 36 Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; see also .I:u-obi v. Alabama, 187 U. S. 133, 47 L. ed. 106, 23 Sup. Ct. Rep. 48: Layton > . Missouri, 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137: Erie R. R. Co. v. Purdy, 185 U. S. 148, 46 L. ed. 847, 22 Sup. Ct. Rep. 005; Mutual Life Jns. Co.'v. McGrew, 188 U. S. 308, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, 63 L.R.A. 33; Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 1P3. STBollin v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287; ' itizens Sav's Bank v. Owensboro, 173 U. S. 636, 43 L. ed. 840. 19 Sup. Ct. Rep. 571; Winona, etc., Land Co. v. Minnesota, 159 U. S. 540, 40 L. ed. 252. 16 Sup. Ct. Rep. 88. 38Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Morrison v. Watson, 154 U. S. Ill, 38 L. ed. 927, 14 Sup. Ct. Rep. 995; Mil- ler v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874; Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570: Powell v. Bruns- wick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166: Schuyler Nat. Bank v. Bollong, 150 U. S. 85, 37 L. ed. 1008, 14 Sup. Ct. Rep. 24; Loeber v. Rchroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934; Brown v. Massachusetts, 144 U. S. 573, 36 L. ed. 546, 12 Sup. Ct. Rep. 757; Butler v. Uijrc, 138 U. S. 52, 34 L. ed. 869, 11 Sup. Ct. Rep. 235; Chappell v. Brad- shaw, 128 U. S. 132, 32 L. ed. 369, 9 Sup. Ct. Rep. 40; Brooks v. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 Sup. Ct. Rep. 443; Spies v. Illinois, 123 U. S. 131. 31 L. ed. 80, 8 Sup. Ct. Rep. 21. 39 Johnson v. New York L. Ins. Co. 187 U. S. 496. 47 L. ed. 273, 23 Sup. ( t. Rep. 194; Simmerman v. Nebraska, 116 U. S. 54, 29 L. ed. 535, 6 Sup. Ct. Rep. 333; Santa Cruz County v. Santa Cruz R. Co. Ill U. S. 361, 28 L. ed. 456, 4 Sup. Ct. Rep. 474: Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106; Winona, etc., R. Co. v. Plainview, 143 U. S. 371, 36 L. ed. 191, 12 Sup. Ct. Rep. 530; Worthy v. Barrett, 9 Wall. 611, 19 L. i-d. 565; Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, 63 L.R.A. 33; Turner v. Richardson, 180 U. S. 92, 45 L. ed. 438, 21 Sup. Ct. Rep. 295; Capital Nat. Bank v. Cadiz First Nat. Bank, 172 U. S. 425, 43 L. ed. 502, 19 Sup. Ct. Rep. 202: Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106; Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34: Zadig v. Baldwin, 166 U. S. 488, 41 L. ed. 1087 17 Sup. Ct. Rep. 639; Pirn v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Ct. Rep. 322; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Loeber v. Schroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934: Bushnell v. Crooke Min. etc., Co. 148 U. S. 682, 37 L. ed. 610, 13 Sup. Ct. Rep. 771: Winona, etc., R. Co. v. Plainview, 143 U. S. 371, 36 L. ed. 191, 12 Sup. Ct. Rep. 530; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577: Butler v. Gage, 138 U. S. 52, 34 L. ed. 869, 11 Sup. Ct. Rep. 235: 337 WRITS OF ERROR TO STATE COURTS 213 has entertained a petition for rehearing, containing Federal ques- tions, and has decided them. 40 The proper manner in which to raise the question is by motion, exception, pleading, or any other action which asserts the right, title, privilege, or immunity positively and unmistakably upon the record. 41 ~No particular form of words or phrases has ever been declared necessary, and all that is required is that the asser- tion of the rights be brought clearly to the attention of the court. 42 But the fact that it was so called to the court's attention and that it was decided or that its decision was necessary to the judgment or decree rendered in the case, must appear upon the face of the record 43 either expressly or by necessary implication. 44 In this Texas etc., R. Co. v. Southern Pac. R. Co. 137 U. S. 48, 34 L. ed. 614, 11 Sup. Ct. Rep. 10; Susquehanna Boom Co. v. West Branch Boom Co. 110 U. S. 57, 28 L. ed. 69, 3 Sup. Ct. Rep. 438. MMjillett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730: Mut. Life Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, 63 L.R.A. 33; Leigh v. Green, 193 U. S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. 390. Axley Stave Co. v. Butter Co. 166 U S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709 ; Mut. Life Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, 63 L.R.A. 33; Kipley v. Illinois, 170 U. S. 182, 42 L. ed. 998, 18 Sup. Cfc. Rep. 550; Levy v. Superior Court, 167 U. S. 175, 177, 42 L. ed. 126, 17 Sup. Ct. Rep. 769; Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379; Bollin v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287; Winona, etc., Land Co. v. Minnesota, 159 U. S. 540, 40 L. ed. 252, 16 Sup. Ct. Rep. 88; Michigan Sugar Co. v. Michigan, 185 U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Rep. 581; New York Central R. R. Co. v. New York. 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 916; Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71; Delamars Nev. Mining Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715; Keokuk Bridge Co. v. Illinois, 175 U. S. 626, 44 L. ed. 299, 20 Sup. Ct. Rep. 205; Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Porter v. Foley, 24 How. 415, 16 L. ed. 740; Maxwell v. Newbold, 18 How. 511, 15 L. ed. 506; Lawler v. Walker, 14 How. 149, 14 L. ed. 364; Hoyt v. Sheldon, 1 Black, 518, 17 L. ed. 65; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487; Mes- senger v. Mason, 10 Wall. 507, 19 L. ed. 1028; Erie R. R. Co. v. Purdy, 185 U. S. 148, 46 L. ed. 847, 22 Sup. Ct. Rep. 605. Green Bay, etc., Canal Co. v. Patten Paper Co. 172 U. S. 58, 4.3 L. ed 364, 19 Sup. Ct. Rep. 97; Carter v. Texas, 177 U. S. 442, 44 L. ed. 839, 20 Sup. Ct. Rep. 687; Erie R. R. Co. v. Purdy, 185 U. S. 148, 46 L. ed. 847, 22 Sup. Ct. Rep. 605. Citizens Sav's Bank v. Owensboro, 173 U. S. 626, 43 L. ed. 840, 19 Sup. Ct. Rep. 530; Dewey v. Des Moines, 173 U. S. 193. 43 L. ed. 665, 19 Sup. Ct. Rep. 379; Capital Nat. Bank v. Cadiz First Nat. Bank, 172 U. S. 425. 43 L. ed. 502, 19 Sup. Ct. Rep. 202; Green Bay, etc., Canal Co. v. Patten Paper Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97; Kipley v. Illinois, 170 I'. S. 182. 42 L. i-2, 16 Sup. Ct. Rep. 88; Goodenough Horseshoe Mfg. Co. v. Rhode I. Horse- shoe Co. 154 U. S. 635, 24 L. ed. 368, 14 Sup. Ct. Rep. 1180; Gray v. Coan, 154 U. S. 589, 38 L. ed. 1088, 14 Sup. Ct. Rep. 1168; Morrison v. Watson, 154 U. S. Ill, 38 L. ed. 927, 14 Sup. Ct. Rep. 995; Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874; Marsh v. Nichols, 140 U. S. 344, 35 L. ed. 413, 11 Sup. Ct. Rep. 798; Murray v. Charlestown, 96 U. S. 432, 24 L. ed. 760; Wolf v. Stix, 96 U. S. 451, 24 L. ed. 640; Suydam v. Williamson, 20 How. 427, 15 L. ed. 978; Christ Church v. Phil. Co. 20 How. 26, 15 L. ed. 802 ; Carter v. Bennett, 15 How. 354, 14 L. ed. 727 ; Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. ed. 105; Crowell v. Randall, 10 Pet. 368, 9 L. ed. 458; Davis v. Parkard, 7 Pet. 276, 8 L. ed. 684; Satterlee v. Matthewson, 2 Pet. 380, 7 L. ed. 458: Miller v. Nichols, 4 Wheat. 311, 4 L. ed. 578: The Victory, 6 Wall. 382, 18 L. ed. 848; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Choteau v. Marguerite, 12 Pet. 507, 9 L. ed. 1174; Coons v. Gallaher, 15 Pet. 18, 10 L. ed. 645; Commercial Bank v. Bucking- ham, 5 How. 317, 12 L. ed. 169; Grand Gulf R., etc. Co, v. Marshall. 12 How. 165, 13 L. ed. 938; Maxwell v. Newbold, 18 How. 511, 15 L. cd. 506; Hoyt v. Sheldon. 1 Black, 518. 17 L. ed. 65; Taylor v. Morton, 2 Black, 481, 17 L. ed. 277; Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317; Cockroft v. Vose, 14 Wall. 5, 20 L. ed. 875; Detroit City R. Co. v. Guthard, 114 U. S. 133, 29 L. ed. 118, 5 Sup. Ct. Rep. 811; Kansas Endowment Ass'n v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499; Nauer v. Thomas, 13 Allen (Mass.) 572; Inglee v. Coolidge, 2 Wheat. 363, 4 L. ed. 261; Fisher v. Cockerell, 5 Pet. 248, 8 L. ed. 114; Crawford v. Branch Bank, 7 How. 279, 12 L. ed. 700: Attorney Gen. v. Federal Street Meeting House, 1 Black, 262, 17 L. ed. 61; Parmelee v. Lawrence. 11 Wall. 36, 20 L. ed. 48; Brooks v. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 Sup. Ct. Rep. 443; Powell v. Brunswick Co. 150 U. S. 433, 37 L. ed. 1134, 14 Sup Ct. Rep. 166; Ansbro v. United States, 159 U. S. 695, 40 L. ed. 310. 16 Sup. Ct. Rep. 187; Murdock v. Memphis, 20 Wall. 636. 22 L. ed. 444; Ware v. Galveston City Co. Ill U. S. 170, 28 L. ed. 393, 4 Sup. Ct. Rep. 337. 44 Craig v. Missouri, 4 Pet. 410, 7 L. ed. 903; Powell v. Brunswick Co 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Sayward v. Denny 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777. Home for Incurables v. New York, 187 U. S. 155, 47 L. ed. 117 23 Sup Ct. Rep. 155, 63 L.R.A. 329; Yazoo, etc.. R. R. Co. v. Adams, 180 U. S. 41^ 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Henkel v. Cincinnati, 177 U. S. 170* 44 L. ed. 720, 20 Sup. Ct. Rep. 573: Dibble v. Bellingham Bav Land Co' 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939; Sayward v. 'Denny 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Newport Light Company v. Newport, 151 U. S. 527, 38 L. ed. 259, 14 Sup. Ct. Rep. 429- Powell v Brunswick Co. 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166- Roby v. Colehour, 146 U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Felix v. Scharnweber, 125 U. S. 54, 31 L. ed. 687. 8 Sup. Ct. Rep. 759- Caperton v Bowyer, 14 Wall 216, 20 L. ed. 882; Lawler v. Walker, 14 How 149* 338 WEITS OF ERROR TO STATE COURTS 215 classes, the decision must be adverse to a title, right, privilege, or immunity claimed by the plaintiff in error. 46 338. General Propositions Flowing from 237, Judicial Code. Having discussed each of the three classes of cases review- able by writ of error under 237, Judicial Code, there still remain certain general rules or propositions applicable to the section as a whole, which are briefly as follows : 1. It is not necessary that any particular amount of money be involved in order to, entitle the plaintiff in error to a review. 47 2. The section applies alike to criminal and civil cases either in law or in equity. 48 3. Federal question must be real, not fictitious ; that is, there must be some ground for the averment of the question. 49 4. Questions of fact cannot be reviewed by the Supreme Court, but must be taken as found. 50 14 L. ed. 364; Parmalee v. Lawrence, 11 Wall. 36, 20 L. ed. 48; Messenger v. Mason, 10 Wall. 507, 19 L. ed. 1028. Delamar's Nev. Gold Mining Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715; Rae v. Homestead Loan, etc., Co. 176 U. S. 121, 44 L. ed. 398, 20 Sup. Ct. Rep. 341; Abbott v. Tacoma Bank of Com- merce, 175 U. S. 409, 44 L. ed. 217, 20 Sup. Ct. Rep. 153; Jersey City, etc., Power Co. v. Morgan, 160 U. S. 288, 40 L. ed. 430, 16 Sup. Ct. Rep. 276; Saywara v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452, 17 Mor. Min. Rep. 704; Tyler v. Cass Co. 142 U. S. 288, 35 L. ed. 1016, 12 Sup. Ct. Rep. 225; Gordon v. Caldcleugh, 3 Cranch, 268, 2 L. ed. 436; Buel v. Van Ness, 8 Wheat. 312, 5 L. ed. 624; Fulton v. McAffee, 16 Pet. 149, 10 L. ed. 918; Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. ed. 105 ; Ross v. Doe, 1 Pet. 655, 7 L. ed. 302 ; Hale v. Gaines, 22 How. 144, 16 L. ed. 264; Nelson v. Moloney, 174 U. S. 164, 43 L. ed. 934, 19 Sup. Ct. Rep. 622; Missouri Pacific Railway Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389. *' Weston v. Charlestown, 2 Pet. 449, 7 L. ed. 481 ; Holmes v. Jennison, 14 Pot. 540, 10 L. ed. 579; The Habana, 175 U. S. 682, 44 L. ed. 320, 20 Sup. Ct. Rep. 290. As to amount and value as an element of Supreme Court's appellate jurisdiction and history of changes therein, see Kirbv v. America Soda Fountain Co. 194 U. S.* 144, 48 L. ed. 911, 24 Sup." Ct. Rep. 619. Cohens v. Virginia, 6 Wheat. 264, 6 L. ed. 257; Verden v. Coleman, 22 How. 192, 16 L. ed. 336; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452, 17 Mor. Min. Rep. 704. Hamblin v. Western Land Company, 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353. See also Millingar v. Hartupee, 6 Wall. 258, 8 L. ed. 829: New Orleans v. New Orleans Water Works Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; Wilson v. North Carolina, 169 U. S. 586, 42 L. ed. 865. 18 Sup. Ct. Rep. 435; St. Louis, etc., R. Co. v. Missouri, 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 443. 50Hedrick v. Atchison. etc., R. Co. 167 U. S. 673, 42 L. ed. 320, 17 Sup. 21G MONTGOMERY'S MANUAL OF FEDERAL, PROCEDURE 338 5. "If it appears that the judgment of the state court was correct, the jurisdiction does not attach regardless of the presence of a Federal question." 61 The Supreme Court has summarized most of the essential con- ditions necessary to its jurisdiction to review decisions of state courts under this section, in the early case of Murdock v. Mem- phis, 20 Wallace, 635, where Miller, J., says in the opinion: "We hold the following propositions on this subject as flowing from the statute as it now stands: "That it is essential to the jurisdiction of this court over the judgment of a state court that it shall appear that one of the questions mentioned in the act (now 237, Judicial Code) must have been raised and presented to the state court. "That it must have been decided by the state court, or that its decision was necessary to the judgment or decree rendered in the case. "That the decision must have been against the right, claimed or asserted by the plaintiff in error under the Constitution, treaties, laws, or authority of the United States. "These things appearing, this court has jurisdiction and must examine the judgment so far as to enable it to decide whether this claim of right was correctly adjudicated by the state court. "If it finds that it was rightly decided, the judgment must be affirmed. "If it was erroneously decided against a plaintiff in error (or appellant) then this court must further inquire whether there is any other matter or issue adjudged by the state court, which is sufficiently broad to maintain the judgment of that court, not- withstanding the error in deciding the issue raised by the Federal question. If this is found to be the case, the judgment must be Ct. Rep. 922; Atchison, etc., R. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep. 609; Backus v. Fort St. Union Depot Co. 169 U. S. 557, 42 L. ed. 853, 18 Sup. Ct. Rep. 445; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; In re Buchanan, 158 U. S. 31, 39 L. ed. 884, 15 Sup. Ct. Rep. 723; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Missouri, etc., R. Co. v. Haber, 169 U. S. 613 42 L. ed. 878. 18 Sup. Ct. Rep. 488. 51 Hammond v. Johnson. 142 U. S. 78, 35 L. ed. 941, 12 Sup. Ct. Rep. 141. 339 WRITS OF ERROR TO STATE COURTS 217 affirmed without inquiring into the soundness of the decision on such other matter or issue. "But if it be found that the issue raised by the question of Federal law is of such controlling character that its correct de- cision is necessary to any final judgment in the case, or that there has been no decision by the state court of any other matter or issue which is sufficient to maintain the judgment of that court, without regard to the Federal question, then this court will reverse the judgment of the state court, and will either render such judgment here as the state court should have rendered, or remand the case to that court as the circumstances of the cas; may require." It is to be noted that it is only in case of the state court's decision being adverse to the powers exercised by the United States that the review by the Supreme Court is provided for. Thus it is apparent that it is the purpose of this section not to correct errors in the state courts, for if the Federal authority is not denied no review is allowed, but only as a check upon uncon- stitutional legislation by the state courts. 52 339. Procedure on Removal from State Courts of Last Resort. 1 003, R. 8., Comp. St. 1901, p. 713, 4 F. 8. A. 616. "Writs of error from the Supreme Court to a state court in cases authorized by law shall be issued in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States." Thus, it is seen that the procedure on removal of causes from state courts is identical with that upon writ of error from the United States court, the discussion of which is found in chapter 28. From the nature of the proceeding, however, the forms to be 52Simkin's Fed. Eq. Suit (2d ed.) p. 771; Remington Paper Co. v. Watkins, 173 U. S. 451, 43 L. ed. 762, 19 Sup. Ct. Rep. 456; Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80. 218 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE ?. used will differ from those suggested there. The following are suggested as guides : PETITION FOB WRIT OF EREOB. To the Honorable Chief Justice of the Supreme Court of the United States and to the Associate Justices of the Court: , the plaintiff in the above-entitled cause, shows by this petition to this Honorable Court, that in the records, proceedings and decisions in the court of the State of , the same being the highest court of said State in which a decision could be had in this suit, a manifest error has occurred, greatly to the damage of said That, as appears in the record and proceedings there was drawn in question (here state the Federal question particularly involved); all of which fully appears in the records and proceedings of the case and is specifically set forth in the assignment of errors filed herewith. WHEREFORE petitioner prays that a writ of error be allowed, and that a transcript of record, proceedings and papers upon which said decree was rendered, duly authenticated, be ordered sent to the Supreme Court of tne United States at Washington, D. C., under the rules of such court in such cases made and provided, and that the same may be by this Honorable Court inspected and corrected in accordance with law and justice. Signed , Solicitor. WRIT- OF ERROR. The President of the United States to the Honorable Judges of the Supreme Court of the State of , Greeting: Whereas in the record and proceeding and in the rendition of the judgment of the above entitled cause which is now before you or some of you be- tween , plaintiff, and , defendant, your court being tiie highest court of said state having jurisdiction of the cause, there was drawn in question (here state the Federal question involved) and the decision was against the validity, etc., (or in favor of the validity, etc., as the case may be) and whereas there is manifest error in said decision to the damage of the petitioner in error, and whereas we are willing that if there is error it should be duly corrected, we command you therefore, if judgment In- given therein, that you send under seal of your court, the record and proceedings in said cause to the Supreme Court of the United States to- gether with this writ, within such time as may be necessary in order that you have the same at Washington on the .... day of , 19. ., that 339 WKITS OF ERKOE TO STATE COURTS 219 the record may be then inspected by the Supreme Court of the United States to be then and there held in order that justice may be done. Witness the Honorable Chief Justice of the Supreme Court that day of , A. D. 191... Seal , Clerk of the Supreme Court of the United States. The allowance of the writ may be indorsed upon it as follows: Allowed upon giving bond in the sum of Dollars according to law. Justice of the Supreme Court of the United States. Or a separate order of allowance may be made in substantially the following form: IN THE SUPREME COURT OF THE UNITED STATES TERM, , 191... A. B. 1 v. i ORDER OF ALLOWANCE OF WRIT OF ERROR. C. D. J On this .... day of 19. ., the application of A. B., plaintiff in this action for a writ of error, came on to be heard, said plaintiff being repre- sented by counsel and it appearing to the Court from the petition filed herein and from the record filed therewith, that his application should be granted, and that a transcript of the record proceedings and papers, upon which the judgment of the court was rendered properly certified, should be sent to the Supreme Court of the United States, as prayed, in order that such pro- ceedings may be had as may be just. NOW, THEREFORE IT IS ORDERED that the writ of error be allowed upon bond being furnished by the plaintiff conditioned according to law in the sum of $ (if it is desired that this act as a supersedeas, insert that provision here) and that a true copy of the record, assignment of errors and all proceedings in the case in the court of shall be transmitted to the Supreme Court of the United States, duly certified accord- ing to law, in order that said Court may inspect the same and take such action thereon as it deems proper according to law. For the bond, citation, assignment of errors, and other papers, the forms given in chapter 41 may be used, the proper title of court and judge or justice being inserted. CHAPTER 12. SUMMARIES JURISDICTION, AMOUNT AND VENUE FOR THE SEVERAL MATTERS OF DISTRICT COURT COGNIZANCE. Sec. 350. General Statement. 351. Civil Suits by United States or Its Officers. 352. Land Grants of States. 353. Arising under the Constitution. 354. Arising under the Laws of the United States. 355. Arising under Treaties. 356. Between Citizens of Different States. 357. Between Citizens of a State and Foreign States. 358. Between Citizens of a State and Foreign Citizens or Subjects. 359. Crimes and Offenses. 360. Admiralty and Maritime Jurisdiction. 361. Slave Trade. 362. Revenue Laws. 363. Postal Laws. 364. Patent Copyright Trademark Laws. 365. Commerce Laws. 366. Penalties and Forfeitures. 367. Seizures for Forfeitures on High Seas. 368. Suits by Assignee of Debenture for Drawback for Duties. 369. Protection of Acts under United States Revenue Laws and to Enforce the Right to Vote. 370. Civil Rights Cases. 371. Suits to Recover Possession of an Office. 372. Suits under Provisions Title "National Banks." 373. By Aliens for Torts. 374. Against Consuls. 375. Bankruptcy. 376. Claims against the United States. 377. Unlawful Inclosure Public Lands. 378. Immigration and Contract Labor Laws. 379. Trade Restraints and Monopolies. 380. Indian Land Allotment. 381. Partition Suits. United States a Party. 220 351 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 221 350. General Statement. Questions as to whether a par- ticular matter may be brought originally in the United States district court, or if brought in the state court whether it may be removed to the Federal district court, and as to the amount required to be in controversy to give the Federal courts jurisdic- tion and the proper venue of the action, generally come up together at the very outset of the action. The purpose of this chapter is to summarize under the various jurisdictional heads of district court cognizance the statutory pro- visions or requirements as to jurisdiction, original and exclusive or original and on removal, together with the amount required to be in controversy and venue in each case. 351. Civil Suits by United States or Its Officers. Original. Pt. Subd. First, 24, Judicial Code? 36 Stat. at L. 1091, Comp. St. 1911, p. 185, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits of a civil nature, at common law or equity, brought by the United States or by any officer thereof authorized to sue. . . ." Removal. Pt. 28, Judicial Code? 36 Stat. at L. 1094, Comp. St. 1911, pp. 140, 141, 1912 Supp. F. S. A. v. 1, p. 146. ". . . any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or may hereafter be brought in any state court, may be removed into the district court of the United States for the proper district by the de- fendant or defendants therein, being nonresidents of that state." Amount. Not material under 24, Judicial Code. Venue. In the district whereof defendant is an inhabitant, under 51, a For Annotation of this 24, Judicial Code, see footnote b, ante, our 104. * For Annotation of this 28, Judicial Code, see footnote c, ante, our 22]. For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. 222 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 352 Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code, and except in local ac- tions, 54, 55, 57, Judicial Code. 352. Land Grants of States. Original. PL Subd. First, 24, Judicial Code? 36 Stat. at L. 1091, Comp. St. 1911, p. 185, 1912 Supp. F. S. A. v. 1. p. 138. "Of all suits of a civil nature, at common law or in equity between citizens of the same state claiming land grants from different states . . ." Removal. 30, Judicial Code* 36 Stat. at L. 1096, Comp. St. 1911, p. 142, 1912 Supp. F. S. A. v. 1, p. 146. "If in any action commenced in a state court the title of land be con- cerned, and the parties are citizens of the same state and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and. costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the original grant, or an exempli- fication of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district ; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that d For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. e For Annotation of this 30, Judicial Code, see footnote , ante, our 262. 353 DISTRICT COUKTS JURISDICTION, AMOUNT, VENUE 223 by him or them stated as aforesaid as the ground of his or their claim." Amount. Immaterial under 24, Judicial Code, where the suit is origi- nally brought in the Federal court, but otherwise under 30, Judicial Code, last above quoted, where it is brought in the state court and sought to be removed to the Federal court. Venue of the action would be the district in which the land lies and if in two districts may be brought in either district, under 55, Judicial Code, and if the defendant resides in a different district in the same state, the process may be directed against him there under 54, Judicial Code, and if a suit to enforce a lien or remove cloud from title would come under 57, Judicial Code. 353. Arising under the Constitution. Original. ~Pt. Subd. First, 24, Judicial Code,* 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . Of all suits of a civil nature, at common law or in equity . . . where the matter in controversy . . . (a) arises under the Constitution of the United States Removal. Pt. 28, Judicial Code* 86 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144- "Any suit of a civil nature, at law or in equity, arising under the Con- stitution ... of the United States ... of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the dis- trict court of the United States for the proper district." Also separable controversies. See our 289, ante. * For Annotation of this 28, Judicial Code, see footnote , ante, our 221. ar For Annotation of this 28, Judicial Code, see footnote c , ante, our 221. 224 MONTGOMERY'S MANUAL or FEDERAL PROCEDURE 354 Amount. Pt. Subd. First, 24, Judicial Code* 86 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dol- lars, and (a) arises under the Constitution. . . ." Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code, and except in local ac- tions, 54, 55, 57, Judicial Code. 354. Arising under the Laws of the United States. Original. Pt. Subd. First, 24, Judicial Code, 1 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . Of all suits of a civil nature, at common law or in equity r , ,..., . where the matter in controversy (a) arises under the . . . laws of the United States. . . .." Removal. Pt. 28, Judicial Code* 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144. "Any suit of a civil nature, at law or in equity, arising under the . . . laws of the United States ... of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the de- fendant or defendants therein to the district court of the United States for the proper district." Also separable controversies. See our 289, ante. Amount. Pt. Subd. First, 24, Judicial Code* 36 Stat. at L. 1091, l> For Annotation of this 24, Judicial Code, see footnote b, ante, our 194. * For Annotation of this 24, Judicial Code, see footnote *>, ante, our 194. J For Annotation of this 28, Judicial Code, see footnote , ante, our 221. k For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. 355 DISTKICT COURTS JURISDICTION, AMOUNT, VENUE 225 Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dol- lars, and (a) arises under the . . . laws of the United States. . . ." This provision does not apply to many special laws referred to in subdivisions two to twenty-five inclusive, 24, Judicial Code. Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code, and except in local ac- tions, 54, 55, 57, Judicial Code, or where there is some special provision under a particular law. See chapter 5, ante, on venue. 355. Arising under Treaties. Original. PL Subd. First, 2 If, Judicial Code, 1 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . Of all suits of a civil nature, at common law or in equity . . . where the matter in controversy . . . (a) arises under . . . treaties made or which shall be made under their authority. . . ." Removal. PL 28, Judicial Code 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144- "Any suit of n civil nature, at law or in equity arising under . . treaties made, or which shall be made, under their (United States) authority, of which the district courts are given origi- nal jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the dis- trict court of the United States for the proper district. . . ." Also separable controversies. See our 289, ante. 1 For Annotation of this 24, Judicial Code, see footnote, t>, ante, our 194. m For Annotation of this 28, Judicial Code, see footnote, , ante, our 221. Montg. 15. 226 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 350 Amount. Pt. Subd. First, 24, Judicial Code," 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. 8. A. v. 1, p. 138. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars and (a) arises under . . . treaties." Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code, and except in local ac- tions, 54, 55, 57, Judicial Code. 356. Between Citizens of Different States. Original. Pt. Subd. First, 24, Judicial Code, 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . Of all suits of a civil nature, at common law or in equity . . . where the matter in controversy . . . (b) is between citizens of different states. . . ." Rembvdl. Pt. 28, Judicial Code* 36 Stat. at L. 1094, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 144- ". . - Any other suit of a civil nature at law or in equity of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may here- after be brought in any state court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as be- tween them, then either one or more of the defendants actu- ally interested in such controversy may remove said suit into the district court of the United States for the proper district. For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. o For Annotation of this 24, Judicial Code, see footnote *>, ante, our 194. P For Annotation of this 28, Judicial Code, see footnote c , ante, our 221. 357 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 227 Amount. Pt. Subd. First, 24, Judicial Code, 9 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. 8. A. v. 1, p. 138. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, . . . and (b) is between citizens of different states." Venue. 1 Pt. 51, Judicial Code* 36 Stat. at L. 1101, Comp. St. 1911, p. 150, 1912 Supp. F. S. A. v. 1, p. 153. ".... and except as provided in the six succeeding sections where the jurisdiction is founded only on the fact that the ac- tion is between citizens of different states, suit shall be brought only in the district of the residence of either plain- tiff or defendant." 357. Between Citizens of a State and Foreign States. Original. Pt. Subd. First, 24, Judicial Code, m 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . Of all suits of a civil nature, at common law or in equity, . . . where the matter in controversy . . . (c) is between citizens of a state and foreign states. . . ." Removal. Pt. 28, Judicial Code* 36 Stat. at L. 1094, Com,p. St. 1911, p. 141, 1912 Supp. F. S. A. v. 1, p. 144. ". . . Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by his title, and which are now pending or which may here- after be brought, in any state court, may be removed into the district court of the United States for the proper district bj the defendant or defendants therein, being nonresidents of that state. . . ." Amount. Pt. Subd. First, 24, Judicial Code, 36 Stat. at L. 1091 , 1 Whittaker v. 111. C. R. Co. 176 Fed. 130. i For Annotation of this 24, Judicial Code, see footnote b , ante, our 194. 'For Annotation of this 51, Judicial Code, see footnote a, ante, our 161. * For Annotation of this 24, 'Judicial Code, see footnote *, ante, our 194. * For Annotation of this 28, Judicial Code, see footnote , ante, 'our 221. * For Annotation of this 24, Judicial Code, see footnote t, ante, our 114. 228 MONT(;oMKHY'3 MANUAL OF FEDERAL PROCEDURE 358 Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dol- lars and . . . (c) is between citizens of a state and foreign states. . . ." Venue. A citizen in the district whereof he is a resident under 51, Judicial Code, and the foreign state wherever valid service may be made. 358. Between Citizens of a State and Foreign Citizens or Subjects. Original. PL Subd. First, 84, Judicial Code 7 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits of a civil nature, at common law or in equity where the matter in controversy . . . (c) is between citizens of a state and foreign . . . citizens or subjects. . . ." Removal. Pt. 28, Judicial Code, 36 Stat. at L 109 4, Comp. St. 1911, p. 141, 1912 Supp. F. S. A. v. 1, p. 144- ". . . Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may here- after be brought, in any state court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state. . . ." Amount. Pt. Subd. First, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. ". . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars and . . . (c) is between citizens of a state and foreign . . . citizens or subjects. . . ." * For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. *v For Annotation of this 28, Judicial Code, see footnote <*, ante, our 221. x For Annotation of this 24, Judicial Code, see footnote b , ante, our 194. 359 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 229 Venue. Unless there is more than one district in the state and other defendants residing in such other districts, under 52 of the Judicial Code, or likewise under 53, Judicial Code, where there are more than one division in the district, the suit should be s ' brought in the district whereof defendant is an inhabitant under 51, Judicial Code. Galveston and Ry. v. Gonzales, 151 U. S. 506, 38 L. ed. 248, 14 Sup. Ct. Rep. 401. A suit against an alien may be brought where valid service may be made. In re Holvorst, 150 U. S. 660, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221. 359. Crimes and Offenses. Original. Subd. Second, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. S. A. v. 1, p. 138. "Of all crimes and offenses cognizable under the authority of the United States." Exclusive. Subd. First, 256, Judicial Code* 36 Stat. at L. 1160, Comp. St. 1911, p. 234, 1912 Supp. F. S. A. v. 1, p. 18ft. "Of all crimes and offenses cognizable under the authority of the United States." Amount. Not material under last part of subd. first, 24, Judicial Code. a Venue. 2 Capital offenses county "where the offense was committed, where that can be done without great inconvenience." ( 40, Judicial Code.) Offenses on high seas or elsewhere out of the jurisdiction of any particular state or district "in the district where the offender is found or into which he is first brought." ( 41, Judicial Code.) 2 174, infra. y For Annotation of this 24, Judicial Code, see footnote *>, ante, our lf>4. For Annotation of this 256, Judicial Code, see footnote a, ante, our 102. For Annotation of this 24, Judicial Code, see footnote b, ante, our 194. 230 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 360 Offenses committed in two districts in either district. ( 42, Judicial Code.) Offenses against civil rights law "wherever the defendant may be found." ( 3, act March 1, 1875, ch. 114, 18 Stat. at L. 335.) Offenses against act establishing bureau of animal industry "within the district in which the violation was committed." ( 9, act May 29, 1884, ch. 60, 23 Stat. at L. 33, Comp. St. 1901, p. 301, 1 F. S. A. 455.) 360. Admiralty and Maritime Jurisdiction. Original. PL Subd. Third, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. 8. A. v. 1, p. 138. "Of all civil causes of admiralty and maritime jurisdiction. saving to suitors in all cases the right of a common-law remedy where the common-law is competent to give it ; . . ." Exclusive. Subd. Third, 256, Judicial Code,* 36 Stat. at L. 1160, Comp. St. 1911, p. 234, 1912 Supp. F. 8. A. v. 1, p. 138. "Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law rem- edy where the common law is competent to give it ; . . ." Removal. Question of jurisdiction may be raised on removal and case dismissed. 8 Amount. Not material under last part of subd. first, 24, Judicial Code. d Venue. This depends on the nature of the action, if in personam in any district in which service may be made on defendant, if in rem in any district in which the property may be apprehended.* 8 Auracher v. Omaha & S. L. R. Co. 102 Fed. 1. 1 Cyc. 850. * For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. For Annotation of this 256, Judicial Code, see footnote a, ante, our 192. * For Annotation of this 24, Judicial Code, see footnote l, ante, our lif* 362 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 231 361. Slave Trade. Original. Subd. Fourth, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. 8. A. v. 1, p. 138. "Of all suits arising under any law relating to slave trade." Removal. PL 28, Judicial Code,* 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S : A. v. 1, p. 144. "Any suit of a civil nature at law or in equity, arising under the . . . laws of the United States ... of which the dis- trict courts of the United States arj given original juris- diction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district." Amount. Not material under last part of subd. first, 24, Judicial Code. K Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code. 362. Revenue Laws. Original. Subd. Fifth, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. S. A. v. 1, p. 138. "Of all cases arising under any law providing for internal revenue, or from revenue imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the court of customs appeals." For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. 'For Annotation of this 28, Judicial Code, see footnote e , ante, our 221. K For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. h For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. 232 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 363 Removal. ./'/. 28, Judicial Code* 86 Stat. at L. 1094, Comp. St. 1911, p. 140 f 1912 Supp. F. S. A.v.l, p. 144- "Any suit of a civil nature, at law or in equity, arising under the . . . laws of the United States ... of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the de- fendant or defendants therein to the district court of the United States for the proper district." Amount. Not material under last part of gubd. first, 24, Judicial Code. 1 Venue. PL 44, Judicial Code* 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 152. ". . . either in the district where the liability for such tax occurs or in the district where the delinquent resides." 363. Postal Laws. Original. Subd. Sixth, 24, Judicial Code, 1 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. S. A. v. 1, p. 138. "Of all cases arising under the postal laws." Removal. Pt. 28, Judicial Code, m 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 1U- "Any suit of a civil nature, at law or in equity, arising under the . . . laws of the United States ... of which the dis- trict courts of the United States are given original juris- diction by this title, which may now be pending or which may hereafter be brought in any state court, may be re- moved by the defendant or defendants therein to the dis- trict court of the United States for the proper district." * For Annotation of this 28, Judicial Code, see footnote c ante, our 22]. J For Annotation of this 24. Judicial Code, see footnote b ante, our 194. k For Annotation of this 44, Judicial Code, see footnote ante, our 176. 1 For Annotation of this 24, Judicial Code, see footnote b ante, our 104. "' For Annotation of this 28, Judicial Code, see footnote ante, our 221. 364 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 233 Amount. JSTot material under last part of subd. first, 24, Judicial Code. n Venue. x In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the some district, when the action will be in any such district or division under 52, 53, Judicial Code. 364. Patent Copyright Trademark Laws. Original. Subd. Seventh, 24, Judicial Code, 36 Stat. at L. 1091, Comp. St. 1911, p. 234, 1912 Supp. F. 8. A. v. 1, p. 138. "Of all suits at law or in equity arising under the patent, copyright, and trademark laws." Exclusive. (Except as to trademarks.) Subd. Fifth, 256, Judicial Code, 9 36 Stat. at L. 1160, Comp. St. 1911, p. 234, 1912 Supp. F. S. A. v. 1, p. 138. "Of all cases arising under the patent-right or copyright laws of the United States." Removal. Question of state court's jurisdiction may be raised after re- moval and case dismissed. 5 Amount. Not material under last part of subd. first, 24, Judicial Code.* 1 Venue. Pt. 48, Judicial Code, T 36 Stat. at L. 1100, Comp. St. 1911, p. 149, 1912 Supp. F. S. A. v. 1, p. 153.". . . in the district court in which the defendant is an inhabitant, or in 8 Auracher v. Omaha & St. L. R. Co. 102 Fed. 1. n For Annotation of this 24, Judicial Code, see footnote *>, ante, our 104. For Annotation of this 24, Judicial Code, see footnote t>, ante, our 194. P For Annotation of this 256, Judicial Code, see footnote , ante, our 192. , ante, our 194. r For Annotation of this 48, Judicial Code, see footnote k, ante, our 171. 234 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 365 any district in which the defendant, whether a person, part- nership or corporation shall have committed acts of infring- ment and have a regular and established place of business. 365. Commerce Laws. Original. Subd. Eighth, 24, Judicial Code," 86 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. 8. A. v. 1, p. 138. "Of all suits and proceedings arising under any law regula- ting commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the commerce court." Commerce court now abolished and jurisdiction transferred to district court. See ch. 9, Judicial Code, in Appendix. Removal. Pt. 28, Judicial Code* 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144- "Any suit of a civil nature, at law or in equity, arising under the laws of the United States ... of which the district courts of the United tates are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district." Amount. Not material under last part of subd. first, 24, Judicial Code, except property damages under amendment to 28, Judicial Code, quoted in our 299 above. w Venue. In the district in which defendant resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs. 16, Interstate Commerce Act, 1912 For Annotation of this 24, Judicial Code, see footnote t. ante, our 194. t For Annotation of this 28, Judicial Code, see footnote , ante, our 194. 367 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 235 Supp. F. S. A. v. 1, p. 123. Venue of suits to enforce, set aside, or suspend orders of the commission is set out 180, infra. 366. Penalties and Forfeitures. ^ Original. Subd. Ninth, 24, Judicial Code / 36 8 tat at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits and proceedings for the enforcement of penal- ties and forfeitures incurred under any law of the United States." Exclusive. Subd. Second, 256, Judicial Code, 36 Stat. at L. 1160, Co-mp. St. 1911, p. 234, 1912 Supp. F. 3. A. v. 1, p. 238. "Of all suits for penalties and forfeitures incurred under the laws of the United States." Amount. Not material under last part of subd. first, 24, Judicial Code.* Venue. PL 43, Judicial Code* 36 Stat. at L. 1100, Comp. St. 1911, p. 148, 1912 Supp. F. S. A. v. 1, p. 153. ". . . either in the district where they accrue or in the district where the offender is found." 367. Seizures for Forfeitures on High Seas. Original. Pt. Subd. Third, 24, Judicial Code,' 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. S. A. v. 1, p. 138. ". . . of all seizures on land or waters not within admir- alty and maritime jurisdiction; of all prizes brought into the United States ; and of all proceedings for the condemna- tion of property taken as prize." Exclusive. Subd. Fourth, 256, Judicial Code,* 36 Stat. at L. 1160, v For Annotation of this 24, Judicial Code, see footnote b , ante, our 194. ^ For Annotation of this 256, Judicial Code, see footnote , ante, our 192. x For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. T For Annotation of this 43, Judicial Code, see footnote , ante, our 175. For Annotation of this 24, Judicial Code, see footnote l, ante, our 194. For Annotation of this 256, Judicial Code, see footnote a, ante, our 192. 236 MONTGOMERY'S MANUAL OP FEDERAL PROCEDURE 368 Camp. St. 1911, p. 234, 1012 Supp. F. S. A. v. 1, p. 238. "Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime juris- diction ; of all prizes brought into the United States, and of all proceedings for the condemnation of property taken as prize." Amount. Not material under last part of subd. first, 24, Judicial Code. b Venue. See also our 175 and 177, ante. Pt. 47, bb Judicial Code. ". . . in any district into which the property so seized is brought and proceedings in- stituted. . t?j r.rr: (If made in any district) in the district where the seizure is made, except in cases where it is other- wise provided." 368. Suits by Assignee of Debenture for Drawback for Duties. Original. Subd. Tenth, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture." Removal. Pt. 28, Judicial Code. "Any suit of a civil nature, at law or in equity, arising under the . ;*.;:/* laws of the United States ;i.'-:i i ->. of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or de- fendants therein to the district coTirt of the United States for the proper district." *> For Annotation of this 24, Judicial Code, see footnote *>, ante, our 194. *>* For Annotation of this 47, Judicial Code, see footnote v } ante, our 178. For Annotation of this 24, Judicial Code, see footnote , ante, our 194. 369 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 237 Amount. Xot material under last part of subd. first, 24, Judicial Code. d Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action will be in any such district or divi- sion under 52, 53, Judicial Code. 369. Protection of Acts under United States Revenue Laws and to Enforce the Right to Vote. Original. Subd. Eleventh, 24, Judicial Code* 36 8 tat. at L. 1091, Comp. St. 1911, p. 137, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several states." Removal. Pi. 28, Judicial Code. "Any suit of a civil nature, at law or in equity, arising under the . . . laws of the United States ... of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the district court of the United States for the prop- er district." Amount. "Not material under last part of subd. first, 24, Judicial Code.* Venue. In the district whereof defendant is an inhabitant under 51, d For Annotation of this 24, Judicial Code, see footnote *'. ante, our 1^4. For Annotation of this 24, Judicial Code, see footnote *, ante, our 104. * For Annotation of this 24, Judicial Code, see footnote *, ante, our 1!)4. MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 370 Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action may be in any such district or division under 52, 53, Judicial Code. 370. Civil Rights Cases. Original. Subd. Twelfth, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 137, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits authorized by law to be brought by any per- son for the recovery of damages on account of any injury to "his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nine- teen hundred and eighty, Revised Statutes." Subd. Thirteenth, 24, Judicial, Code? 36 Stat. at L. 1091, Comp. St. 1911, p. 137, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act." Subd. Fourteenth, 24, Judicial Code, 1 36 Stat. at L. 1091, Comp. St. 1911, p. 137, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits at law or in equity, authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, >r of all persons within the jurisdiction of the United States." Removal. 31, Judicial Code* 36 Stat. at L. 1096, Com-p. St. 1911, p. 143, 1912 Supp. F. S. A. v. 1, p. 147. "When any civil K For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. h For Annotation of this 24, Judicial Code, see footnote i, ante, our 194. 1 For Annotation of this 24, Judicial Code, see footnote *>, ante, our 194. J For Annotation of this 31, Judicial Code, see footnote 1, ante, our 216. 371 I>iSTRICT COUKTS J UK1SDICTION, AMOUNT, VENUE 239 suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as afore- said, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecu- tion may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next district court to be held in the district where it is pending." Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in dif- ferent districts in the same state or different divisions in the same district, when the action may be in any such district or division under 52, 53, Judicial Code. 371. Suits to Recover Possession of an Office. Original. Subd. Fifteenth, 24, Judicial Code* 36 Stat. at L. 1091, Comp. St. 1911, p. 137, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits to recover possession of any office, except that of elector of President or Vice President, Representative in or delegate to Congress, or member of a state legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servi- tude: Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Con- ic For Annotation of this 24, Judicial Code, see footnote * ( ante, our 194. 240 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 372 stitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the states." Removal. PL 28, Judicial Code, 1 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144- "Any suit of a civil nature, at law or in equity, arising under the . . . laws of the United States ... of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defend- ant or defendants therein to the district court of the United States for the proper district." Amount. Not material under last part of subd. first, 24, Judicial Code. Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in different districts in the same state or different divisions in the same district, when the action may lie in any such district or divi- sion under 52, 53, Judicial Code. 372. Suits under Provisions Title "National Banks." Original. Subd. Sixteenth, 24, Judicial Code," 36 Stat. at L. 1091, Comp. St. 1911, p. 138, 1912 Supp. F. S. A. v. 1, p. 138. "Of all cases commenced by the United States, or by direction of any officer thereof, against any national banking associa- tion, and cases for winding up the affairs of any such bank ; and of all suits brought by any banking association estab- lished in the district for which the court is held, under the provision of title "National Banks," Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking associations established under the laws 1 For Annotation of this 28, Judicial Code, see footnote, c, ante, our 221. m For Annotation of this 24, Judicial Code, see footnote b, ante, our 194. n For Annotation of this 24, Judicial Code, see footnote b, ante, our 194. 373 DISTRICT COURTS JURISDICTION, AMOUNT, VENUE 241 of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located." Removal. Pi. 28, Judicial Code, 36 Stat. at L. 1094, Comp. St. 1911, p. 140, 1912 Supp. F. 8. A. v. 1, p. 144- "Any suit of a civil nature, at law or in equity, arising under the . laws of the United States ... of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defend- ant or defendants therein to the district court of the United States for the proper district." Amount. Not material under last part subd. first, 24-, Judicial Code. p Venue. Pt. 49, Judicial Code, 11 36 Stat. at L. 1100, Comp. St. 1911, p. 149, 1912 Supp. F. S. A. v. 1, p. 153. "... to enjoin Comptroller of the Currency ... in the district where such association is located." See subd. sixteenth, 24, Judicial Code, above quoted. Other suits in the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants re- siding in different districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code. 373. By Aliens for Torts. Original. Subd. Seventeenth, 24, Judicial Code, r Comp. St. 1911, p. 138, 1912 Supp. F. S. A. v. 1, p. 138. "Of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States." o For Annotation of this 28, Judicial Code, see footnote , ante, our 221. P For Annotation of this 24, Judicial Code, see footnote l, ante, our 1!)4. i For Annotation of this 49, Judicial Code, see footnote I. ante, our 172. * For Annotation of this 24, Judicial Code, see footnote *, ante, our 194. Montg. 16. 242 MONTGOAIEUV'S MAM Al. OF l-'KDKKAL PKOCEDt'UK 374 Removal. PL 28, Judicial Code," 36 Stat. at L. 1094, Comp. Si. 1911, p. 140, 1912 Supp. F. S. A. v. 1, p. 144- "Any suit of a civil nature, at law or in equity, arising under the . . . treaties made or which shall be made under their authority . . . of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought in any state court, may be removed by the defendant or defendants there- in to the district court of the United States for the proper district. 45 34, Judicial Code* 36 Stat. at L. 1098, Comp. St. 1911, p. 145, 1912 Supp. F. S. A. v. 1, p. 149. "Whenever a per- sonal action has been or shall be brought in any state court by an alien against any citizen of a state who is, or at the time the alleged action accrued was, a civil officer of the United States, being a nonresident of that state wherein jurisdiction is obtained by the state court, by personal serv- ice of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a state court by the provisions of the preced- ing section." Amount. Xot material under last part subd. first, 24, Judicial Code. Venue. In the district whereof defendant is an inhabitant under 51, Judicial Code, unless there are several defendants residing in dif- ferent districts in the same state or different divisions in the same district, when the action will be in any such district or division under 52, 53, Judicial Code. 374. Against Consuls. Original. Stibd. Eighteenth, 24, Judicial Code* 36 Stat. at L. For Annotation of this 28, Judicial Code, see footnote , ante our 104. m For Annotation of this 24, Judicial Code, see footnote b, ante, our 104. CHAPTER 13. STATUTES OF LIMITATIONS. Sec. 390. In General. 391. Capital Offenses. 392. Offenses Not Capital. 393. Unless Fleeing from Justice. 394. Crimes under Revenue and Slave-Trade Laws. 395. Crimes under Internal Revenue Laws. 396. Seduction of Female Passengers on Vessels. 397. Violation of Naturalization Laws. 398. Penalties and Forfeitures under Federal Laws. 399. Penalties and Forfeitures under Customs Revenue Laws. 400. Settlements for Customs Duties. 401. Forfeiture or Penalty under Copyright Laws. 402. Forfeiture and Damage Suits for False Claims against United States. 403. Claims against United States. 404. Recovery of Taxes Wrongfully Collected. 405. Suits by United States to Vacate Land Patents. 406. Suits by United States to Vacate Railway or Wagon Road Patents. 407. Suits by Patentee of Lands Patented to Indians. 408. Under Employers' Liability Act. 409. Action for Neglect to Prevent Conspiracy against Civil Rights. 410. Infringement of Patent. 411. Infringement of Copyrights. 412. Stockholders' Liability of Stockholders' National Banks. 413. Interstate Commerce Act. 390. In General. Unless a Federal statute of limitations is prescribed for the particular suit, the state statute of limitations of the state in which the district lies will govern under 721, R. S., quoted next below. 1 1 Michigan Insurance Bank v. Eldred, 130 U. S. 696. 32 L. ed. 1081, 9 Sup. Ct. Rep. 691; Davio v. Bripgs. 07 U. S. 637. 24 L. ed. 1089; Elmendorf v. Taylor, 10 Wheat. 176, 6 L. ed. 28!); Campbell v. City of Haverhill, 155 U. S. 615, 39 L. ed. 280, 15 Sup. Ct. Rep. 217; Lewis* v. Lewis, 7 How. 776, 12 L. ed. 909: Pond v. United States, 111 Fed. 989, 49 C. C. A. 582; Butler v. Pool, 44 Fed. 586, and other cases cited in Rose's Code 10, page 89. and 4 F. S. A. p. 523. 250 394: STATUTES OF LIMITATIONS 251 121, R 8., Comp. St. 1901, p. 581, 4 F. 8. A. 517. "The laws of the several states, except where the Constitu- tion, treaties, or statutes of the United States otherwise re- quire or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." Special limitations for crimes and offenses are set out in 391-2-3-45-6-7, infra, for penalties and forfeitures in 398, 399, 401, 402, infra; suits against the United States, 403-4, infra ; actions respecting land patents 40567, infra, and per- sonal actions, 408, 409, 410, 411, 412, infra. 391. Capital Offenses. 1043, R. 8., Comp. St. 1901, p. 725, Rose's Code, 884, 2 F. 8. A. 358. "No person shall be prosecuted, tried or punished for treason or other capital offense, wilful murder excepted, unless the indictment is found within three years next after such treason or capital offense is done or com- mitted." 392. Offenses Not Capital. 1044, R- 8., Comp. St. 1901, p. 725, Rose's Code, 885, 2 F. 8. A. 358. "No person shall be prosecuted, tried, or punished for any offense, not capital, except as provided in section one thousand and forty-six (R. S.) unless the indict- ment is found, or the information is instituted within three years next after such offense shall have been committed. But this act shall not have effect to authorize the prosecution, trial or punishment for any offense, barred by the provisions of existing laws.". 393. Unless Fleeing from Justice. 1045, R. 8., Comp. St. 1901, p. 726, Rose's Code, 886, 2F.S.A.360. "(Fleeing from justice.) Nothing in the two preceding sections shall extend to any person fleeing from justice." 394. Crimes under Revenue and Slave-Trade Laws. 1046, R. 8., Comp. St. 1901, p. 726, Rose's Code, 888, 2 F. 8. A. 36. "No person shall be prosecuted, tried, or 252 MONTGOMERY'S MAMUAL OF FEDERAL PROCEDURE 397 punished for any crime arising under the revenue laws, or the slave-trade laws of the United States, unless the indict- ment is found or the information is instituted within five years next after the committing of such crime." 395. Crimes under Internal Revenue Laws. 1, Act July 5, 1884, ch. 225, 23 Stat. at L. 122, Coinp. St. 1901, p. 726, 3 F. 8. A. 806, Rose's Code, 889. "That no person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the in- formation instituted within three years next after the com- mission of the offense, in all cases where the penalty pre- scribed may be imprisonment in the penitentiary, and within two years in all other cases : Provided, That the time during which the person committing the offense is absent from the district wherein the same is committed shall not be taken as any part of the time limited by law for the commencement of such proceedings : Provided further, That the provisions of this act shall not apply to offenses committed prior to its passage : And provided further, That where a complaint shall be instituted before a commissioner of the United States within the period above limited, the time shall be extended until the discharge of the grand jury at its next session within the district: And provided further, That this act shall not apply to offenses committed by officers of the United States." 396. Seduction of Female Passengers on Vessels. Pt. 281, Penal Code, Com p. St. 191 1, p. 1673, 1909 Supp. F. S. A. 483. ". . . Xo conviction shall be had on the testimony of the female seduced, without other evidence,, nor unless the indictment is found within one year after the arrival of the vessel on which the offense was committed at the port for which it was destined." 397. Violation of Naturalization Laws. 24, Act June 29, 1906, ch. 3592, 34 Stat. at L. 60S, Rose's Code, 891, Comp. St. 1911, p. 539, 1909 Supp. F. 8. A. 375. (Limit for prosecutions.) "That no person shall be prosecuted, tried, or punished for any crime arising under the provisions of this act unless the indictment is found or the information is filed within five years next after the com- mission of such crime." 400 STATUTES OF LIMITATIONS 253 398. Penalties and Forfeitures under Federal Laws. 1047, R. 8., Comp. St. 1901, p. 721, Rose's Code, 881, 3 F. S. A. 100. "No suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued: Provided, That the person of the offender, or the property liable for such penalty or forfeiture, shall, within the same period, be found within the United States ; so that the proper process therefor may be instituted and served against such person or property." 8 399. Penalties and Forfeitures under Customs Revenue Laws. 22, Act June 22, 1874, ch. 391,18 Stat. at L. 190, Comp. St. 1901, p. 121, Roses Code, 882, 2 F. 8. A. 761. "That no suit or action to recover any pecuniary penalty or forfeit- ure of property accruing under the customs revenue laws of the United States shall be instituted unless such suit or action shall be commenced within three years after the time when such penalty or forfeiture shall have accrued : Provided, That the time of the absence from the United States of the person subject to such penalty or forfeiture, or of any concealment or absence of the property, shall not be reckoned within this period of limitation." 400. Settlements for Customs Duties. 21, Act June, 22, 1874, ch. 391, 18 Stat. at L. 190, Comp. St. 1901, p. 1986, Rose's Code, 87,5, 2 F. 8. A. 760. "That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settle- ment of duties shall, after the expiration of one year from the time of entry, in the absence of fraud and in the absence 2 See 4 F. S. A. 865, United States v. Smith, etc., Co., 184 Fed. 532; United States v. Guest. 143 Fed. 456, 74 C. C. A. 590; Carter v. New Orleans, 143 Fed. 99, 74 C. C. A. 293; United States v. Witteman 152 Fed. 377. 81 C. C. A. 503; City of Atlanta v. Chattan. Foundry Wks., 101 Fed. 900; United States v. One Dark Bay Horse, 130 Fed. 240. 254 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 403 of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties." 401. Forfeiture or Penalty under Copyright Laws. 4968, R. 8., Comp. St. 1901, p. 3416, Rose's Code, 871, 2 F. 8. A. 271. "No action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen." 402. Forfeitures and Damage Suits for False Claims against United States. 3494, R. S. t Comp. St. 1901, 2329, Rose's Code, 883, 2 F. S. A. 31. "Every such suit shall be commenced within six years from the commission of the act, and not afterward." Prosecutions for enforcing punishment by fine or imprisonment under 5438, R. S., are governed by the limitations imposed by the 32d 'section of the act, April 20, 1790, 1 Stat. at L. 119; 14 Op. Atty. Gen. 54. 403. Claims against United States. 156, Judicial Code, 11 36 Stat. at L. 1139, Comp. St. 19 11, p. 202, 1912 Supp. F. S. A. v. 1, p. 204, 36 Stat. at L. 1139. "Every claim against the United States, cognizable by the court of claims, shall be forever barred, unless the petition setting forth a statement thereof is filed in the court, or trans- mitted to it by the secretary of the Senate or the clerk of the House of Representatives, as provided by law, within six years after the claim first accrues : Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years, first accrued during mi- nority, and of idiots, lunatics, insane persons, and persons be- yond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those Re-enacting 1069, R. S., Rose's Code, 874, Foster's Fed. Prac. (4th ed.) p. 1703, Comp. St. 1901, p. 740. 2 F. S. A. 65. which section is repealed by 297, Judicial Code. In general, Cherokee Nation & United States v. Whit- mire, 223 U. S. 108, 56 L. ed. 370, 32 Sup. Ct. Rep. 200. 405 STATUTES OF LIMITATIONS 255 enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively." See also subd. twentieth, 24, Judicial Code quoted as 194. 404. Recovery of Taxes Wrongfully Collected. 3227, R. S., Comp. St. 1901, p. 2089, Rose's Code, 876, 3 F. 8. A. 603. "No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or il- legally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, shall be maintained in any court, unless the same is brought within two years next after the cause of action accrued: Provided, That actions for such claims which accrued prior to June 6, 1872, may be brought within one year from said date ; and that where any such claim was pending before the Commissioner, as provided in the preceding section, an action thereon may be brought within one year after such decision, and not after. But no right of action which was already barred by any statute on the said date shall be revived by this section." 3228, R. 8., Comp. St. 1901, p. 2089, Rose's Code, 877, 3 F. S. A. 603. "All claims for the refunding of any internal tax alleged to have been erroneously or illegally as- sessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to .have been excessive or in any manner wrongfully collected, must be construed to revive any right of action which was already in two years next after the cause of action accrued : Pro- vided, That claims which accrued prior to June 6, 1872, may be presented to the Commissioner at any time within one year from said date. But nothing in this section shall be construed to revive any right of action which was already barred by any statute on that date." 405. Suits by United States to Vacate Land Patents. Pt. 8, Act March 3. 1891, ch. 561, 26 Stat. at L. 1099 (1093} Comp. St. 1901, p. 1521, Roses Code, 878, 6 F. S. A. 526. "That suits by .the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wagon road grant shall only be brought within 256 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 407 five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such pat- ents, and the limitation of section eight of chapter five hun- dred and sixty-one of the acts of the second session of the Fifty-first Congress and amendments thereto is extended ac- cordingly as to the patents herein referred to." 406. Suits by United States to Vacate Railway or Wag- on Road Patents. 1, March 2, 1896, ch. 39, 29 Stat. at L. 42, Comp. St. 1901, p. 1608, Rose's Code, 879, 6 F. 8. A. 449-450. "That suits by the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wag- on road grant shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents, and the limitation of section eight of chapter five hundred and sixty-one of the acts of the second session of the Fifty-first Congress and amendments thereto is extended accordingly as to the patents herein referred to. But no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed : Provided, That no suit shall be brought or maintained, nor shall re- covery be had for lands or the value thereof, that were cer- tified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the government or its officers to withdraw the same from sale or entry." 407. Suits by Patentee of Lands Patented to Indians. l,Act May 31, 1902, ch. 946, 32 Stat. at L. 284, Roses Code, 880, 3F. S. A. 504-5. "That in all actions brought in any state court or United States court by any patentee, his heirs, grantees, or any person claiming under such patentee, for the possession or rents or profits of lands patented in severalty to the members of any tribe of Indians under any treaty between it and the United States of America, where a deed has been approved by the Secretary of the Interior to the land sought to be recovered, the statutes of limitations of the states in which said land is situate shall be held to apply, and it shall be a complete defense to such action that 412 STATUTES OF LIMITATIONS 257 the same has not been brought within the time prescribed by the statutes of said state the same as if such action had been brought for the recovery of land patented to others than members of any tribe of Indians." 408. Under Employers' Liability Act. 6, Act April 22, 1908, ch. 11+9, 35 Stat. at L. 66, Comp. St. 1911, p. 1324, 1909 Supp. F. 8. A. 585. "That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued." 409. Action for Neglect to Prevent Conspiracy against Civil Rights. Pi. 1981, R. 8., Comp. St. 1901, p. 1263, Rose's Code, 872, 1 F. 8. A. 798. ". . . But no action under the provision of this section shall be sustained which is not commenced within one year after the cause of action has accrued." 410. Infringement of Patent. PL 4921, R. 8., Comp. St. 1901, p. 3395, 5 F. 8. A. 577. ". . . . But in any suit or action brought for the infringement of any patent, there shall be no recovery of profits or damages for any infringement committed in the six years before the filing of the bill of complaint or the issuing of the writ in such suit or action, and this provision shall apply to existing causes of action." 411. Infringement of Copyrights. Actions for infringe- ments of copyrights, 3 except in a case of forfeiture or penalty un- der copyright laws governed by 4968, E. S., 4 are governed by state statutes of limitation. 6 412. Liability of Stockholders of National Banks. Under 2 of the Act June 30, 1876, ch. 156, 19 Stat. at L. 63. Comp. St. 1901, p. 3509, 5 F. 8. A. 106-7, Rose's Code, 964- This 3 Patterson v. J. S. Ogilvie Publishing Co. 119 Fed. 451; Wheeler v. Cohhey, 70 Fed. 487, under 4964, R. S. 4 401, supra. 5 Rose's Code, 893, Citing Brady v. Daly, 175 U. S. 158, 44 L. ed. 109, 20 Sup. Ct. Rep. 66. Montg. 17. 258 MONTGOMERY'S MANUAL OF FEDEICAI, PROCEDTKE 413 action is governed by the state statute of limitations, but it docs not begin to run until the amount of the stockholders' liability has been ascertained and assessed by the Comptroller of Currency. 8 413. Interstate Commerce Act. PL .16, Interstate Commerce Act, 1912 Supp. F. 8. A. v. l f p. 123. "A petition for the enforcement of an order for the payment of money shall be filed in the circuit (now district) court or any state court within one year from the date of the order and not after." eRankin v. Barton, 199 U. S. 228, 50 L. ed. 163, 26 Sup. Ct. Rep. 29. See also McClaine v. Rankin, 49 L. ed. 702, 197 U. S. 154, 25 Sup. Ct. Rep. 410, 3 Ann. Gas. 500. CHAPTER 14. EVIDENCE. Sec. 420. In General. 421. Statutes of United States Evidence of Little and Brown's Edition. 422. Same Supplement of Revised Statutes. 423. Same Richardson's Supplement of Revised Statutes. 424. Proof State and Foreign Legislative Acts and State Court Records and Proceedings. 425. Exemplified Copies Records of Public Officers, Not Appertaining to a Court in States and Territories. 426. Copies of Foreign Records Filed in Department Offices Relating to Land Titles in United States. 427. Copies Extracts from Journals of Congress Certified. 428. Pamphlet Copies of Statutes and Bound Copies of Acts. 429. Printed and Bound Copies of Acts. 430. Copies Lost or Destroyed Judicial Records. 431. Restoration of Lost or Destroyed Judicial Records. 432. Copies Lost Supreme Court Record. 433. Restoration of Records Service of Notice on Nonresidents. 434. Copies Lost Returns and Official Papers Judicial Officers. 435. Restoration of Records in which United States are Interested by United States' Attorneys. 436. Copies Executive Department Records, etc. 437. Copies Solicitor of the Treasury Records, etc. 438. Copies Comptroller of the Currency Records, etc. 439. Copies National Bank Organization Certificates. 440. Copies Bonds, Contracts, and Other Papers of United States in Settle- ment of Accounts with Government. 441. Copies Treasury, War, Navy, Records in Suits against Delinquents. 442. Same Certification of Copies to Be Made by Secretary or an Assistant Secretary of the Treasury under Seal of Department. 443. Copies Treasury Department Books and Proceedings in Embezzlement Suits. 444. Copies Department of the Interior. 445. Copies Postoffice Records. 446. Copy Postoffice Department Demand on Postmasters. 447. Copies Land Office Records Certification of. 448. Subpoena Duces Tecum to Register of Land Office. 449. Copies Commissioner of Indian Affairs Certification of. 259 260 MONTGOMKUY'S MANTAL OF FEDERAL PROCEDURE 420 4.~>n. Copies Patent Office Records, Letters Patent, otc. 4.">1. Copies Foreign Letters Patent. 4.V2. Copies Printed Copies of Specifications and Drawings of Patents. 4 :;:{. Copies Patent Office Records Trademarks. 4.~>4. Copies United States Consular Records. 4.")."). Copit-.s United States Clerks' New Records in Certain States. 456. Copies United States Clerks' New Records North Carolina. 4.">7. Judicial Notice Taken of the Seal of the Department of Commerce and Labor. 458. Burden of Proof Seizure Cases under Customs Duties Laws. 4.1!). Reports of Investigations of Accidents from Failure of Boilers Not Admissible in Damage Suits. 460. Government Paramount Title Does Not Affect Possessory Action Mining Titles. 461. Publication of Interstate Commerce Reports and Decisions as Evidence. 462. Proof of Signature and Handwriting. 420. In General. Equity Rule 46 provides that "in all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass on the admissibility of all evidence offered as in actions at law. . . ." 861, R. S., provides that "the mode of proof in the trials of actions at common law shall be by -oral testimony and by examina- tion of witnesses in open court, except as hereinafter provided." 721, R. S., provides that, except as otherwise provided, the laws of the several states "shall be regarded as the rules of de- cision in trials at common law." The last-mentioned section has been held to apply to rules of evidence prescribed by the laws of the state in which the Federal court was sitting. 1 The laws of the state relating to evidence means not only the statutes of the state, but also the decisions of its highest courts respecting rules of evidence, 8 but not as to common-law rules of evidence. 3 The decided tendency in both law and equity is to conform to state rules of evidence as is indicated by the new rule 46, above mentioned, and recent amendment 858, R. S., as to competency of witnesses. 4 1 Parker v. Moores. Ill Fed. 470: note 4 F. S. A. 1st col. p. 522. 2 Nashua Savings Bank v. Anglo-American Land Co. 189 U. S. 228. 47 L. ed 782, 23 Sup. Ct. Rep. 517: note 4 F. S. A. 2nd col. p. 518. 3 Union Pac. R. Co. v. Yates, 79 Fed. 588, 25 C. C. A. 103, 40 L.R.A. 553. 4 470, infra. 421 EVIDENCE 261 The Federal courts do not, however, follow the state practice, allowing the examination of a party before trial, 5 except in order- ing a surgical examination of the person of the plaintiff in an action for personal injuries, 6 and not then when there is no state statute. 7 Discovery by the production of books and papers in common- law actions is governed by 724, R. S., 8 and in equity by Equity Rule 58. 9 State laws have been followed as to printed copies of state laws being prima facie evidence thereof. 10 905, R. S., pro- vides for the authentication of state laws, 11 although it has not been held mandatory and the statutes of Pennsylvania were ad- mitted in the District of Columbia, though not so authenticated. 12 So, also the state law was followed as to exemption from process of a witness in attendance on court. 13 But state laws will not be followed w r here the Federal statutes make other provisions. 14 This chapter contains a number of special Federal statutes on evidence. 421. Statutes of United States Evidence of Little and Brown's Edition. 908, R. 8., Comp. Stat. 1901, 678, 7 F. 8. A. 138, Rose's Code, 1808. "The edition of the Laws and Treaties of the United States, published by Little & Brown, shall be competent evidence of the several public and private acts of Congress, and of the several treaties therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United 6 Ex parte Fiske, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; note 3 F. S. A. 1st col. p. 7. eCamden, etc. Ry. Co. v. Stetson, 177 U. S. 172, 44 L. ed. 721, 20 Sup. Ct. Rep. 617. 7 Union Pac. etc. Ry. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep: 1000. 8 711, infra. g 862, 870, infra. 10 Beatrice v. Edminston, 117 Fed. 427, 54 C. C. A. 606. 11 424, infra. 12 Conn, etc., Bank v. Patterson, 2 Cranch, 346, Fed. Cas. No. 3,056. 13 Ex parte Levi, 28 Fed. 651. "Potter v. National Bank, 102 U. S. 165, 26 L. ed. 111. MONTGOMERY'S MA.NTAI. OF FEDERAL PROCEDURE 424 States, and of the several states, without any further proof or authentication thereof." 422. Same Supplement of Revised Statutes. 8 of Act April 9, 1890, ch. 73, 26 Stat. at L. 50, Comp. Stat. 1901, p. 2589, 7 F. S. A. 139, Rose's Code, 1810. "The publication herein authorized shall be taken to be prima facie evidence of the laws therein contained, but shall not change nor alter any existing law, nor preclude reference to nor control in case of any discrepancy, the effect of any original act passed by Congress." 423. Same Richardson's Supplement of Revised Stat- utes. Pt. Joint Resolution June 7, 1880, No. 44, 21 Stat. at L. 308, Comp. Stat. 1901, p. 2587, 7 F. S. A. 139, Rose's Code, 1809. "The publication herein authorized shall be taken to be prima facie evidence of the laws therein, contained in all the courts of the United States, and of the several states and territories therein ; but shall not preclude reference to, nor control, in case of any discrepancy, the effect of any original acts as passed by Congress: Provided, That nothing herein contained shall be construed to change or alter any existing law." 424. Proof State and Foreign Legislative Acts and State Court Records and Proceedings. 905, R. S., Comp. Stat. 1901, p. 677, Roses Code, 1803, 3 F. S. A. 37. "The acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, territory, or country affixed thereto. The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attesta- tion of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief jus- tice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." 426 EVIDENCE 263 425. Exemplified Copies Records of Public Offices, Not Appertaining to a Court in States and Territories. 906, R. 8., Comp. Stat. 1901, p. 677, 3 F. 8. A. 39, Rose's Code, 1804- "All records and exemplifications of books, which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or dis- trict in which such office may be kept, or of the governor or secretary of state, the chancellor or keeper of the great seal of the state, or territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commis- sioned and qualified ; or if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or county aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory, or country, as aforesaid, from which they are taken." 426. Copies of Foreign Records Filed in Department Offices Relating to Land Titles in United States. 907, R. 8., Comp. Stat. 1901, p. 678, 3 F. 8. A. 40, Rose's Code, 1806. "It shall be lawful for any keeper or person having the custody of laws, judgments, orders, de- crees, journals, correspondence, or other public documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the appli- cation of the head of one of the departments, the Solicitor of the Treasury, or the Commissioner of the General Land Office, to authenticate copies thereof under his hand and seal, and to certify them to be correct and true copies of such laws, judgments, orders, decrees, journals, correspondence, or other 204 MOXTGO.MJCKY'S MANUAL OF FEDERAL PROCEDURE 429 public documents, respectively; and when such copies are certified by an American minister or consul, under his hand and seal of office, to be true copies of the originals, they shall be sealed up by him and returned to the Solicitor of the Treasury, who shall file them in his office, and cause them to be recorded in a book to be kept for that purpose. A copy of any such law, judgment, order, decree, journal, correspondence, or other public document, so filed, or of the same so recorded in said book, may be read in evidence in any court, where the title to land claimed by or under the United States may come into question, equally with the originals." 427. Copies Extracts from Journals of Congress Cer- tified. 895, R. 8., Comp. Stat. 1901, p. 673, Rose's Code, 1198, 3 F. 8. A. 34. "Extracts from the journals of the Senate, or of the House of Representatives, and of the Executive Journal of the Senate when the injunction of secrecy is removed, certified by the secretary of the Senate or by the clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court." 428. Pamphlet Copies of Statutes and Bound Copies of Acts. PL 73, Act Jan. 12, 1895, ch. 23, 28 Stat. at L. 615, Comp. Stat. 1901, p. 3766, 7 F. 8. A. 139, Rose's Code, 1812. "The pamphlet copies of the statutes and the bound copies of the acts of each Congress shall be legal evidence of the laws and treaties therein contained in all the courts of the United States and of the several states therein." 429. Printed and Bound Copies of Acts. 8, Act June 20, 1874, ch. 333, 18 Stat. at L. 113, Comp. Stat. 1901, p. 3757, 7 F. S. A. 138, Rose's Code, 1811. ''The said printed copies of the said acts of each session and of the said bound copies of the acts of each Congress shall be legal evidence of the laws and treaties therein contained, in all the courts of the United States and of the several states therein." 432 EVIDENCE 205 430. Copies Lost or Destroyed Judicial Records. 899, R. 8., Comp. Stat. 1901, p. 675, Rose's Code, 387, 3 F. 8. A. 35. "When the record of any judgment, decree, or other proceeding of any court of the United States is lost or destroyed, any party or person interested therein may, on application to such court, and on showing to its satisfaction that the same was lost or destroyed without his fault, obtain from it an order authorizing such defect to be supplied by a duly certified copy of the original record, where the same can be obtained ; and such certified copy shall thereafter have, in all respects, the same effect as the original record would have had." 431. Restoration of Lost or Destroyed Judicial Records. 900, R. S. f Comp. Stat. 1901, p. 615, Rose's Code, 388, 3 F. S. A. 35. "When any such record is lost or de- stroyed, and the defect cannot be supplied as provided in the preceding section, any party or person interested therein may make a written application to the court to which the record belonged, verified by affidavit, showing such loss or destruc- tion ; that the same occurred without his fault or neglect ; that certified copies of such record cannot be obtained by him ; and showing also the substance of the record so lost or destroyed, and that the loss or destruction thereof, unless supplied, will or may result in damage to him. The court shall cause said application to be entered of record, and a copy of it shall be served personally upon every person interested therein, together with written notice that on a day therein stated, which shall not be less than sixty days after such service, said application will be heard ; and if, upon such hearing, the court is satisfied that the statements contained in the application are true, it shall make and cause to be entered of record an order reciting the substance and effect of said lost or destroyed record. Said order shall have the same effect, so far as concerns the party or person mak- ing such application and the persons served as above provid- ed, but subject to intervening rights, which the original record would have had if the same had not been lost or de- stroyed." 432. Copies Lost Supreme Court Record. 901, R. 8., Comp. Stat. 1901, p. 675, Rose's Code, 389, 3 F. 8. A. 35. "When anv cause has been- removed 266 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 434 to the Supreme Court, and the original record thereof is afterward lost, a duly certified copy of the record remaining in said court may be filed in the court from which the cause was removed, on motion of any party or person claiming to be interested therein; and the copy so filed shall have the same effect as the original record would have had if the same had not been lost or destroyed." 433. Restoration of Records Service of Notice on Non- residents. 902, R. 8., Comp. Stat. 1901, p. 616, Rose's Code, 390, 3 F. S. A. 35. "In any proceedings in conformity with law to restore the records of any court of the United States which have been or may be hereafter lost or destroyed, the notice required may be served on any nonresident of the district in which such court is held anywhere within the jurisdiction of the United States, or in any foreign country ; the proof of service of such notice, if made in a foreign country, to be certified by a minister or consul of the United States in such country, under his official seal." 434. Copies Lost Returns and Official Papers Judicial Officers. 903, R. 8., Comp. Stat. 1901, p. 676, Rose's Code, 391, 3 F. 8. A. 36. "A certified copy of the official return, or any other official paper of the United States attorney, marshal, or clerk, or other certifying or recording officer of any court of the United States, made in pursuance of law, and on file in any department of the government, relating to any cause or matter to which the United States was a party in any such court, the record of which has been or may be lost or destroyed, may be filed in the court to which it appertains, and shall have the same force and effect as if it were an original report, return, paper, or other document made to or filed in such court; and in any case in which the names of the parties and the date and amount of judgment or de- cree shall appear from such return, paper, or document, it shall be lawful for the court in which they are filed to issue the proper process to enforce such decree or judgment, in the same manner as if the original record remained in said court. And in all cases where any of the files, papers, or records of any court of the United States have been or shall be lost or destroyed, the files, records, and papers which, pur- 437 EVIDENCE 267 suant to law, may have been or may be restored or supplied in place of such records, files, and papers, shall have the same force and effect, to all intents and purposes, as the originals thereof would have been entitled to." 435. Restoration of Records in which United States are Interested by United States' Attorneys. 904, R- 8., Comp. Stat. 1901, p. 676, Rose's Code, 392, 531, 597, 3 F. 8. A. 36. "That whenever any of the records or files in which the United States are interested of any court of the United States have been or may be lost or destroyed, it shall be the duty of the attorney of the United States for the district court to which such files and records belong, so far as the judges of such courts respectively shall deem it essential to the interests of the United States that such records and files to (sic) be restored or supplied, to take such steps, under the direction of said judges, as may be necessary to effect such restoration or substitution, including such dockets, indices, and other books and papers as said judge (s) shall think proper. Said judges may direct the performance, by the clerks of said courts respectively and by the United States' attorneys, of any duties incident thereto; and said clerks and attorneys shall be allowed such compensation for services in the matter and for lawful dis- bursements as may be approved by the Attorney General of the United States, upon a certificate by the judges of said courts stating that such claim for services and disbursements is just and reasonable ; and the sum so allowed shall be paid out of the judiciary fund." 436. Copies Executive Department Records, etc. 882, R. S., Comp. Stat. 1901, p. 669, Roses Code, .2777, 3 F. S. A. 26. "Copies of any books, records, papers, or documents in any of the Executive Departments, au- thenticated under the seals of such Departments, respective- ly, shall be admitted in evidence equally with the originals thereof." 437. Copies Solicitor of the Treasury Records, etc. 883, R. 8., Comp. Stat. 1901, p. 669, Rose's Code, 1778, 3 F. S. A. 27. "Copies of any documents, records, books, or papers in the office of the solicitor of the Treasury, certified by him under the seal of his office, or, whenever MONTGOMERY'S MANUAL OF FEDERAL PEOCKDI'IIE 440 his office is vacant, by the officer acting as solicitor for the time, shall be evidence equally with the originals." 438. Copies Comptroller of the Currency Records, etc. 884, R- S., Comp. Stat. 1901, p. 669, Rose's Code, 1780, 3 F. S. A. 27. "Every certificate, assignment, and con- veyance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts; and all copies of papers in his office, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer." 439. Copies National Bank Organization Certificates. 885, R. 8., Comp. Stat. 1901, p. 670, Roses Code, 17 SI, 3 F. S. A. 27. "Copies of the organization cer- tificate of any national banking association, duly certified by the Comptroller of the Currency, and authenticated by his seal of office, shall be evidence in all courts and places within the jurisdiction of the United States of the existence of the association, and of every matter which could be proved by the production of the original certificate." 440. Copies Bonds, Contracts, and Other Papers of United States in Settlement of Accounts with Government. Ft. 886, R. S., Comp. Stat. 1901, p. 670, PL Rose's Code, 1782, 3 F. S. A. 27. ". . . And all copies of bonds, contracts, or other papers relating to, or connected with, the settlement of any account between the United States and an individual, when certified by the register or by such auditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the Department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original papers if produced and authenti- cated in court: Provided, That where suit is brought upon a bond or other sealed instrument, and the defendant pleads non est fa-ctum, or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consideration, and, if it appears to be necessary 443 EVIDENCE 269 for the attainment of justice, may require the production of the original bond, contract, or other paper specified in such affidavit." 441. Copies Treasury, War, Navy, Records in Suits against Delinquents. Ft. 886, R. 8., Comp. St. 1901, p. 610, PL Rose's Code, 1782, 3 F. S. A. 27. "When suit is brought in any case of delinquency of a revenue officer, or other person account- able for public money, a transcript from the books and pro- ceedings of the Treasury Department, certified by the regis- ter and authenticated under the seal of the Department, or, when the suit involves the accounts of the War or Navy Departments, certified by the auditors respectively charged with the examination of those accounts, and authenticated under the seal of the Treasury Department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execution accordingly. . . ." 442. Same Certification of Copies to be Made by Sec- retary or an Assistant Secretary of the Treasury under Seal of Department. Act Mar. 2, 1895, ch. Ill, 28 Stat. at L. 209, 3 F. S. A. 28, 2 F. 8. A. 211, Comp. Stat. 1901, p. 611, Roses Code, 1183. "The transcripts from the books and proceed- ings of the Department of the Treasury and the copies of bonds, contracts, and other papers provided for in section eight hundred and eighty-six of the Revised Statutes shall hereafter be certified by the Secretary or an Assistant Secre- tary of the Treasury under the seal of the Department." 443. Copies, Treasury Department Books and Proceed- ings in Embezzlement Suits. 881, R. 8., Comp. Stat. 1901, p. 611, Rose's Code, 1784, 3 F. S. A. 30. "Upon the trial of any indictment against any person for embezzling public moneys, it shall be sufficient evidence, for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the Treasury Department, as provided by the preceding section." 270 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 445 444. Copies Department of the Interior. 888, R. 8., Comp. Stat. 1901, p. 671, Rose's Code, 1785, 3 F. S. A. 81. "A copy of any return of a contract returned and filed in the returns-office of the Department of the Interior, as provided by law, when certified by the clerk of the said office to be full and complete, and when authenticated by the seal of the Department, shall be evi- dence in any prosecution against any officer for falsely and corruptly swearing to the affidavit required by law to be made by such officer in making his return of any contract, as required by law, to said returns-office." Under Reclamation Act. Act August 9, 1912, ch. 278, 37 Stat. at L. 267. ". . . the Secretary of the Interior shall make provision for furnishing copies of duly authenticated records of entries upon payment of reasonable fees, which copies shall be admissible in evidence, as are copies authenti- cated under section eight hundred and eighty-eight of the Revised Statutes." Copies of Records Department and its Several Bureaus. 3 and 4 Act August 24, 1912, ch. 370, 37 Stat. at L. p. 492, 3. That all authenticated copies furnished under this act shall be admitted in evidence equally with the originals thereof. 4. That all officers who furnish authenticated copies un- der this act shall attest their authentication by the use of an official seal, which is hereby authorized for that purpose. 445. Copies Postoffice Records. 889, R. S., Comp. Stat. 1901, p. 671, Rose's Code, 1786, 3 F. S. A. 31. "Copies of the quarterly returns of postmasters and of any papers pertaining to the accounts in the office of the sixth auditor, and transcripts from the money-order account books of the Postoffice Department, when certified by the sixth auditor under the seal of his office, shall be admitted as evidence in the courts of the Unit- ed States, in civil suits and criminal prosecutions; and in any civil suit, in case of delinquency of any postmaster or contractor, a statement of the account, certified as aforesaid, shall be admitted in evidence, and the court shall be author- ized thereupon to give judgment and award execution, sub- ject to the provisions of law as to proceedings in such civil suits." EVIDENCE 271- 446. Copy Postoffice Department Demand on Post- masters. 890, R. S., Comp. 8 tat. 1901, p. 672, Rose's Code, 178, 3 F. S. A. 32. "In all suits for the recovery of balances due from postmasters, a copy, duly certified under the seal of the sixth auditor, of the statement of any postmaster, special agent, or other person, employed by the Postmaster General or the auditor for that purpose, that he has mailed a letter to such delinquent postmaster at the postoffice where the indebtedness accrued, or at his last usual place of abode ; that a sufficient time has elapsed for said letter to have reached its destination in the ordinary course of the mail ; and that payment of such balance has not been received, within the time designated in his instructions, shall be re- ceived as sufficient evidence in the courts of the United States, or other courts, that a demand has been made upon the delinquent postmaster; but when the account of a late postmaster has been once adjusted and settled, and a de- mand has been made for the balance appearing to be due, and afterward allowances are made or credits entered, it shall not be necessary to make a further demand for the new balance found to be due." 447. Copies Land Office Records Certification of. By commissioner or principal clerk. 891, R. S., Comp. Stat. 1901, p. 672, Rose's Code, 1788, 3 F. 8. A. 32. "Copies of any records, books, or papers in the General Land Office, authenticated by the seal and certified by the Commissioner thereof, or, when his office is vacant, by the principal clerk, shall be evidence equally with the originals thereof. And literal exemplifications of any such records shall be held, when so introduced in evidence, to be of the same validity as if the names of the officers sign- ing and countersigning the same had been fully inserted in such record." 2469, R. S., Comp. Stat. 1901, p. 1557, S F. 8. A. 41, Rose's Code, 1789. "The Commissioner of the General Land Office shall cause to be prepared, and shall certify, un- der the seal of the office, such copies of records, books, and papers on file in l.'s office as may be applied for, to be used in evidence in the courts of justice." 27:2 MONTGOMERY'S MAM UAL OF FEDERAL PROCEDURE 448 2470, R. S., Comp. Stat. 1901, p. 1557, 3 F. S. A. 41, Rose's Code, 7790. "Literal exemplification of any rec- ords which have been or may be granted in virtue of the preceding section shall be deemed of the same validity in all proceedings, whether at law or in equity, wherein such exemplifications are adduced in evidence, as if the names of the officers signing and countersigning the same had been fully inserted in such record." By recorder of General Land Office. Act Apr. 19, 1904, ch. 1396, 33 Stat. at L. 185, Comp. Stat. 1911, p. 273, 10 F. 8. A. 354, Rose's Code, 1793. "Copies of any patents, records, books, or papers in the Gen- eral Land Office authenticated by the seal and certified by the recorder of such office shall be evidence equally with the orig- inals thereof to the same force and effect as when certified by the Commissioner of said office." By registers and receivers of land offices. Act Mar. 22, 1904, ch. 748, 33 Stat. at L. 144, Comp. Stat. 1911, p. 573, 10 F. S. A. 355, Rose's Code, 1791. "The transcripts thus furnished, when duly certified to by them, shall be admitted as evidence in all courts of the United States and the territories thereof, and before all officials author- ized to receive evidence, with the same force and effect as the original records." 448. Subpoena Duces Tecum to Register of Land Office. Act April 19, 1904, ch. 1398, 33 Stat. at L. 186, Comp. Stat. 1911, p. 87, 10 F. 8. A. 365, Roses Code, 1792. "Whenever the register of any United States land office shall be served with a subpoena d uces tecum or other valid legal proc- ess requiring him to produce, in any United States court or in any court of record of any state, the original application for entry of public lands or the final proof of residence and culti- vation or any other original papers on file in the General Land Office of the United States on which a patent to land has been issued or which furnish the basis for such patent, it shall be the duty of such register to at once notify the Commissioner of the General Land Office of the service of such process, specifying the particular papers he is required 451 EVIDENCE 273 to produce, and upon receipt of such notice from any regis- ter of a United States land office the Commissioner of the General Land Office shall at once transmit to such register the original papers specified in such notice, and which such register is required to produce, and to attach to such papers a certificate, under seal of his office, properly authenticating them as the original papers upon which patent was issued ; and such papers so authenticated shall be received in evi- dence in all courts of the United States and in the several state courts of the states of the Union : Provided, That the Secretary of the Interior shall make rules and regulations to secure the return of such documents to the General Land Office, after use in evidence, without cost to the United States." 449. Copies Commissioner of Indian Affairs Certifi- cation of. PL 8, Act July 26, 1892, cli. 256, 27 Stat. at L. 272, Comp. Stat. 1901, p. 263, 3 F. 8. A. 338, Rose's Code, 1779. "Copies of any public documents, records, books, maps, or papers belonging to or on the files of said office authenticated by the seal and certified by the Commissioner thereof, or by such officer as may, for the time being, be act- ing as or for such Commissioner, shall be evidence equally with the originals thereof." 450. Copies Patent Office Records, Letters Patent, etc. 892, R. 8., Comp. Stat. 1901, p. 673, Rose's Code, 1794, 3 F. 8. A. 33. "Written or printed copies of any records, books, papers, or drawings belonging to the Patent Office, and of letters patent authenticated by the seal and certified by the Commissioner or acting Commissioner there- of, shall be evidence in all cases wherein the originals could be evidence; and any person making application therefor, and paying the fee required by law, shall have certified copies thereof." 451. Copies Foreign Letters Patent. 893, R. S., Comp. Stat. 1901, p. 673, Roses Code, 1795, 3 F. 8. A. 33. "Copies of the specifications and draw- ings of foreign letters patent, certified as provided in the preceding section, shall be prima facie evidence of the fact of the granting of such letters patent, and of the date and contents thereof." Montg. 18. 274 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 455 452. Copies Printed Copies of Specifications and Draw- ings of Patents. 894, R. 8., Comp. Stat. 1901, p. 678, Rose's Code, 1796. "The printed copies of specifications and drawings of patents, which the Commissioner of Patents is author- ized to print for gratuitous distribution, and to deposit in the capitols of the states and territories, and in the clerk's ^ffices of the district courts, shall, when certified by him and authenticated by the seal of his office, be received in all courts as evidence of all matters therein contained." 453. Copies Patent Office Records Trademarks. Pt. % 11 of Act Feb. 20, 1905, ch. 592, 33 Stat. at L. 727, Comp. St. 1911, p. 1464, 10 F. 8. A. 412, Rose's Code, 1797. ". . . Written or printed copies of any records, books, papers, or drawings relating to trademarks belonging to the Patent Office, and of certificates of registration, authenti- cated by the seal of the Patent Office and certified by the Commissioner thereof, shall be evidence in all cases wherein the originals could be evidence; and any person making ap- plication therefor and paying the fee required by law shall have certified copies thereof." 454. Copies United States Consular Records. 896, R. S., Comp. Stat. 1901, p. 674, Rose's Code, 1799, 3 F. S. A. 34. "Copies of all official documents and papers in the office of any consul, vice consul, or commercial agent of the United States, and of all official entries in the books or records of any such office, certified under the hand and seal of such office, shall be admitted in evidence in the courts of the United States." 455. Copies United States Clerks' New Records in Cer- tain States. 897, R. S., Comp. Stat. 1901, p. 674, Rose's Code, 1800, 3 F. S. A. 34. "The transcripts into new books, made by the clerks of the district courts in the several districts of Texas, Florida, Wisconsin, Minnesota, Iowa, and Kan- sas, in pursuance of the act of June twenty-seven, eighteen hundred and sixty-four, chapter one hundred and sixty-five, from the records and journals transferred by them respective- ly, under the said act, to the clerks of the circuit courts in 458 EVIDENCE 275 said districts, when certified by the clerks respectively mak- ing the same to be full and true copies from the original books, shall have the same force and effect as records as the originals. And the certificates of the clerks of said circuit courts, respectively, of transcripts of any of the books or papers so transferred to them, shall be received in evidence with the like effect as if made by the clerk of the court in which the proceedings were had." 456. Copies United States Clerks' New Records North Carolina. 898, R. S. f Comp. Stat. 1901, p. 674, Roses Code, 1801, 3 F. 8. A. 34. "The transcripts into new books made by the clerks of the circuit and district courts for the west- ern district of North Carolina, in pursuance of the act of June four, eighteen hundred and seventy-two, chapter two hundred and eighty-two, when certified by the clerks respec- tively making the same to be full and true copies from the original books, shall have the same force and effect as records as the originals. And the certificates of the clerks of said circuit and district courts respectively, of transcripts of any of the said transcribed records, shall also be received in evi- dence with the like effect as if made by the proper clerk from the originals from which such records were transcribed." 457. Judicial Notice Taken of the Seal of the Depart- ment of Commerce and Labor. PL 1, Act Feb. 14, 1903, ch. 552, 32 Stat. at L. 825, Comp. Stat. 1911, p. 114, 10 F S. A. 58, Rose's Code, 1807. "The said Secretary shall cause a seal of office to be made for the said Department of such device as the President shall approve, and judicial notice shall be taken of the said seal." 458. Burden of Proof Seizure Cases under Customs Duties Laws. 909, R. 8., Comp. Stat. 1901, p. 679, 3 F. 8. A. 95, .Rose's Code, 1513. "(Burden of proof, when it lies on claimant in seizure cases. ) In suits or informations brought, where any seizure is made pursuant to any act providing for or regulating the collection of duties on imports or ton- nage, if the property is claimed by any person, the burden of proof shall lie upon such claimant: Provided, That prob- 276 MONTGOMERY'S MANUAL OF FEDERAL PROCEDI-RE able cause is shown for such prosecution, to be judged of by the court." 459. Reports of Investigations of Accidents from Fail- ure of Boilers Not Admissible in Damage Suits. Pt. 8, Act Feb. 17, 1911, Ch. 103 f Comp. St. 1911, p. 1337, 1912 Supp. F. 8. A. v. 1, p. 342. "Neither said report nor any report of said investigation nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter men- tioned in said report or investigation. (36 Stat. at L. 916.)" 460. Government Paramount Title Does Not Affect Pos- sessory Action Mining Titles. 910, R. S., Comp. Stat. 1901, p. 679, 5 F. S. A. 35, Rose's Code, 824- "No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States." 461. Publication of Interstate Commerce Reports and Decisions as Evidence. Pt. 14, Act Feb. 19, 1903, ch. 708, 32 Stat. at L. 847, as amended June 29, 1906, ch. 3591, 3, 34 Stat. at L. 589, 1909 Supp. F. S. A. 265, Rose's Code, 1814- ". . . The Commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publica- tions shall be competent evidence of the reports and decisions of the Commission thei'ein contained in all courts of the United States and of the several states without any further proof or authentication thereof. The Commission may also cause to be printed for early distribution its annual reports." 462. Proof of Signature and Handwriting. Act February 26, 1913, ch. 79, 37 Stat. at L. 683. "In any proceeding before a court or judicial officer of the United States where the genuineness of the handwriting of any per- son may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for com- parison by witnesses, or by the jury, court, or officer conduct- ing such proceeding, to prove or disprove such genuineness." CHAPTER 15. WITNESSES. Sec. 470. Competence of Witnesses Determined by State Laws. 471. Perjury Not Now a Disqualification. 472. Not Disqualified by Claiming Compensation under Customs-Revenue Laws. 473. Officers and Informers Not Disqualified in Suits for Fines, Penalties, or Forfeitures. 474. Immunity of Witnesses in Cases under Commerce and Anti-Trust Laws. 475. Immunity in Criminal Cases. 476. Same Testimony Given before Congress. 477. Same Testimony in Judicial Proceedings. 478. Defendant as W T itness in Criminal Proceedings. 479. Compulsory Process for Witnesses in Criminal Cases. 480. Recognizance of Witnesses Criminal Cases. 481. Same In Vermont. 482. Same On behalf of the United States by District Attorney. 483. Subpoena for Witnesses in Another District. 484. Subpoena and Attendance of Witnesses for United States. 485. Subpoena for Witnesses for Indigent Defendant in Criminal Cases. 486. Enforcing Attendance and Testimony of Witnesses. 487. Court's Power to Punish Witnesses for Contempt. 488. Fees and Mileage of Witnesses Who Testify. 489. Amount of Fees and Mileage of Witnesses. 490. Double Mileage for Witnesses Prohibited. 491. Subpoena for Witnesses in Contested Patent Cases. 492. Enforcing Attendance and Testimony of Witnesses in Patent Cases. 493. Fees of Witnesses in Patent Cases. 494. Subpoena to Witnesses in Claim Cases against United States Pending in Departments. 495. Enforcing Attendance and Testimony of Witnesses in Claim Cases against United States Pending in Departments. 496. Fees of Witnesses in Claim Cases against United States Pending in De- partments. 497. Compulsory Attendance of Witnesses under Interstate Commerce Act. 438. Compulsory attendance of Witnesses under Income Tax Law. 277 278 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 472 470. Competence of Witnesses Determined by State Laws. 858, R. S., 34 S tat. at L. 618, Rose's Code, 1735, Comp. St. 1911, p. 271, 1909 Supp. F. S. A. 708. "The competence of a witness to testify in any civil action, suit, or proceeding in the courts of the United States shall be de- termined by the laws of the state or territory in which the court is held." The phrase "civil actions" includes all judicial controversies in which the rights of property are involved whether between private parties or such parties and the government. 1 An objec- tion to the competency of a witness is waived, where such objection was not made at the time the witness was sworn nor at any time during trial. 2 471. Perjury Not Now a Disqualification. 125 of the Penal Code, Comp. St. 1911, p. 1625, 1909 Supp. F. S. A. 437, supersedes 5392, K. S., Hose's Code, 1736, making perjury of a witness a disqualification. The new provision omits to make such a witness incompetent. So, also, subornation of perjury under 126 of the Penal Code would not disqualify a witness. 472. Not Disqualified by Claiming Compensation under Customs-Revenue Laws. 8, Act June 22, 1874, ch. 391, Comp. St. 1901, p. 2021, S F. S. A. 43. "That no officer, or other person entitled to or claiming compensation under any provision of this act, shall be thereby disqualified from becoming a witness in any action, suit, or proceeding for the recovery, mitigation, or remission thereof, but shall be subject to examination and cross-examination in like manner with other witnesses, with- out being thereby deprived of any right, title, share, or in- terest in any fine, penalty, or forfeiture to which such ex- amination may relate ; and in every such case the defendant or defendants may appear and testify and be examined and cross-examined in like manner." 1 Green v. United States, 9 Wall. 655, 19 L. ed. 806; United States v. Ten Thousand Cigars, Woohv. 123, Fed. Cas. No. 16,4s]. 8 Bise v. United States, 144 Fed. 374, 74 C. C. A. 1, 7 Ann. Cas. 165, 476 WITNESSES 279 473. Officers and Informers Not Disqualified in Suits for Fines, Penalties, or Forfeitures. 5295, R. 8., Comp. Stat. 1901, p. 3608, 3 F. S. A. 106. "Any officer or other person entitled to or interested in a part or share of any fine, penalty, or forfeiture incurred under any law of the United States, may be examined as a witness in any of the proceedings for the recovery of such fine, pen- alty, or forfeiture by either of the parties thereto, and such examination shall not deprive such witness of his share or interest in such fine, penalty, or forfeiture." 474. Immunity of Witnesses in Cases under Commerce and Anti-Trust Laws. Act June 30, 1906, ch. 3920, 34 Stat. at L. 798, Comp. St. 1911, p. 1319, 1909 Supp. F. 8. A. 708. Extends "only to a natural person who, in obedience to a subposna, gives testi- mony under oath or produces evidence, documentary or other- wise, under oath." 475. Immunity in Criminal Cases. PL 5th Amend. U. 8. Const., Rose's Code, 1738. "No person . . . shall be compelled in any criminal case to be a witness against himself." The seizure or compulsory production of a man's private papers to be used against him is equivalent to compelling him to be a witness against himself. 8 476. Same Testimony Given before Congress. 859, R. 8., Comp. Stat. 1901, p. 660, 3 F. 8. A. 5, Rose's Code, 1740. "No testimony given by a witness be- fore either House, or before any committee of either House of Congress, shall be used as evidence in any criminal pro- ceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege." Boyd v. United States, 116 U. S. 616, 29 L. e pleading of a party, nor any dis- covery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any pen- alty or forfeiture: Provided, That this section shall not ex- empt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as afore- said." 478. Defendant as Witness in Criminal Proceedings. Act March 16, 1818, ch. 37, 20 Stat. at L. 30, Camp. Stat. 1901, p. 660, 7 F. 8. A. 1120, Rose's Code, 1731. "That in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commis- sion 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." 479. Compulsory Process for Witnesses in Criminal Cases. Pt. Sixth Amend. U. S. Const. Rose's Code, 1739. "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor." 480. Recognizance of Witnesses Criminal Cases. 879, R. 8., Comp. Stat. 1901, p. 668, 7 F. 8. A. 1123, Rose's Code, 77-45. "Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at the hearing of any such charge, require of any witness pro- duced against the prisoner, on pain of imprisonment, a recog- nizance, with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or offense is charged to have been committed on the high seas, 483 WITNESSES 281 or elsewhere within the admiralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose tes- timony in his opinion is important, and is in danger of being otherwise lost." 481. Same in Vermont. 880, R. 8., Comp. 8 tat. 1901, p. 668, 7 F. 8. A. 1123, Roses Code, 1746. "In the district of Vermont, all recog- nizance of witnesses taken by any magistrate in said district, for their appearance to testify in any case cognizable either in the district or circuit court thereof, shall be to the circuit court next thereafter to be held in the said district." 482. Same On behalf of the United States by District Attorney. 881, R. 8., Comp. Stat. 1901, p. 669, 7 F. 8. A. 1123, Rose's Code, 17J/.7. "Any judge of the United States, on the application of a district attorney, and on being satisfied by proof that the testimony of any person is competent and will be necessary on the trial of any criminal proceeding in which the United States are parties or are interested, may compel such person to give recognizance^ with or without sureties, at his discretion, to appear to testify therein ; and, for that purpose, may issue a warrant against such person, under his hand, with or without seal, directed to the marshal or other officer authorized to execute process in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recogni- zance in the manner required, the judge may issue a war- rant of commitment against him, and the officer shall convey him to the prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until he gives the recognizance required by said judge." 483. Subpoena for Witnesses in Another District. 876, R. 8., Comp. Stat. 1901, p. 667, 7 F. S. A. 1121, Rose's Code, 1742. "Subpoenas for witnesses who are re- quired to attend a court of the United States, in any district, may run into any other district: Provided, That in civil causes the witnesses living out of the district in which the 282 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 486 court is held do not live at a greater distance than one hun- dred miles from the place of holding the same." In civil actions if a witness lives out of the district at a greater distance than one hundred miles from the place of holding court, his testimony must be taken by deposition. 4 In criminal cases there seems to be no limit. 8 484. Subpoena and Attendance of Witnesses for United States. 877, R. 8., Comp. Stat. 1901, p. 667, 7 F. S. A. 1122, Rose's Code, 1743- "Witnesses who are required to attend any term of a district court on the part of the United States shall be subpoenaed to attend to testify generally on their be- half, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney." 485. Subpoena for Witnesses for Indigent Defendant in Criminal Cases. 878, R..8., Comp. Stat. 1901, p. 668, 7 F. 8. A. 1122, Rose's Code, 1744- "Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defense ; that he cannot safely go to trial without them ; what he ex- pects to prove by each of them ; that they are within the dis- trict in which the court is held, or within one hundred miles of the place of trial ; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witness- es, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs ircurred by the proc- ess and the fees of the witness shall be paid in the same manner that similar costs and fees are paid in case of witness- es subpoenaed in behalf of the United States." 486. Enforcing Attendance and Testimony of Witnesses. 4073, R. S., Comp. Stat. 1901, p. 2764, 3 F. 8. A. 42, * Smith v. Chicago, etc., R. Co. 38 Fed. 321. 5 United States v. Potter, Boyce U. S. Pr. 98, 27 Fed. Cas. No. 16,07f>. 489 WITNESSES 283 Rose's Code, 1752. "If any person shall refuse or neglect to appear at the time and place mentioned in the summons issued, in accordance with section forty hundred and seventy- one, or if upon his appearance he shall refuse to testify, he shall be liable to the same penalties as would be incurred for a like offense on the trial of a suit in the district court of the" United States." 487. Court's Power to Punish Witnesses for Contempt. 268, Judicial Code? 36 Stat. at L. 1163, Comp. St. 1911, p. 237, 1912 Supp. F. S. A. v. 1, p. 243. "The said courts shall have power ... to punish, by fine or im- prisonment, at the discretion of the court, contempts of their authority: . . . the disobedience or resistance by any . . . witness ... to any lawful writ, process, order, rule, decree, or command of said courts." 488. Fees and Mileage of Witnesses Who Testify. 4074, R- S., Comp. Stat. 1901, p. 2764, 3 F. 8. A. 42, 7 F. S. A. 1126, Rose's Code, 728, 1753. "Every wit- ness who shall so appear and testify shall be allowed, and shall receive from the party at whose instance he shall have been summoned, the same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States." 489. Amount of Fees and Mileage of Witnesses. 848, R. S., Comp. Stat. 1901, p. 654, 7 F. S. A. 1124, Rose's Code, 725. "For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of res- idence to the place of trial or hearing, and five cents a mile for returning. AYhen a witness is subprenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be al- lowed for attendance. Both shall be taxed in the 1 case first disposed of, after which the per diem, attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. Re-enacting 725, R. S., Rose's Code, 807. Foster's Fed. Prac. (4th cd.) pp. 734, 890, 912, 1082, 1083, 1097, Comp. St. 1901. p. 583, 4 F. S. A. 549, which section is repealed by 297, Judicial Code. In general, Merrimack River Sav. Bk. v. Clay Center, 219 U. S. 527. 55 L. ed- 320. 31 Sup. C't. Rep. 295, Ann. Cas. ]fl!2'A. 512 284 MONTGOMERY'S MANUAL OF FEDERAL PROCEDI KE 402 "When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day." 490. Double Mileage for Witnesses Prohibited. 1, Act May 27, 1908, Ch. 200, Com p. St. 1911, p. 270, 1909 Supp. F.'S. A. 709. "That no constructive or double mileage fees shall be allowed by reason of any person being summoned as both a \vitness and juror, or as a witness in two or more cases pending in the same court and triable at the same term thereof." 491. Subpoena for Witnesses in Contested Patent Cases. 4906, R. 8., Cornp. Stat. 1901, p. 8390, 7 F. 8. A. 1128, Rose's Code, 1748. "The clerk of any court of the United States, for any district or territory wherein testimony is to be taken for use in any contested case pending in the Patent Office, shall, upon the application of any party thereto, or of his agent or attorney, issue a subpoena for any witness residing or being within such district or territory, commanding him to appear and testify before any officer in such district or territory authorized to take depositions and affidavits, at any time and place in the subpoena stated. But no witness shall be required to attend at any place more than forty miles from the place where the subpoena is served upon him." 492. Enforcing Attendance and Testimony of Witnesses in Patent Cases. 4908, R. 8., Comp. Stat. 1901, p. 3390, 7 F. 8. A. 1128, Rose's Code, 1749. "Whenever any witness, after being duly served with such subpoena, neglects or refuses to appear, or after appearing refuses to testify, the judge of the court whose clerk issued the subpoena may, on proof of such neglect or refusal, enforce obedience to the process, or punish the disobedience, as in other like cases. But no witness shall be deemed guilty of contempt for disobeying such subpoena, unless his fees and traveling expenses in going to, returning from, and one day's attendance at the place of the examina- tion, are paid or tendered him at the time of the service of the subpoena ; nor for refusing to disclose any secret inven- tion or discovery made or owned by himself." 497 WITNESSES 285 493. Fees of Witnesses in Patent Cases. 4907, R- S. t Comp. St. 1901, p. 3390, 5 F. 8. A. 501, 7 F. S. A. 1128. "Every witness duly subpoenaed and in attendance shall be allowed the same fees as are allowed to witnesses attending the courts of the United States." 494. Subpoena to Witnesses in Claim Cases against United States Pending in Departments. 184, R. S., Comp. St. 1901, p. 92, 2 F. S. A. 5. "Any head of a department or bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any state, dis- trict, or territory, to issue a subpoena for a witness being within the jurisdiction of such court, to appear at a time and place in the subpoena stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross- examined upon the subject of sueli claim." 495. Enforcing Attendance and Testimony of Witnesses in Claim Cases against United States Pending in Depart- ments. 186, R. S., Comp. St. 1901, p. 93, 2 F. S. A. 6. "If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpoena, or to punish the disobedience in like manner as any court of the United States may do in case of process of sub- poena ad testificandum issued by such court." 496. Fees of Witnesses in Claim Cases against United States Pending in Departments. 185, R. S., Comp. St. 1901, p. 93, 2 F. S. A. 6. "Wit- nesses subpoenaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States." 497. Compulsory Attendance of Witnesses under Inter- state Commerce Act. Pt. % 3, Act Feb. 19, 1903, Ch. 708, 32 Stat. at L. 81,8, MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 498 Com p. St. 1911, p.l312,10F.S.A. 172. "And in proceed- ings under this act and the acts to regulate commerce, the said courts shall have the power to compel the attendance of wit- nesses, both upon the part of the carrier and the shipper, who shall be required to answer on all subjects relating directly or indirectly to the matter in controversy, and to compel the pro- duction of all books and papers, both of the carrier and the shipper, which relate directly or indirectly to such transaction ; the claim that such testimony or evidence may tend to crimi- nate the person giving such evidence shall not excuse such person from testifying or such corporation producing its books and papers^ but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in such proceeding." 498. Compulsory Attendance of Witnesses under In- come Tax Law. 3176 Subd. K, Act Oct. 2, 1913, ch 16, 38 Stat. at L. p. 179. "That jurisdiction is hereby conferred upon the dis- trict courts of the United States for the district within which any person summoned under this section to appear and testify or to produce books shall reside, to compel such attendance, production of books, and testimony by appropriate process." CHAPTER 16. DEPOSITIONS. Sec. 500. In General. 501. Time for Taking Depositions at Law. 502. Time for Taking Depositions in Equity. 503. Same Depositions in Equity after Issue. 504. Grounds for Depositions in Equity: When Allowed by Statute, or for Good and Exceptional Cause. 505. Depositions de Bene Esse Conditions for Taking and Using. 506. Officers before Whom Depositions de Bene Esse May Be Taken. 507. Notice of Taking Depositions de Bene Esse. 508. Compelling Attendance of Witness Depositions de Bene Esse. 509. Mode of Taking Depositions de Bene Esse. 510. Equity Rule as to Form of Deposition. 511. Equity Rule as to Objections to Evidence. 512. Equity Rule as to Signing Deposition. 513. Delivery into Court of Depositions de Bene Esse. 514. Depositions under a Commission. 515. Witnesses Exempt from Attendance Depositions under a Commission. 516. Compelling Attendance and Testimony of Witnesses for Depositions under Commission. 517. Compelling Production of Papers, Written Instruments, Books, or Docu- ments in Taking Depositions under a Commission. 518. Depositions to Perpetuate Testimony under State Laws Admissible in Court's Discretion. 519. Depositions may Be Taken in Mode Prescribed by State Law. 520. Depositions in Equity under Court Order before Commissioner, Master, or Examiner. 521. Same Notice. 522. Deposition in Equity Published on Filing. 523. Letters Rogatory or Commissions to Take Depositions of Witnesses in Foreign Countries. 524. Taking Testimony to Be Used in Foreign Countries. 525. Same Witness Need Not Criminate Himself. 526. Publicity in Taking Depositions in Anti-trust Cases. 500. In General. Depositions in law actions can only be taken on grounds specified in the Federal statutes, and in equity 287 288 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 502 "when allowed by statute or for good and exceptional cause for departing from the general rule." (Equity Rule 47.) l The Federal statutes authorize two classes of depositions: (1) On notice, de bene esse, that is to say, provisionally anticipating that it will be impossible to produce the witness in open court for the reasons specified in 863, R. S. ;* (2) on commission under 866, R. S. 3 The manner of taking these depositions is specified for de bene esse in 863-865, R. S., 4 and on commission in 866, 868, 869, 870, R. S. ; 6 the latter kind of depositions not being affected by 863-4-5, R. S. Depositions may also be taken under act March 9, 1892, ch. 14, 8 in the mode, though not on the grounds, prescribed by the laws of the state, and under 867, R. S., 7 a Federal court in its discretion may admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, "^nf A j/1 '> -.vv K under state law. Depositions in equity may also be taken under order of court. 8 Letters rogatory or on commission are used to obtain testimony of witnesses in foreign countries. 9 Depositions may be taken to be used in foreign countries under 4071, 4072, R. S. 10 501. Time for Taking Depositions at Law. At law dep- ositions may be taken at any time after the complaint is filed, either before or after issue. The statute does not designate the time for taking. In providing for special notice whenever by reason of want of an attorney of record the giving of notice as therein required shall be impracticable, the statute implies that such depositions may be taken before issue joined. 502. Time for Taking Depositions in Equity. Equity Rule 54-* "After a cause is at issue, depositions may be taken as provided by 863, 865, 866, and 867, , ; :>U i;ifiJT ai /}! 1 504, infra. 2 505, infra. 3 514, infra. * 506-7-8-9, infra. 5 514-5-6-7, infra. 6 519, infra. 7 518, infra. 8 594, 510. 511, 512, 520, 521, 522, infra. 523, infra. 10 ' 524-5, infra. a See Equity Rule 54 with Annotations, in Appendix, post. 504 DEPOSITIONS 289 Revised Statutes. But if in any case no notice has been given the opposite party of the time and place of taking the deposition, he shall, upon application and notice, be en- titled to have the witness examined orally before the court or to a cross-examination before an examiner or like officer, or a new deposition taken with notice, as the court or judge under all the circumstances shall order." It will be noted from the above, that depositions taken in equity suits de bene esse or on commission under the Federal statutes are only so taken after the cause is at issue. If necessity exists for taking depositions before cause is at issue, such depositions should be taken under Rule 47 on affidavit showing good and ex- ceptional cause for departing from the general rule and an order of court specifying the notice and terms for taking. Time for taking depositions in equity after issue is set out in the following section: 503. Same Depositions in Equity after Issue. Last Pt. Equity Rule 47. b ". . . All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions ; and rebutting depositions by either party within twenty days after the time for taking original depositions expires." 504. Grounds for Depositions in Equity: When Allowed by Statute, or for Good and Exceptional Cause. First Pt. Equity Rule 47. c "The court, upon application of either party, when allowed by statute, or for good and ex- ceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named wit- nesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. . . ." Equity Rule 47, with Annotations, in Appendix, post. Equity Rule 47, with Annotations in Appendix, post. t> See See Monte. 19. 290 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 506 505. Depositions de Bene Esse Conditions for Taking and Using. Pt. 863, R. 8., Comp. Stat. 1901, p. 661, 3 F. 8. A. 8, Rose's Code, 1761. "The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a great- er distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. . . ." Last Pt 865, R. 8., Comp. Stat. 1901, p. 663, 3 F. S. A. 17. ". . . But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause." 506. Officers before Whom Depositions de Bene Esse May Be Taken. Pt. 868, R. 3., Comp. Stat. 1901, p. 661, 3 F. 8. A. 8. ". . . The deposition may be taken before any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. . . ." Notaries may take depositions. Act Aug. 15, 1876, ch. 304, Comp. Stat.. 1901, p. 663, 5 F. S. A. 379. "That notaries public of the several states, territories, and the District of Columbia be and they are hereby, authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioner 507 DEPOSITIONS 291 of the United States circuit court may now lawfully take or do." (19 Stat. at L. 206.) 507. Notice of Taking Depositions de Bene Esse. PL 863, R. S. t Comp. Stat. 1901, p. 661, 3 F. 8. A. 8. s ". . . Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition ; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be law- ful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct." FORM OF NOTICE. In the District Court of the United States In and For the Dis- trict of , Division. John Doe, Plaintiff, vs. \- NOTICE OF TAKING DEPOSITIONS. Richard Roe, Defendant. To Henry Smith, defendant (or plaintiff) or John Jones, his attorney. Please take notice that on (Monday) the day of , 1913, at .... o'clock . . . . M. the deposition de bene esse of Charles Black, of the City of , County of , and State of , will be taken on behalf of the plaintiff (or defendant) herein, before Frank Monroe, who is a commissioner of the District Court of the United States for dis- trict of (or a notary public in and for the County of . , State of , or other officer specified in 863, R. S.) who is not of counsel or attorney to either of the parties, nor interested in the event of the cause, at his office, No , in the City of , County of , State of The said witness resides at , more than 100 miles from the place where the trial of this action will occur, (or is bound on a voyage to sea, or about to go out of the United States, or out of the district where the case is to be tried, and to a greater distance than 100 miles from the place of trial, or is ancient or infirm.) 292 MONTGOMERY'S MANUAL OF FEDERAL PROCKIM-HK 509 The examination of said witness will proceed from day to day until com- pleted and will be taken under 863, 864, 865, Revised Statutes of the United States. Dated, > Attorney for Plaintiff (or Defendant). 508. Compelling Attendance of Witness Depositions de Bene Esse. Pt. 863, R. S., Comp. Stat. 1901, p. 661, 3 F. 8. A. 8. "Any person may be compelled to appear and depose as pro- vided by this section, in the same manner as witnesses may be compelled to appear and testify in court." 509. Mode of Taking Depositions de Bene Esse. 864, R. 8., Comp. Stat. 1901, p. 063, 3 F. S. A. 15, Rose's Code, 1762. "Every person deposing as provided in the preceding section shall be cautioned and sworn to tes- tify the whole truth, and carefully examined. His testimony shall be reduced to writing or typewriting by the officer taking the deposition, or by some person under his personal supervision, or by the deponent himself in the officer's presence, and by no other person, and shall, after it has been reduced to writing or typewriting, be subscribed by the de- ponent." FORM OF DEPOSITION. In the District Court of the United States In and For the Dis- - trict of , Division. John Doe. "1 D1 . ,.,_ DEPOSITION OF Plaintiff, vs. L ' Richard Roe, Taken on behalf of Defendant (or Plaintiff). Defendant. State of County of District of . Division of the city of County of and State of residing more than 100 miles from the place where the trial of this action will occur (as being bound on a voyage to sea, or about to go out of the United States, or out of the district where the case is to be tried, and to a greater distance than 100 miles from the place of trial, or 509 DEPOSITIONS 293 being ancient or infirm) a witness called on behalf of the plaintiff (or de- fendant) herein, being duly cautioned and sworn to testify the whole truth, and being carefully examined, deposes and says as follows: Esquire appeared as attorney for plaintiff and Esquire appeared as attorney for defendant. (The testimony on request of either party should be by question and answer otherwise in narrative form.) Q. 1. State your name and age. A. Q. 2. State your residence. FORM OF OFFICER'S CONCLUDING CERTIFICATE. In the District Court of the United States In and For the Dis- trict of , Division. John Doe, Plaintiff, vs. Richard Roe, Defendant. State of 1 County of District of f Division I hereby certify that on the .... day of , . . . . , before me, a commissioner of the United States for the District of (or other official designation) at my office No in the city of county of State of personally ap- peared, pursuant to the notice hereto annexed, between the hours of o'clock .... M. and .... o'clock .... M. , the witness named in said notice, and Esquire appearing for plaintiff and Esquire appearing for defendant, and the said being by me first duly cautioned and sworn to testify the whole truth, and being care- fully examined, deposed and said as in the foregoing annexed deposition set out. I further certify that said deposition was begun on the .... day of , and continued from day to day until the .... day of , when same was completed. I further certify that the several exhibits attached to said deposition, were offered in evidence and marked for identification as is set out in said deposi- tion. I further certify that the said deposition was then and there reduced to writing (or typewriting) by me (or under my personal supervision, or by the witness in my presence), and was, after it had been reduced to writing (or typewriting), subscribed by the witness, and the same has been retained by me for the purpose of sealing up and directing the same to the clerk of the court as required by law. J further certify that the reason why the said deposition was taken was 204 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 512 that the said witness resides at more than one hundred miles from the place where this cause is to be tried (or other reason, specified 863, R. S.). I further certify that I am not of counsel or attorney to either of the parties, nor am 1 interested in the event of the cause. I further certify that the fee for taking said deposition, $. . . . has been paid to me by the plaintiff (or defendant), and the same is just and reason- able. WITNESS my hand and official seal at this . . day of [Seal] Title. 510. Equity Rule as to Form of Deposition. Equity Rule 1+9. A ''All evidence offered before an ex- aminer or like officer, together with any objections, shall be saved and returned into the court. Depositions, whether up- on oral examination before an examiner or like officer or otherwise, shall be taken upon questions and answers re- duced to writing, or in the form of narrative, and the wit- nesses shall be subject to cross and re-examination." 511. Equity Rule as to Objections to Evidence. Pt. Equity Rule 51* "Objections to the evidence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. . . . Ob- jection to any question or questions shall be noted by the officer upon the deposition, but he shall not have power to de- cide on the competency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs of incompetent and immaterial or irrelevant depositions, or parts of them, as may be just." 512. Equity Rule as to Signing Deposition. Pt. Equity Rule 51* ". . . The testimony of each witness, after being reduced to writing, shall be read over to or by him, and shall be signed by him in the presence of the officer: Provided, That if the witness shall refuse to sign his deposition so taken, the officer shall sign the same, stating 1 See Equity Rule 49, with Annotations, in Appendix, post. See Equity Rule 51, with Annotations, in Appendix, post. * See Equity Rule 51, with Annotations, in Appendix, post. 515 DEPOSITIONS 295 upon the record the reasons, if any, assigned by the witness for such refusal. . . ." 513. Delivery into Court of Depositions de Bene Esse. Pi. 865, R. 8., Comp. 8 tat. 1901, p. 663, 3 F. S. A. p. 17. "Every deposition taken under the two preceding sections (8634, li. S. ) shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. 514. Depositions under a Commission. 866, R. S., Comp. StaL 1901, p. 663, 3 F. S. A. 20, Rose's Code, 1765. "(Depositions under a dedimus po- testatem and in perpetuan, etc.) In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct dep- ositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. And the provisions of sections eight, hundred and sixty-three, eight hundred and sixty-four, and eight hundred and sixty-five, shall not apply to any deposi- tion to be taken under the authority of this section." 515. Witnesses Exempt from Attendance-^Depositions under a Commission. 870, R. 8., Comp. Stat. 1901, p. 665, 3 F. 8. A. 24, Rose's Code, .7769. "No witness shall be required, under the provisions of either of the two preceding sections ( 868, 869, R. S.), to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition ; nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of the said sections, unless his fee for going to, returning from, and one day's attendance at the place of examination, are paid or tendered to him at the time of the service of the subpoena." MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 517 516. Compelling Attendance and Testimony of Witness- es for Depositions under Commission. 868, R. S., Comp. Stat. 1901, p. 664, 3 F. 8. A. 23, Rose's Code, 1767. "When a commission is issued by any court of the United States for taking the testimony of a wit- ness named therein at any place within any district or terri- tory, the clerk of any court of the United States for such dis- trict or territory shall, on the application of either party to the suit, or of his agent, issue a subpoena for such witness, commanding him to appear and testify before the commis- sioner named in the commission, at a time and place stated in the subposna ; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses to testify, not being privileged from giv- ing testimony, and such refusal or neglect is proven to the satisfaction of any judge of the court whose clerk issues such subposna, such judge may proceed to enforce obedience to the process, or punish the disobedience, as any court of the United States may proceed in case of disobedience to process of subpoena to testify issued by such court/' 517. Compelling Production of Papers, Written Instru- ments, Books, or Documents in Taking Depositions under a Commission. 869, R. 8., Comp. Stat 1901, p. 665, 3 F. S. A. 24 Roses Code, 1768. "(Subpoena duces tecum under a dedimus po- testatem.) When either party in such suit applies to any judge of a United States court in such district or territory for a subpoena commanding the witness, there to be named, to appear and testify before said commissioner, at the time and place to be stated in the subposna, and to bring with him and produce to such commissioner any paper or writing or written instrument or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person applying, or otherwise, that there is reason to be- lieve that such paper, writing, written instrument, book, or other document is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may or- der the clerk of said court to issue such subposna accordingly. And if the witness, after being served with such subpoena, fails to produce to the commissioner at the time and place 520 DISPOSITIONS stated in the subpoena, any such paper, writing, written in- strument, book, or other document, being in his possession or power, and described in the subpoena, and such failure is proved to the satisfaction of said judge, he may proceed to enforce obedience to said process of subpoena, or punish the disobedience in like manner as any court of the United States may proceed in case of disobedience to like process issued by such court. When any such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties." 518. Depositions to Perpetuate Testimony under State Laws Admissible in Court's Discretion. 867, R. S. t Comp. Stat. 1901, p. 664, 3 F. S. A. 23, Rose's Code, 1766. "Any court of the United States may, in its discretion, admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof." 519. Depositions May Be Taken in Mode Prescribed by State Law. Act March 9, 1892, cli. 14, Comp. Stat. 1901, p. 664, 3 F. 8. A. 22. "That in addition to the mode of taking the depositions of witnesses in causes pending at law or equity in the district and circuit courts of the United States, it shall be lawful to take the depositions or testimony of wit- nesses in the mode prescribed by the law of the state in which the courts are held." 520. Depositions in Equity under Court Order before Commissioner, Master, or Examiner. Equity Rule 52. K "Witnesses who live within the district, and whose testimony may be taken out of court by these rules, may be summoned to appear before a commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by thr; 8 See Equity Rule 52, with Annotations, in Appendix, post. 298 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 523 party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attend- ance the same compensation as for attendance in court; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being cer- tified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. "In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or examiner or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories." 521. Same Notice. Equity Rule 53.^ "Notice shall be given by the re- spective counsel or parties to the opposite counsel or parties of the time and place of examination before an examiner or like officer for such reasonable time as the court or officer may fix by order in each case." ' v ^ "' 522. Deposition in Equity Published on Filing. Equity Rule 55. 1 "Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court." 523. Letters Rogatory or Commissions to Take Deposi- tions of Witnesses in Foreign Countries. 875, R. S., Comp. Stat. 1901, p. 667 , 3 F. 8. A. 25, Rose's Code, 1774- "When any commission or letter roga- tory, issued to take the testimony of any witness in a foreign country, in airy suit in which the United States are parties or have an interest, is executed by the court or the com- missioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where it is executed. On re- ceiving the same, the said minister or consul shall indorse l See Equity Rule 53, with Annotations, in Appendix, post. * See Equity Rule 55, with Annotations, in Appendix, post. 524 DEPOSITIONS 299 thereon a certificate, stating when and where the same was received, and that the said deposition is in the same condition as when he received it; and he shall thereupon transmit the said letter or commission, so executed and certified, by mail, to the clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the government. And the testimony of witnesses so taken and re- turned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of re- turning the same. When letters rogatory are addressed from any court of a foreign country to any circuit court of the United States, a commissioner of such circuit court designated by said court to make an examination of the witnesses men- tioned in said letters, shall have power to compel the wit- nesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts." 524. Taking Testimony to Be Used in Foreign Coun- tries. 4071, R. S. f Comp. Stat. 1901, p. 27-63, 3 F. 8. A. 41, Rose's Code, 1750. "The testimony of any witness re- siding within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit. If a commission or letters rogatory to take such testimony, together with specific written interrogatories, accompanying the same, and addressed to such witness, shall have been issued from the court in which such suit is pending, on producing the same before the district judge of any district where the witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness requiring him to appear before the officer or commissioner named in such commission or letters rog- atory, to testify in such suit. And no witness shall be compelled to appear or to testify under this section i except for the purpose of answering such interrogatories so issued and accompanying such commission or letters: Provided, That when counsel for all the parties attend the examina- tion, they may consent that questions in addition to those 300 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 526 accompanying the commission or letters rogatory may be put to the witness, unless the commission or letters rogatory exclude such additional interrogatories The summons shall specify the time and place at which the witness is re- quired to attend, which place shall be within one hundred miles of the place where the witness resides or shall be served with such summons." 525. Same Witness Need Not Criminate Himself. 4072, R. S. f Comp. Stat. 1901, p. 2764, 3 F. 8. A. 42, Rose's Code, 1151. "No witness shall be required, on such examination or any other under letters rogatory, to make any disclosure or discovery which shall tend to crim- inate him either under the laws of the state or territory within which such examination is had, or any other, or any foreign state." 526. Publicity in Taking Depositions in Anti-trust Cases. Act March 3, 1913, ch. 114, 37 Stat. at L. 731. "That in the taking of -depositions of witnesses for use in any suit in equity brought by the United States under the act entitled 'An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies,' approved July second, eighteen hundred and ninety, and in the hearings before any examiner or special master appointed to take testimony therein, the proceedings shall be open to the public as freely as are trials in open court; and no order excluding the public from at- tendance on any such proceedings shall be valid or enforce- able." CHAPTER 17. COSTS AND FEES. Sec. 530. In General. 531. Taxable Costs and Fees. 532. Bill of Costs. 533. Same Must be Verified. 534. Costs Indigent Parties. 535. Payment of Costs and Witness Fees for Indigent Defendant in Criminal Cases. 536. Costs Not Allowed for Recovery Less than $500, where Amount in Con- troversy Material or Libelant Recovers Less than $300. 537. Costs Where Cases Can be Consolidated. 538. Mode of Recovery of Fees. 539. Fees of Attorneys, Solicitors, Proctors. 540. Attorney's Liability for Costs Vexatiously Increased. 541. Fees Salary United States District Attorney. 542. Clerks' Fees. 543. Marshals' Fees. 544. Attorneys, Clerks, and Marshals' Fees under Civil Rights Laws. 545. Fees of United States Commissioners. 546. Same Under Chinese Exclusion Laws. 547. Costs and Witness Fees in Extradition Cases. 548. Witnesses' Fees. 549. Court Officer Not Entitled to Witness Fees. 550. Witness Fees Depositions in District of Columbia. 551. Same Under Letters Rogatory from a Foreign Country. 552. Witness Fees of Seamen Sent Home to Give Testimony in Criminal Cases. 553. United States Liable for Only Four Witness Fees on Preliminary Crim- inal Examination. 554. Witness Fees in Prize Cases How Paid. 555. Juror Fees Grand and Petit. 556. Mode of Payment Juror and Witness Fee8. 557. Printer's Fees. 558. Same Folio Denned. 559. Appraiser's Fees on Execution Sales. 560. No Costs against United States in Internal Revenue Suits upon In- formation. 301 302 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 531 Sec. 561. No Costs against Prosecutor nor for Claimant When Eeasonable Cause for Seizure. 562. Successful Claimant Entitled to Possession When His Own Costs Paid. 563. Double Costs against Nonsuited Plaintiff in Action against Revenue Officer. 564. Defendant Subjected to Fine, Forfeiture, or Conviction shall Pay Costs of Prosecution. 565. Defendant to be Awarded Costs if Informer on Penal Statute Nonsuited or Discontinues. 566. Informer on Penal Statute to Pay Costs if Nonsuit or Discontinuance. 567. Costs in Copyright Suits. 568. Costs on Infringement of Patent. 530. In General. Costs and fees of actions or suits pend- ing or determined in the Federal courts are regulated by the Federal statutes. 1 On removal the costs that have accrued in the state court under state statutes will be taxable in the Federal courts, 2 and the costs provided by state statutes will be taxed in the Federal courts, for statutory proceedings adopted by the Federal courts from the state practice. 8 Where the state statute provides that a nonresident shall give security for costs, the Federal courts will enforce same in a common-law action. 4 531. Taxable Costs and Fees. 823, R. S., Comp. Stat. 1901, p. 632, 2 F. 8. A. 276, Rose's Code, 705. "The following and no other compen- sation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the sev- eral states arid territories, except in cases otherwise express- ly provided by law. But nothing herein shall be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the govern- ment, such reasonable compensation for their services, in 1 Bradford v. Bradford, 2 Flipp. 280. Fed. Cas. No. 1,766; Heckman v. Mackey, 32 Fed. 574; Carlisle v. Cooper, 64 Fed. 475, 12 C. C. A. 235. 2 Cleaver v. Traders' Ins. Co. 40 Fed. 863 ; Wolf v. Connecticut, etc. Ins. Co. 1 Flipp. 377, Fed. Cas. No. 17,924, 1 Cent. Law J. 301; Gunther v. Liverpool, etc., Ins. Co. 10 Fed. 830, 20 Blatchf. 390; National Steamship Co. v. Tugman, 67 Fed. 16. 3 Huntress v. Epsom, 15 Fed. 732 ; Morrison v. Bernards, Tp. 35 Fed. 400; N. H. L. Co. v. Tilton, 20 Fed. 764. 4 Henning v. Western Union Tel. Co. 40 Fed. 658. See also Schofield v. Palmer, 134 Fed. 754; Winkley Co. v. Bowen, Mfg. Co. 180 Fed. 624. 534 COSTS AND FEES 303 addition to the taxable costs, as may be in accordance with general usage in their respective states, or may be agreed upon between the parties." 532. Bill of Costs. 983, R. 8., Comp. Stat. 1901, p. 706, 2 F. S. A. 291, Rose's Code, 1839. "The bill of fees of the clerk, mar- shal, and attorney, and the amount paid printers and wit- nesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials of cases where- by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be in- cluded in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause." 533. Same Must be Verified. 984, R. 8., Comp. Stat. 1901, p. 106, 2 F. 8. A. 293, Rose's Code, 1840. "Before any bill of costs shall be taxed by any judge or other officer, or allowed by any officer of the Treasury, in favor of clerks, marshals, commission- ers, or district attorneys, the party claiming such bill shall prove by his own oath, or that of some other person having knowledge of the facts, to be attached to such bill, and filed therewith, that the services charged therein have been actu- ally and necessarily performed, as therein stated." 534. Costs Indigent Parties. Act June 25, 1910, cli. 435, Comp. St. 1911, p. 274, 1912 Supp. F. S. A. v. 1, p. 4, amending 1, Act July 20, 1892, ch. 209, Comp. St. 1901, p. 706, 2 F. 8. A. 294, Rose's Code, 1823. "That any citizen of the United States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or de- fend to conclusion any suit or action, or a writ of error, or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate pro- ceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appel- late court or give security therefor, before or after bring- 304 MONT*, ante, our 310. to See Equity Rule 22, with Annotations, in Appendix, post. 604 THE INITIAL PLEADING LAW ACTIONS 331 law and equity cases, to wit: (1) in their manner of trial, at law by a jury, in equity by the judge; (2) in the nature of the remedies granted, in law, compensatory or possessory, which if adequate and complete will preclude the granting of equitable remedies, such as injunction, specific performance, and the like; and, (3) in the manner of enforcement of the court's orders, in all cases applicable by the writ of execution and such other process as the state statute may give, but in equity under Equity Rule 8, by acting in personam by means of contempt proceedings wherever it is necessary to so enforce the orders and secure the relief sought. The Constitution of the United States recognizes these two forms of actions, and they cannot be changed or blended in the Federal courts by any provisions of the Constitutions or statutes of the various states. 3 604. Form of Initial Pleading. The following is given merely by way of suggestion and illustration, and will vary ac- cording to the state practice where the Federal court is situated. There should be the usual caption followed by a statement of the citizenship and residence of the parties ; the ground or grounds of Federal jurisdiction, amount in controversy, and a statement of a cause of action, legal in its nature, to wit : requiring a possessory or compensatory remedy without equitable incidents. The prayer for relief should be signed by counsel and verified as required by the state practice. The form below will illustrate : IN THE DISTRICT COURT OF THE UNITED STATES WITHIN AND FOR THE DISTRICT OF DIVISION. John Jones, Plaintiff, vs. Henry Smith, Defendant. COMPLAINT AT LAW. John Jones for his cause of action, alleges: I. That he is a citizen of the State of , residing at in said State, and the defendant is a citizen of the State of residing at in said State. 3 Simkins' Fed. Suit at Law, page 12, and cases cited. 332 MONTGOMERY'S MANUAL OF FEDERAL PUO( i:ii KI: 004: II. Here set out the amount or value involved, and, if the jurisdiction depends on a Federal question, direct allegations of the Federal question. In other words, the grounds of Federal jurisdiction. III. A statement of facts showing that the claim is legal, in other words, a statement of a cause of action for which the remedies or compensation or possession will be complete and adequate, and not requiring the interposition of equity. IV. The prayer for relief. V. Signature and verification as prescribed by state practice of the state where the Federal court is located. It is well to set out the citizenship and residence of the parties, whether the case depends on diverse citizenship or not, as that will give uniformity of pleading- in all suite and, except in local actions, will also show whether the venue has been properly laid.* The only remedies that may be sought in a Federal suit at law are possessory or compensatory, and the initial pleading in a suit at law can seek these remedies, and no others. MVhithead v. Shattuck. 138 U. S. 146, 34 L. ed. 873, 11 Sup. Ct. Rep. 276; South Penn. Oil Co. v. Miller, 175 Fed. 735, 99 C. C. A. 305. See also Beatty v. Wilson, 161 Fed. 453. CHAPTER 20. x ATTACHMENT AND GARNISHMENT IN LAW CASES. Sec. 610. Attachment and Garnishment Adoption of State Laws except against National Banks. 611. Rules by Federal Courts Adopting State Attachment Remedies. 612. Construction of State Attachment Statutes by State Courts Followed in Federal Courts. 613. Attachment Not a Basis for Substituted Service, but Merely a Provision- al Re'medy. 614. Causes of Action in Which Attachments are Authorized, Governed by State Law. 615. Property Subject to Attachment State Laws Govern. 616. Affidavit for Attachment should Conform to State Law. 617. Amendment of Affidavit for Attachment. 618. Bond for Attachment. 619. The Writ of Attachment Amendment, 948, R. S. 620. Lien of Attachment. 621. Priorities Several Attachments. 622. Delivery Bond. 623. Third-Party Claims Follow State Laws. 624. Dissolution of Attachments under 923, R. S. Conforms to State Laws. 625. Attachments in 'Postal Suits. 626. Same Application for Warrant under 925, R. S 627. Same Issuing Warrant Duties of Clerk and Marshal under 926, R. S. 628. Same Ownership of Property Trial under 927, R. S. 629. Same Proceeds of Sale Investment under 928, R. S. 6.30. Same Publication of Warrant under 929, R. S. 631. Same Garnishees of Delinquents in Postal Suits under 930, R. S. 632. Same Discharge of Warrant on Giving Bond, under 931, R. S. 633. Same Adoption of State Attachment Laws and Former Practice Not Affected by Postal Attachment Laws. 634. Garnishment General Statement. 635. Effect of Garnishment. 636. Notice of Garnishment. 637. Persons and Property Subject to Garnishment. 638. Issue by Garnishee. 639. Judgments against Garnishee. 640. Garnishees in Suits by the Government against Corporations. 641. Same Issue Tendered When Garnishee Denies Indebtedness. 642. Same Garnishee in Contempt on Failing to Appear. 333 334 MONTGOMERY'S MANL T AL OF FEDERAL PROCEDURE 611 610. Attachment and Garnishment Adoption of State Laws except against National Banks. 915, R. S., Comp. Stat. 1901, p. 684, 4 F. S. A. 577, Rose's Code, 905. "In common-law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the prop- erty of the defendant, which are now provided by the laws of the state in which such court is held for the courts there- of ; and such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in force in the states where they are held in relation to attachments and other process: Provided, That similar preliminary af- fidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party seeking such attachment or other remedy." Not against national banks. PL 5242, R. S., Comp. Stat. 1901, p. 3517, 5 F. 8. A. 188, Rose's Code, 907. ". . . no attachment ... shall be issued against such association or its property be- fore final judgment in any suit, action, or proceeding, in any state, county, or municipal court." Under 5242, above quoted, the power to issue attachments against national banks being eliminated from state statutes, there would be no right to same in the Federal courts under 915, allowing adoption of state laws. 1 611. Rules by Federal Courts Adopting State Attach- ment Remedies. The rules adopting state laws for attachment proceedings need not be in writing. 2 It is presumed that the Federal courts have adopted the state statutes. 3 The Federal courts have a large discretion in these matters. 4 1 Pacific National Bank v. Mixter, 124 U. -S. 721, 31 L. ed. 570, 8 Sup. 2 Citizens' Bank v. Farwell, 56 Fed. 570. 6 C. C. A. 24, 12 U. S. App. 409; Logan v. Goodwin, 104 Fed. 490. 43 C. C. A. 658; United States v. Stevenson, 1 Abb. 495, Fed. Cas. No. 16.395. 3 Lo*an v. Goodwin, 104 Fed. 490, 43 C. C. A. 658 ; Lowry v. Story, 31 Fed 771; Fullerton v. United States Bank, 1 Pet. 604, 7 L. ed. 280. *Shi'pard v. Adams, 168 U. S. 625. 42 L. ed. 602. 18 Sup. Ct. Rep. 214. 614 ATTACHMENT AND GARMSHMKXT IX LAW CASES 335 612. Construction of State Attachment Statutes by State Courts Followed in Federal Courts. The scope, meaning, and application of the state attachment law and practice under it as construed by the state courts will be followed in the Federal courts. 6 613. Attachment Not a Basis for Substituted Service, but Merely a Provisional Remedy. Attachments in the Fed- eral courts cannot be made the basis for service on an absent defendant by publication because of the requirements of 51 of the Judicial Code as to the venue of actions requiring the suit to be brought in the district of a defendant's residence, ex- cept as in the succeeding sections provided, 57, Judicial Code, allowing service by publication on absent defendants in suits to enforce liens or remove clouds from title. "The attachment proceeding, therefore, in the courts of the United States, has altogether a different character from that proceeding in rem in common use in the states, the object of which is either to enforce the appearance of the absent defendant or to subject his property to the payment of his debts. In the Fed- eral courts there must be jurisdiction over the person of the defendant and of a subject-matter, independent of the proceed- ing in attachment, and without which no attachment can be effectual." 6 "It is conceded that the person against whom this suit was brought in the circuit court (of the United States for the dis- trict of Iowa) was an inhabitant of the state of Massachusetts, and was not found in or served with process in Iowa. Clearly, then, he was not suable in the circuit court of the district of Iowa, and unless he could be sued no attachment could issue for that court against his property." 7 614. Causes of Action in Which Attachments Are Au- thorized, Governed by State Law. There are some variations , 6 Third Nat. Bank of Baltimore v. Teal, 5 Fed. 503; Fleitas v. Cockrem, 101 U. S. 301, 25 L. ed. 054. 6 Erstein v. Rothschild, 22 Fed. 61. See also Lovejoy v. Hartford F. Ins. Co. 11 Fcil. (>3; Lackett v. Rumhaugh, 45 Fed. 23, 29. 7 Ex parte Ry. Co. 103 U. S. 794, 26 L. ed. 461. See also Toland v. Sprague. 12 Pet. 300, 9 L. ed. 1093. 336 MONTGOMKKY'S MAATAL OF FKHKR.U, I-KOCHM KK >i tilt in the several states as to the kind of action in which an attach- ment will be permitted. The Federal courts follow the state laws en this subject. 8 615. Property Subject to Attachment State Laws Gov- ern. The state laws govern as to the property subject to attach- ment, 9 but in the Federal courts property of an equitable nature 10 and property in custodm legis cannot be attached, 11 except as sev- eral levies are allowed as explained in 586, supra. 616. Affidavit for Attachment should Conform to State Law. The state requirements as to grounds to be stated in the affidavit for attachment by whom to be 'made, etc., govern such affidavits in the Federal courts. 12 617. Amendment of Affidavit for Attachment. . 948, R. 8., Comp. Stat. 1901, p. 695, 4 F. S A. 593, Rose's Code, 840. "Any circuit or district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues." This section applies to a defective affidavit for attachment. 18 So, also, with respect to defective affidavit for garnishment though amendment not allowed by state law. 14 SSeeley v. Missouri, K. & T. R. Co. 39 Fed. 253; Rothschild v. Knight, 184 U. S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391. Thompson v. Baker, 141 U. S. 648, 35 L. ed. 889, 12 Sup. Ct. Rep. 89; Coulson v. Panhandle Nat. Bank, 54 Fed. 858. 4 C. C. A. 616, 13 U. S. App. 30: Bigelow v. Cliatterton, 51 Fed. 614. 2 C. C. A. 402, 10 U. S. App. 267; Richmond v. Brookings, 48 Fed. 241; Montgomery v. McDermott, 103 Fed. 801, 43 C. C. A. 348; Simonds v. Pearce, 31 Fed. 137; Hankinson v. Page, 31 Fed. 185, 24 Blatchf. 422. 10 Shiel v. Patrick, 59 Fed. 992, 8 C. C. A. 440, 20 U. S. App. 407. "Corbitt v. Farmers' Bank, 114 Fed. 602: Henry v. Gold Park Min. Co. 5 McCrary, 70, 15 Fed. 649; Clarke v. Shaw, 28 Fed. 356. 12 Johnson v. Johnson, 31 Fed. 700; Societe Fonciere v. Milliken, 135 U. S. 304, 34 L. ed. 208, 10 Sup. Ct. Rep. 823; Glidden v. Whittier, 46 Fed. 437; Bigelow v. Cliatterton, 51 Fed. 614, 2 C. C. A. 402, 10 U. S. App. 267. 13 Erstein v. Rothschild, 22 Fed. 61. " Booth v. Denike, 65 Fed. 43. 620 ATTACHMENT AND GARNISHMENT IN LAW CASES 337 Where state law authorizes amendment under certain condi- tions, these rights will be given in Federal courts. 15 618. Bond for Attachment. "The plaintiff seeking an attachment in the Federal court against the property of the de- fendant is required to furnish security in the same manner as to amount and the qualification and residence of the sureties that he would have to furnish if he were proceeding in the state court." 16 The construction of the bond is governed by state laws. 17 Amendment of the bond is allowed. 18 Action on bond may be maintained in Federal court. 19 619. The Writ of Attachment Amendment, 948, R. S. The form and issuance of the writ should conform to state prac- tice. 20 Increasing amount will not dissolve attachment. 21 The power to amend in attachment suits is the same as in other The court seal may be added under 948, R. S. 23 620. Lien of Attachment. The lien created by the levy is governed by state laws. 24 Personal property is taken into the custody of the marshal. 25 15 Salmon v. Mills, 49 Fed. 333, 1 C. C. A. 278, 4 U. S. App. 101 ; Fleischner v. Pacific Postal Teleg. Cable Co. 55 Fed. 739; Rothschild v. Knight, 184 U. S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391; Fitzpatrick v. Flannagan, 106 U. S. 648, 27 L. ed. 211, 1 Sup. Ct. Rep. 369. 16 Singer Mfg. Co. v. Mason, 5 Dill. 488, Fed. Cas. No. 12,903. See also Fleitas v. Cockrem, 101 U. S. 301, 25 L. ed. 954; Blue Grass Canning Co. v. Stewart, 175 Fed. 541, 99 C. C. A. 159. 17 Fidelity & D. Co. v. L. Bucki & Son Lumber Co. 189 U. S. 135, 47 L. ed. 744, 23 Sup. Ct. Rep. 582. 18 Bumberger v. Gerson, 24 Fed. 257. 19 Files v. Davis, 138 Fed. 465. 20 Russia Cement Co. v. Le Page Co. 174 Mass. 349, 55 X. E. 70. 21 Cutler v. Lang, 30 Fed. 173. 22 Tilton v. Cofield, 93 U. S. 167, 23 L. ed. 860. 23 Wolf v. Cook, 40 Fed. 432. 24Haukinson v. Page, 31 Fed. 184, 24 Blatchf. 422. 25 Adler v. Roth, 5 Fed. 895, 2 McCrary. 445 ; Coulson v. Panhandle Nat. Bank, 54 Fed. 855-8, 4 C. C. A. 616, ]3 U. S. App. 39. See Dudley v. Lamoille Co. Nat. Bank, 14 Fed. 217; Richmond v. Brookings, 48 Fed. 241: People's Sav. Bank. & T. Co. v. Batchelder- Egg Case Co. 51 Fed. 131-137, 2 Montg. 22. 338 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 622 By 60, Judicial Code, quoted 170, supra, and in the Appen- dix, post, it is provided that the lien of an attachment or seizure, etc., shall not be devested by a change of boundaries, but a certi- fied copy filed in the court of the division or district where the, property was located after the change would have the effect of an original. 621. Priorities Several Attachments. The Federal and state courts are of co-ordinate authority in administering the state attachment laws. The court under whose authority the first levy is made, is entitled to the actual custody and possession of the property. 26 The Federal' courts are entitled, however, to make a constructive levy on property in the possession of a state officer when the state law authorizes successive levies and a method of settling priorities. 27 Likewise the state authorities may constructively levy on prop- erty in the possession of the marshal, and intervene in proceed- ings in the Federal courts in the same district. 28 The rights of other creditors will be preserved in the Federal courts even if their claims are less than the jurisdictional amount required to sustain a suit, in such courts, 29 and without reference to the citizenship of the parties. 30 On removal the Federal courts will distribute the fund or pro- ceeds of attached property under the state laws. 81 622. Delivery Bond. The provision of a state law, or the redelivery of attached property to the defendant upon his furn- ishing a delivery bond, is recognized and followed in the Federal C. C. A. 126, 4 U. S. App. 603; Hankinson v. Page, 31 Fed. 184, 24 Blatchf. 422. 26 Adler v. Roth, 5 Fed. 895, 2 McCrary, 445 ; Bates v. Days, 17 Fed. 167, 5 McCrary, 342. 27 Brooks v. Fry, 45 Fed. 776. MGumbel v. Pitkin, 124 U. S. 131, 31 L. ed. 374, 8 Sup. Ct. Rep. 379; Bates v. Days, 17 Fed. 167, 5 McCrary, 342. 29 Krippendorf v. Hyde, 110 U. S. 284, 28 L. ed. 145. 4 Sup. Ct. Rep. 27; Rice v. Adler-Goldnian Co. 71 Fed. 151. 18 C. C. A. 15. 30Gumbel v. Pitkin, 124 U. S. 132, 31. L. ed. 374, 8 Sup. Ct. Rep. 379; Fountain v. 624 Pieces of Timber, 140 Fed. 381 ; Hatcher v. Hendrie & B. Mfg. & Supply Co. 133 Fed. 267, 68 C. C. A. 19; Central Trust Co. v. Worcester Cycle Mfg. Co. 128 Fed. 483. 31 Bankers' & M. Tel. Co. v. Chicago Carpet Co. 28 Fed. 398. 625 ATTACHMENT AND GARNISHMENT IN LAW CASES 339 courts. 32 Likewise a provision of state law not permitting a de- livery bond to release attached money will be recognized in the Federal courts. 33 623. Third-Party Claims Follow State Laws. The provi- sion of a state law permitting a third party to claim attached property by affidavit of ownership and furnishing bond will be followed in the Federal courts. 34 The raising of the issue of ownership has also been permitted by motion to vacate the attach- ment. 35 624. Dissolution of Attachments under 923, R. S. Conforms to State Laws. 923, R. 8., Comp. St. 1901, p. 689, 1 F. 8. A. 515. Rose's Code, 906. "( Attachments dissolved in conformity with state laws.) An attachment of property, upon process instituted in any court of the United States, to satisfy such judgment as may be recovered by the plaintiff therein, ex- cept in the cases mentioned in the preceding nine sections (in postal suits), shall be dissolved when any contingency occurs by which, according to the laws of the state where said court is held, such attachment would be dissolved upon like process instituted in the courts of said state : Provided, That nothing herein contained shall interfere with any priority of the United States in the payment of debts." 625. Attachments in Postal Suits. . 924, R- 8., Comp. Stat. 1901, p. 686, 1 F. S. A. 513, Rose's Code, 1399. "In all cases where debts are due from defaulting or delinquent postmasters, contractors, or other officers, agents, or employees of the Postoffice Department, a warrant of attachment may issue against all real and per- sonal property and legal and equitable rights belonging to such officer, agent, or employee, and his sureties, or either of them, in the following cases: 32 Ebner v. Held, 125 Fed. 680, 60 C. C. A. 370. 33 United States v. Xeely, 154 Fed. 496. 34Marden v. Starr, 107 Fed. 199; Batavia v. Wallace, 102 Fed. 240, 42 C. C. A. 310; Tennent-Stribling Shoe Co. v. Roper, 128 Fed. 40, 62 C. C. A. 548. 35 United States v. Nealey, 146 Fed. 763. 340 MONTGOMEKY'S MANUAL OF FEDERAL PIJOCEDUKK 627 "First. When such officer, agent, or employee, and his sureties, or either of them, is a nonresident of the district where such officer, agent, or employee was appointed, or has departed from such district for the purpose of perma- nently residing out of the same, or of defrauding the United States, or of avoiding the service of civil process. "Second. When such officer, agent, or employee, and his sureties, or either of them, has conveyed away, or is about to convey away his property, or any part thereof, or has removed or is about to remove the same or any part thereof from the district wherein it is situate, with intent to defraud the United States. "And when any such property has been removed, certified copies of the warrant may be sent to the marshal of the dis- trict into which the same has been removed, under which certified copies he may seize said property and convey it to some convenient point within the jurisdiction of the court from which the Avarrant originally issued. And alias war- rants may be issued in such cases upon due application, and the validity of the warrant first issued shall continue upon due application, and the validity of the warrant first is- sued shall continue until the return day thereof." 626. Same Application for Warrant under 925, R. S. 925, R. S., Comp. Stat. 1901, p. 687, 1 F. S. A. 515, Rose's Code, 1400. "Application for such warrant of at- tachment may be made by any district or assistant district attorney, or any other person authorized by the Postmaster General, before the judge, or, in his absence, before the clerk of any court of the United States having original ju- risdiction of the cause of action. And such application shall be made upon an affidavit of the applicant, or of some other credible person, stating the existence of either of the grounds of attachment enumerated in the preceding section, and upon production of legal evidence of the debt." 627. Same Issuing Warrant Duties of Clerk and Mar- shal under 926, R. S. 926, R. 8., Comp. Stat. 1901, p. 687, 1 F. S. A. 513, Rose's Code, 1401. "Upon any such application and upon due order of any judge of the court, or, in his absence, without such order, the clerk shall issue a warrant for the attachment of all the property of any kind belonging to the 680 ATTACHMENT AND GARNISHMENT IN LAW CASES 341 person specified in the affidavit, which warrant shall be ex- ecuted with all possible despatch by the marshal, who shall take the property attached, if personal, into his custody, and hold the same subject to all interlocutory or final orders of the court." 628. Same Ownership of Property Trial under 927, R. S. 927, R. S., Comp. Stat. 1901, p. 687, 1 F. S. A, 514, Pose's Code, 1402. "At any time within twenty days before the return day of such warrant, the party whose property is attached may, on giving notice to the district attorney of his intention, file a plea in abatement, traversing the allega- tions of the affidavit, or denying the ownership of the prop- erty attached to be in the defendants or either of them ; in which case the court may, upon application of either party, order an immediate trial by jury of the issues raised by the affidavit and plea ; but the parties may, by consent, waive a trial by jury, in which case the court shall decide the issues raised. Arid any party claiming ownership of the property attached and a specific return thereof shall be confined to the remedy herein afforded, but his right to an action of trespass, or other action for damages, shall not be impaired hereby." 629. Same Proceeds of Sale Investment under 928, R. S. 928, R. 8., Comp. Stat. 1901, p. 688, 1 F. 8. A. 514, Rose's Code, 1403. "When the property attached is sold on any interlocutory order of the court or is producing any revenue, the money arising from such sale or revenue shall bo invested in securities of the United States, under the order of the court, and all accretions shall be held subject to the orders of the same." 630. Same Publication of Warrant under 929, R. S. 929, R. S., Comp. St. 1901, p. 688, 1 F. S. A. 515, Rose's Code, 1404- "Immediately upon the execution of any such warrant of attachment, the marshal shall cans" due publication thereof to be made, in the case of abscond ing debtors for two months and of nonresidents for four months. The publication shall be made in some newspaper published in the district where the property is situate, and the details 342 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 633 thereof shall be regulated by the order under which the warrant is issued." 631. Same Garnishees of Delinquents in Postal Suits under 930, R. S. 930, R. S., Comp. Stat. 1901, p. 688, 1 F. S. A. 515, Rose's Code, 1^5. "After the first publication of such notice of attachment as required by law, every person in- debted to, or having 1 possession of any property belonging to, the said defendants, or either of them, and having knowl- edge of such notice, shall account and answer for the amount of such debt and the value of such property; and any dis- posal or attempt to dispose of any such property, to the in- jury of the United States, shall be illegal and void. And when the person indebted to, or having possession of the property of, such defendants, or either of them, is known to the district attorney or marshal, such officer shall see that personal notice of the attachment is served upon such person, but the want of such notice shall not invalidate the attachment." 632. Same Discharge of Warrant on Giving Bond un- der 931, R. S. 931, R. S., Comp. Stat. 1901, p. 688, 1 F. S. A. 515, Rose's Code, 1406. "Upon application of the party whose property has been attached, the court, or any judge thereof, may discharge the warrant of attachment as to the property of the applicant, provided such applicant shall execute to the United States a good and sufficient penal bond, in double the value of the property attached, to be approved by a judge of the court, and with condition for the return of said property, or to answer any judgment which may be rendered by the court in the premises." 633. Same Adoption of State Attachment Laws and Former Practice Not Affected by Postal Attachment Laws. 932, R. S., Comp. Stat. 1901, p. 689, 1 F. S. A. 515, Rose's Code, 1407. "Nothing contained in the preceding eight sections shall be construed to limit or abridge, in any manner, such rights of the United States as have accrued or been allowed in any district under the former practice of, or the adoption of state laws by, the United States courts." 638 ATTACHMENT AND GARNISHMENT IN LAW CASES 343 634. Garnishment General Statement. Under 915, R. S., quoted in 610 above, garnishment proceedings and the rights and liabilities thereunder as prescribed by state laws may be adopt- ed by the Federal courts. 36 Thus the effect of garnishment ; 87 a notice of garnishment ; 88 the persons and property subject to garnishment ; 89 the raising of the issue by the garnishee 40 and the judgment against the garnishee ; 41 all conform to the state practice. 635. Effect of Garnishment. A garnishee may not be placed in any worse condition than he would if defendant were prosecuting the claim against him, but otherwise he takes the place of the judgment debtor in relation to the attaching creditor.* 2 636. Notice of Garnishment. The state law governs the sufficiency of the notice served on the garnishee. 43 637. Persons and Property Subject to Garnishment. The persons who may be garnished and the kinds of property for which they must answer are governed by state' laws. 44 A debtor under a judgment in a Federal court cannot be sub- jected to a garnishment in the state court, as that would cause a conflict of jurisdictions greatly inconvenient. 45 Debt not due may be garnished. 46 638. Issue by Garnishee. The practice as to raising is- sues by a garnishee conforms to state practice except as to appeal from judgments against him. 47 36Eandolph v. Tandy, 98 Fed. 939, 39 C. C. A. 351; Wile v. Cohn. 63 Fed. 759. 37 635, post. 38 636, post. 39 637, post. 40 638, post. 41 639. post. Fidelity Trust Co. v. N. Y. Finance Co. 125 Fed. 275, 60 C. C. A. 189; Allen v. JEtna Life Ins. Co. 145 Fed. 881, 76 C. C. A. 265. 43 Logan v. Goodwin, 104 Fed. 490, 43 C. C. A. 658; Wile v. Cohn. 63 Fed. 759. 44 Moscow Hardware Co. v. Colson, 158 Fed. 199; Johnson v. Union Pac. R. R. 145 Fed. 249. 45 Henry v. Gold Park Min. Co. 15 Fed. 649, 5 McCrary, 70. 46 Smith v. Marker, 154 Fed. 838, 85 C. C. A. 372. 47 Schuler v. Israel, 120 U. S. 506, 30 L. ed. 707, 7 Sup. Ct. Rep. 648. ."> H MONTGOMERY'S MANUAL OF FEDERAL PROCEDURK 641 639. Judgments against Garnishee. The entry of judg- ment against the garnishee is governed by state laws, and on ad- mission of indebtedness or proof that he is not indebted the state law giving reasonable attorneys' fees, 48 and also costs, 49 is en- forced. Where the state law authorizes the garnishee to deliver up property to the officer, and be relieved without judgment, the law will be followed. 50 Also, where the state law requires a suit, instead of a garnishment process, against the attached debtor, that law will be followed. 61 640. Garnishees in Suits by the Government against Corporations. 935, R. 8., Comp. St. 1901, p. 689, 3 F. 8. A. 154, Roses Code, 1412. "In any suit by the United States against a corporation for the recovery of money upon a bill, note, or other security, the debtors of the corporation may be summoned as garnishees; and it shall be the duty of any person so summoned to appear in open court and to depose, in writing to the amount which he was indebted to the said corporation at the time of the service of the summons and at the time of making such deposition; and judgment may be entered in favor of the United States for the sum admitted by such garnishee to be due to the said corporation, in the same manner as if it had been due to the United States: Provided, That no judgment shall be entered against any garnishee until after judgment has been rendered against the corporation defendant to the said action, nor until the sum in which the garnishee stands indebted is actually due." 641. Same Issue Tendered When Garnishee Denies Indebtedness. 936, R. S., Comp. Stat. 1901, p. 690, 3 F. S. A. 154, Rose's Code, 1413. "When any person summoned as gar- nishee deposes in open court that he is not, and was not at the time of the service of the summons, indebted to such cor- poration, an issue may be tendered by the United States upon X ew York Finance Co. v. Potter, 126 Fed. 432. WRome R. Co. v. Richmond, etc., Co. 60 Fed. 43. 60 Allen-West Commission Co", v. Grumbles, 129 Fed. 288, 63 C. C. A. 401; Hatcher v. Hendrie Swiss etc. Co. 133 Fed. 267. 68 C. C. A. 19. 51 Brandenstein v. Halvetia Swiss Fire Ins. Co. 159 Fed. 589, also Helvetia Swiss Fire Ins. Co. v. Brandenstein, 168 Fed. 1020, 92 C. C. A. 614. 642 ATTACHMENT AND GARNISHMENT IN LAW CASES 345 such demand, and if, upon the trial of that issue, a verdict is rendered against the garnishee, judgment shall be entered in favor of the United States, pursuant to such verdict, with costs of suit." 642. Same Garnishee in Contempt on Failing to Ap- pear. 937, R. 8., Comp. Stat. W'Ol, p. 690, 3 F. 8. A. 154, Rose's Code, 14-14- "If any person summoned as garnishee, as aforesaid, fails to appear at the term of the court to which he is summoned, he shall be subject to attachment for con- tempt of the court." CHAPTER 21. PROCESS LAW ACTIONS. Sec. 650. In General. 651. When Suit is Begun. :?. Amendment of Process. 654. By Whom Process is Served. t/55. Method of Service of Process. 656. Service by Publication under 57, Judicial Code. 657. Special Appearance. 658. Suit in Forma Pauperis. 650. In General. Under 721, R. S., the Federal courts, in following the laws of the several states, adopt the state statutes of limitations except where otherwise prescribed by Federal stat- utes, and in like manner follow the state law as to what is the beginning of a suit. 1 The form and body of process follow the state practice under the conformity act 914, R. S., but the signatures, seal, and teste are covered by 911, 912, R. S., 2 and amendment of process by 948, 954, R. S. 3 The sufficiency of process, because re- lating to jurisdiction, does not conform to state law, but is gov- erned by Federal decisions, 4 so also with respect to special ap- pearances. 5 By whom process is served is provided in 787, 788, R. S. 6 The method of service, except substituted service which is governed by 57, Judicial Code, follows the state practice. 7 A suit in forma pauperis is authorized under act July 20, 1892, chapter 209. 8 651. When Suit is Begun. Under 721, R. S., re- lating to the adoption of state rules of decision, the Federal courts 1 651. infra. 2 052, infra. 3 653, infra. * 655, infra. 5 657, infra. G .< (54, infra. 7 655, infra. 8 658, infra. 346 652 PEOCESS LAW ACTIONS 347 follow the state laws of limitation. 9 So, also, a state ruling that the filing of a petition in a court of the proper jurisdiction is the begining of the suit has been followed by the Federal court. 10 There should be, however, the issuance of process and a bona fide effort to serve same. 11 652. The Forms of Process for the Commencement of Suits, except as to Signature, Teste, and Sealing, Conform to State Practice. 12 Indorsements upon the copy of summons in actions for penalties brought by the United States thus con- form. 18 If the Federal courts have adopted by rule of court a form of process conforming to the state law, a subsequent change of the state law would have to be adopted to render improper a writ under the old form. 14 911, R. 8., Comp. Stat. 1901, p. 683, 4 F. 8. A. 560, Rose's Code, 836. "All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issuing from the Supreme Court or a cir- cuit court shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof. The seals of said courts shall be pro- vided at the expense of the United States." 01.2, R. 8., Comp. Stat. 1901, p. 683, 4 F. S. A. 560, Rose's Code, 837. "All process issued from the courts of the United States shall bear teste from the day of such issue." 9 Chapter 13, Statutes of Limitations. 10 International Bank & Trust Company v. Scott, 159 Fed. 60, 86 C. C. A. 248; Goldcnberg v. Murphy. 108 U. S. 162, 27 L. ed. 686. 2 Sup. Ct. Rep. 388; Re Connaway. 178 U. 8. 430, 44 L. ed. 1137, 20 Sup. Ct. Rep. 951: Deep Water R. Co. v. Western Pocahontas Coal & Lumber Co. 152 Fed. 824. 11 United States v. American Lumber Co. 80 Fed. 315 ; Michigan Ins. Bank v. Eldn-d, 130 U. S. 697. 32 L. ed. 1082, 9 Sup. Ct. Rep. 690. 12 <; ilium v. Stewart, 112 Fed. 32: Middleton Paper Co. v. Rock River Paper Co. 19 Fed. 252; Brown v. Pond. 5 Fed. 31;Peaslee v. Haberstro, 15 Blatchf. 472. Fed. Caa. No. 10.884. 13 I'nited States v. Rose, 14 Fed. 681: Miller v. Gages. 4 McLean, 436, Fed. Cas. Xo. 9,571. "Shepard v. Adams. 168 U. S. 624, 42 L. ed. 604. 18 Sup. Ct. Rep. 214; Elson v. Waterford, 135 Fed. 247. 348 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE ^ 053 A garnishment notice does not come under the requirements of 911 and 912, R. S., but is governed by 915, R. S., and if it conforms under the later section to the state court procedure it will be held valid. 16 653. Amendment of Process. 948, R. S., Pomp. Slat. 1901, p. 695, .} F. X. A. 593, Rose's Code, 840. "Any circuit or district '*ourt may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues." 954, R- S., Comp. Slat. 1901, p. 696, 4 F. 8. A. 596, Rose's Code, 813. "Xo summons, writ, declaration, re- turn, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form ; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those w T hich the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." Illustrations of amendments under the foregoing statutes are as follows : a district court summons bearing teste of Chief Jus- . tice ; 16 striking out of a summons and declaration "administrator, etc., and inserting executor, etc. ;" l7 altering date of writs made returnable on Sunday on another wrong day ; 18 changing date 15 Wile v. Cohn, 63 Fed. 759; Middleton Paper Co. v. Rock River Paper Co. 19 Fed. 252. 16 United States v. Turner, 50 Fed. 734. "Randolph v. Barrett, 16 Pet. 138, 10 L. ed. 914. 18 Norton v. Dover, 14 Fed. 106; Hampton v. Rouse, 15 Wall. 684, 21 L. ed. 250; Semmes v. United States, 91 U. S. 21, 23 L. ed. 193. 654 PROCESS LAW ACTIONS 349 of summons ; 19 changing name of plaintiff in summons to conform to complaint. 20 Not every defect, however, will be allowed to be amended. A summons not signed nor under seal of court is not amendable, 21 .nor a defective indorsement of substantive matter. 22 The power of amendment conferred by these statutes cannot be diminished, but may be enlarged by state practice if the Federal courts adopt the state rule. 28 654. By Whom Process Is Served. 757, R. S. f Comp.-Stat. 1901, p. 608, 4 F. 8. A. 159, Rose's Code, 644- "It shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute, throughout the district, all lawful precepts directed to him, and issued under the authority of the United States; and he shall have power to command all necessary assistance in the execution of his duty." 788, R. 8., Comp. Stat. 1901, p. 608, 4 F. 8. A. 161, Rose's Code, 660. "The marshals and their deputies shall have, in each state, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." The marshal is the executive officer of the court, and no other person is authorized to serve process directed to him except him- self or his deputy. 24 Where a state law permits original process to be served by a private person, that law cannot be followed in the Federal court, but it must be served by the marshal or his deputy. 26 Independently of state laws, the marshals of the United States have power to deputize persons for the service of writs. 28 19 Gilbert v. S. Carolina, etc., Exp. Co. 113 Fed. 523. 20 Gulf, etc., C. Co. v. James, 48 Fed. 148, 1 C. C. A. 53. 21 Dvvight v. Merritt, 4 Fed. 614, 18 Blatchf. 305. 22 Brown v. Pond, 5 Fed. 31. 23 Norton v. Dover, 14 Fed. 106. 24 Schwabacker v. Reilly, 2 Dill. 127, 21 Fed. Cas. No. 12,501. 25 ibid., and see Shepard v. Adams, 168 U. S. 624. 42 L. ed. 604, 18 Sup. Ct. Rep. 214. 26 The Tug. E. W. Gorgas. 10 Ben. 460, 8 Fed. Cas. No. 4,585. 350 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 650 655. Method of Service of Process. The Federal stat- utes do not designate how service shall be made in suits at law, and accordingly the method of service conforms to state practice under 914, R. S., 27 except substituted service under 57, Judicial Code. "The laws of the state providing for the service of process of state courts in actions at law furnish the rules for procedure in such case in this (Federal) court, so that whatever would be lawful service of process to bring a party into court if the action were in a court of competent jurisdiction under the state government is lawful and sufficient for the purpose of actions commenced in this court." Substituted service is governed by 57, Judicial Code, as set out in the succeeding section. The sufficiency of service to give jurisdiction, as in all other jurisdictional matters, does not con- form to state laws, but the Federal courts determine for them- selves. 29 Service on corporations conforms as a general rule to state laws. 80 On foreign corporations state laws will generally be followed if the corporation is doing business in the state of the forum. 31 656. Service by Publication under 57, Judicial Code. Service by publication does not come within the above rule. State statutes regulating the manner of bringing in absent de- fendants by publication are not applicable to the Federal courts. The mode provided by 57, Judicial Code, for acquiring juris- diction over an absent defendant by publication is exclusive of every other mode, 82 and must be strictly followed. 33 The action 27 Toledo Computing S. Co. v. Computing Scale Co. 142 Fed. 919, 74 C. C. A. 89; Amy v. Watertown, 130 U. S. 302, 32 L. ed. 947, 9 Sup. Ct. Rep. 530; Swarts v. Christie Grain and Stock Co. 166 Fed. 338. 28 Van Dresser v. Oregon R. Co. 48 Fed. 202. 29 Michigan Trust Co. v. Ferry, 17,5 Fed. 667, 99 C. C. A. 221; Clark v. Wells, 203 U. S. 164. 51 L. ed. 138, 27 Sup. Ct. Rep. 43. 30 Higham v. Iowa State Travelers Ass'n, 183 Fed. 845. 31 McCord Lumber Co. v. Doyle, 97 Fed. 22, 38 C. C. A. 34, and numerous cases cited in 4 F. S. A. 569. 32 Bracken v. Union Pac. R. Co. 56 Fed. 447, 5 C. C. A. 548; New York Life Ins. Co. v. Bangs, 103 U. S. 435, 26 L. ed. 580. 33 Jennings v. Johnson, 148 Fed. 337, 78 C. C. A. 329; King v. Davis, 137 Fed. 207. 656 PROCESS LAW ACTIONS 351 must be in rem for the statute to apply. 3 * Attachment cannot be made a basis for substituted service in the Federal courts. 86 57, Judicial Code,* 36 8 tat. at L. 1102, Comp. St. 1911, p. 152, 1912 Supp. F. 8. A. p. 155.. "When in any suit commenced in an/ district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any encumbrance or lien upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such per- sonal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions con- tained in the same, it shall be lawful for the court to enter- tain jurisdiction, and proceed to the hearing and adjudica- tion of such suit in the same manner as if such absent defend- ant had been served with process within the said district ; but said adjudication shall, as regards said absent defend- ant or defendants without appearance, affect only the prop- erty which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proceedings shall be taken shall be within an- other district, but within the same state, such suit may be brought in either district in said state: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year 34 Jones v. Gould, 141 Fed. 698; and also Jones v. Gould, 149 Fed. 153, 80 C. C. A. 1. 35$ 613, infra. a For Annotation of this 57, Judicial Code, see footnote *, ante, our 16(5. 352 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 058 after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or de- fendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law." 657. Special Appearance. A special appearance is for the sole purpose of attacking the jurisdiction of the court. The Federal courts, being courts of limited jurisdiction, encourage special appearances, and will not, therefore, give such an ap- pearance the force and effect of a general appearance though that may be the effect of state laws. 36 658. Suit in Forma Pauperis. 3, Act July 20, 1892, ch. 209, 27 Stat. at L. 252, Comp. Stat. 1901, p. 707, 2 F. 8. A. 294, Rose's Code, 1825. "The officers of such court shall issue, serve all pro- cess, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases." 36 Southern P.. Co. v. Denton, 146 U. S. 208, 36 L. ed. 945, 13 Sup. Ct. Rep. 44; and other cases cited in Simkins "A Federal Suit at Law" and Simkins Federal Equity Suit, 2d ed., pp. 329 to 338. 37 Boyle v. Great Northern R. Co. 63 Fed. 539; Donovan v. Salem & P. Nav. Co. 134 Fed. 317; Taylor v. Adams Exp. Co. 164 Fed. 616, 90 C. C. A. 526; Columb v. Webster Mfg. Co. 76 Fed. 198; Gallaway v. State Natl. Bank of Ft. Worth, 186 U. S. 177, 46 L. ed. 1111, 22 Sup. Ct. Rep. 811. CHAPTER 22. DEFENSIVE PLEADING LAW ACTIONS. Sec. 670. In General. 671. Time and Order of Pleading Conform to State Laws. 672. Default Judgment. 673. Forms of Pleadings Conform to State Practice. 674. Sufficiency, Scope, and Manner of Pleading Conform to State Laws. 675. Equitable Defenses Not Permitted. Exception. 676. Amendment of Pleading. 670. In General. The time for pleading, unless special rules determine otherwise, follows state practice. 1 Under 918, R. S., the district courts may make rules for enter- ing judgments by default, and under 961, R. Si,' provision is made for judgment by default in suits by the government on bonds. Defaults may, however, follow state practice. 2 The form of pleading is that provided by the state law wherein the district lies. 3 The sufficiency and scope of the pleading is governed by state laws. 4 State laws are also followed except as to equitable defenses, which are not permitted, except equitable estoppel. 5 Amendment of pleading is under 918, 954, R. S. 6 671. Time and Order of Pleading Conform to State Laws. The state statutes and practice are followed as to the time for pleading. 7 Under 914, R. S., the district courts of the United States are l 671, infra. 672, infra. 3 673, infra. * S 674, infra. 6 675, infra. 6 676, infra. 7 \Verthcim v. Continental R. Co. 11 Fed. 689, 20 Blatchf. 508; Ricard v. Now Providence Tp. 5 Fed. 433; Phenix Ins. Co. v. Charleston Bridge Co. 65 Fed. 628, 13 C. C. A. 58. Montg. 23. 353 354 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 672 authorized to follow the practice of the courts of the state in regard to the order of pleading, including the manner in which objections may be taken to the jurisdiction and the question as to whether objections to jurisdiction and defenses on the merits should be pleaded successively or together. 8 Thus, the state laws have been followed as to the order of filing pleas in abate- ment. 9 672. Default Judgment. 918, R. 8., Comp. Slat. 1901, p. 685, 4 F. 8. A. 585, Rose's Code, 805. ". . . District courts may, from time to time, and in any manner not inconsistent with any law of the United States, . . . make rules and orders directing . . . the entering and making of judgments by default. . . ." 961, R. 8., Comp. Stat. 1901, p. 699, 4 F. 8. A. 604, Rose's Code, 1858. "In all suits brought to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or nonperformance appears by the default or confession of the defendant, or upon demurrer, the court shall render judg- ment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, it shall, if -either of the parties re- quest it, be assessed by a jury." The state statute and practice for setting aside judgment by default has been followed. 10 If the defendant fails to make an appearance within the time allowed for making an appearance under the state statutes, it would seem that the plaintiff might have a judgment entered by default in conformity therewith, under the rule that state laws govern as to time within which to plead. 8 Southern Pac. Co. v. Denton, 146 U. S. 209, 36 L. ed. 945, 13 Sup. Ct. Rep. 44. 9 Tennis Bros. Co. v. Wetzel & T. R. C. 140 Fed. 193, Idem. 145 Fed. 458, 75 C. C. A. 266, 7 Ann. Cas. 426; Derk. P. Yonkerman Co. v. Chas. H. Fuller's Advertising Agency, 135 Fed. 613. 10 Brown v. Philadelphia, etc., R. Co. 9 Fed. 183; Republic Ins. Co. v. Williams, 3 Biss. 370, Fed. Cas. No. 11,707. 674 DEFENSIVE PLEADING LAW ACTIONS 355 As to what constitutes a sufficient appearance to save from default, the state laws govern. Thus, in Illinois a motion to quash a service of summons was held to be sufficient appearance, 11 and in Nebraska a motion for security for costs was sufficient to save from default. 12 It would not be safe in California to rely on ny such pleadings under the California law requiring the de- fendant to either demur or answer within the time allowed to plead. 673. Forms of Pleadings Conform to State Practice. The form of defensive pleading is that existing in the state court of the forum, whether by plea, answer, demurrer, or other form of defensive pleading. 13 Thus a state rule allowing a plea in abatement to the juris- diction and on the merits to be set up in the answer may be followed in the Federal courts. 14 So, also, the verification of pleadings is governed by state laws for similar cases in the Federal courts. 15 674. Sufficiency, Scope, and Manner of Pleading Con- form to State Laws. The sufficiency and scope of pleadings in actions at law are matters in which the district courts will conform to the practice of the courts of record of the states in which they are held. 16 Thus a state law requiring a plea of res judicata to be specially pleaded was followed in the Federal court, 17 and a state law giving effect to general issue was followed by the Federal courts. 18 11 Wall v. Chesapeake, etc., R. Co. 95 Fed. 398, 37 C. C. A. 129. 12 Schofield v. Palmer, 137 Fed. 754. 13 Roberts v. Lewis, 144 U. S. 656, 12 Sup. Ct. Rep. 781, 36 L. ed. 582. 1* Draper v. Town of Springport, 21 Blatchf. 240, 15 Fed. 328. 15 St. Louis, etc., R. Co. v. Knight, 122 U. S. 96, 30 L. ed. 1083, 7 Sup. Ct. Rep. 1132; County of Rails v. Douglass, 105 U. S. 728, 26 L. ed. 957; Cottier v. Stimson, 9 Sawy. 435, 18 Fed. 689. 16 Glenn v. Sumner, 132 U. S. 156, 33 L. ed. 301, 10 Sup. Ct. Rep. 41, and other numerous cases cited in 4 F. S. A. p. 570, bottom second column. "Preferred Ace. Ins. Co. v. Barker, 93 Fed. 158, 35 C. C. A. 250. 18 Hodges v. Easton, 106 U. S. 410, 27 L. ed. 170, 1 Sup. Ct. Rep. 307; Burley v. German Am. Bank, 111 U. 6. 221, 28 L. ed. 407, 4 Sup. Ct. Rep. 341. T>56 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 675 The right to plead a set-off or counterclaim when not equitable in character will be controlled by the state practice. 19 Questions of law may be raised by motion where state law per- mits. So, also, state rules as to demurrers are followed in the Federal courts. 20 So, also, the state pleading as to the filing of a replication or making an issue without one will be followed in the Federal courts. 21 Amendments, however, are governed by 954, R. S. 22 675. Equitable Defenses Not Permitted. Exception. Equitable defenses, except equitable estoppel, cannot be pleaded at law. Equitable estoppel may be pleaded. 23 The following are illustrations of cases where equitable defenses were not permitted, or the defendant was compelled to enjoin the suit at law in order to avail himself thereof: Laches, 24 want of consideration, 25 improvements in good faith, 28 fi-aud on account of undue influence or gross inadequacy of con- sideration, 27 bona fide purchaser, 28 partnership settlement, 29 equit- able title. 80 A very excellent discussion of this subject is con- tained in chapter 7 of Simkins' "A Federal Suit at Law," be- ginning page 39. Act June 1, 1874, ch. 200, 18 Stalk, at L. 50, Comp. 8 tat. 1901, p. 581, 6 F. S. A. 522, Roses Code, 28. "When W Groton Bridge & Mfg. Co. v. American Bridge Mfg. Co. 151 Fed. 879. 20Sommer v. Carbon Hill Coal Co. 89 Fed. 60, 32 C. C. A. 156, 59 U. S. App. 519; Norfolk & P. Traction Co. v. Rephan, 188 Fed. 276, 110 C. C. A. 254. 21 Stratton v. Essex Co. Park Comm. 164 Fed. 901. 22 653, infra. 23 Kirk v. Hamilton, 102 U. S. 68, 26 L. ed. 79; Campbell v. Golden Cycle Mining Co. 141 Fed. 610, 73 C. C. A. 260; Berry v. Seawall, 65 Fed. 742, 13 C. C. A. 101, 31 U. S. App. 30. 24Korsstrom v. Barnes, 156 Fed. 284; United States Fidelity & G. Co. v. United States, 189 Fed. 339. Ill C. C. A. 71. 25 Burnes v. Scott, 117 U. S. 582, 29 L. ed. 992, 6 Sup. Ct. Rep. 865. 26 Doe ex dem. Myrick v. Roe, 31 Fed. 98: Leighton v. Young, 52 Fed. 439, 3 C. C. A. 176, 10 U. S. App. 298, 18 L.R.A. 266, but see Cooke v. A very, 147 U. S. 392. 37 L. ed. 215, 13 Sup. Ct. Rep. 340. 27 Kilbourn v. Sunderlaml, 130 U. S. 505, 32 L. ed. 1005, 9 Sup. Ct. Rep. 594; Boggs v. Wann, 58 Fed. 687. W Scott v. Neely, 140 U. S. Ill, 35 L. ed. 360, 11 Sup. Ct. Rep. 712. 29 Johnson v. Christian, 128 U. S. 382, 32 L. ed. 414. 9 Sup. Ct. Rep. 87. 30 Foster v. Mora. 98 U. S. 428, 25 L. ed. 192. 670 DEFENSIVE PLEADING LAW ACTIONS 357 an occupant of land, having color of title, in good faith has made valuable improvements thereon, and is, in the proper action, found not to be the rightful owner thereof, such oc- cupant shall be entitled in the Federal courts to all the rights and remedies, and, upon instituting the proper pro- ceedings, such relief as may be given or secured to him by the statutes of the state or territory where the land lies, al- though the title of the plaintiff in the action may have been granted by the United States after said improvements were so made." 676. Amendment of Pleading. 918, B. S., permits the Federal courts to make rules relating to "the filing of plead- ings, takipg of rules, . . . and otherwise regulate their own practice; " ;1 and 954 permits the court to amend defects and want of form "in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." These sections govern the matter of amendment of pleadings in the Federal court, except in so far as state rules and practice may be adopted which are not inconsistent with the Federal rules. In many cases amendments of pleadings have been allowed in conformity with state practice, and in many others they have been refused. The matter is entirely within the discretion of the court, and not reviewable except when there has been a gross abuse of discretion. 88 31 672, supra. 82 653, supra. 33 Lange v. Union P. R. Co. 126 Fed. 340, 62 C. C. A. 48. See on the subject generally of amendment of pleadings, chapter 8, Simkins, "A Federal Suit at Law," and 4 F. S. A. note. p. 572. CHAPTER 23. CONTINUANCES AND ADJOURNMENTS. Sec. 690. Continuances In General. 691. Continuances on Death of Party. 692. Survival of Action. 693. Continuance of Suit against Delinquent in Suit for Public Moneys. 694. Continuances of Suits under Postal Laws. 695. Continuances of Suits on Debentures. 696. Continuances of Suits under Tariff Laws. 690. Continuances In General. This matter conforms to state practice under 914, R. S., there being no statutory provisions except those set out in the following sections, 691 to 696 inclusive: 955, R. S., on death of a party; 956, R. S., survival of action ; 957, R. S., suits against delinquents for public moneys ; 958, R. S., suits under postal laws ; 959, R. S., suits on deben- tures; 960, R. S., suits under tariff laws. If the judge is unable to act, the marshal or clerk may adjourn court under 12, Judicial Code, quoted in our 63, above. If the office of judge becomes vacant, the clerk may continue pending proceedings under 22 of the Judicial Code, quoted in our 64, above. Trials commenced in a district court may be concluded in a new term under 8 of the Judicial Code, quoted in our 65, above. 691. Continuances on Death of Party. 955, R. 8., Comp. Stat. 1901, p. 697, Rose's Code, 81b, 4 F. S. A. 601. "When either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit 358 693 CONTINUANCES AND ADJOURNMENTS 359 to final judgment. The defendant shall answer accordingly; and the court shall hear and determine the cause and render judgment for or against the executor or administrator, as the case may require. And if such executor or administrator, having been duly served with a scire facias from the office of the clerk of the court where the suit is depending, twenty days before hand, neglects or refuses to become party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor 01 administrator had voluntarily made himself a party. The executor or administrator who becomes a party, as aforesaid, shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court." 692. Survival of Action. 956, R. 8., Comp. Stat. 1901, p. 697, Rose's Code, 815, 4 F. 8. A. 603. "If there are two or more plaintiffs or defendants, in a suit where the cause of action survives to the plaintiff or against the surviving defendant, and one or more of them dies, the writ or action shall not be thereby abated ; but, such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff against the surviving defendant." 693. Continuance of Suit against Delinquent in Suit for Public Moneys. 957, R. 8., Comp. Stat. 1901, p. 698, Rose's Code, 1888, 2 F. 8. A. 44. "When suit is brought by the United States against any revenue officer or other person account- able for public money, who neglects or refuses to pay into the Treasury the sum or balance reported to be due to the United States, upon the adjustment of his account it shall be the duty of the court to grant judgment at the return term, upon motion, unless the defendant in open court (the United States attorney being present) makes and subscribes an oath that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the accounting officers of the Treasury, and rejected ; specifying in the affidavit each particular claim so rejected, and that he cannot then safely come to trial. If the court, when such oath is made, subscribed, and filed, is thereupon satisfied, a continuance until the next succeeding term may be granted. Such continuance may also be granted when the suit is brought upon a bond or other sealed instrument, and the defendant pleads non est factum, or makes a motion to 300 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 69(5 the court, verifying such plea or motion by his oath, and the court thereupon requires the production of the original bond, contract, or other paper certified in the affidavit. And no continuance shall be granted except as herein provided." 694. Continuances of Suits under Postal Laws. 958, R. 8. f Comp. Mat. 1901, p. 698, Rose's Code, 1409, 4 F. 8. A. 603. "In suits arising under the postal laws the court shall proceed to trial, and render judgment at the return term ; but whenever service of process is not made at least twenty days before the return day of such term the defendant is entitled to one continuance, if, on his state- ment, the court deems it expedient ; and if he makes affidavit that he has a claim against the Postoffice Department, which has been submitted to and disallowed by the sixth auditor,, specifying such claim in his affidavit, and that he could not be prepared for trial at such term for want of evidence, the court, if satisfied thereof, may grant a continuance until the next term." 695. Continuances of Suits on Debentures. 959, R. 8., Comp. Stat. 1901, p. 699, Roses Code, % 1394, 4 F. 8. A. 604. "In all suits for the recovery of money upon debentures issued by the collectors of customs, under any act for the collection of duties, it shall be the duty of the court to grant judgment at the return term, unless the defendant, in open court, exhibits some plea, on oath, by which the court is satisfied that a continuance is necessary to the attainment of justice; in which case, and not other- wise, a continuance until the next term may be granted/' 696. Continuances of Suits under Tariff Laws. 960, R. 8., Comp. Stat. 1901, p. 699, Rose's Code, 1395, 4 F. 8. A. 604. "When suit is brought on any bond for the recovery of duties due to the United States, it shall be the duty of the court to grant judgment at the return term, upon motion, unless the defendant, in open court (the United States attorney being present), makes oath that an- error has been committed in the liquidation of the duties demanded upon such bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector of the district before the said return term ; whereupon a continuance may be granted until the next term, and no longer, if the court is satisfied that such continuance is necessary for the attainment of justice." CHAPTER 24. MISCELLANEOUS INCIDENTAL MATTERS. Sec. 710. Consolidation of Cases. 711. Discovery At Law. 712. Motion and Notice to Produce Books or Papers in Civil Suits under Customs-Revenue Laws. 713. Dismissal or Nonsuit. 714. Verification Oaths Acknowledgments. 710. Consolidation of Cases. 921, R. S., Comp. Stat. 1901, p. 685, Rose's Code, 823, 4 F. S. A. 587. "When causes of a like nature or relative to the same question are pending before a court of the United States, or of any territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnec- essary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do "so." 920, R. S., Comp. Stat. 1901, p. 685, 4 F. 8. A. 586, Rose's Code, 1384. "Whenever two or more things be- longing to the same person are seized for an alleged violation of the revenue laws, the whole must be included in one suit ; and if separate actions are prosecuted in such cases, the court shall consolidate them." 711. Discovery At Law. 724, R. S., Comp. Stat. 1901, p. 583, 3 F. S. A. 2. "In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceedings in 361 362 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 713 chancery. If a plaintiff fails to comply with such order, the court may, on motion, give like judgment for the defend- ant as in cases of nonsuit; and if a defendant fails to com- ply with such order, the court may, on motion, give judg- ment against him by default." 712. Motion and Notice to Produce Books or Papers in Civil Suits under Customs-Revenue Laws. 5, Act June 22, 181k, ch. 391, Comp. St. 1901, p. 2019, 3 F. S. A. 42. "That in all suits and proceedings other than criminal, arising under any of the revenue laws of the United States, the attorney representing the govern- ment, whenever, in his belief, any business book, invoice, or paper, belonging to or under control of the defendant or claimant, will tend to proye any allegation made by the United States, may make a written motion, particularly describing such book, invoice, or paper, and setting forth the allegation which he expects to prove ; and thereupon the court in which suit or proceeding is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice, or paper in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served formally on the 'defendant or claim- ant by the United States marshal by delivering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice, or paper in obedience to such notice, the allegations stated in the said motion shall be taken as con- fessed unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permitted, under the direction of the court, to make examination (at which ex- amination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice, or paper as relate to or tend to prove the allegation aforesaid, and may offer the same in evidence on behalf of the United States. But the owner of said books and papers, his agent or at- torney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid." 713. Dismissal or Nonsuit. Except in suits lacking a ground of Federal jurisdiction, governed by 37, Judicial Code, 714 MISCELLANEOUS INCIDENTAL MATTEHS 363 set out in 601, above, the dismissal by plaintiff, and the granting of a nonsuit, conform to state practice, there being no statutory provisions applicable. Thus under a state law plaintiff in a Federal suit was per- mitted to dismiss, without prejudice, before final submission to the jury, although the judge had stated that he would sustain a motion to direct a verdict for defendant. 714. Verification Oaths Acknowledgments. 1118, R. 8., Comp St. 1901, p. 1211, 4 F. 8. A. 165. "In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any state or territory, or in the District. of Columbia, they may hereafter be also taken or made by or before any notary public duly ap- pointed in any state, district, or territory, or any of the commissioners of the circuit courts, and, when certified un- der the hand and official seal of such notary or commis- sioner, shall have the same force and effect as if taken or made by or before such justice of the peace." CHAPTER 25. TRIAL LAW ACTIONS. Sec. 730. In General, 731. Method of Trial. 732. Cases to Which Provision Not Applicable. 733. Constitutional Jury Twelve Men. 734. Qualifications and Exemptions In General. 735. Same Under Civil Rights Acts. 736. Same Penalty for Exclusion. 737. Exempt after Serving Term in a Year. 738. Jurors From Where Drawn. 730. Impaneling Jurors. 740. Venire Issuance and Return. 741. Talesmen for Petit Juries. 742. Special Juries. 743. Challenges. 744. Trial by Judge. 745. Mode of Proof Law Actions. 746. The Taking of Exceptions Does Not Conform to State Practice. 747. Time for Excepting to Rulings. 748. Conduct of the Trial. 749. Charge to the Jury Instructions. 730. In General. After the case is at issue, the next step is the production of proof which under 861, R. S., must he in open court, except as otherwise specially provided. ( 745, infra.) There may be material testimony of witnesses who cannot be produced in open court, whose testimony should, if possible, be obtained by depositions. The grounds of taking these dep- ositions are set out in 863 and 866, R. S. The methods of taking such depositions are provided in 863 to 870, R. S., inclusive, and may be according to state practice under the act of March 9, 1892, ch. 14, 27 Stat. at L. 7. The statutory provi- sions as to depositions apply alike to law and equity causes, and, 364 732 TRIAL LAW ACTIONS 3 1) 5 therefore, have not been treated separately for each kind of suit. The subject of depositions is treated in chapter 16, above. Most of the statutory provisions relating to evidence and wit- nesses in like manner, apply alike to law and equity cases, and l>ave been treated under the general headings "Evidence," in chapter 14, above, and "Witnesses," in chapter 15, above. This chapter deals with the methods of trial, mode of proof, and conduct of the trial in law actions, including the provisions relating to the qualifications and exemptions of jurors, the selec- tion of the jury, venire, talesmen, challenges, etc., and also respecting the charge to the jury. The jury's verdict, motion for new trial, and bill of exceptions, might be traced under the heading of this chapter, "Trial-Law Actions," but these matters are more properly the end of the trial than of the trial itself, and are, therefore, treated in the following chapter, No. 26. 731. Method of Trial. PL 566, R. S. t Comp. Stat. 1901, p. 461, Roses Code, 911 and 1283, 4 F. 8. A. 236. "The trial of issues of fact in the district courts, in all causes except in equity and cases of admiralty and maritime jurisdiction and except as otherwise provided in proceedings in bankruptcy, shall be by jury. ..." , This right to a jury trial is guaranteed in common-law cases by the 7th Amendment to the United States Constitution, as follows : "In suits at common-law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved. . . ." 732. Cases to Which Provision Not Applicable. This provision in the 7th Amendment refers only to cases at common- law where the amount in controversy exceeds twenty dollars. 306 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 733 The clause does not prevent a waiver of trial by jury in com- mon-law cases. 1 The guaranty of trial by jury refers only to the Federal and not the state courts, and is a limitation on the powers of the Federal government. 2 It applies to the District of Columbia and to the organized territories which have been brought under the Constitution, and to their legislative and judicial officers as also to a territorial governor, and to tribunals established under a provisional govern- ment in territory covered by the Constitution, but not to con- sular courts. 3 The constitutional provision does not apply to equity cases, 4 nor to suits in admiralty. 5 566, R. S., especially excepts those kinds of causes. The constitutional amendment does not apply in suits against the United States in the court of claims. 6 733. Constitutional Jury Twelve Men. Trial by jury means a common-law jury of twelve men, in the presence of and under the supervision of a judge, who instructs them as to the law. 7 A territorial law permitting a verdict by any number of jurors less than twelve is invalid. 8 1 Parsons v. Armour, 3 Pet. 425, 7 L. ed. 724. ZMcBride v. Stradley, 103 Ind. 465, 2 N. E. 358; Seeley v. Bridgeport, 53 Conn. 1, 22 Atl. 1017; Livingston v. Moore, 7 Pet. 469, 8 L. ed. 751; Walker v. Sauvinet, 92 U. S. 92, 23 L. ed. 678; Baylis v. Travelers Ins. Co. 113 U. S. 321, 28 L. ed. 989, 5 Sup. Ct. Rep. 494. 3 Capital G. Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580; Walker v. New Mexico R. R. Co. 165 U. S. 595, 41 L. ed. 837. 17 Sup. Ct. Rep. 421; Thompson v. Utah, 170 U. S. 349, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620; Whallon v. Bancroft, 4 Minn. 109, Gil. 70; Claim of Reside, 9 Opinions of Atty. Gen. 200; Scott v. Billgerry, 40 Miss. 119; In re Ross, 140 U. S. 464, 35 L. ed. 581, 11 Sup. Ct. Rep. 897. 4 Barton v. Barbour, 104 U. S. 133, 26 L. ed. 676; Woodworth v. Rogers, 3 Wood, & M. 135, .Fed. Cas. No. 18,018, 2 Robb. Pat. Gas. 625 ; Buford v. Holley, 28 Fed. 680: Scott v. Bilgerry, 40 Miss. 119; Motte v. Bennett 2 Fish,* Pat. 642, Fed. Cas. No. 9,884. 5 The Huntress, 2 Ware (Dav. 82) 89, Fed. Cas. No. 6,914; The James and Catherine, Bald. 544. Fed. Cas. No. 756; United States v. La Venzeance 3 Ball. 297, 1 L. ed. 610. BMcElrath v. United States, 102 U. S. 440, 26 L. ed. 192; Torrey v United States, 42 Fed. 207. 7 Maxwell v. Dow, 176 U. S. 586, 44 L. edj 599, 20 Sup. Ct. Rep. 448 494- Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061. 18 Sup. Ct. Rep. 620. 8 American P. Co. v. Fisher, 166 U. S. 467. 41 L. ed. 1079, 17 Sup Ct Rep. 618; Springville v. Thomas, 166 U. S. 708, 41 L. ed. 1172, 17 Sup' 737 TRIAL LAW ACTIONS 3G7 734. Qualifications and Exemptions In General. 275 1 Judicial Code," 36 Stat. at L. 1164, Comp. St. 1911, p. 239, 1912 Supp. F. S. A. v. 1, p.' 245. "Jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemp- tions, as jurors of the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned." 735. Same Under Civil Rights Acts. 278, Judicial Code? 36 Stat. at L. 1165. Comp. St. 1911, p. 239, 1912 Supp. F. S. A. v. 1, p. 246. "No citizen possessing all other qualifications which are or may be pre- scribed by law shall be disqualified for services as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude." 736. Same Penalty for Exclusion. Pi. 4, Act March 1, 1875, 18 Stat. at L. 336, Comp. Stat. 1901, p. 1261, 1 F. S. A. 801. "Any officer or other person charged with any duty in the selection or summoning of ju- rors, who shall exclude or fail to summon any citizen, for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars." 737. Exempt after Serving Term in a Year. 286, Judicial Code," 36 Stat. at L. 1166, Comp. St. 1911, p. 241, 1912 Supp. F. S. A. v. 1, p. 247. "No person shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of chal- Ct. Rep. 717; Kleinscbmidt v. Dunphy, 1 Mont. 118; Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016. 23 Sup. Ct. Rep. 787. a Drawn from 800, R. S. Rose's Code. 1701, Foster's Fed. Prac. (4th ed.) pp. 1142, 1285, 1397, 1400, Comp. St. 1901, p. 023, 4 F. S. A. 737. which sec- tion is repealed by k 297, Judicial Code. In general, Steers et al. v. United States, 192 Fed. 1* 112 C. C. A. 423: United States v. Lewis, 192 Fed. 633. b Re-enacting proviso of 2 of Act of June 30, 1879, eh. 52, 21 Stat. at L. 43, Rose's Code, 1703, 1704, 1721, Comp. St. 1901, p. 624, 4 F. S. A. 749. c Drawn from 812. R. S. Rose's Code. 1713, Foster's Fed. Prac. (4th ed.) p. 1397, Comp. St. 1901, p. 627, 4 F. S. A. 744, which section is repealed by 297, Judicial Code, and from Act of June 30, 1879, ch. 52, 2, Comp. St. 1901, p. 624, 4 F. S. A. 749. In general, Morris v. United States, 161 Fed. 672, 88 C. C. A. 532. 368 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 740 lenge to any juror called to be sworn in any case that he has been summoned and attended said court as a juror at any term of said court held within one year prior to the time of such challenge." 738. Jurors From Where Drawn. 277, Judicial Code* 36 Stat. at L. 1164, Comp. 8t. 1911, p. 239, 1912 Supp. F. 8. A, v. 1, p. 245. "Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service." 739. Impaneling Jurors. 276, Judicial Code* 36 Stat. at L. 1164, Comp. St. 1911, p. 239, 1912 Supp. F. S. A. v. 1, p. 245. "All such jurors, grand and petit, including those summoned dur- ing the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the quali- fications prescribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, or by the judge senior in commission in district having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the prin- cipal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein." 740. Venire Issuance and Return. 279, Judicial Code,* 36 Stat. at L. 1165, Comp. St. 1911, p. 240, 1912 Supp. F. S. A. v. 1, p. 246. "Writs d Re-enacting 802, R. S.. Rose's Code, 1723. Foster's Fed. Prac. (4th ed.) pp. 1306. 1401, Comp. St. 1901, p. 625, 4 F. S. A. 741, which section is repealed by 297, Judicial Code. In general, May et al. v. United States, 199 Fed. 53. 117 C. C. A. 431. e Re-enacting part of 2 of Act of June 30, 1879, ch. 52, 21 Stat. at L. 43. Rose's Code, 1703. 1704. 1714, 1721, Foster's Fed. Prac. (4th ed.) pp. 1400. 1405. Comp. St. 1901, p. 624, 4 F. S. A. 749. 'Down to the first period, re-enacting 803, R. S., Rose's Code, 1706, 742 TRIAL LAW ACTIONS 369 of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy ; or, in case the mar- shal or his deputy is not an indifferent person, or is in- terested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and im- partially serve and return the writ. Any person named in such writ who resides elsewhere than at the place at which the court is held, shall be served by the marshal mailing a copy thereof to such person commanding him to attend as a juror at a time and place designated therein, which copy shall be registered and deposited in the postoffice ad- dressed to such person at his usual postoffice address. And the receipt of -the person so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts." 741. Talesmen for Petit Juries. 280, Judicial Code* 36 Stat. at L. 1165, Comp. St. 1911, p. 240, 1912 Supp. F. S. A. v. 1, p. 246. "When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders suf- ficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn^ as provided in the preceding section." 742. Special Juries. 281, Judicial Code? 36 Stat. at L. 1167, Comp. St. 1911, p. 240, 1912 Supp. F. 8. A. v. 1, p. 246. "When Foster's Fed. Trac. (4th ed.) p. 1401, Comp. St. 1901, p. 625, 4 F. S. A. 742, which section is repealed by 297, Judicial Code. The rest is new legislation. In general, Powers v. United States, 223 U. S. 303, 56 L. ed. 448, 32 Sup. Ct. Rep. 281. K Re-enacting 804, R. S., Rose's Code. 1707, 4 F. S. A. 742, Comp. St. 1901, p. 625, which section is repealed by 297, Judicial Code. In general, Agnew v. United States, 165 U. S. 36, 41 L. ed. 624, 17 Sup. Ct. Rep. 235. to Re-enacting 805, R. S., Rose's Code, 1708. Comp. St. 1901, p. 626. 4 Montg. 24. 370 MONTGOMERY'S MANUAL otf FEDERAL PROCEDURE 744 special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several states." 743. Challenges. Pt. 281, Judicial Code, 1 36 Stat. at L. 1166, Comp. St. 1911, p. 241, 1912 Supp. F. 8. A. v. 1, p. 248. ". . . and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges ; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the co.urt without the aid of triers." 744. Trial by Judge. Although 649 and 700, R. S., specifically refer to trials by the circuit courts, and have been held to apply only to the circuit courts, and not to the district courts, nevertheless the new Judicial Code specifically provides for imposing the powers and duties of the circuit courts upon the district courts, thus allowing a waiver of jury trial and a trial by the judge. His findings of fact would be equivalent to a verdict of a jury under 649, 700, 1011, R. S. 291, Judicial Code, 1 36 Stat. at L. 1161, Comp. St. 1911, p. 243, 1912 Supp. F. S. A. v. 1, p. 249. "Wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upon, the circuit courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to con- fer such power and impose such duty upon, the district courts." F. S. A. 743, which section is repealed by 297, Judicial Code. In general, Metropolitan Railroad Co. v. Moore, 121 U. S. 558, 30 L. ed. 1022, 7 Sup. Ct. Rep. 1334. i Drawn from 819, R. S., Rose's Code, 1715, Foster's Fed. Prae. (4th ed.) pp. 1400, 1404, 1431, Comp. St. 1901, p. 629, 4 F. S. A. 745, which is repealed by 297, Judicial Code. In general, Emanuel v. United States, 196 Fed. 317, 116 C. C. A. 137. J New legislation. In general, Ex parte United States, 226 U. S. 420, 57 L. ed. 281, 33 Sup. Ct. Rep. 170. 746 TRIAL LAW ACTIONS 371 649, R. S., Comp. Stat. 1901, p. 525, 4 F. 8. A. Rose's Code, 914- "Issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." 700, R. S., Comp. Stat. 1901, p. 570, 4 F. S. A. 450, Rose's Code, 2082. "When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the prog- ress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal ; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment." 745. Mode of Proof Law Actions. 861, R. S., Comp. Stat. 1901, p. 661, 3 F. S. A. 7, Rose's Code, 917. "The mode of proof in the trial of ac- tions at common law shall be by oral testimony and by examination of witnesses in open court, except as herein- after provided." The statute above quoted governs the practice of procuring tes- timony to be used in the courts of the United States, and excludes anything in the state practice to the contrary. 9 Open court is in the presence of the court and jury at the trial. 10 The exceptions mentioned are provisions respecting depositions, and letters rogatory set out in chapter 16, above, transcripts and copies of official records and other documentary evidence set out in chapter 14, above. 746. The Taking of Exceptions Does Not Conform to State Practice. Appellate procedure in Federal courts neces- 9 Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000. lOBeardsley v. Littell, 14 Blatch. 102, Fed. Cas. No. 1.185. 372 MONTGOMERY'S MANUAL OF FKHKK.U. PROCEDURE 748 sarily must be governed by their own rules, as this is a matter which has to do with the organization of the judicial system. 953, R. S., quoted 765, infra, is the only statutory pro- vision as to preserving exceptions except that 700, R. S., providing for trial of cases without the intervention of a jury, provides that "the ruling of the court in the progress of the trial of the cause if excepted at the time, and duly presented by a bill of exceptions, may be reviewed," etc. In this last-mentioned section the Federal courts act independ- ently of state statutes' or state practice. 11 Even an agreement of the parties cannot authorize the Federal court to depart from the Federal rules in this respect. 12 953, R. S., quoted 765, infra, is the only regulation as to bills of exceptions in Federal courts. 13 747. Time for Excepting to Rulings. 953 does not limit the time within which exceptions shall be filed or allowed, 14 nor the time to make, file, and serve a bill of exceptions. 15 Under 700, R. S., the ruling must be "excepted to at the time." It must show from the record that the party objected at the trial to the rulings and wished the exceptions noted and reduced to a bill, and that the party persisted in them. 16 The time for presenta- tion and allowance of the bill of exceptions may be extended in the discretion of the court. 17 748. Conduct of the Trial. The conduct of the trial is a matter of personal administration by the judge, and does not, therefore, conform to the state laws or rules on that subject. 11 United States v. King, 7 How.- 833, 12 L. ed. 934; Shipman v. Ohio Coal Exch. 70 Fed. 652, 17 C. C. A. 313; Simkins' "A Federal Suit at Law," pp. 96-7. 12 Richmond v. Smith, 15 Wall. 429, 21 L. ed. 200; Kelsey v. Forsyth, 21 How. 85, 16 L. ed. 32. 13 Chateaugay Ore, etc.. Co. 128 U. S. 544, 32 L. ed. 508, 9 Sup. Ct. Ron. 150; Duncan v. Landis, 45 C. C. A. 666, 106 Fed. 844. M X. Y., etc., R. Co. v. Hyde, 5 C. C. A. 461, 56 Fed. 188. iSTalbot v. Press Pub. Co. 80 Fed. 567. 16 United States v. Jarvis, 3 Woodb. 217, 26 Fed. Cas. No. 15,469. Sim- kins' "A Federal Suit at Law," pp. 96-98. "Dalton v. Hazelet, 382 Fed. 561, 105 C. C. A. 99. 749 TRIAL LAW ACTIONS 373 Thus the "scintilla of evidence rule" does not apply, 18 but the judge, with due deference to the province of the jury to pass upon the weight and credibility of the evidence, 19 may withdraw the case from the jury and instruct a verdict. 20 Likewise the judge, in his discretion, may permit the jury to separate after the charge is given, 81 or refuse to ask a special verdict authorized by state law, 22 or may comment on the evidence though forbidden by state law. 23 749. Charge to the Jury Instructions. The charge to the jury is within the judge's personal administration of the case. As stated in the preceding section, he may comment on the evidence and express an opinion as to the facts, provided he sep- arates the law from the facts in his charge, giving the jury to understand that the determination of the facts is their own prov- ince. 24 The refusal to give special charges after argument was begun was held not error under a rule that special charges should be requested before argument. 25 The instructions need not be in writing even though the state law so requires, 26 nor need the judge permit the instructions to be taken by the jury upon retiring if that rule be not expressly adopted from the state practice. 27 18 Ovanne v. Illinois C. R. Co. 151 Fed. 900. 19 Wichita R. & L. Co. v. Dulaney, 159 Fed. 417, 86 C. C. A. 397; New- burger Cotton Co. v. York Cotton Mills, 152 Fed. 398, 81 C. C. A. 524. 20Teis v. Smuggler Min. Co. 158 Fed. 261, 85 C. C. A. 478, 15 L.R.A. (N.S.I 893; MoGuire v. Blount, 199 U. S. 142, 50 L. ed. 125, 26 Sup. Ct. Rep. 1; eases cited Simkins' "A Suit at Law," pp. 68-9. note 4 F. S. A. 2d col. p. 391. 21 Liverpool, etc., Co. v. 1ST. & M. Friedman Co. 133 Fed. 713. 66 C. C. A. f>43; Xndd v. Burrows, 91 U. S. 426, 23 L. ed. 286. 22 United States Mutual Ace. Ass. v. Barry, 131 U. S. 100, 33 L. ed. 60, 9 Sup. Ct, Rep. 755. 23Xudd v. Burrows, 91 U. S. 426, 23 L. ed. 290; Lincoln v. Power, 151 U. S. 436, 38 L. ed. 224, 14 Sup. Ct. Rep. 387. 24 Union P. R. Co. v. Thomas, 152 Fed. 371. 81 C. C. A. 491. . 25 Atchison T. & S. F. Ry. Co. v. Hamble, 177 Fed. 644. 101 C. C. A. 270. 26 Lincoln v. Power, 151 U. S. 436. 38 L. ed. 224, 14 Sup. Ct. Rep. 387. 87Xudd v. Burrows. 91 U. S. 441, 23 L. ed. 290; Western Union Tel. Co. v. Burgess, 47 C. C. A. 168, 108 Fed. 26. CHAPTER 26. VERDTCT MOTION FOR NEW TRIAL BILL OF EXCEPTIONS. Sec. 760. Special Verdict. 761. Form and Effect of General Verdict. 762. Amendment of Verdict. 763. Judgment A T on Obstante Veredicto. 764. Motion for New Trial. 765. Bill of Exceptions Authentication and Signing. 766. Contents of Bill of Exceptions Under C. C. A. Rule 10, Sup. Ct. Rule 4. 760. Special Verdict. The Federal courts are not bound by requirements of state statutes requiring special verdicts on the request of either party. 1 761. Form and Effect of General Verdict. The form and effect of the verdict under the conformity act, 914, R. S., are matters in which the Federal courts will follow the state practice. 8 762. Amendment of Verdict. Under 954, R. S., provid- ing for amendment of proceedings, etc., in Federal courts, a ver- dict may be amended to conform to technical requirements. 8 Amendments should usually be made before the jury separates, 4 but may be so amended during the term by reference to the judge's notes or on other satisfactory evidence. 5 1 U. S. Mutual Ace. Ass. v. Barry, 131 U. S. 119, 33 L. ed. 60, 9 Sup. Ct. Rep. 755. 2 Glenn v. Sumner, 132 U. S. 156, 33 L. ed. 301, 10 Sup. Ct. Rep. 41. and other cases cited, 4 F. S. A. 2d Col. p. 574, and Simkins, "A Federal Suit at Law," p. 120. 3 Gay v. Joplin, 13 Fed. 650, 4 McCrary, 459. See note 4 F. S. A. 1st col. p. 600. * Pressed Steel Car Co. v. Steel Car Forge Co. 149 Fed. 182, 79 C. C. A. 130. 5 Miller v. Steele, 153 Fed. 715, 82 C. C. A. 572; Elliott v. Gilmore, 145 Fed. 965. 374 765 VERDICT NEW TRIAL BILL OF EXCEPTIONS 375 763. Judgment Non Obstante Veredicto. A judgment non obstante veredicto, to wit, a judgment in favor of the plain- tiff notwithstanding a verdict for defendant, will usually follow the state method. 6 \ 764. Motion for New Trial. 269, Judicial Code* 36 Stat. at L. 1163, Comp. St. 1911, p. 237, 1912 8upp. F. 8. A. v. 1, p. 243. "All the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in courts of law." This is a mattter of discretion with the trial judge, and not subject to review. 7 And a new trial is not necessary for purposes of obtaining a review by the appellate court. 8 State statutes may add to the power of the court to grant new trials, as in case of allowing two new trials in ejectment suits. 9 765. Bill of Exceptions Authentication and Signing. 953, R. S., Comp. Stat. 1901, p. 696, 4 F. 8. A. 594-5, Rose's Code, 1932. "That a bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause is tried, or by the presiding judge thereof if more than one judge sat at the trial cause, without any seal of the court or judge annexed thereto. And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign said bill of exceptions, then the judge who succeeds such trial judge, 6 Smith v. Jones, 181 Fed. 820, 104 C. C. A. 329; Simkins, "A Federal Suit at Law," p. 124. 'Newcomb v. Wood, 97 U. S. 583, 24 L. ed. 1086, e.ud other cases cited, 4 F. S. A. 1st col. p. 575. See also 4 F. S. A. 549, 550. 8 Aaron v. United States, 155 Fed. 833. 84 C. C. A. 67; Boatmen's Bank v. Trover Co. 181 Fed. 804, 104 C. C. A. 314; Owen v. Giles, 157 Fed. 825, 85 C. C. A. 189. 9Smale v. Mitchell, 143 U. S. 108, 36 L. ed. 92, 12 Sup. Ct. Rep. 353. See also Clark v. Sohier, 1 Woodb. & M. 368. 4 Fed. Cas. No. 2,835. a Re-enacting 726, R. S., Rose's Code, 923, Foster's Fed. Prac. (4th ed.) p. 1306. Comp. St. 1901, p. 584, 4 F. S. A. 549, which section is expressly re- pealed by 297, Judicial Code. In general, Sanborn v. Bay, 194 Fed. 37, 114 C. C. A. "57. 376 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 766 or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such ruling and al- lowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried ; but in case said judge is satisfied that owing to the fact that he did not preside at the trial, or for any other cause, that he cannot fairly pass upon said motion, and allow and sign said bill of exceptions, then he may in his discretion grant a new trial to the party moving therefor." 766. Contents of Bill of Exceptions Under C. C. A. Rule 10, Sup. Ct. Rule 4. C. C. A. Rule 10. All circuits. "1. Judges of the 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 except- ing shall be required to state distinctly the several matters of law in such charge to which he excepts ; and those matters of law, and those only, shall be inserted in the bill of excep- tions and allowed by the court." In the third circuit the following is added: "1. Exceptions to the charge or to the judge's action upon the requests for instruction shall be taken immediately on the conclusion of the charge before the jury retire, shall be specified in writing or dictated to the stenographer, and shall be specific and not general." "2. Exceptions to the admission or rejection of evidence shall be specific and not general, and the bill of exceptions to such admission or rejection shall contain only so much of the evidence admitted or offered and rejected as is necessary for the presentation and decision of the questions saved for re- view. Unless there be saved a question which requires the consideration of all the evidence, a bill of exceptions contain- ing all of it shall not be allowed." 766 VEKDICT NEW TRIAL BILL OF EXCEPTIONS 377 In the fourth circuit the following is added : "2. Only so much of the evidence as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein, shall be set forth in condensed and narra- tive form, save as a proper understanding of the questions presented may require that parts of it be set forth otherwise." In the sixth circuit the following is the rule : "1. The assignments of error required by rule 11 shall be filed at or before the settling of the bill of exceptions. The evidence in the bill of exceptions shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of some one of the questions presented by the assignments of error being omitted, and the testimony of witnesses being stated only in narrative form, save that, if either party desires it and the judge so directs, any part of the testimony shall be reproduced in the exact words of the witness." "2. No general exception to the whole or any charge to a jury on trials at law shall be allowed in any bill of exceptions. Exceptions to charge, in order to be allowed in a bill of ex- ceptions, must be taken before the jury retires and must state distinctly the several matters of law to which exception is taken. In cases where exception is taken to part of a charge, and such exception may be affected by other parts or by the charge as a whole, the entire charge shall be included in the bill of exceptions." In the seventh circuit the following is added : "2. A bill of exceptions shall contain of the evidence only such a statement as is necessary for the presentation and de- cision of questions saved for review, and unless there be saved a question which requires the consideration of all the evi- dence, a bill of exceptions containing all the evidence shall not be allowed." "3. No document shall be copied more than once in a bill of exceptions or in a transcript of the record of the case, but instead there shall be inserted a reference to the one copy set out. A motion for a new trial, and orders and entries relating thereto, shall not be set out in the transcript unless required by written precipe, of which a copy shall also be set out." "4. The cost of unnecessary matter in the bill of exceptions 378 MONTGOMERY'S MANUAL OF FEDERAL, PROCEDURE 766 or transcript or in the printed record shall not be recovered of the appellee or defendant in error, and in its discretion the court will in case of dispute appoint a referee to determine and report what was necessary therein, and will tax the cost of the reference as shall be just." Supreme Court Rule 4 as to bill of exceptions consists of two paragraphs, No. 1 of which is the same in substance as No. 1 of rule 10, C. C. A., above quoted ; and No. 2 of which is identical with 2 of the fourth circuit, above quoted. CHAPTER 27. JUDGMENTS AND EXECUTION LAW ACTIONS. Sec. 780. Judgments In General. 781. Executions In General. 782. Judgments at Law Generally Conform to State Practice. 783. Interest on Judgments Rate. Allowance of, Levy for, Conforms to State Law. 784. Judgments Kind of Money Payable in Suits for Duties. 785. Record of Judgment as Required by State Laws. 7S6. Indexes of Judgment Records. 787. Lien of Judgment Manner and Extent Conform to State Laws. 788. Lien of Judgment or Execution Not Devested by Creation of a New Dis- trict or Division, nor by the Division or Transfer of Territory. 789. Amendments of Judgment. 790. Vacation of Judgment Governed by Federal Decisions. 791. Executions in Common-Law Causes Conform to State Statutes by Rule of Court. 792. Executions Not in Issue against Revenue Officers for Moneys Paid into Treasury on Probable Cause. 793. Execution Stay Pending Motion for New Trial Vacation of Judgment by Granting New Trial. 794. Execution Stay for One Term Where State Law Allows Such Stay. 795. Executions may Run and be Executed in Any Part of a State, and on Behalf of the United States in any Other State or Territory. 796. Execution Imprisonment for Debt Modifications of State Law Adopted. 797. Execution Discharge from Arrest or Imprisonment in Civil Actions Conform to State Laws. 798. Execution Imprisonment for Debt in Government Suits Discharge of Poor Debtor. 799. Same Discharge by President When Secretary of Treasury Not Author- ized. 800. Execution Sale of Real Estate or Personal Property Place of Sale. 801. Execution Sale of Real Estate Publication of Notice. 802. Execution Sale of Real Estate Marshal's Successor to Continue Pro- ceedings. 803. Execution Sale of Real Estate in Government Suits Purchase by Gov- ernment. 804. Execution Sale of Personal Property Appraisal under 993, R. S., in Same Manner as Required by State Law. 379 380 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 781 780. Judgments In General. Judgments in law actions may conform by general rule to state laws under the "conformity act," 914, K. S. Judgments by default are authorized by 918, R. S., and defaults in suits by government on bonds, 961, R. S., 1 and amendments by 954, R. S. 2 The allowance of interest 8 as provided by state laws is permitted by 966, R. S.., interest or bonds for duties is provided by 963, R. S., and interest on customs debentures by 965, R. S. The kind of money payable in suits for duties is provided by 962, R. S. 4 The recording, docketing, and indexing of judgments conform under 1, act of August 1, 1888, ch. 729. 5 The clerks of the United States courts are required to keep indexes of such judgments by 2 of the act of Aug. 1, 1888, ch. 729. 6 The manner, effect, and extent of the lien of judgments con- form to state laws under 1 of the act of Aug. 1, 1888, ch. 729, and when they shall cease to be liens by 967, R. S. 7 The lien of a judgment on execution by change of boundaries is preserved by 60, Judicial Code. 8 Amendments for defect in form are permitted under 954, R. S., regardless of state statute. 9 Judgments may be vacated within the term, but not after term, except by an independent suit in equity for equitable cause. 10 781. Executions In General. Executions on judgments in law actions may conform by general rule to state statutes under 916, R. S. 11 Executions are not to issue against revenue officers for moneys paid into the Treasury on probable cause under 989, R. S. 12 Executions may be stayed pending motion for new trial under 987, R. S. 18 And where state allows stay for one term or more, 1 782, infra. Judgments by default, see 672, supra. 2 789, infra. 783, infra. * 784, infra. 5 785, infra. 6 786, infra. ? 787, infra. 8 788, infra. 789, infra. 10 790, infra. " 791, infra. 792, infra. 13 793, infra. 782 JUDGMENTS AND EXECUTION LAW ACTIONS 381 there may be stay for one term in the Federal court under 988, R. S." ' Executions may run and be executed in any part of a state under 985, R. S., and on judgment in favor of the United States may run in every state and territory under 986, R. S. 16 ' State laws regarding abolishment of imprisonment for debt are effective under 990, R. S., 16 and for the discharge of a person from arrest or imprisonment in civil cases by 991, R. S. 17 A poor debtor may be discharged from imprisonment for debt in government suits by the Secretary of the Treasury under 3471, R. S., 18 or by the President under 3472, R. S., 19 when the Secretary is not authorized. The place of sale of real or personal property is governed by 1 and 2, act March 3, 1893, chapter 225, 20 and the publication of notice of sale of real estate by 3 of the same act. 21 Proceed- ings for sale of real estate are not interrupted by a vacancy in the marshal's office but are continued by his successor under 994, R. S. 22 The government may be a purchaser in execution sales of real estate in government suits under 3470, R. S. 23 Appraisal of personal property sold on execution may conform Tinder 993, R. S., to state laws. 24 782. Judgments at Law Generally Conform to State Practice. 914, R. 8., Comp. Stat. 1901, p. 684, 4 F. 8. A. 563, Rose's Code, 900. "The practice, . . . forms, and modes of proceeding in civil causes . . . shall conform, as near as may be, to the practice, . . . forms, and modes of proceeding existing at the time in like causes in the courts of record of the state within which such . . . district courts are held, any rule of court to the contrary notwith- standing." Judgments by default generally conform to state statutes though the district courts may provide for same by rule under 918, R. S. This subject is treated in 672, supra. " 794, infra. 705, infra. 16 796, infra. " 797, infra. W 708, infra. 19 799, infra. 20 SCO, infra. 21 801, infra. 22 802, infra. 23 803, infra. 24 804,infru. MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 784 783. Interest on Judgments Rate, Allowance of, Levy for, Conforms to State Law. 966, R. S., Comp. Stat. 1901, p. 700, 4 F. 8. A. 2. "In- terest shall he allowed on all judgments in civil causes, re- covered in a circuit or district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such state ; and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judgments recovered in the courts of such state." Interest on bonds for duties. 963, R. S., Comp. Stat. 1901, p. 700, 2 F. S. A. 726, Rose's Code, 1397. "Upon all bonds, on which suits are brought for the recovery of duties, interest shall be allowed, at the rate of six per centum a year, from the time when said bonds became due." Interest on customs debentures. 965, R. 8., Comp. Stat. 1901, p. 700, 2 F. S. A. 726, Rose's Code, 1398. "In suits upon debentures issued by the collectors of the customs under any act for the collection of duties, interest shall be allowed, at the rate of six per centum per annum, from the time when such debenture be- came due and payable." 784. Judgments Kind of Money Payable in Suits for Duties. 962, R. S., Comp. Stat. 1901, p. 699, 2 F. S. A. 726, Rose's Code, 1396. "In all suits by the United States for the recovery of duties upon imports, or of penalties for the nonpayment thereof, the judgment shall recite that it is ren- dered for duties, and snch judgment, with interest thereon, and costs, shall be payable in the coin by law receivable for duties ; and the execution issued thereon shall set forth that the recovery is for duties, and shall require the marshal to satisfy the same in the coin by law receivable for duties ; and in case of levy upon and sale of the property of the judgment debtor, the marshal shall refuse payment from any purchaser at such sale in any other money than that specified in the execution." 787 JUDGMENTS AND EXECUTION LAW ACTIONS 383 785. Record of Judgment as Required by State Laws. PL 1, Act Aug 1, 1888, ch, 729, 25 Stat. at L. 357, Comp. Stat. 1901, p. 701, 4 F. S. A. 5, Rose's Code, 1861. ". . . That whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed, or any other thing to be done, in a par- ticular manner, or in a certain office or county, or parish in the state of Louisiana before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docket- ed, indexed, or otherwise conformed to the rules and re- quirements relating to the judgments and decrees of the courts of the state." 3 Act August 1, 1888, ch. 729, 4 F. S. A. 5, Rose's Code, 1863, obviating the necessity of filing a transcript of a judgment in the state office of the county where the clerk of the United States has a permanent office is repealed by Act August 17, 1912, ch. 300, 37 Stat. at L. 311. 786. Indexes of Judgment Records. 2, Act Aug. 1, 1888, ch. 729, 25 Stat. at L. 357, Comp. Stat. 1901, p. 701, 4 F. S. A. 5. "That the clerks of the several courts of the United States shall prepare and keep in their respective offices complete and convenient indices and cross indices of the judgment records of said courts, and such indices and records shall at all times be open to the inspec- tion and examination of the public." 787. Lien of Judgment Manner and Extent Conform to State Laws. PL 1, Act Aug. 1, 1888, ch. 729, 25 Stat. at L. 357, Comp. Stat. 1901, p. 701, 4 F. S. A. 5. "That judgments and decrees rendered in a circuit or district court of the Unit- ed States within any state shall be liens on property through- out such state, in the same manner, and to the same extent, and under the same conditions only, as if such judgments and decrees had been rendered by a court of general juris- diction of such state': . . ." .967, E. 8., Comp. Stat. 1901, p. 700, 4 F. S. A. 4, Rose's Code, 1862. "Judgments and decrees rendered in 384: MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 790 a circuit or district court, within any state, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state cease, by law, to be liens thereon." 788. Lien of Judgment or Execution Not Devested by Creation of a New District or Division, nor by the Division or Transfer of Territory. By 60, Judicial Code, quoted in our 170, supra, and in the Appendix, it is provided that the lien of a judgment or execution, etc., shall not be devested by a change of boundaries of any territory, and that a certified copy thereof may be filed in the proper court of the division or district in which the property is located after such transfer, and have the same effect as an original. 789. Amendments of Judgment. 954, R- S. t Comp. Stat. 1901, p. 696, 4 F. 8. A. 596, Rose's Code, 813. "K"o t; . K ^'l f '. judgment ... in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want t>f form, . . . and such court shall amend every such defect and want of form . . . upon such conditions as it shall, in its discretion and by its rules, prescribe." This section does not permit amendments in judgments except as to defects or want of form. 25 The judgment may be amended, modified, or set aside during the term of entry. 86 790. Vacation of Judgment Governed by Federal De- cisions. The inherent power to vacate a judgment during the term in which it is entered is settled beyond controversy. 27 But a judgment cannot be changed or substantially modified after the term has expired regardless of state law or practice. 28 There may, however, be an independent equity suit to relieve of a judgment at law where there is fraud or other equitable grounds. 29 25 Albers v. Whitney. 1 Story. 310. 1 Fed. Cas. Xo. 137. ^3 Southern P. R. Co. v. Kelly, 187 Fed. 939, 109 C. C. A. 659. 27 Ibid. ? 8 Kronson v. Schulten. 304 U. S. 410. 26 L. ed. 797. 29 Johnson v. Waters, 111 U. S. 667, 28 L. ed. 556. 4 Sup. Ct. Rep. 619. 792 JUDGMENTS AND EXECUTION- LAW ACTIONS 385 791. Executions in Common-Law Causes Conform to State Statutes by Rule of Court. 916, R. S., Comp. StaJt. 1901, p. 684, 2 F. 8. A. 44, also 4 F. S. A. 580, Rose's Code, 925. "The party re- covering a judgment in any common-law cause in any cir- cuit or district court shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the prop- erty of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in re- lation to remedies upon judgments, as aforesaid, by execu- tion or otherwise." "When parties seek attachments, garnishments, executions, pro- visional remedies of various kinds, in the courts of the United States, it is not the habit of counsel or of the court to search the statutes of a quarter of a century ago, and to conform the pro- ceedings of the Federal courts to those then in force in the courts of the several states, but they adopt and use remedies prescribed by their state statutes in force at the time they act. A general and uniform practice becomes a general and established rule of the court, and in the absence of convincing evidence to the con- trary the presumption in the appellate court is that the remedial statutes in force in the states at the time when proceedings under them were taken in the Federal courts had been adopted by those courts, either by written rule or by general practice." 30 792. Executions Not to Issue against Revenue Officers for Moneys Paid into Treasury on Probable Cause. 989, R. 8., Comp. Stat. 1901, p. 708, 3 F. S. A. 40, Rose's Code, 1868. "When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid into the Treasury, in the performance of his official duty, and the court certifies that there was prob- able cause for the act done by the collector or other officer, 30 Logan v. Goodwin, 104 Fed. 400, 43 C. C. A. 658. Montg. 25. 386 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 795 or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the government, no ex- ecution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be pro- vided for and paid out of the proper appropriation from the Treasury." 793. Execution Stay Pending Motion for New Trial Vacation of Judgment by Granting New Trial. 987, R. S. f Comp. Stat. 1901, p. 708, 3 F. 8. A. 45, Rose's Code, 924, 1866. "When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where such find- ing is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. If such petition is filed within said term of forty-two days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his discretion, execution shall, of course, be further stayed to the next session of said court. If a new trial be granted, the former judgment shall be there- by rendered void." 794. Execution Stay for One Term Where State Law Allows Such Stays. 988, R. 8., Comp. Stat. 1901, p. 708, 3 F. 8. A. 46, Rose's Code, 1867. " (When judgment debtor entitled to a continuance of one term.) In any state where judg- ments are liens upon the property of the defendant, and where, by the laws of such state, defendants are entitled, in the courts thereof, to a stay of execution for one term or more, defendants in actions in courts of the United States, held therein, shall be entitled to a stay of execution for one term." 795. Executions may Run and be Executed in any Part of a State, and on Behalf of the United States in Any Other State or Territory. 985, R. 8., Comp. Stat. 1901, p. 707, 3 F. S. A. 44, Rose's Code, 1865. "All writs of execution upon judg- 797 JUDGMENTS AND EXECUTION LAW ACTIONS 387 ments or decrees obtained in a circuit or district court, in any state which is divided into two or more districts, may run arid be executed in any part of such state; but shall be issued from, and made returnable to, the court wherein the judgment was obtained." 986, R. 8., Comp. Stat. 1901, p. 101, 3 F. 8. A. 45, Rose's Code, 1865. "All writs of execution upon judg- ments obtained for the use of the United States, in any court thereof, in one state, may run and be executed in any other state, or in any territory, but shall be issued from, and made returnable to, the court wherein the judgment was ob- tained." 796. Execution Imprisonment for Debt Modifications of State Law Adopted. 990, R. 8., Comp. Stat. 1901, p. 709, 3 F. 8. A. 48, Rose's Code, 1558. "No person shall be imprisoned for debt in any state, on process issuing from a court of the United States, where, by the laws of such state, imprison- ment for debt has been or shall be abolished. And all mod- ifications, conditions, and restrictions, upon imprisonment for debt, provided by the laws of any state, shall be appli- cable to the process issuing from the courts of the United States to be executed therein ; and the same course of pro- ceedings shall be adopted therein as may be adopted in the courts of such state." 797. Execution Discharge from Arrest or Imprison- ment in Civil Actions Conform to State Laws. 991, R. 8., Comp. Stat. 1901, p. 709, 3 F. 8. A. 50, Rose's Code, 1559. "When any person is arrested or im- prisoned in any state, on mesne process or execution issued from any court of the United States, in any civil action, he shall be entitled to discharge from such arrest or imprison- ment in the same manner as if he were so arrested and im- prisoned on like process from the courts of such state. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such state, and the same course of proceedings shall be adopted as may be- adopted in the courts thereof. But all such proceedings shall be had before one of the commissioners of the circuit court for the district where the defendant is so held/' 388 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 799 798. Execution Imprisonment for Debt in Government Suits Discharge of Poor Debtor under 3471, R. S. 3471, K. S., Comp. Stat. 1901, p. 2318, 3 F. S. A. 52. "Any person imprisoned upon execution issuing from any court of the United States, for a debt due to the United States, which he is unable to pay, may, at any time after commitment, make application, in writing, to the Secretary of the Treasury, stating the circumstances of his case and his inability to discharge the debt ; and thereupon the Sec- retary may make, or require to be made, an examination and inquiry into the circumstances of the debtor, by the oath of the debtor, which the Secretary, or any other per- son by him specially appointed, is authorized to administer, or otherwise, as the Secretary shall deem necessary and ex- pedient, to ascertain the truth ; and upon proof made to his satisfaction, that the debtor is unable to pay the debt for which he is imprisoned, and that he has not concealed or made any conveyance of his estate, in trust, for himself, or with an intent to defraud the United States, or to deprive them of their legal priority, the Secretary is authorized to receive from such debtor any deed, assignment, or convey- ance of his real or personal estate, or any collateral security, to the use of the United States. Upon a compliance by the debtor with such terms and conditions as the Secretary may judge reasonable and proper, the Secretary must issue his order, under his hand, to the keeper of the prison, directing him to discharge the debtor from his imprisonment under such execution. The debtor shall not be liable to be im- prisoned again for the debt; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor. The benefit of this section shall not be extended to any person imprisoned for any fine, forfeiture, or penalty, incurred by a breach of any law of the United States, or for moneys had and received by any officer, agent, or other person, for their use; nor shall its provisions extend to any claim arising under the postal laws." 799. Same Discharge by President When Secretary of Treasury Not Authorized. 3472, R. S. f Comp. Stat. 1901, p. 2319, 3 F. S. A. 53. "Whenever any person is imprisoned upon execution for a debt due to the United States, which he is unable to pay, and 801 JUDGMENTS AND EXECUTION LAW ACTIONS 389 his case is such as does not authorize his discharge by the Secretary of the Treasury, under the preceding section, he may make application to the President,, who, upon proof made to his satisfaction that the debtor is unable to pay the debt, and upon a compliance by the debtor with such terms and conditions as the President shall deem proper, may order the discharge of such debtor from his imprisonment. The debtor shall not be liable to be imprisoned again for the same debt; but the judgment shall remain in force, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor." 800. Execution Sale of Real Estate or Personal Prop- erty Place of Sale. 1, Act March 3, 1893, ch. 225, 27 Stat. at L. 751, Comp. St. 1901, p. 710, 3 F. 8. A. 54. "That all real es- tate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish, or city in which the property, or the greater part thereof, is located, or upon the premises as the court rendering such order or decree of sale may direct." Personal property sold same as real estate unless otherwise ordered. 2, Act March 3, 1893, ch. 225, 27 Stat. at L. 751, Comp. St. 1901, p. 710, 3 F. S. A. 54. "That all personal property sold under any order or decree of any court of the United States shall be sold as provided in the first section of this act, unless, in the opinion of the court rendering such order or decree, it would be best to sell it in some other manner." 801. Execution Sale of Real Estate Publication of Notice. 3, Act March 3, 1893, ch. 225, 27 Stat. at L. 751, Comp. St. 1901, p. 710, 3 F. S. A. 54. "That hereafter no sale of real estate under any order, judgment, or decree of any United States court shall be had without previous pub- lication of notice of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued, and having a general circulation in the county and state where the real estate proposed to be sold is situated, if such there 390 MONTGOMEBY'S MANUAL OF FEDERAL PROCEDI:KE 803 be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said property is situated, as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, di- rect the publication of the notice of sale herein provided for to be made in such other papers as may seem proper." 802. Execution Sale of Real Estate Marshal's Suc- cessor to Continue Proceedings. 994, R* S., Comp. Stat. 1901, p. Ill, 3 F. S. A. 52, Rose's Code, 1872. "When a marshal dies, or is removed from office, or the term of his commission expires, after he has taken in execution, under process from a court of the United States, any lands, tenements, or hereditaments, and before sale or other final disposition thereof, the like pro- cess shall issue to the succeeding marshal, and the same pro- ceeding shall be had as if such marshal had not died or been removed, or the term of his commission had not expired. And when a marshal dies or is removed from office, or the term of his commission expires, after he has sold any lands, ten- ements, or hereditaments, under process from the court of the United States, and before a deed for the same is ex- ecuted by him to the purchaser, such court may, on applica- tion by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the mar- shal for the time being to perfect the title and execute a deed to the purchaser, upon his paying the purchase money and costs remaining unpaid." i. 803. Execution Sale of Real Estate in Government Suits Purchase by Government. 3470, R. 8., Comp. St. 1901, p. 2318, 3 F. S. A. 52. "At every sale, on execution, at the suit of the United States, of lands or tenements of a debtor, the United States may, by such agent as the Solicitor of the Treasury shall appoint, become the purchaser thereof ; but in no case shall the agent bid in behalf of the United States a greater amount than that of the judgments for which such estate may be ex- posed to sale, and the costs. Whenever such purchase is made, the marshal of the district in which the sale is held shall make all needful conveyances, assignments, or trans- fers to the United States." 804 JUDGMENTS AND EXECUTION LAW ACTIONS 391 804. Execution Sale of Personal Property -Appraisal under 993, R. S., in Same Manner as Required by State Law. 993, R. 8., Comp. Slat. 1901, p. 710, 3 F. 8. A. 51, Ease's Code, 737, 1873. "(Goods taken on a fieri facias, how appraised.) When it is required by the laws of any state that goods taken in execution on a writ of fieri facias shall be appraised, before the sale thereof, the appraisers appointed under the authority of the state may appraise goods taken in execution on a fieri facias issued out of any court of the United States, in the same manner as if such writ had issued out of a court of such state. And the mar- shal, in whose custody such goods may be, shall summon the appraisers, in the same manner as the sheriff is, by the laws of such state, required to summon them; and if the apprais- ers, being duly summoned, fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement. When such appraisers attend they shall be entitled to the like fees as in cases of appraisements under the laws of the state." CHAPTER 28. APPELLATE PROCEDURE LAW ACTIONS. Sec. 820. In General. 821. Parties to Writ of Error. 822. Time for Writ of Error District Courts to Supreme Court. 823. Time for Writs of Error to Circuit Court of Appeals. 824. Time for Writs of Error from Circuit Court of Appeals to Supreme Court. 825. Time to Sue Out Writ of Error to State Court. 826. Procedure on Error to Circuit Court of Appeals Same as to Supreme Court. 827. Allowance of Writ of Error. 828. Amendment of Writ of Error. 829. Writ of Error from Supreme Court By Whom Issued. 830. Assignment of Errors. 831. Citation. 832. Bond on Error. 833. Xo Bond Required of United States. 834. Supersedeas. 835. Proceedings in Forma Pauperis. 836. Record on Error. 837. Reduction. Preparation, and Filing of Record on Error. 838. Time for Return of Writ of Error. 839. Summary of Proceedings on Writ of Error. 840. Review by Certiorari and Certification of Questions of Law. 841. Procedure on Error to Territories. 842. Certification to Supreme Court from the Ninth Circuit in Alaska Cases. 843. Procedure after Transcript Reaches Appellate Court. 844. Xo Reversal for Error in Fact. 845. Damages and Costs on Error. 820. In General. A judgment at law is carried up for re- view, not by appeal, but by writ of error. The term "appeal" is reserved exclusively for the designation of proceedings for the review of equity cases; this phraseology is closely adhered to by the Federal courts, and an error of law cannot be considered 392 820 APPELLATE PROCEDURE LAW ACTIONS 303 under an appeal, nor can an equity suit be reviewed bj writ of error. 1 The principal distinction between the two methods of review lies in scope of the examination of the appellate court. Only questions of law can be considered upon a writ of error, while an appeal carries up the entire cause, both as to law and fact, for reconsideration. Writs of error, together with all other preliminary proceedings upon review, either in law or equity, are regulated, not by state laws, for the conformity act has no application to them, but by Federal statutes or rules, or, in their absence, by the common law in case of a review of a law question and by the English chancery practice in reviews of equity cases. In fact the statutes governing procedure upon writs of error are, with a very few exceptions, identical with those governing appeals, and the procedure discussed in chapter 41, infra, is ap- plicable to and, as a rule, governs, writs of error as well as appeals. This being the case, appeals and writs of error are usually treated together, under the head of "Appeal and Error," but it has been thought better in this work to keep separate the procedure in law from that in equity. For that reason writs of error are herein treated separately, but the chapter is only supplemental to chapter 41, and only those points wherein the procedure on error differs from, or is controlled by different statutes than, the procedure on appeal, are here con- sidered at any length. The arrangement of this chapter is parallel, as far as possible, with that of chapter 41 ; writs of error are treated as constituting four general classes : 1. Writ of error from United States district courts to the United States Supreme Court. 2. Writ of error from United States district courts to circuit courts of appeals. 1 Slovens v. Clark, 10 C. C. A. 379, 62 Fed. 321; Highland Boy Gold Mining Company v. Strickley, 54 C. C. A. 186, 116 Fed. 852; Francisco v. Chicago & A". R. R. Co. 79 C. C. A. 292. 9 Ann. Cas. 628, 149 F>d. :r><): Ghost v. United States. 94 C. C. A. 253, 168 Fed. 843; Missouri Pac. R. R. Co. v. Chicago & A. R. R. Co. 132 U. S. 191, 33 L. ed. 309, 10 Sup. Ct. Hep. 65. 394 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 821 3. Writ of error from circuit courts of appeals to Supreme Court. 4. Writ of error from state courts to United States Supreme Court. In addition to these four classes of cases, there is provided a method of review by the Supreme Court in cases where the decision of the circuit courts of appeals is otherwise final (infra, chapter 39). Procedure in all four of those general classes is identical, except as to the time within which the appeal must be sued out, and as to differences in practice due to variations in the various rules of different circuits. 2 Consequently all proceedings on error are herein treated col- lectively, except as to time, while proceedings upon certiorari or certification of questions of law, are separately treated. Procedure on error from courts of Hawaii, Porto Rico, Alaska, Philippines, and District of Columbia, falls within one of the four classes enu- merated as indicated. 821. Parties to Writ of Error. In case of a joint judg- ment, all parties who are affected by it must join in the application for a writ of error, unless some of them, upon being notified by those of their codefendants who desire to sue out the writ of their intention so to do, refuse to join ; in which case the party or parties desiring the writ are entitled to it without such joinder upon mo- tion stating the facts. But the notice and consequent order per- mitting the severance of the parties must be incorporated in the record. 3 This notice and refusal and the order allowing the writ upon motion showing these facts, is known as "Summons and Sever- ance," and is essential to the jurisdiction of the appellate court. But notice in open court at the time when the judgment is rendered, the writ being allowed at that time upon motion, if shown by the 2 See Rules of all Circuits in Appendix, post. SHardee v. Wilson, 146 U. S. 180, 36 L. ed. 933, 13 Sup. Ct. Rep. 30; Godbe v. Tootle, 154 U. S. 577, 19 L. ed. 831, 14 Sup. Ct. Rep. 1164; Estis v. Trabue, 128 U. S. 229, 32 L. ed. 437, 9 Sup. Ct. Rep. 58; Humes v. Third Nat. Bank, 4 C. C. A. 668, 54 Fed. 917, and cases there cited at page 920. 826 APPELLATE PROCEDURE LAW ACTIONS 395 record, amounts to summons and severance, and no written notice is then required. 4 822. Time for Writ of Error District Courts to Su- preme Court. A writ of error from the United States district courts to the United States Supreme Court must be sued out with- in two years from the entry of judgment. The statute governing this 5 is the same as that governing appeals of the same class. 6 823. Time for Writs of Error to Circuit Court of Ap- peals. That part of 11, Act March 3, 1891, which prescribes six months as the time within which appeals must be taken to the circuit courts of appeals, applies as well to writs of error. 7 824. Time for Writs of Error from Circuit Court of Ap- peals to Supreme Court. 6 of the Act of March 3, 1891, limits the time within which both writs of error and appeals may be sued out, to one year after entry of judgment. 8 825. Time to Sue Out Writ of Error to State Court. 1003, R. S. f Comp. St. 1901, p. 713, 4 F. 8. A. 666. "Writs of error from a Supreme Court to a state court, in cases authorized by law, shall be issued in the same manner and under the same regulation, and shall have the same ef- fect, as if the judgment or decree complained of had been rendered or passed in the court of the United States." The writ of error must, therefore, be allowed within two years after entry of judgment, as provided by 1008, R. S., Comp. St. 1901, p. 715, 4 F. S. A. 668. 826. Procedure on Error to Circuit Court of Appeals Same as to Supreme Court. The practice and procedure up- 4Lamon v. Speer Hardware Co. Ill C. C. A. 462, 190 Fed. 734; Alsop v. Comvay, 110 C. C. A. 366, 188 Fed. 572: Ireton v. Penna. Coal Co. 107 C. C. A. 304, 185 Fed. 84; Love v. Export Storage Co. 74 C. C. A. 155, 143 Fed. 1; Loveless v. Ransom, 46 C. C. A. 515, 107 Fed. 627 ; McNulta v. West Chicago Park, 39 C. C. A. 545, 99 Fed. 328. 5R. S. 1008, Comp. St. 1901, p. 715, 4 F. S. A. 662. ( 2052 infra.) 6 2052, infra. 7 2053, infra. 2055, infra. MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 828 on error to the circuit court of appeals is identical with that upon error to the Supreme Court, except as to differences in practice resulting from discrepancies between the rules of the various circuits. 9 827. Allowance of Writ of Error. What is said of the petition for appeal in chapter 41 10 applies as well to the petition for a writ of error, and the form there given will serve as a guide here. The only distinction between the granting of an appeal and a writ of error rests in the nature of the right to have the re- view allowed. In case of an appeal the right of review is abso- lute, and the court cannot refuse it; n but a writ of error may be denied if the grounds assigned in the assignment of errors appear insufficient to the court. 12 828. Amendment of Writ of Error. Prior to the pas- sage of- the act of June 1, 1872, any formal defect in a writ of error defeated the jurisdiction of the Supreme Court, and could not be so amended as to cure any such defect. 13 1005, R. S., taken from the act of June 1, 1872, permits an amendment of writs of error as to matters of form subject to the discretion of the court. The section is as follows: "The Supreme Court may, at any time, in its discretion and upon such terms as it may deem just, allow an amend- ment to a writ of error, when there is a mistake in the testo of the writ, or a seal to the writ is wanting, or when the writ, is made returnable on a day other than the day of the com- mencement of the term next ensuing the issue of the writ, 9 11, Act. Mar. 3, 1891, Comp. St. 1901, p. 715, 4 F. S. A. 668, infra, 2057. 10 2058, infra. " 2058, infra. 12 Simpson v. First Nat. Bank, 129 Fed. 257, 63 C. C. A. 371. 13 Insurance Co. of Valley of Va. v. Mordecai, 21 How. 195, 16 L. ed. 94; Porter v. Foley. 21 How/393, 16 L. ed. 154; Carrol v. Dorsey, 20 How. 204, 15 L. ed. 803 ; Hodge v. Williams, 22 How. 87, 16 L. ed. 237'; Wilson v. Life Insurance Co. 12 Pet. 140, 9 L. ed. 1032: Deneale v. Archer, 8 Pet. 526, 8 L. ed. 1033; Davenport v. Fletcher, 16 How. 142, 14 L. ed. 879; Millar v. McKenzie, 10 Wall. 582, 19 L. ed. 1043: Mussina v. Cavazos, 6 Wall. 355, 361. 18 L. ed. 810; The Protector, 11 Wall. 82, 20 L. ed. 47; Moulder v. Forest, 154 U. S. 567, 19 L. ed. 154, 14 Sup. Ct. Rep. 1207. 828 APPELLATE PKOCEDURE LAW ACTIONS 397 or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form : Provided, the defect has not preju- diced, and the amendment will not injure the defendant in error." This section permits amendments in the instances therein enumerated to be allowed by the circuit court of appeals as well as by the Supreme Court, it being provided by the act of March 3, 1891 ( 11) that "all provisions of law now in force regulating the methods and system of review through appeals or writs of error shall regulate the method and system of appeals and writs of error provided for in this act in respect of the circuit court of appeals, including all provision for bonds or other securities to be required and taken on such appeals and writs of error." 14 The staute is largely self-explanatory as to the cases in which an amendment may be allowed, but it is to be borne in mind that permission to amend is not a matter of right, but is given only when in the discretion of the court it is deemed just and proper. 15 The theory of 1005 is that a colorable writ shall operate as a writ of error, the court being given power to amend it in so far as it is informal. 16 But a purported w,rit of error in the name of the chief justice of the supreme court of a state, bearing the teste of that chief justice, signed by the clerk and sealed by the seal of that court, but not in the name of the Presi- dent, or under the authority of the United States, is not a color- able writ in such sense as to allow amendment. 17 However, a writ running in the name of the President of the United States, but defective in that it was not tested by the Chief Justice of the United States, nor signed by the clerk of the Supreme Court of the United States, and did not bear the seal of either the Supreme Court or the circuit court, but, instead, was sealed with the seal of the supreme court of Texas, tested by the chief justice and 14 Cotter v. Alabama G. S. R. Co. 61 Fed. 747, 10 C. C. A. 35. isjVarson v. Yewdall, 95 U. S. 294, 24 L. ed. 436. 16 Cotter v. Alabama G. S. R. Co. 61 Fed. 747, 10 C. C. A. 35. "Bondurant v Watson, 103 IT. S. 278, 26 L. ed. 447. 398 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 828 signed by the clerk of that court, is held to be a colorable writ and subject to amendment. 18 The power to permit the amendment of a defective writ under this section is very liberal, and it is not fatal that more than six months had passed since the final decree sought to be reviewed was pronounced. The statute allows the amendment at any time in the discretion of the court. 19 Power to allow an amendment, however, depends primarily upon whether or not the defect can be remedied by reference to the accompanying record. If it cannot, no amendment can be granted. 20 But when an amendment is allowed, it dates back by relation to the date of its original issuance, and presupposes jurisdiction from that date. 21 Xo amendment can be allowed if it will result in prejudice or injury to the adverse party, or if it appears that the amendment requested, if granted, would be useless, as in a case where the question presented by the record is already settled by previous decisions of the Supreme Court. 22 The name of a party omitted by accident may be added by way of amendment if the same is authorized by a reference to the record, 23 but the objection that a plaintiff is not the real party in interest cannot be set up by way of amendment, and the same may be said of the objection that the plaintiff is without capacity to sue. These things must be set up before trial. 24 ' ' Amendments in "all particulars of form" have been held to include a case where the writ of error was not attached to the transcript nor made a part of the record, but was returned to "Texas, etc., Railway Co. v. Kirk, 111 U. S. 486, 28 L. ed. 481, 4 Sup. Ct. Rep. 500. 19 Cotter v. Alabama G. S. R. Co. 61 Fed. 747, 10 C. C. A. 35. 20 Cotter v. Alabama G. S. R. Co. 61 Fed. 750, 10 C. C. A. 35; Martin v. Burford, 176 Fed. 555, 100 C. C. A. 159; Estis v. Trabue, 128 U. S. 228, 32 L. ed. 437, 9 Sup. Ct. Rep. 58. 21 Knickerbocker Ins. Co. v. Pendleton, 115 U. S. 339, 29 L. ed. 432, 6 Sup. Ct. Rep. 74. 22 Pearson v. Yewdall, 95 U. S. 294, 24 L. ed. 436. 23 Walton v. Marietta Chair Co. 157 U. S. 346, 39 L. ed. 725, 15 Sup. Ct. Rep. 626; Thomas v. Green Co. 77 C. C. A. 487, 146 Fed. 969. 24 Texas & P. R. Co. v. Jackson, 193 Fed. 948, 113 C. C. A. 576; St. Louis & S. F. R. Co. v. Herr, 193 Fed. 950, 113 C. C. A. 578; Northwestern S. S. Co. v. Cochran, 111 C. C. A. 626, 191 Fed. 149. 830 APPELLATE PROCEDURE LAW ACTIONS 399 the appellate court upon the day when the transcript was filed therein properly indorsed. Having performed its function, it is permitted to be attached to the record after being received by the appellate court as should have been done in the first instance. 25 \ 829. Writ of Error from Supreme Court By Whom Is- sued. 1004, R. 8., Comp. St. 1901, p. 713, 4 F. 8. A. p. 616 as amended Jan. 22, 1912, ch. 12, 37 Stat. at L. 54. "Writs of error returnable to the Supreme Court or a circuit court of appeals may be issued as well by the clerks of the district courts, under the seals thereof, as by the clerk of the Su- preme Court or of a circuit court of appeals. When so is- sued they shall be, as nearly as each case may admit, agree- able to the form of a writ of error issued by the clerk of the supreme court or the clerk of a circuit court of appeals." 830. Assignment of Errors. 997, R. 8., Comp. St. 1901, p. 712, 4 F. 8. A. 605. "There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an as- signment of errors, and a prayer for reversal, with a cita- tion to the adverse party." This assignment of errors must set forth separately and par- 25 Cotter v. Alabama G. S. R. Co. 61 Fed. 747, 10 C. C. A. 35. Amend- ments under this section have been allowed in the following cases: Texas R. Co. v. Kirk, 111 U. S. 486, 28 L. ed. 481, 4 Sup. Ct. Rep. 500; Course v. Stead, 4 Dall. 22, 1 L. ed. 724; Burnham v. North Chicago Street R. R. Co. 87 Fed. 168, 30 C. C. A. 594; Alaska United Gold Mining Co. v. Keating, 116 Fed. 561, 53 C. C. A. 655: Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874; McPhaul v. Lapsey, 20 Wall. 282, 22 L. ed. 346; Walton v. Marietta Chair Co. 157 U. S. 342, 39 L. ed. 725, 15 Sup. Ct. Rep. 626; Pacific Bank v. Mixter, 114 U. S. 463, 29 L. ed. 221, 5 Sup. Ct. Rep. 944; Moore v. Simonds. 100 U. S. 145, 25 L. ed. 590; Gumbel v. Pitkin. 113 U. S. 545, 28 L. ed. 1128, 5 Sup. Ct. Rep. 616; Estis v. Trabue, 128 U. S. 225, 32 L. ed. 437, 9 Sup. Ct. Rep. 58; United States v. Schoverling, 14(> U. S. 76, 36 L. ed. 893, 13 Sup. Ct. Rep. 24; Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265; Evans v. Brown, 109 U. S. 180, 27 L. ed. 898, 3 Sup. Ct. Rep. 83; Mossman v. Higginson, 4 Dall. 12, 1 L. ed. 720; Sea v. Conn. Mutual Life Ins. Co. 154 U. S. 659. 25 L. ed. 772, 14 Sup. Ct. Rep. 1191; Hampton v. Rouse, 15 Wall. 684, 21 L. ed. 250; Semmes v. United States, 91 U. S. 21, 23 L. ed. 193; Nat. Bank v. Bank of Commerce. 99 U. S. 60S, 25 L. ed. 362. 400 MONTGOMEBY'S MANUAL, OF FEDERAL PBOCEDUBK 831 ticularly each error asserted and intended to be urged. 26 It must be filed with the petition for the writ, and no writ can be allowed until the assignment has been filed. 27 The form of assignment' suggested in chapter 41, 2059, will suffice as a guide for the assignment upon error. 831. Citation. 998, R. S. f Camp. St. 1901, p. 112, 4 F. S. A. 609. "When the writ is issued by a circuit court to a district court, the citation shall be signed by the judge of such district court, or by the circuit judge of such circuit court, or by a justice of the Supreme Court and the adverse party shall have at least twenty days' notice." 999, R. S., Comp. St. 1901, p. 712, 4 F. S. A. 609. "When the writ is issued by the Supreme Court to a circuit court, the citation shall be signed by a judge of such cir- cuit court, or by a justice of the Supreme Court, and the adverse party shall have at least thirty days' notice ; and when it is issued by the Supreme Court to a state court, the cita- tion shall be signed by the chief justice or judge or chancellor of said court rendering the judgment or passing the decree complained of, or by a justice of the Supreme Court of the United States, and the adverse party will have at least thirty days' notice." * Citation in error, like citation in appeal, 28 is a formal notice of the allowance of the writ. It may be waived, not being juris- dictional. A distinction is drawn, however, between citation in appeal, and upon error, in that notice in open court, in the former, ex- cuses the issuance of the citation, while in the latter it does not. 29 The citation should be signed as prescribed by R. S. 998-999, Comp. St. 1901, p. 712, 4 F. S. A. 609, 80 but failure to sign is immaterial if the defendant in error enter his appearance. 81 26 Supreme Ccmrt Rule, 35, Appendix, post. C. C. A. Rule, 11, Appendix, post. 27 2059, -infra. 28 2060, infra. 29 United States v. Phillips, 121 U. S. 254, 30 L. ed. 914, 7 Sup. Ct. Rep. 874: Loveless v. Ransom, 109 Fed. 391, 48 C. C. A. 434. 30 2000. infra. si Freeman v. Clay, 48 Fed. 849, 1 C. C. A. 115. 835 APPELLATE PROCEDURE LAW ACTIONS 401 The citation must be served personally upon the attorney of record, or the party who recovers judgment, the return being- made according to the rule of court governing the service of citations. 32 832. Bond on Error. The bond required upon suing out a writ of error is governed by the same provisions of law apply- ing to bond on appeal, 88 and the discussion contained in chapter 41. 2061, applies alike to bond on appeal and in error. The forms there set forth will serve as forms on error, the necessary changes in phraseology readily suggesting themselves. 833. No Bond Required of United States. A writ of error bond is not required of the United States, nor of any party acting under its direction, the taxable costs in such cases being payable out of the contingent fund of the Department un- der whose directions the proceedings were instituted. 1001, R. S., Comp. St. 1901, p. 713, 4 F. S. A. 615, quoted in chapter 41, 2062, infra, applies as well to writs of error as to appeals. 834. Supersedeas. Supersedeas on error, as in case of appeal, can only be secured by a strict compliance with the statutes controlling it. 84 The discussion of Supersedeas in appeal, chapter 41, 2062, is entirely applicable to Supersedeas on error, there being no distinction as to practice, procedure, or effect. 835. Proceedings in Forma Pauperis. The act of July 20, 1892, Comp. St. 1901, p. 706, 2 F. S. A. 294, permitting any citizen of the United States to "commence and prosecute to conclusion," any action, without prepaying fees or costs under certain circumstances, has been variously construed by the various circuit courts of appeals, some holding that it applies to ap- peals and Avrits of error, as well as original proceedings, while others took the opposite view. The Supreme Court, however, 82 Supreme Court Rule, 8, Appendix, post. C. C. A. Rule 14, Appendix, post. 33 2061. infra. 34 1007, R. S. infra, 2063. Montg. 26. 402 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 836 has decided that the act applies to original proceedings only, and does not obviate the necessity of giving bond on appeal or error. See infra, 2065, for the act referred to. 836. Record on Error. 997, R. S., Comp. St. 1901, p. 112, 4 F. 8. A. 605. "There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an as- signment of errors, and a prayer for reversal, with a cita- tion to the adverse party." In addition to this section, the contents of the transcript on error, like that on appeal, is governed by Supreme Court Eule 8, and Circuit Court of Appeals Rules 14 and 15. 35 The complete record upon a writ of error taken from a judg- ment at law consists of the following papers and proceedings : The complaint or declaration; the subposna properly indorsed with the marshal's return ; the defensive pleading and joining of issue; proceedings in impaneling the jury, verdict of the jury; judgment of the court; bill of exceptions; petition for writ of error ; assignment of errors ; order allowing the writ of error ; the writ of error ; the citation ; the bond, and the certificate of the clerk authenticating the record. It is not always necessary that all the documents enumerated be incorporated in the transcript, and the better practice is a stipulation between counsel, agreeing as to the contents of the record. If this cannot be done, it is the duty of the clerk to make up the record in accordance with a precipe filed by the plaintiff in error. The instructions prepared by the circuit courts of appeals of the fourth and eighth circuits 36 will be found to be of use to the practitioner. It is to be noted that by the terms of 997, R. S., supra, the transcript is to be annexed to and returned with the original writ of error, and must be authenticated. The clerk's certificate of authentication may be in substantially the following form: 35 Appendix, post. 36 Appendix, post. 839 APPELLATE PROCEDURE LAW ACTIONS 403 (Title of Court and Cause.) I , Clerk of the Court, etc., hereby Certify the forego- ing transcript, consisting of pages constitutes a full, true and correct copy of the proceedings had and orders entered in the above entitled cause, as set forth therein; as the same .appears on file and of record in this office, with the exception of the writ of error, the citation, and assignment of errors herewith attached, at pages . . . . , . . . ., and . . . ., respectively, which are the original writ, assignment, and citation. The foregoing constitutes the entire transcript in the cause. Witness my hand and the official seal of said Court, this .... day of , A. D. 191... Clerk. 837. Reduction, Preparation, and Filing of Record on Sections 2067, 2069, 2070, infra, dealing with reduction and preparation of the record, printing and filing in the appellate courts, and the use of the record in the circuit courts of appeals as part of the transcript in the Supreme Court, apply as well to proceedings in error, as on appeal, and are hereby referred to as covering this subject. 838. Time for Return of Writ of Error. Writs of error issued by the Supreme Court are returnable not exceeding thirty days, except when directed to the courts of California, Oregon, Nevada, Washington, Utah, Montana, Arizona, Wyoming, North Dakota, South Dakota, Alaska, Idaho, Hawaii, and Porto Rico, in which case the time is sixty days and to the Philippines when it is one hundred and twenty days. Writs of error issued by the circuit courts of appeals are re- turnable within thirty days. See section 2072, infra, where rules fixing time are quoted. 839. Summary of Proceedings on Writ of Error. The following are the steps to be taken in order to procure a writ of error from the judgment of a Federal court in law actions, wheth- er the proceeding be upon writ of error from the district court to the circuit court of appeals, from the district court direct to the Supreme Court, or from the circuit courts of appeals to the Su- preme Court in cases where such procedure is allowable: 404- MONTGOMERY'S MANUAL OF FEDERAL PKOCEDUEE 841 First. The petition for a .writ of error must be addressed in writing to tlje lower court or to the judge thereof in vacation, unless the writ of error is taken and allowed in open court at the term during which the judgment was rendered, in which case no written petition or citation is required. Second. With this petition must be filed an assignment of errors. Third. The order allowing the writ of error must be signed by the justice or judge of the lower court. Fourth. A writ of error bond, satisfactory to the judge allow- ing the writ of error, must be furnished and approved by him either at the time when the writ of error is allowed, or within a reasonable time thereafter with the permission of the appellate court. This bond may act as supersedeas if desired. Fifth. The citation or notice of the allowance of the writ of error must be signed by the judge and served upon the appellee. Sixth. The writ of error must be issued either by the clerk of the district court, the circuit court of appeals, or the Supreme Court, as the case may be (supra, 829). 840. Review by Certiorari and Certification of Questions of Law. 239-240, Judicial Code,* 36 Stat. at L. 1157, Comp. .St. 1911, p. 228, 1912 Supp. F. 8. A. v. 1, pp. 231, 232. Methods of review by certiorari, and certification to the Su- preme Court, are provided in the cases there enumerated. The procedure in procuring such review of a judgment at law is in no way different from the same procedure in equity, and is covered by chapter 41, 2074, 2075. 841. Procedure on Error to Territories. The statutes prescribing procedure on review of decisions from the courts of Porto Rico, 87 Alaska, 38 the Philippines, 89 District of Columbia, 40 and Hawaii 41 apply not alone to appeals, but to "appeals and 37 244, Judicial Code, infra, 2013. 38 24", Judicial Code, infra, 2015. 39 248. Judicial Code, infra, 2016. 40 250, 251, Judicial Code, infra, 2018, 2019. 246, Judicial Code, infra, 2014. " Drawn from 6 of Act of March 3, 1891, ch. 517, 26 Stat. at L. 828, Rose's Code, 1904. Comp. St. 1901, p. 549, 4 F. S. A. 409, which is repealed by 237, Judicial Code. 845 APPELLATE PROCEDURE LAW ACTIONS 405 writs of error," and chapter 41, 2076-2082, are hereby referred to as settting forth the rules of procedure applicable in all such cases. 842. Certification to Supreme Court from the Ninth Cir- cuit in Alaska Cases. 134, Judicial Code* 36 8 tat. at L. 1134, Comp. St. 1911, p. 195, 1912 Supp. F. S. A. v. 1, p. 197. Provides for a review by the Supreme Court of cases certified to it by the circuit court of appeals for the ninth circuit in cases there decided, from the district court of Alaska. The discussion contained in chapter 41, 1026, covers the ground. 843. Procedure after Transcript Reaches Appellate Court. After the transcript is properly before the appellate court, the cause is docketed, heard and disposed of according- to the rules of the particular court before which it is conducted. See Appendix for rules. What is said in chapter 41, 2084-2091, infra, with regard to dismissal of appeals, diminution of record, mandate, and pro- cedure upon death of party is applicable to writs of error, and need not be repeated. 844. No Reversal for Error in Fact. 1011, R. S., Comp St. 1901, p. 715, 4 F. S. A. 624- "There shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in rul- ing any plea in abatement, other than a plea to the juris- diction of the court, or for any error in fact." 845. Damages and Costs on Error. 1010, R. S., Comp. St. 1901, p. 715, 4 F. S. A. .623. "Where, upon writ of error, judgment is affirmed in the Supreme Court or a circuit court, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs at its discretion." l Drawn from 202 of Criminal Code of Alaska, 1 F. S. A. 370. and S ."> See Equity Rule 47. with Annotations, in Appendix, post. 8TG A SUIT IN EQUITY SUMMARY 409 Mention is made of the subject here in order to call attention to this exception permitting depositions to be taken before issue is joined. 872. Counterclaim Time for Serving Copy on Other Defendants. 18 Under Equity Rule 31," if the counterclaim is one which affects the rights of other defendants, they or their solicitors shall be served with a copy of the same within ten days from filing thereof. 873. Motion to Strike Out Defense. 14 Under Equity Rule 33, if an answer set up an affirmative defense, set-off, or counterclaim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. 874. Time for Reply. 15 If a reply is required to a set-off or counterclaim pleaded in the answer, plaintiff shall reply under Equity Rule 31, p within ten days after filing of the answer unless a longer time be allowed by the court or judge. Other defendants should reply ten days after service of a copy of the answer upon them. 875. Issue When Counterclaim or Set-off is Pleaded. 16 Unless the answer assert a set-off or counterclaim, the cause shall be deemed at issue upon the filing of the answer, but if the answer include a set-off or counterclaim, presumably the cause would be at issue upon the filing of the reply. 876. Trial Calendar. After the time has elapsed for tak- ing and filing depositions under these rules, the case shall be placed on the. trial calendar. 13 970, infra. " 978, infra. 979, infra. 16 Ibid. n See Equity Rule 31, with Annotations, in Appendix, post. o See Equity Rule, 33 with Annotations, in Appendix, pogt. P See Equity Rule 31, with Annotations, in Appendix, post. 410 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 880 877. Depositions after Case on Trial Calendar. Under Equity Kule 56, no depositions shall be taken after the case is placed upon the trial calendar, except upon some strong reason shown by affidavit disclosing why the testimony of the witness cannot be had orally on the trial, why his deposition has not been before taken, and setting out the testimony which it is expected the witness will give. 878. Continuances. Under Rule 57, Q a case may be passed over to another day of the same term by consent of the counsel or order of the court. A case shall not be continued beyond the term, save in excep- tional cases by order of the court upon good cause shown by af- fidavit and upon such terms as the court shall in its discretion impose, and the case shall be dropped from the trial calendar subject to reinstatement within one year on application to the court by either party, in which event it shall be heard in the earliest convenient day. 879. Reinstatement of Cases Dropped from Calendar Time for. Under Equity Rule 57, r unless a case dropped from the trial calendar is reinstated within the year, the suit shall be dismissed without prejudice to a new one. 880. Regulation of Practice in Equity. 917, R. 8., Comp. St. 1901, p. 684, 4 F. 8. A. 583, Rose's Code, 802. "The Supreme Court shall have power to prescribe, from time to time, and in any manner not in- consistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering, and enrolling decrees, and of proceed- ing before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or admiralty, by the circuit and district courts." V See Equity Rule 57, with Annotations, in Appendix, post. See Equity Rule 57, with Annotations, in Appendix, post. 880 A SUIT IN EQUITY SUMMARY 411 918, R. S. f Camp. St. 1901, p. 685, 4 F. 8. A. 585, Rose's Code, 805. "The several circuit and district courts may, from time to time, and in any manner not in- consistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding- section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the ad- vancement of justice and the prevention of delays in pro- ceedings." CHAPTER 30. THE BILL IN EQUITY. Sec. 890. General Statement. 891. Differences between State and Federal Statement of Cause of Action. 892. Contents of a Bill in Equity Equity Rule 25. 893. Caption of the Bill. 894. Citizenship and Residence of Parties. 895. Jurisdictional Grounds. 896. Statement of Ultimate Facts The Cause of Action. 897. Proper Parties. 898. The Prayer of the Bill. 899. Form of the Bill. 900. Discovery. 901. Stockholders' Bill. 902. Same Old and New Rules Compared. 903. Same Purposes of the Rule. 904. Amendments of Bill. 905. Amendment Where Plaintiff Fails to Set Down for Argument Objection in Answer for Defect of Parties. 906. Amendment on Death of Party. 907. Supplemental Pleading. 908. Parties 909. Joint and Several Demands. 890. General Statement. The initial pleading in a suit in equity is the bill. It is analogous to the declaration in an action at law. While in the past the established formality of its structure placed it in a class apart from most modern pleadings., and while from the very nature of our Federal practice this is still true to some extent, there is nevertheless manifested in the equity rules that took effect February 1, 1913, a strong tend- ency toward greater simplicity and expedition of pleading, and toward conformity with the rules of pleading governing the form and structure of the complaint in a civil action, as adopted in the various states under the reform or Code procedure. 412 892 THE BILL IN EQUITY 413 The Supreme Court of the United States, by Equity Rule 18, a has abrogated technical forms of pleading by providing: "Unless otherwise prescribed by statute or these rules, the technical forms of pleadings in equity are abolished." 891. Differences between State and Federal Statement of Cause of Action. A bill in equity differs from the statement of a similar cause of action in the state court in these five main points, (1) The citizenship and residence of each party must be shown; (2) a ground of Federal jurisdiction must be set out; (3) in cases where the amount in controversy is material this must be distinctly averred; (4) a ground of equitable juris- diction must appear; (5) the bill need not be verified unless special relief, pending the suit is desired. The citizenship of each party must necessarily be shown where the basis of the court's jurisdiction is diverse citizenship, and, for the sake of uniformity, and as bearing oftentimes on the ques- tion of venue, this is also required where the ground of juris- diction is a Federal question. The Federal courts being courts of limited jurisdiction, a ground of jurisdiction must be made to appear, which, in cases of concurrent jurisdiction with state courts, is either diverse citizenship or a Federal question, and in both such cases it must also appear that the amount in controversy, exclusive of interest and costs, must exceed the sum or value of $3,000, 1 unless ex- cepted under 24, Judicial Code. 892. Contents of a Bill in Equity Equity Rule 25. b ''Bill of complaint contents. Hereafter it shall be suf- ficient that a bill in equity shall contain, in addition to the usual caption : "First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. "Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. 1 892, infra, above. See Equity Rule ]8, with Annotations, in Appendix, post. * See Equity Rule 25, with Annotations, in Appendix, post. 414 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 894 "Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere state- ment of evidence. "Fourth, if there are persons other than those named as de- fendants who appear to be proper parties, the bill should state why they are not made parties as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction. "Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired, the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked." 893. Caption of the Bill. Equity Rule 25 c makes five speci- fications for framing a bill in equity "in addition to the usual caption." The title of the court and the title of the action constitute the "usual caption" mentioned in Rule 25 of the bill, but are not under the rules a part of it so as to cure defects of the statement of the cause of action. It may be set out in the following manner : IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF , DIVISION SITTING AT John Doe, Plaintiff, vs. Richard Roe, Defendant, COMPLAINT IN EQUITY. 894. Citizenship and Residence of Parties. It has always been a requirement of bills in equity in the Federal courts that "the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party," should be set out, the purpose being to show jurisdiction when the same depends upon diversity of citizenship and when the ground of jurisdic- tion is a Federal question for the sake of uniformity, and in both c See Equity Rule 25, with Annotations, in Appendix, post. 895 THE BILL IN EQUITY 415 cases to protect the parties by enabling them to locate and identify each other with certainty with a view to compelling obedience to any order of the court, and to inform the court as well as the opposing party of the conditions and disabilities, if any, of the .respective parties, 1 and as bearing in many cases on the question of venue. Following the caption is the statement of the citizenship and residence of each party, as follows : "John Doe, a citizen of the State of , residing in County of said State, alleges as his bill of complaint against Richard Roe, a citizen of the State of and residing in County, in said State as follows:" If one or both of the parties is a corporation, it must be desig- nated as such. la "Duly organized and existing under the laws of the state of - , (designating the State) and with its principal place of business at (City and County) and a citizen of said state." 895. Jurisdictional Grounds. "A short, plain statement of the facts upon which the court's jurisdiction depends" refers to the grounds of Federal jurisdiction which must affirmatively appear and must be accurate and explicit, leaving nothing for in- ference. 2 If the Jurisdictional ground is diversity of citizenship, the particular state and county of which each party is a citizen must be set forth by name, and it must be alleged that the party is a "citizen," not merely a "resident," or "inhabitant," thereof. 8 In these cases, too, the venue of the action is placed by statute, in the district of the plaintiff's or defendant's residence, and it must therefore be alleged that the suit is brought in the district court of the district of residence. 4 It must be remembered that where the jurisdiction depends on diversity of citizenship the test of jurisdiction is citizenship, not ISimkins, "A Federal Equity Suit" (2d ed.) p. 269. la Ibid. pp. 267, 8. 2 Ibid. 3 ibid. 4 Ibid. p. 270. 416 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 896 residence, or habitation, and nothing short of an allegation of citi- zenship will suffice. As to allegations of a Federal question, see chapter 7. So important is the affirmative showing of these jurisdictional facts in the bill, that no appeal will be entertained unless they plainly appear by the record, even though no objection be raised in the court below. An insufficient averment of jurisdictional facts may, however, be amended. 6 896. Statement of Ultimate Facts The Cause of Action. A statement of the cause of action showing the grounds of equi- table relief should be a "short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere state- ment of evidence." In this respect the bill in equity in the Federal courts differs little, if any, from the better forms required in the reformed or code procedure. Ultimate facts. The statement of the plaintiff's case must be composed of allegations of fact only, not inferences drawn from facts, or mere conclusions of law. The meaning of the phrase "ultimate facts ; " as used in the rule, is perhaps best explained by the last clause of the third paragraph of the rule itself, to wit, "omitting any mere statement of evidence." That is to say, ultimate facts are those facts upon which the plaintiff's case directly depends, and which are to be proved by the evidence. A statement of the ultimate facts is a statement of the issues in- volved, not of the evidence available to prove the issues. These ultimate facts should be alleged in positive form, not hypothetically or by way of recital, although it has been held that if the fact appear by necessary implication, the pleading is not defective. 7 Allegations on information and belief are also permitted where the facts are peculiarly within the knowledge of the defendant. 8 The "short and simple statement of ultimate facts" has long Thid. pp. 270, 272. 7 Investor Pub. Co. of Mass. v. Dobinson et al. 72 Fed. 603. 8 Leavenworth and others v. Pepper and others. 32 Fed. 718. $ 81)7 THE BILL IN EQUITY 417 been the end in view in drawing bills in equity, but the statement must not be made so short and simple as to omit essential allega- tions required to make a cause of action. Infringement of patent. Under previous rules it has been held sthat a bill in a suit for the infringement of a patent must not only contain an allegation of the due issuance of the patent, but also of all the facts upon which the authority to so issue it depends. The new rule being silent as to the necessity of these conditions, and as such allegations have been held not to violate the rule requiring only ultimate facts to be alleged, it is an open question whether or not the pleader is still obliged as formerly to set up these conditions precedent. Excusing laches. If it appears from the bill that there has been delay in bringing the suit so that the defense of laches might be interposed, it becomes necessary to anticipate the de- fense and excuse the delay. The facts constituting the excuse must be clearly and distinctly alleged, to enable the court to determine whether the suit has been prosecuted with due dili- gence. Fraud. It is also a well-established rule that facts constituting fraud, accident, or mistake must be specifically alleged. Charges of fraud and the like must be clearly proved, and the defendant is entitled to be informed by the bill as to the exact nature of the charges. Complete statement. The statement of the plaintiff's case is the most important part of the bill. It must contain all the material allegations upon which the plaintiff relies. It must state the case completely, for the court has no power to grant relief not shown by the statement to be within the issues. 897. Proper Parties. "If there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties, as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction." Proper parties are those whose interest in the subject-matter of the litigation may be conveniently settled by making them Montg. 27. 418 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 898 parties thereto, but whose presence is not absolutely essential to a final determination of the matter. Classification of parties. In Shields v. Barrow, 17 How. 130, parties are classified as: "(1) Formal parties. (2) Persons having an interest in the controversy and who ought to be made parties, in order that the court may act on that rule which requires it to decide upon and finally determine the entire controversy, and do complete justice by adjusting all the rights involved in it. These persons are commonly termed 'necessary parties/ but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice without affecting other persons not before the court, the latter are not indispensable parties. (3) Parties who not only have an interest in the controversy, but an interest of such nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience." It has long been held, and was formerly a part of Equity Rule 47, and is now expressly provided by Rule 39, that the court may, in its discretion, determine the suit without the presence of proper parties, so that the purpose of the provision of Rule 25, above quoted, is undoubtedly to place clearly before the court the reason, if any, for the nonjoinder of such parties, in order that the court may exercise its discretion with regard thereto. 898. The Prayer of the Bill. "A statement of, and prayer for any special relief pending the suit, or upon final hearing, may be stated and sought in alternative forms. If special relief pending the suit be desired, the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which the relief is asked." The prayer for process is no longer necessary inasmuch as Equity Rule 12 provides that "whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff." 9 See also 16 Cyc. 190, for definition of indispensable parties. 899 THE BILL IN EQUITY 419 It would also seem that a general prayer for relief is no longer necessary, although the cautious pleader will undoubtedly con- tinue to incorporate it in his bill, there being no express prohibi- tion of its use, and in view of the fact that a general prayer for relief has been held under former rules sufficient to save the com- plaint from attack by demurrer when the facts were sufficiently alleged, but the pleader had mistaken the special relief to which he was entitled. But the general prayer for relief cannot give the power to grant relief other than that shown to be due the plaintiff under the facts alleged, and it is undoubtedly better pleading under the new rules to ask for all the relief desired by appropriate special prayers which, as provided in the rules, may be stated and sought in al- ternative forms. This provision, authorizing prayers for relief in alternative forms, while it has never before appeared in the rules, is nevertheless merely the expression, in the form of a rule, of what has been held to be permissible in former adjudicated cases. 10 The alternatives, however, must be consistent, as the bill will otherwise become multifarious. If at the hearing it appears that the prayer is inconsistent with the plaintiff's statement of his case, an amendment may, in some cases, be permitted. 899. Form of the Bill. The bill need not be sworn to by the plaintiff, unless some special relief such as an injunction or writ of ne exeat be desired, pending the suit, in which event it must be verified as required by the rule quoted above. The bill then becomes in the nature of an affidavit, upon which proceedings for the issuance of the writs granted may be based. Equity Ride Jf2. A "Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him ; that upon the instructions laid before him regarding the case there is good ground for the same ; that no scandalous matter is in- 10 Jones v. Missouri-Edison Electric Co. 144 Fed. 765, 75 C. C. A. 631. l See Equity Rule 24, with Annotations, in Appendix, post. 420 MONTGOMERY'S MANUAL OF FKDEKAI. PKOCKWIM-: $ '.' (> l serted in the pleading; and that it is not interposed for delay." If the bill is required to be verified, which is only when special relief pending the suit is desired, it is provided : Equity Rule 56'. e "Every pleading which is required to be sworn to by statute or these rules may be verified before any justice or judgment of any court of the United States, or of any state or territory, or of the District of Columbia, or any clerk of any court of the United States, or of any territory, or of the District of Columbia, or any notary public." An affirmation in lieu of oath may be used. Equity Rule 78.* "Whenever under these rules an oath is or may be required to be taken, the party may, if conscien- tiously scrupulous of taking an oath, in lieu thereof, make solemn affirmation to the truth of the facts stated by him." 900. Discovery. Pt. Equity Rule 58. K "The plaintiff at any time after filing the bill, and not later than twenty-one days after is- sue, . . . may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support ... of the cause, with a note at the foot thereof stating which of. the inter- rogatories each of the parties is required to answer. . . ." & f i Further discussions on this subject will be found under chap- ter 35 on a "Trial Equity Suits," sections 1006 to 1011, hereafter 901. Stockholders' Bill. Equity Rule 21. u "Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and See Equity Rule 36, with Annotations, in Appendix, post. * See Equity Rule 78, with Annotations, in Appendix, post. K See Equity Rule 58, with Annotations, in Appendix, post. 1 See Equity Rule 27. with Annotations, in Appendix, post. 902 THE BILL IN EQUITY 421 must contain an allegation that the plaintiff was a share holder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to se- cure such action as he desires on the part of the managing directors or trustees, and if necessary, of the shareholders, and the causes of his failure to obtain such action, or the reason for not making such effort." This "verification by oath" is a requirement peculiar to this class of bills only, unless special relief pending suit be desired, as discussed under 898, above. 902. Same Old and New Rules Compared. The rule is a re-embodiment of Rule 94, promulgated in 1882, the lan- guage being identical, with the exception of the last phrase, "or the reason for not making such effort," which is new. An examination of the decisions construing former Rule 94 makes clear the reasons for the addition of the phrase, it having been held that if the circumstances are such that it is apparent that efforts on the part of the plaintiff to secure such action as he desires by the directors or trustees or by the other share- holders of the corporation would be useless, then such efforts are unnecessary. But the circumstances manifesting the uselessness of such efforts must be clearly alleged. 11 Rule 94 expresses primarily the conditions which must pre- cede the exercise of the right of a stockholder to protect the cor- poration, but emergencies may arise in which the antagonism be- tween the directory and the corporate interests may be unmis- takable and the requirements of the rule may be dispensed with, or, it is more accurate to say, do not apply. 12 By the addition of the alternative phrases, Rule 27 is made broad enough to cover all cases in which a stockholder may bring "Doctor v. Harrington, 196 U. S. 579, 49 L. edi 606; Delaware & H. Co. v. Albany & S. R. Co. 213 U. S. 435, 53 L. ed. 862. 12 Delaware & H. Co. v. Albany & 8. R. Co. supra. 422 MONTGOMERY'S MANUAL or FEDERAL PROCEDURE 904 a suit "founded on rights which may properly be asserted by the corporation," and conforms to the law as declared by the cases above cited, recognizing that there may be reasons which excuse the efforts of the plaintiff to secure action by the directors or stockholders. A ful land unequivocal compliance with the requirements of the rule is necessary, 18 and the absence of either of the required allegations constitutes ground for a motion to dismiss the bill. 14 903. Same Purposes of the Rule. The purposes of the rule are obvious, to wit : 1. It is intended to preclude persons from buying stock in corporation for the purpose of extortion by litigation ; hence the requirement of the allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law. 15 2. The purpose of the clause requiring it to be alleged "that the suit is not a collusive one, to confer on a court of the United States jurisdiction of a cause of which it would not otherwise have cognizance," is "to secure the Federal court from imposition upon the jurisdiction." 16 3. The remainder of the rule, requiring that the bill "set forth with particularity the efforts of the plaintiff to secure such action as he desires, on the part of the managing directors or trustees, and if necessary, of the shareholders, and the causes of his failure to obtain such action or the reason for not making such effort," recognizes the right of the corporate directory to corporate con- trol, making the corporation paramount even when its rights are to be protected or sought through litigation. 17 904. Amendments of Bill. As of course. Equity Rule 28* "The plaintiff may, as of course, amend 13 Ziegler v. Lake Street Elev. R. R. Co. 76 Fed. 662. 14 Illinois Central R. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 410. Equity Rule 29 ; Venner v. Gt. Northern Ry. Co. 153 Fed. 408. 15 Robinson v. W. Va. Loan Co. 90 Fed. 770, 772; Dimpfel v. Ohio & M. Ry. Co. 110 U. S. 209, 28 L. ed. 121. " 16 Delaware & H. Co. v. Albany & S. R. Co. 213 U. S. 435, 53 L. ed. 862; Young v. Alhambra Min. Co. 71 'Fed. 810. n Delaware & H. R. Co. v. Albany & S. R. Co. supra. 1 See Equity Rule 28, with Annotations, in Appendix, post. 904 THE BILL IN EQUITY 423 his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge." Under former rule the plaintiff was permitted, unless the amend- ments were numerous, to furnish copies of the amendments only, with suitable references as to their proper places of insertion. For purpose and scope of amendments, see Mellor v. Smith, 114 Fed. 120, 954, R. S., and Simkins' "A Federal Equity Suit," 2d ed. page 353, and 905, 906, 976, below. Not as of course. If the plaintiff fails to amend before the defendant files his pleading in response to the bill, his right to do so as of course is gone, and he must then obtain the consent of the defendants or leave of court or of the judge before his amendment can be effect- ive under Rule 28. Equity Rule 19* "The court may at any time, in fur- therance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amend- ed or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Any error or defect in the bill which does not affect the sub- stantial right of party will be disregarded by the court even in the absence of an offer to amend. These rules, 19 and 28, covering the subject of amendments to the bill, supplant former Equity Rules 28, 29, 30, 45, and 46, and their apparent effect is to greatly broaden the power of the courts in permitting amendments at any or all stages of the pro- ceeding. J See Equity Rule 19, with Annotations, in Appendix, post. MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 906 An examination of the decisions on this point under the former rule, however, discloses the fact that the courts have always con- sidered that the power of a court of equity to grant amendments is wholly discretionary, and that in furtherance of justice they will not consider themselves hampered by the particular rules in court. The Federal courts have always been guided in this re- gard by the circumstances of the particular case, and Equity Rules 19 and 28, seemingly more liberal than their predecessors, are in reality little more than the embodiment of the law as it has long been construed by the court. 18 905. Amendment Where Plaintiff Fails to Set Down for Argument Objection in Answer for Defect of Parties. Equity Rule ^-3. fc "Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteer days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed,, be entitled as of course to an order to amend his bill by add- ing parties; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require." 906. Amendment on Death of Party. Equity Rule 45. 1 "In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be revived by the substitution of the proper parties. If the successors or representatives of the de- ceased party fail to make such application w r ithin a reason- able time, then any other party may, on motion, apply for such relief, and the court, upon any such motion, may take the necessary orders for notice to the parties to be substi- 18 See Simkins' "A Federal Equity Suit" (2d ed.) pp. 355 to 360, for dis- cussion cases cited and examples of discretionary power under former rules. fc See Equity Rule 43, with Annotations, in Appendix, post. 1 See Equity Rule 45, with Annotations, in Appendix, post. 908 THE BILL IN EQUITY 425 tuted arid for the filing of such pleadings or amendments as may be necessary." 907. Supplemental Pleading. Equity Rule 34- m "Upon application of either party, the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court ren- dered after the commencement of the suit, determining the matters in controversy or a part thereof." Eule as to form of bills of revivor and supplemental. Equity Rule 35. n "It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circum- stances of the case may require it." 908. Parties. General rule and as to intervention. Equity Rule 37. Every action shall be prosecuted in the name of the real party in interest, but an executor, ad- ministrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All per- sons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or prop- er to a complete determination of the cause. Persons hav- ing a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant. "Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but m See Equity Rule 34, with Annotations, in Appendix, post. n See Equity Rule 35, with Annotations, in Appendix, post. See Equity Rule 37, with Annotations, in Appendix, post. 426 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 908 the intervention shall be in subordination to, and in recog- nition of, the propriety of the main proceeding." Representatives of a class. Equity Rule #&. p "When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to brjng them all be- fore the court, one or more may sue or defend for the whole." Absence of persons who would be proper parties. Equity Rule 39.* "In all cases where it shall appear to the court that persons, who might otherwise be deemed prop- er parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties be- fore the court, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties." Nominal parties. Equity Rule 40. r "Where no account, payment, convey- ance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the sub- poena upon him, need not appear and answer the bill unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer at his option ; and if he does not appear and answer he shall be bound by all the proceed- ings in the cause. If the plaintiff shall require him to ap- pear and answer he shall be entitled to the costs of all the proceedings against him unless the court shall otherwise direct" Heir as party suit to execute trusts of will. Equity Rule Jfl* "In suits to execute the trusts of a will it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law p See Equity Rule 38, with Annotations, in Appendix, post. See Equity Rule 39, with Annotations, in Appendix, post. * See Equity Rule 40, with Annotations, in Appendix, post. See Equity Rule 41, with Annotations, in Appendix, post. 909 THE BILL IN EQUITY 427 a party if he desires to have the will established against him." ' Saving rights of absent parties where defendant makes tardy ob- jection. Equity Rule 44* "If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and there- in specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a de- cree saving the rights of the absent parties." 909. Joint and Several Demands. Equity Rule 4% "In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable." t See Equity Rule 44, with Annotations, in Appendix, post. See Equity Rule 42, with Annotations, in Appendix, post. CHAPTER 31. PROCESS IN EQUITY. Sec. 010. The Summons in Equity is the Subpoena. 911. Issue Form Return of Subpoena. 912. The Precipe. 913. The Subpoena. 914. Alias Subpoenas. 915. Process in Behalf of and against Persons Not Parties. 916. Process by Whom Served. 917. Manner of Sen-ing Subpoenas. 918. Forms of Returns. 919. Form of Process and Return How Governed. 910. The Summons in Equity is the Subpoena. Equity Rule 7. " The process of subpoena shall constitute the proper mesne process in all suits of equity, in the first instance, to require the defendant to appear and answer the bill." 911. Issue Form Return of Subpoena. Equity Rule 12* "Whenever a bill is filed, and not be- fore, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after serv- ice, excluding- the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defend- ant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint sub- poena against all the defendants." a See Equitv Rule 12, with Annotations, in Appendix, post. 428 913 PROCESS IN EQUITY 429 912. The Precipe. The "application of the plaintiff" men- tioned in Rule 12 is called the "precipe." This is a printed form which may be obtained from the clerk. The following form is suggested : UNITED STATES OF AMERICA. DISTRICT COURT OF THE UNITED STATES, DISTRICT OF , DIVISION. ] CLERK'S OFFICE vs. (. NO PRECIPE TO THE CLERK OF SAID COURT, SIR: Please issue . After the words "please issue" there may be inserted the following: Subpo?na for the defendants (naming them). Dated . Attorney for Plaintiff. 913. The Subpoena. After filing of the bill and the p recipe, the clerk will issue, sign, and seal a subprena. The subpoena is a printed form entitled in the court from which it issues, and under 911, E. S., 4 F. S. A. p. 560, it is in the name of the President of the United States bearing teste of the judge of the district court. The following form is sufficient : UNITED STATES OF AMERICA. DISTRICT COURT OF THE UNITED STATES, DISTRICT OF , DIVISION. ' IN EQUITY. THE PRESIDENT OF THE UNITED STATES OF AMERICA GREETING. TO : You are hereby commanded to appear in said District Court of the United States aforesaid within the time specified in the memorandum below to 430 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 915 file your answer or other defense to a bill of complaint exhibited against you in said Court by who citizen of the and to do and receive what the court shall have considered in that behalf. And this you are not to omit under penalty of Five Thousand Dollars. WITNESS the Honorable District Judge of said Court this day of in the year of our Lord One Thousand Nine Hundred and of our Independence, One Hundred and Clerk. By .... Deputy Clerk. Memorandum pursuant to Equity Rule 12. You are hereby required to file your answer or other defense in the above suit in the Clerk's office of said Court pursuant to said bill, on or before the 20th day after service hereof upon you, excluding the day thereof, otherwise the said bill will be taken pro confesso. Clerk. Deputy Clerk. 914. Alias Subpoenas. Inasmuch as the subpoena is re- turnable into the clerk's office twenty days from the issuing there- of, it will frequently happen that there will be a failure to serve within the time in which the subpoena must be returned. If serv- ice be not made within the time limited an alias subpoena may issue. Equity Rule IJf.. "Whenever any subpoena shall be re- turned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas against such defendant, until due service is made." 915. Process in Behalf of and against Persons Not Par- ties. Equity Rule 11* "Every person, not being a party in any cause, who has obtained an order, or in whose favor an * See Equity Rule 11, with Annotations, in Appendix, post. 918 PROCESS IN EQUITY 431 order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obedience to any or- der of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party." 916. Process by Whom Served. Equity Rule 15. c "The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person especially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit there- of." 917. Manner of Serving Subpoenas. Equity Rule 13. A "The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family." 918. Forms of Returns. In the event that the service is made on the defendant personally, the marshal's certificate may be in the following form : UNITED STATES MARSHAL'S OFFICE DISTRICT OF I HEREBY CERTIFY that I received the within writ on the day of , and personally served the same on and by delivering to and leaving with and said defendants named therein, personally, at the County of in said District a copy thereof United States Marshal. By Deputy. Dated at 19 ... c See Equity Rule 15, with Annotations, in Appendix, post. d See Equity Rule 13, with Annotations, in Appendix, post. 432 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE !)1'J If someone other than the marshal or his deputy make service his affidavit should be in form somewhat as follows for personal service : STATE OF . COUNTY OF being first duly sworn on oath says : That on the day of 19 . . , he personally served same on and by delivering to and leaving with and said defendant named therein personally in the County of in the said District, a copy thereof Subscribed and sworn to before me this day of 1913. (Seal) (Official Designation.) In the event that the service is not made on the defendant per- sonally, but by substituted service authorized in the above-quoted Equity Rule 13, the marshal's return or the affidavit of service as the case may be should show this fact by reciting that he per- sonally served the writ on the defendants named "by leaving a copy thereof at the dwelling house (or if the defendant has no dwelling house then state 'at the usual place of abode') of the defendant with ... an adult person who is a member of (or if not a member state 'who is a resident in') the family." 919. Form of Process and Return How Governed. 913, R. 8,, Comp. St. 1901, p. 683, 4 F. S. A. 586, "The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit and district courts shall be accord- ing to the principles, rules, and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made ii; pursuance thereof; but the same shall be subject to altera- tion and addition by the said courts, respectively, and to regulation by the Supreme Court, by rules prescribed, from 919 PROCESS IN EQUITY 433 time to time, to any circuit or district court, not inconsis- tent with the laws of the United States." 922, R. 8., Comp. St. 1901, p. 686, j. F. 8. A. 588. "When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such disin- terested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them." Montg. 28. CIIAPTEK 32. DECREE PRO CONFESSO. Sec. 930. Time for Defensive Pleading Twenty Days after Seivice of Subpoena. 931. Default When Taken. 932. Pleading Required to Save from Decree pro Confesso. 933. Motion to Dismiss on Point of Law. 934. Motion to Make More Definite and Certain. 935. Motion to Strike Redundant, Impertinent, or Scandalous Matter. 936. Motion to Transfer Action to Law Side. 937. Decree pro Confesso When Made Final. 930. Time for Defensive Pleading Twenty Days after Service of Subpoena. Equity Rule 12* ". . . At the bottom of the subpoena shall be placed a memorandum, that the defendant is re- quired to file his answer or other defense in the clerk's of- fice on or before the twentieth day after service, excluding the day thereof ; otherwise the bill may be taken pro confesso. But the time above mentioned under Rule 16 may be enlarged "for cause shown by a judge of the court." Rules 12 and 16 should be read together. 931. Default When Taken. Equity Rule 16* "It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by Rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso ; and thereupon the cause shall be pro- ceeded in ex parte." a See Equity Rule 12, with Annotations, in Appendix, post. t> See Equity Rule 16, with Annotations, in Appendix, post. 434 932 DECREE PEG CONFESSO 435 932. Pleading Required to Save from Decree pro Con- fesso. In order to save from default, the defendant, under Rule 16, "unless the time shall be enlarged for cause shown, by a judge of the court," is required "to file his answer on other defense to the bill in the clerk's office within the time named in the subpoena, as required by Rule 12," to wit, "on or before the twentieth day after service, excluding the day thereof ; otherwise the bill may be taken pro confesso." What is such "other defense" as will save a defendant from the taking of the bill against him pro confesso ? To avoid confusion it must be remembered that the state rules as to pleadings do not apply to Federal equity suits, but the Fed- eral equity rules and decisions wholly determine the procedure, time, order, and manner of pleading. Hence the filing of a writ- ten appearance, a motion for security for costs, a demurrer, a plea, or any other defensive pleading not authorized by the Federal equity rules, would not be sufficient to save from default in a Fed- eral equity suit even though sufficient in a similar suit in the state courts under the state practice of the state wherein the Federal court may be located. Under the new rules in force February 1, 1913, the following would seem to come under the term "other defense," which would save from default: (1) A special appearance by motion to quash the process on some jurisdictional ground; 1 (2) under Rule 29, motion to dismiss on certain points of law arising upon the face of the bill; 2 (3) under Rule 20 a motion makes more definite and certain; 8 (4) under Rule 21 a motion to strike redundant, imper- tinent, or scandalous matter; 4 (5) under Rule 22 a motion to transfer to the law side an action at law erroneously begun as a suit in equity. 5 It is, however, not certain that anything other than a motion to dismiss is intended by the term "other defense," as there is no time designated for filing answer except after over- ruling any other motion than a motion to dismiss or after filing an amended bill. 6 1 See chapter 31, on "Process Equity Suits." * 933, post. 8 934, post. * 935, post. % 5 936, post. 6 867, 868, supra. 436 MONTGOMERY'S MAXTAL OF FEDERAL PROCEDURE 936 933. Motion to Dismiss on Point of Law. Pt. Equity Rule 29. v ''Every defense in point of law aris- ing upon the face of the bill, whether for misjoinder, non- joinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer, or plea, shall be made by motion to dismiss or in the answer." . . . "If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hear- ing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered." 934. Motion to Make More Definite and Certain. Equity Rule 20. A "Further and particular statement in pleading may be required. A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and other- wise, as may be just." 935. Motion to Strike Redundant, Impertinent, or Scan- dalous Matter. Equity Rule 21 * "Scandal and impertinence. The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, imperti- nent, or scandalous matter stricken out, upon such terms as the court shall think fit." 936. Motion to Transfer Action to Law Side. Equity Rule 22* "Action at law erroneously begun as suit in equity transfer. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith trans- ferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential." c See Equity Rule 29, with Annotations, in Appendix, post. 1 See Equity Rule 20, with Annotations, in Appendix, post. See Equity Rule 21, with Annotations, in Appendix, post. * See Equity Rule 22, with Annotations, in Appendix, post. 937 DECKEE PRO CONFESSO 487 937. Decree pro Confesso When Made Final. Equity Rule 17. K "Decree pro confesso to be followed by final decree setting aside default. When the bill is taken pro confesso the court may proceed to a final decree at any time after the expiration of thirty days after the entry of the order pro confesso, and such decree shall be deemed ab- solute unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon -motion and affidavit. No such motion shall be granted, unless upon the payment of the costs of the plain- tiff up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." e See Equity Rule 17, with Annotations, in Appendix, post. CHAPTEK 33. DEFENSIVE PLEADINGS EQUITY. Sec. 950. Kinds of Defensive Pleading. 951. Motion Day. 952. Notices. 953. Motions Grantable of Course. 954. To Obtain Better Statement and Particulars. 955. To Remove Redundant, Scandalous, or Impertinent Matter. 956. Defense in Point of Law. 957. Defect of Parties. 958. Notice of Orders. 950. Kinds of Defensive Pleading. Under Equity Rule 29 demurrers and pleas are abolished, 1 and under Equity Rule 21 the right to except to bills and other proceedings for scandal or impertinence shall not obtain. 2 The old forms have evidently been abandoned so that the new proceedings will not be confused by them. The new wine is not put in the old bottles. All defenses are made either by motions or in the answer, and all issues not requiring trial of the principal case may be determined on short notice before the trial. 951. Motion Day. Equity Rule 6* "Each district court shall establish reg- ular times and places, not less than once each month, when motions requiring notice and hearing may be made and dis- posed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the 1 956, post. 2 955, post. a See Equitv Rule 6, with Annotations, in Appendix, post. 438 953 DEFENSIVE PLEADINGS EQUITY 439 circuit may dispense with the motion day during not to exceed two months in the year in any district." 952. Notices. 2d paragraph Equity Rule 1* ". . . Any district judge may, upon reasonable notice to the parties, make, di- rect, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and prac- tice of the court." Pt. Equity Rule 6. c ". . . but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings, and proceedings for the advancement, conduct, and hearing of causes." Pt. Equity Ruk 29. d ". . . If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days there- after or a decree pro confesso entered." Pt. Equity Rule 73. e ". . . Upon two days' notice to enforce and execute decrees; for taking bills pro confesso; opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. . . ." Under Equity Rule 33 the plaintiff on five days' notice, or such further time as the court may allow, tests the sufficiency of an affirmative defense in the answer by a motion to strike out. 953. Motions Grantable of Course. Equity Rule 5* "All motions and applications in the clerk's office for the issuing of mesne process or final process b See Equity Rule 1, with Annotations, in Appendix, post. c See Equity Rule 6, with Annotations, in Appendix, post. d See Equity Rule 29, with Annotations, in Appendix, post. e See Equity Rule 73, with Annotations, in Appendix, post. * See Equity Rule 5, with Annotations, in Appendix, post. 440 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 956 to enforce and execute decrees; for taking bills pro confesso; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications grantable of course by the clerk; but the same may be suspended or altered or rescinded by the judge upon special cause shown." 954. To Obtain Better Statement and Particulars. Equity Rule 20. s "A further and better statement of the nature of the claim or defense, or further and better particu- lars of any matter stated in any pleading, may in anv cnse be ordered, upon such terms, as to costs and otherwise, as may be just." 955. To Remove Redundant, Scandalous, or Imperti- nent Matter. Equity Rule 21. , h "The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter strick- en out, upon such terms as the court shall think fit." 956. Defense in Point of Law. Equity Rule 29. 1 "Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dis- miss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered." K See Equity Rule 20, with Annotations, in Appendix, post. 1 See Equity Rule 21, with Annotations, in Appendix, post. * See Equity Rule 29, with Annotations, in Appendix, post. 958 DEFENSIVE PLEADINGS EQUITY 441 957. Defect of Parties. Equity Rule 48* "Where the defendant shall by his an- swer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hear- ing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties ; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require/' Equity Rule 44-^ "If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties." 958. Notice of Orders. Equity Rule 4- 1 "Neither the noting of an order in the equity docket nor its entry in the order book shall of itself be deemed notice to the parties or their solicitors ; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the equity docket, which shall be taken as suffi- cient proof of due notice of the order." J See Equity Rule 43, with Annotations, in Appendix, post. k See Equity Rule 44, with Annotations, in Appendix, post. 1 See Equity Rule 4, with Annotations, in Appendix, post. CHAPTER 34. THE ANSWER EQUITY SUITS. Sec. 970. General Statement. 971. Answer as Such Is Not Evidence. 972. Time for Answer. 973. Contents of Answer. 974. Form of Answer. 975. Discovery. 976. Amendments. 977. Supplemental Answer. 978. Attacks upon Answer. 979. Reply When Required When Cause at Issue. 980. Counterclaim and Set-off. 981. Set-off or Counterclaim Subject of Independent Equity Suit against Plaintiff. 982. Cross Bill not Provided for in Rules. 983. Effect of Failure to Plead Counterclaim or Set-off. 970. General Statement. The similarity of the provisions of the new equity rules that took effect February 1, 1913, to the Code provisions of the several states that have adopted the reform procedure, is especially marked with respect to the answer in equity. Under Rule 18 technical forms of pleading are abolished. Under Rule 29, defenses formerly presentable by pleas or de- murrers must be contained in the answer, though they may be separately heard. Rule 30 provides for specific denials, denials on lack of knowledge, admission of averments not denied, amend- ments on notice when justice requires and allows inconsistent defenses, set-offs, and counterclaims in the answer. Differences from state practice : 1. Point of law formerly raised by demurrer or plea may be set out in answer. 442 972 THE ANSWER EQUITY SUITS 443 2. Counterclaim covers matters pleaded in state courts by cross bill or cross complaint. 3. No general denial. 4. No verification unless special relief pending suit sought. 971. Answer as Such Is Not Evidence. The answer is no longer evidence, except possibly as containing admissions on the part of the defendant. Under the old chancery practice the answer was considered as evidence because the testimony of a party was not admissible on the ground that interest made him incompetent, The reason for making the answer evidence disappeared with the change of prac- tice authorized by 858, R. S., Comp. Stat. 1901, page 859, 7 F. S. A. p. 1116, providing that "in the courts of the United States no witness shall be excluded in any action . . . because he is a party to or interested in the issues tried." The new rules conform to the present conditions, the revision omitting or changing all that existed in the old rules supporting the proposition. Thus old Equity Rule 59, providing for verifica- tion of the answer, has been superseded by new Rule 30, which provides for the verification of "every pleading which is required to be sworn to by statute, or these rules." Old Equity Rule 41. "Answer, when not evidence," is not con- tained in the new rules. So, also, there has been omitted from the revision old Rules 42, 43, and 44, relating to answering interroga- tories contained in the bill. New Equity Rule 58 is the only relic of the old chancery practice requiring defendants to answer under oath. The answer could not be evidence under the new rules, as Equity Rule 30 provides: "The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense." In the event of pleading of inconsistent defenses, if the answer were evidence, there would be a conflict of evidence. 972. Time for Answer. Unless the defendant files wi'th- in twenty days after service of the subpoena some "other defense" 444 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 973 as permitted by Equity Rules 12 and 16, or "unless the time shall he enlarged for cause shown, by a judge of the court" under Rule 16, it is the duty of the defendant to file an answer. Under Rule 29, "if the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter, or a decree pro co-nfesso entered. Equity Rule 32 provides for the answer to amended bill as follows: "In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supple- mental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, the like proceedings may be had as a case of an omission to put in an answer." 973. Contents of Answer. Pi. Rule 29* "Every defense in point of law arising up- on the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer, and may be sepa- rately heard and disposed of before the trial of the principal case in the discretion of the court." Equity Rule 30* Answer contents counterclaim. "The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except See Equity Rule 29, with Annotations, in Appendix, post. * See Equity Rule 30, with Annotations, in Appendix, post. 974 THE ANSWEK EQUITY SUITS 44:5 as against an infant, lunatic, or other person non compos and not under guardianship. The answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. "The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross claims." 974. Form of Answer. Equity Rule 18 c provides: "Un- less otherwise prescribed by statute or these rules, the technical forms of pleading in equity are abolished." Under Equity Rule 24, the answer is required to be "signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him ; that upon the instruction laid before him regarding the case there is good ground for the same ; that no scandalous mat- ter is inserted in the pleading; and that it is not interposed for delay." There is no provision as to verification, but undoubtedly if the answer contains a counterclaim or set-off which seeks special relief pending the suit, the counterclaim or set-off should be veri- fied by anology to the fifth subdivision of Rule 25, providing: "If special relief pending the suit be desired, the bill should be veri- fied by the oath of the plaintiff or someone having knowledge of the facts upon which such relief is asked." In case the pleading is verified, Equity Rule 36 provides for the officers before whom the same may be done, as follows: "Every pleading which is re- quired to be sworn to by statute, or these rules, may be verified be- fore any justice or judge of any court of the United States, or of any state or territory, or of the District of Columbia, or any clerk c See Equity Rule 18, with Annotations, in Appendix, post. 446 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 977 of any court of the United States, or of any territory, of the District of Columbia, or any notary public." Equity Rule 78 rt provides for an affirmation in lieu of an oath where the party has conscientious scruples against taking an oath. 975. Discovery. Pt. Equity Rule 58* ". . . the defendant at any time after filing his answer, and not later than twenty-one days after the joinder of issue, . . . may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the . . . defense of the cause, with a note at the foot thereof, stating which of the interrogatories each of the parties is required to answer. Further on this subject will be found under the chapter 35 on "Trial Equity Suits," sections 1006 to 1011 hereafter. 976. Amendments. By Equity Rule 30, f above quoted, it is provided that "the answer may be amended by leave of the court or judge upon reasonable notice, so as to put any averment in issue when justice requires it." By Equity Rule 33, 11 an answer setting up an affirmative de- fense, set-off, or counterclaim, "if found insufficient but amend- able, the court may allow an amendment upon terms or strike out the matter." 977. Supplemental Answer. Equity Rule 31+* "Upon application of either party, the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental plead- ing, alleging material facts occurring after his former plead- ing, or of which he was ignorant when it w r as made, including the judgment or decree of a competent court rendered after the commencement of the suit, determining the matters in controversy or a part thereof." d See Equity Rule 78, with Annotations, in Appendix, post. See Equity Rule 58, with Annotations, in Appendix, post. t See Equity Rule 30, with Annotations, in Appendix, post. h See Equity Rule 33, with Annotations, in Appendix, post. * See Equity Rule 34, with Annotations, in Appendix, post. 979 THE ANSWEB EQUITY SUITS 447 978. Attacks upon Answer. Further and particular state- ment may be required. Equity Rule 20* "A further and better statement of the nature of the claim or defense, or further and better particu- lars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just" Redundant, impertinent, or scandalous matter may be stricken out. Equity Rule 21. k "The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit." The sufficiency of the defense may be tested by a motion to strike out. Equity Rule S3. 1 "Exceptions for insufficiency of an an- swer are abolished. But if an answer set up an affirmative defense, set-off, or counterclaim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter." 979. Reply When Required When Cause at Issue. Equity Rule 31. m "Unless the answer assert a set-off or counterclaim, no reply shall be required without special or- der of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirm- ative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counterclaim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be J See Equity Rule 20, with Annotations, in Appendix, post. t See Equity Rule 21, with Annotations, in Appendix, post. 1 See Equity Rule 33, with Annotations, in Appendix, post. m See Equity Rule 31, with Annotations, in Appendix, post. 448 MONTGOMERY'S MANUAL OF FEDEUAL PHOCEDUEE 980 allowed by the court or judge. If the counterclaim is one which affects the rights of other defendants, they or their solicitors shall be served with a copy of the same within ten dajs from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill." 980. Counterclaim and Set-off. 3d Par. Equity Rule 30. n "The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim so set up shall have the same effect as a cross suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and cross claims." This short paragraph is the only Federal authority that recog- nizes counterclaims and set-offs, for prior to the adoption of the new equity rules the only relief that could be sought in an answer was the dismissal of the bill. Affirmative matter could not be set up in the answer, but was required to be pleaded by cross bill. The Federal decisions relating to Federal procedure, therefore, do not define counterclaims and set-offs, the Federal Statutes do not provide for them, nor do the new rules except that above quoted, and Rule 31 providing for replies to counterclaims or set-offs. The rule designates two kinds of counterclaims: (1) Those "arising out of the transaction which is the subject-matter of the suit;" (2) those "which might be the subject of an independent suit in equity against" plaintiff. The second kind of a counterclaim is broad enough to include matters "connected with the subject of the action" though not necessarily "arising out of the transaction which is the subject- matter of the suit." It is broader than and includes that kind of cross claim which is known as a "set-off," which term seems to be merely an alternative expression for "counterclaim." n See Equity Rule 30, with Annotations, in Appendix, post. 982 THE ANSWER EQUITY SUITS 449 There is a large group of states which make a distinction be- tween set-off and counterclaim, the set-off being used to set out independent or external matters as the subject of a cross claim, while in another group of states, the term "set-off" is not used, but there are two kinds of counterclaims, the second kind of which correspond to the "set-off" above mentioned. 1 That "set-off" is merely an alternative term for "counterclaim" is borne out by the fact that the rules always use these terms in the alternative with the disjunctive "or." In Rule 30, "set out any set-off or counterclaim," and again, "and such set-off or counterclaim." In Rule 31, "unless the answer asserting set-off or counterclaim," and again, "if the answer include a set-off or counterclaim," and the rule also provides for a decree pro confesso on the counterclaim, but does not mention such a decree in connection with set-off. 981. Set-off or Counterclaim Subject of Independent Equity Suit against Plaintiff. Equity Rule 30 provides that the answer "may, without cross bill, set out any set-off or counter- claim against the plaintiff which might be the subject of an in- dependent suit in equity against him." Does this set-off or counter- claim include other matters than that which formerly could have been set up by cross bill ? The cross bill under the former practice has been confined to matters germane to the purposes of the bill. It was required to be connected with it in some way. The use of the term "set-off" indicates separate unconnected extrinsic cause of action, and would seem to be much broader. 982. Cross Bill not Provided for in Rules. The only ref- erence in the index of the equity rules to the cross bill reads as follows: "Cross-bill counterclaim to be stated in answer, and not by." The only reference in the rules to the cross bill is in Equity Rule 30, providing that the defendant "may, without cross bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against 1 Pomeroy's Code Remedies (4th ed.) p. 835. o See Equity Rule 30, with Annotations, in Appendix, post. Monto. 29. 450 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 982 him." The Federal statutes and the new equity rules do not provide for the procedure in the event of the filing of a cross bill, and the evident intent is that a counterclaim or set-off should be used, instead of cross bill, where this is possible. If there is any doubt as to whether or not defensive matter, which formerly could have been set up by cross bill, comes under the provisions of the new rule, the safer practice, until this matter has been definitely determined, is to plead the defense both as a counterclaim and by cross bill, assuming that the procedure on the cross bill will be analogous to the new practice with reference to original bills. The new counterclaim and set-off seem to cover all or almost all which could have been pleaded by the cross bill under the form- er practice. The purposes of the cross bill were as follows : 1. Affirmative relief. As the only prayer of the answer under the old practice was for dismissal of the bill, the cross bill was the only method of obtaining affirmative relief. The new rule provides that the "set-off or counterclaim so set up shall have the same effect as a cross suit, so as to enable the court, to pronounce a final judgment in the same suit both on the original and cross claims." There can be no doubt but that under Rule 30, the reformation of an instrument sued upon may be sought by the defendant on the ground of mistake or fraud, or that the defendant could set up usury, or pray that an agreement be surrendered which is sought to be specifically enforced. In fact, these are matters arising out of the transaction which is the subject-matter of the suit, and must be set out in the answer, and not by cross bill. 2. Discovery. The cross bill is no longer necessary for dis- covery in aid of an answer, as Equity Rule 58 now provides for the filing of interrogatories in writing for the discovery, by the opposite party or parties, of facts and documents material to the support or the defense of the cause. This was also true under the old rules, but the old rules by old Equity Rule 72 recognized the right of defendant to obtain dis- covery by cross bill by requiring an answer to the original bill before the plaintiff was compelled to answer the cross bill. Old Equity Rule 72 is now abolished, and there is no recognition of 982 THE ANSWER EQUITY SUITS 451 the cross bill in the new rules except the permission to set up mat- ters without a cross bill. 3. To set up new matter arising after issue joined. Under the old practice it was not possible to set up new matter by a supple- m,ental answer. Old Rule 46 as to supplemental pleading referred to the bill only. Therefore it was necessary to set up this new matter by cross bill. This is no longer necessary, because the new Equity Rule 34 provides for a supplemental answer as well as a supplemental bill. Equity Rule 34* "Upon application of either party the court or judge may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in con- troversy or a part thereof." 4. Means of defense. The cross bill is no longer necessary to set up matters which could not be pleaded in the answer, because the answer is now of such a broad character that defensive matters which were formerly barred may now be included under the pro- vision of Equity Rule 30, which reads: "The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense." Hence, a discharge in bankruptcy; an agreement or conveyance, or matters purely legal, could be set up in an original or a supplemental answer. 5. To settle conflicting claims between the defendants. The new rule provides for two distinct kinds of counterclaims: (1) "Any counterclaim arising out of the transaction which is the subject-matter of the suit;" (2) "any set-off or counterclaim against thepiaintiff which might be the subject of an independent suit in equity against him." The second kind of counterclaim would not cover conflicting claims among the defendants themselves, as the rule specifically states that the set-off or counterclaim is "against the plaintiff." i Seo Equity Rule 34. with Annotations, in Appendix, post. 452 MOJS'TCiOMKKY's MANUAL OF FEDERAL PROCEDURE 983 Equity Rule 31 provides: "If the answer includes a set-off or counterclaim, the party against whom it is asserted shall reply within ten (10) days after the filing of the answer, unless a long- er time be allowed by the riourt or judge. The party mentioned is evidently the plaintiff, as other defendants ought to be given notice of a counterclaim affecting them before being required to reply to same." The first kind of counterclaim mentioned, one, "arising out of the transaction which is the subject-matter of the suit," evidently may affect the rights of others than the plaintiff, for Equity Rule 31 provides with respect to this class of counterclaim, "if the coun- terclaim is one which affects the rights of other defendants, they or their solicitors shall be served with a copy of the same within ten (10) days from the filing thereof, and ten (10) days, shall be ac- corded to such defendant for filing a reply." It would, therefore, seem that conflicting claims between the defendants arising out of the transaction which is the subject- matter of the suit could be litigated by counterclaim. If, however, there are conflicting claims between the defendants which do not affect plaintiff and which do not arise out of the transaction, which is the subject-matter of the suit, but the determination of which is necessary for a complete decree between all the parties or con- nected with the subject-matter of the bill, then a cross bill would undoubtedly lie. 6. For a complete determination of all matters affected by the bill. That this is the intent of the rule as is indicated by the language that "such set-off or counterclaim, so set up, shall have the same effect as a cross suit, so as to enable the court to pro- nounce a final judgment in the same suit both on the original and cross claims." 983. Effect of Failure to Plead Counterclaim or Set-off. The rule provides that "the answer must state . . . any counter- claim arising out of the transaction which is the subject-matter of the suit." This would seem to preclude setting up such matter thereafter, as under the rule stated in this form, the issues would necessarily be involved and therefore res adjudicata. 983 THE ANSWER EQUITY SUITS 453 The rule provides also that the "answer may, without cross bill, set out any set-offs or counterclaims against the plaintiff which might be the subject of an independent suit in equity against him." The use of the verb in the permissive form would indicate that as to such matters the defendant would not afterward be barred from proceeding by an independent suit in equity on his claim. It has been generally held that, in the absence of express statutory provisions to the contrary, the failure to plead these matters does not bar them, and no such effect is given by the statutes authorizing the counterclaim. In code states the defendant may elect to set up his cross demand as a counterclaim, or may not do so, but may set up and maintain a separate action upon it 8 2 Pomcroy's Code Kemedies, p. 938, cases cited. CHAPTER 35. TRIAL EQUITY SUITS. Sec. 1000. In General. 1001. Depositions after Issue and Affidavits of Expert Witnesses in Patent and Trademark Cases. 1002. Mode of Proof. 1003. Rulings on Admissibility of Evidence. 1004. Appointment of a Stenographer. 1005. Affidavits of Expert Witnesses Patent and Trademark Cases. 1006. Interrogatories for Discovery of Facts and Documents. 1007. Interrogatories to be Answered by an Officer of a Corporation Party. 1008. Interrogated Party Entitled to Copies of Interrogatories. 1009. Answers to Interrogatories Time for. 1010. Enforcing Answers to Interrogatories. 1011. Demand on Party to Admit Execution on Genuineness of Documents, etc. 1012. Pleading and Proof in Actions for Infringement. 1000. In General. Under Equity Rule 46,* the trial of an equity suit, like that of an action at law, is by producing the witnesses in open court, unless under Equity Rule 47 b deposi- tions have been taken for good and exceptional cause for departing from the general rule, or, under Equity Rule 54 C after the cause was at issue, depositions were taken under 863, 865, and 867, R. S. Chapter 16 treats of depositions. 1001. Depositions after Issue and Affidavits of Expert Witnesses in Patent and Trademark Cases. Under Equity Rule 47 d depositions may be taken when allowed by statute or for good and exceptional cause for departing from the general rule. See Equity Rule 46, with Annotations, in Appendix, post also 1003, infra. 1> See Equity Rule 47, with Annotations, in Appendix, post. See Equity Rule 54, with Annotations, in Appendix, post. d See Equity Rule 47, with Annotations; in Appendix, post. 454 1003 TRIAL EQUITY SUITS 455 Those of the plaintiff within sixty days from the time the cause is at issue ; of the defendant within thirty days from the expiration for filing plaintiff's depositions; rebutting depositions by either party within twenty days after the time for taking original deposi- ^tions expires. Under Equity Rule 54, e if the cause is at issue, depositions may be taken as provided by 863, 865, 866, and 867, Eevised Statutes. In cases involving the validity or scope of a patent or trademark, the testimony in chief of expert witnesses as to matters of opinion may be set forth in affidavits, under Equity Rule 48,* those of plaintiff within forty days after the causes at issue, defendant within twenty days after plaintiff's time has expired, and rebut- ting affidavits within fifteen days after the expiration of the time for filing original affidavits. 1002. Mode of Proof. 862, E. 8., Comp. Stat. 1901, p. 661, 3 F. 8. A. 8, Rose's Code, 1036. "The mode of proof in causes of equity .... shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided." In chapter 14, on "Evidence," will be found quoted the statutory provisions permitting the admission of copies of documents, for restoring laws, judgments, and records and admission of same in evidence, and with respect to acts of the state legislatures, records, and judicial proceedings of state courts, their authentication and proof and other matters of like character. Provisions as to subpoenas and other matters relating to wit- nesses are set out in chapter 15 above. Depositions are treated in chapter 16 above. 1003. Rulings on Admissibility of Evidence. Equity Rule 46. g "In all trials in equity the testimony e See Equity Rule 54, with Annotations, in Appendix, post. * See Equity Rule 48, with Annotations, in Appendix, post, also 1005, infra. s See Equity Rule 46, with Annotations, in Appendix, post. 456 MONTGOMERY'S MANUAL OF FEDERAL PROCEDTRE 1005 of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require." 1004. Appointment of a Stenographer. Equity Rule 50.** "When deemed necessary by the court or officer taking testimony, a stenographer may be appoint- ed who shall take down testimony in shorthand and, if re- quired, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript," 1005. Affidavits of Expert Witnesses Patent and Trade-mark Cases. Equity Rule 4$* "In a case involving the validity or scope of a patent or trade mark, the district court may, upon petition, order that the testimony in chief of expert witness- es, whose testimony is directed to matters of opinion, be set forth in affidavits and filed as follows: Those of the plain- tiff within forty days after the cause is at issue; those of the defendant within twenty days after plaintiff's time has expired ; and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affi- ant for cross-examination, the court or judge shall, on motion, direct that said cross-examination and any re-examination take place before the court upon the trial, and unless the af- fiant is produced and submits to cross-examination in compli- l See Equity Rule 50, with Annotations, in Appendix, post. I See Equity Rule 48, with Annotations, in Appendix, post. 1009 TRIAL EQUITY SUITS 457 ance with such direction, his affidavit shall not be used as evidence in the cause." 1006. Interrogatories for Discovery of Facts and Docu- ments. x Pi. Equity Rule 58? "The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the join- der of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause, with a note at the foot thereof stating which of the interrog- atories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge." 1007. Interrogatories to be Answered by an Officer of a Corporation Party. Pt. Equity Rule 58.^ ". . . If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corpora- tion, and an order may be made accordingly for the examina- tion of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. . . ." 1008. Interrogated Party Entitled to Copies of Interrog- atories. Pt. Equity Rule 58. 1 ". . . Copies shall be filed for the use of the interrogated party, and shall be sent by the clerk to the respective solicitors of record, or to the last-known address of the opposite party if there be no record solicitor. 1009. Answers to Interrogatories Time for. Pt. Equity Rule 58. ". . . Interrogatories shall be J See Equity Rule 58, with Annotations, in Appendix, post. it See Equity Rule 58, with Annotations, in Appendix, post. 1 See Equity Rule 58, with Annotations, in Appendix, post. in See Equity Rule 58, with Annotations, in Appendix, post. 458 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 1012 answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully, and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. . . ." 1010. Enforcing Answers to Interrogatories. Pt. Equity Rule 58. n ". . . The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to interrogatories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. . . ." 1011. Demand on Party to Admit Execution or Genuine- ness of Documents, etc. Pt. Equity Rule 58. ". . . By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any docu- ment, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable. . . ." 1012. Pleading and Proof in Actions for Infringement. 4920, R. S., Comp. Stat. 1901, p. 3394, 5 F. 8. A. 567, See Equity Rule 58, with Annotations, in Appendix, post. o See Equity Rule 58, with Annotations, in Appendix, post. 1012 TRIAL EQUITY SUITS 459 Rose's Code, 1172. "In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters: "First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is nec- essary to produce the desired effect ; or, "Second. That he had surreptitiously or unjustly ob- tained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same ; or "Third. That it has been patented or described in some printed publication prior to his supposed invention or dis- covery thereof, or more than two years prior to his applica- tion for a patent therefor ; or, "Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented ; or, "Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public. "And in notices as to proof of previous invention, knowl- edge, or use of the thing patented, the defendant shall state the names of the patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used ; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him, with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringe- ment ; and proofs of the same may be given upon like notice in the answer of the defendant, and with the like effect" CHAPTER 36. MASTERS IN CHANCERY. Sec. 1030. Appointment and Compensation. 1031. Reference of Exceptional Matters to. 1032. Notice and Hearing of Reference. 1033. Regulation and Method of Proceedings. 1034. Master's Report Exceptions Costs. 1030. Appointment and Compensation. Equity Rule 68* "The district courts may appoint stand- ing masters in chancery in their respective districts (a major- ity of all the judges thereof concurring in the appointment), and they may also appoint a master pro hoc vice in any par- ticular case. The compensation to be allowed to every mas- ter shall be fixed by the district court, in its discretion, having regard to all the circumstances thereof, and the compensa- tion shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but when the compensation is allowed by the court, he shall be en- titled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay in within the time prescribed by the court." 1031. Reference of Exceptional Matters to. Equity Rule 59. b "Save in matters of account, a refer- ence to master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional con- dition requires it. When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hearing within twenty days succeeding the time when See Equity Rule 68, with Annotations, in Appendix, post. * See Equity Rule 59, with Annotations, in Appendix, post. 4GO 1033 MASTERS IN CHANCERY 461 the reference was made, unless a longer time be specially granted by the court or judge; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceed- ings to be had before the master, at the costs of the party securing the reference." \ 1032. Notice and Hearing of Reference. Equity Rule 60. c "Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same is brought before hhn, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay." 1033. Regulation and Method of Proceedings. Equity Rule 62. A "The master shall regulate all the pro- ceedings in every hearing before him, upon every reference; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto ; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, accord- ing to the acts of Congress, or otherwise, as here provided; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties." c See Equity Rule 60, with Annotations, in Appendix, post. d See Equity Rule 62, with Annotations, in Appendix, post. 462 Equity Rule 65. e "The master shall be at liberty to ex- amine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary." Equity Rule 63* "All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva, voce, or upon inter- rogatories, as the master shall direct." Equity Rule 64- K "All affidavits, depositions, and docu- ments which have been previously made, read, or used in the court upon any proceeding in any cause or matter may be used before the master." 1034. Master's Report Exceptions Costs. Equity Rule 61* "In the reports made by the master to the court, no part of any state of facts, account, charge, affidavit, deposition, examination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, examination, or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, dep- osition, examination, or answer were so brought in or used." Equity Rule 66. 1 "The master, as soon as his report is ready, shall return the same into the clerk's office and the day of the return shall be entered by the clerk in the equity docket. The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in e See Equity Rule 65, with Annotations, in Appendix, post. f See Equity Rule 63, with Annotations, in Appendix, post. K See Equity Rule 64, with Annotations, in Appendix, post. l See Equity Rule 61, with Annotations, in Appendix, post. 1 See Equity Rule 66, with Annotations, in Appendix, post. 1034 MASTERS IN CHANCERY 463 session, or, if not, at the next sitting held thereafter, by adjournment or otherwise." Equity Rule 67. J "In order to prevent exceptions to re- ports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled, shall, for every exception overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs." J See Equity Rule 67, with Annotations, in Appendix, post. CHAPTER 37. RECEIVERS AND INJUNCTIONS. Sec. 1051. Persons Ineligible to Act as Receivers. 1052. Receivers Manage Property According to State Laws. 1052a. Rights of Employees on Properties in Hands of Receivers to be Heard on Terms of Employment. 1053. Receivers When Suable without Leave of Court. 1054. Power of Federal Courts to Issue Writs In General. 1055. Injunctions When may be Granted by Justice or Judge Instead of by Court. 1056. Temporary Restraining Order Bond. 1057. Preliminary Injunctions and Temporary Restraining Orders Notice. 1058. Procedure Where Order Granted without Notice. 1059. Dissolution and Modification of Temporary Restraining Orders. 1060. Order to be Filed Forthwith. 1061. Injunction Pending Appeal. 1062. When Proceedings in State Courts may be Stayed. 1063. Injunction to Restrain Enforcement of State Laws on Ground of Unconstitutionality By Whom Granted. 1064. Hearing of Application in Such Cases Notice. 1065. Appeal from Order Granting or Denying Injunction in Such Cases. 1066. Enforcement of Injunction. 1067. Writs of Ne Exeat When and by Whom Granted. 1068. Writs of Scire Facias By What Courts Issuable. 1069. Power of Courts to Administer Oaths and Punish for Contempt. 1070. Injunction Restraining Receivership Proceedings against National Banks. 1071. No interlocutory Injunction against National Banks in State Courts. 1072. Tax Assessment or Collection may Not be Enjoined. 1073. Injunctions on Distress Warrant against Officer for Failure to Account for Public Moneys Procedure. 1074. Procedure upon Refusal to Grant, or on Dissolution of Such Injunction. 1051. Persons Ineligible to Act as Receivers. 68, Judicial Code,* 36 Stat. at L. 1105, Comp. St. 1911, p. 155, 1912 Supp. F. S. A. v. 1, p. 159. "No clerk For Annotations of this 68, Judicial Code, see footnote P, ante, our 41. 464 1052a RECEIVERS AND INJUNCTIONS 465 of a district court of the United States or his deputy shall be appointed a receiver or master in any case, except where the judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment." PL 20, Ad May 28, 1896, ch. 252, Comp. St. 1901, p. 501, 4 F. 8. A. 81. "It shall not be lawful to appoint any of the officers named in this section (marshal, deputy mar- shal, attorney, or assistant attorney of any district; jury commissioner, marshal's clerk, bailiff, crier, juror, jani- tor of a public building, civil or military employee of the government, or clerk or employee of any United States justice or judge) receiver or receivers in any case or cases now pending or that may hereafter be brought in the courts of the United States." 1052. Receivers Manage Property According to State Laws. 65, Judicial Code? 36 Stat. at L. 1104, Comp. St. 1911, p. 155, 1912 Supp. F. S. A. v. 1, p. 159. "Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to .the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall wilfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both." 1052a. Rights of Employees on Properties in Hands of Receivers to be Heard on Terms of Employment. 9, Act July 15, 1913, ch. 6, 38 Stat. at L. 107, 108. "That whenever receivers appointed by a Federal court are in the possession and control of the business of employers cov- ered by this act the employees of such employers shall have the right to be heard through their representatives in such court upon all questions affecting the terms and conditions of l Re-enacting 35 Stat. at L. 436, Comp. St. 190]. p. 582, 4 F. S. A. 386, which section has been repealed by 297, Judicial Code. In general, Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897, 20 Sup. Ct. Rep. 819. Montg. 30. 466 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 1055 their employment ; and no reduction of wages shall be made by such receivers without the authority of the court therefor, after notice to such employees, said notice to be given not less than twenty days before the hearing upon the receivers' petition or application, and to be posted upon all customary bulletin boards along or upon the railway or in the customary places on the premises of employers covered by this act." 1053. Receivers When Suable without Leave of Court. 66, Judicial Code? 36 Slat, at L. 1104, Comp. St. 1911, p. 155, 1912 Sapp. F. S. A. p. 159. "Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transac- tion of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court of which such manager or receiver was appointed so far as the same may be necessary to the end of justice." 1054. Power of Federal Courts to Issue Writs In Gen- eral. Pt. 262, Judicial Code? 36 Stat. at L. 1162, Comp. St. 1911, p. 235, 1912 Supp. F. S. A. v. 1, p. 241. ". . . The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specif- ically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." 1055. Injunctions When may be Granted by Justice or Judge Instead of by Court. 264, Judicial Code? 36 Stat. at L. 1162, Comp. St. c Re-enacting 25 Stat. at L. 436, Foster's Fed. Prac. (4th ed.) pp. 14, 36, 826. 830, Comp. St. 1001, p. 582, 4 F. S. A. 387, which statute is repealed by 297, Judicial Code. In general, see Smith v. Jones Lumber & Mercantile Co. et al. 200 Fed. 647. d Drawn from 716, R. S.. Rose's Code. 841. Foster's Fed. Prac. pp. 79, 1156-74-80-81-96, 1248, Comp. St. 1901. p. 580. 4 F. S. A. 498, and 12 of act of March 3, 1891, ch. 517, 26 Stat. at L. 829. Rose's Code, 842, 4 F. S. A. 430. 716, R. S., is repealed by 297, Judicial Code. In general, United States v. McHie et al. 196 Fed. 586. e Drawn from 719. R. S.. Rose's Code. 1111, Foster's Fed. Prac. (4th ed.) pp. 644, 681, 736, 2015, Comp. St. 1901, p. 581, 4 F. S. A. 508, which section is repealed by 297, Judicial Code. 1057 KECEIVEKS AND INJUNCTIONS 467 1911, p. 236, 1912 Supp. F. S. A. v. 1, p. 21+1. "Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court; and by any judge of a district court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the district judge." 1056. Temporary Restraining Order Bond. 263, Judicial Code,* 36 Stat. at L. 1162, Comp. St. 1911, p. 235, 1912 Supp. F. S. A. v. 1, p. 241. "Whenever notice is given of a motion for an injunction out of a dis- trict court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge." 1057. Preliminary Injunctions and Temporary Restrain- ing Orders Notice. Pi. Equity Rule 73. s "No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. * Re-enactinjj 718, R. S.. Rose's Code, 1114, Foster's Fed. Prac. (4th ed.) pp. 426. 643, 733, 735, 739, Comp. St. 1901, p. 580, 4 F. S. A. 508, which section is repealed by 297, Judicial Code. In general, United States v. Weber et al. 114 Fed. 950. K See Equity Rule 73, with Annotations, in Appendix, post. 408 MONTGOMERY'S MANUAL OF FEDEKAL PROCEDURE 1061 1058. Procedure Where Order Granted without Notice. Pi. Equity Rule 7#. h ". . . In case a temporary re- straining order shall be granted without notice, in the con- tingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party wfeo ob- tained the temporary restraining order shall proceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restraining order. . . ." 1059. Dissolution and Modification of Temporary Re- straining Orders. In addition to the penalty of dissolution pre- scribed by the preceding section, a temporary restraining order may be dissolved or modified in accordance with, the following rule : Pt. Equity Rule 73.* ". . . Upon two days' notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or mod- ification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expedi- tiously as the ends of justice may require. . . ." 1060. Order to be Filed Forthwith. Pt. Equity Rule 73* ". . . Every temporary restrain- ing order shall be forthwith filed in the clerk's office." 1061. Injunction Pending Appeal. Equity Rule 7-4. k ''When an appeal from a final decree, in any equity suit, granting or dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending, modifying or restor- ing the injunction during the pendency of the appeal, upon l See Equity Rule 73, with Annotations, in Appendix, post. * See Equity Rule 73, with Annotations, in Appendix, post. J See Equity Rule 73, with Annotations, in Appendix, post. k See Equity Rule 74, with Annotations, in Appendix, post. 1063 EECEIVEKS AND INJUNCTIONS 460 such terms, as to bond or otherwise, as he may consider prop- er for the security of the rights of the opposite party." 1062. When Proceedings in State Courts may be Stayed. 265, Judicial Code, 1 36 Stat. at L. 1162, Comp. St. 1911, p. 286, 1912 Supp. F. S. A. 242. "The writ of in- junction shall not be granted by any court of the United States to stay proceedings in any coiirt of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." 1063. Injunction to Restrain Enforcement of State Laws on Ground of Unconstitutionality By Whom Granted. First Ft. 266, Judicial Code, 36 Stat. at L. 1162, Comp. St. 1911, p. 236, 1912 Supp. F. S. A. v. 1, p. 242, as amended by act March 4, 1913, ch. 160, 37 Stat. at L. 1013. "Xo interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the en- forcement or execution of an order made by an administrative board or commission acting under and pursuant to the stat- utes of such state, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the Unconstitutionality of such statute, unless the applica- tion for the same shall be presented to a justice of the Su- preme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice of the Su- preme Court, or to a judge, he shall immediately call to his assistance to hear and determine the application two other 1 Re-enacting 720, R. S., Rose's Code. 20. Foster's Fed. Prac. (4th ed.) pp. 425. 694. 727, 1810, Comp. St. 1901. p. 581, 4 F. S. A. 509, which section is repealed by 297, Judicial Code. In general, The San Pedro, 223 U. S. 365, 56 L. ed* 473, 32 Sup. Ct. Rep. 275, Ann. Cas. 1913 D, 1221. "i Re-enacting 17 of the act of June 18, 1910, ch. 309, 36 Stat. at L. 557. which section is repealed by 297. Judicial Code. In general. Ex parte Young, 209 U. S. 123, 52 L. ed. 714, 28 Sup. Ct. Rep. 441, 13 L.R.A.(X.S.) 932, 14 Ann. Cas. 764. 470 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 1064 judges: Provided, however, That one of such three judges shall be a justice of the Supreme Court, or a circuit judge." Last Pi. 266 added by amendment of March 4, 1913, ch. 160. "It is further provided that if before the final hear- ing of such application a suit shall have been brought in a court of the state having jurisdiction thereof under the laws of such state, to enforce such statute or order, accompanied by a stay in such state court of proceedings under such stat- ute or order pending the determination of such suit by such state court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the state. Such stay may be vacated upon proof made after hearing, and notice of ten days served upon the attorney general of the state, that the suit in the state courts is not being prosecuted with diligence and good faith." 1064. Hearing of Application in Such Cases Notice. PL 266, Judicial Code* 36 Stat. at L. 1162, Comp. St. 1911, p. 236, 1912 Supp. F. 8. A. v. 1, p. 242. "Said appli- cation shall not be heard or determined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the state, and to such other persons as may be defendants in the suit: Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an in- terlocutory injunction upon notice as aforesaid. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for." For Annotation of this 266, Judicial Code, see footnote m, next above, our 1063. 1066 RECEIVERS AND INJUNCTIONS 471 1065. Appeal from Order Granting or Denying Injunc- tion in Such Cases. PL 266, Judicial Code, 36 Stat. at L. 1162, Comp. St. 1911, p. 237, 1912 Supp. F. S. A. v. 1, p. 242. "An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case." 1066. Enforcement of Injunction. Equity Rule 7. p "The process of subpoena shall constitute the proper mesne process in all suits of equity, in the first instance, to require the defendant to appear and answer the bill ; and, unless otherwise provided in these rules or specially ordered by the court, a writ of attachment and, if the defend- ant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the pur- pose of compelling obedience to any interlocutory or final order or decree of the court." Equity Rule #. a "Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the district court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as for example, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice ; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with with- in the prescribed time, the clerk shall issue a writ of attach- ment against the delinquent party, from which, if at- tached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return o For Annotation of this 266, Judicial Code, see footnote n, our 1063, above. p Sec Equity Rule 7, with Annotations, in Appendix, post. o See Equity Rule 8, with Annotations, in Appendix, post. 472 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 1069 of non est inventus, to compel obedience to the decree. If a mandatory order, injunction or decree for the specific per- formance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceedings against the disobedient party for a contempt or by sequestration, may by order direct that the act required to be done, be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him." 1067. Writs of Ne Exeat When and by Whom Granted. 261, Judicial Code,* 36 Stat. at L. 1162, Comp. St. 1911, p. 235, 1912 Supp. F. S. A. v. 1, p. 241. "Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court ; and by any district judge, in cases where they might be granted by the district court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States." 1068. Writs of Scire Facias By What Courts Issuable. Pt. 262, Judicial Code* 36 Stat. at L. 1162, Comp. St. 1911, p. 235, 1912 Supp. F. S. A. v. 1, p. 241. "The Su- preme Court and the district courts shall have power to issue writs of scire facias." 1069. Power of Courts to Administer Oaths and Punish for Contempt. 268, Judicial Code* 36 Stat. at L. 1162, Comp. St. 1911, p. 237, 1912 Supp. F. S. A. v. 1, p. 243. "The said courts shall have power to impose and administer all necessary oaths, * Re-enacting 717, R. S., Rose's Code, 843, Foster's Fed. Prac. (4th ed.) p. 856. Comp. St. 1901, p. 580, 5 F. S. A. 353, which section is repealed by 297, Judicial Code. The power to issue this writ lies only in the Supreme Court, the district court and their judges, as it is ancillary to the exercise of original jurisdic- tion only. In general, Shainwald v. Lewis, 46 Fed. 839. " For Annotation of this 262, Judicial Code, see footnote d. ante, our 1054. * For Annotation of this 268. Judicial Code, see footnote a, ante, our 487. 1072 EECEIVEKS AND INJUNCTIONS 473 and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to ex- tend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the adminis- tration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, wit- ness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts." 1070. Injunction Restraining Receivership Proceedings against National Banks. 5237, R. 8., Comp. Stat. 1901, p. 3508, 5 F. 8. A. 179, Rose's Code, 1119. "Whenever an association against which proceedings have been instituted, on account of any alleged refusal to redeem its circulating notes as aforesaid, denies having failed to do so, it may, at any time within ten days after it has been notified of the appointment of an agent, as provided in section fifty-two hundred and twenty-seven, apply to the nearest circuit, or district, or territorial court of the United States to enjoin further proceedings in the premises; and such court, after citing the Comptroller of the Currency to show cause why further proceedings should not be enjoined, and after the decision of the court or finding of a jury that such association has not refused to redeem its circulating notes, when legally presented in the lawful money of the United States, shall make an order enjoining the Comptroller, and any receiver acting under his direction, from all further proceedings on account of such alleged re- fusal." 1071. No Interlocutory Injunction against National Banks in State Courts. PL 5242, R. 8., Comp. Stat. 1901, p. 3517, 5 F. 8. A. 188. "No . . . injunction . . . shall be issued against such association (national bank) or its property be- fore final judgment in any suit, action, or proceeding in any state, county, or municipal court." 1072. Tax Assessment or Collection may not be En- joined. 3224, R. 8., Comp. Stat. 1901, p. 2088,3 F. 8. A. 600. 474 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 1074 "No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." This section applies only to Federal taxation, 1 and it is doubt- ful, inasmuch as it is contained in that part of the Revised Stat- utes relating to internal revenue, whether it applies to other forms of taxation. 1073. Injunctions on Distress Warrant against Officer for Failure to Account for Public Moneys Procedure. 3636, R. 8., Comp. Stat. 1901, p. 2421, 6 F. S. A. 559. "Any person who considers himself aggrieved by any warrant of distress issued under the foregoing provisions may pre- fer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he complains ; and thereupon the judge may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. But no injunction shall issue till the party apply- ing for it gives bond, with sufficient security, in a sum to be prescribed by the judge, for the performance of such judgment as may be awarded against him ; nor shall the issu- ing of such injunction in any manner impair the lien pro- duced by the issuing of the warrant. And the same pro- ceedings shall be had on such injunction as in other cases, except that no answer shall be necessary on the part of the United States; and if, upon dissolving the injunction, it appears to the satisfaction of the judge that the application for the injunction was merely for delay, the judge may add to the lawful interest assessed on all sums found due against the complainant such damages as, with such lawful interest, shall not exceed the rate of ten per centum a year. Such injunction may be granted or dissolved by the district judge either in or out of court." 1074. Procedure upon Refusal to Grant, or on Dissolu- tion of Such Injunction. 3631, R. 8., Comp. Stat. 1901, p. 2W, 6 F. S. A. 560. "When the district judge refuses to grant an injunction to iShelton v. Platt, 139 U. S. 597, 35 L. ed. 273, 11 Sup. Ct. Rep. 646; Fchulonberg Co. v. Hayward, 20 Fed. 422: State R. R. Tax Cases, 92 U. S. f75. 23 L. ed. 663. 1074: RECEIVERS AND INJUNCTIONS 475 stay proceedings on a distress warrant, as aforesaid, or dis- solves such injunction after it is granted, any person who considers himself aggrieved by the decision in the premises may lay before the circuit justice, or circuit judge of the circuit within which such district lies, a copy of the proceed- ing had before the district judge; arid thereupon the circuit justice or circuit judge may grant an injunction or permit an appeal, as the case may be, if, in his opinion, the equity of the case requires it. The same proceedings, subject to the same conditions, shall be had upon such injunction in the circuit court as are prescribed in the district court." The appellate powers of the circuit court herein referred to were, by act of 1891, vested in the circuit courts of appeals, and Supreme Court. CHAPTER 38. DECREE EQUITY SUITS. Sec. 1080. Form of Decree. 1081. Correction of Mistakes Rehearing. 1082. Enforcement. 1083. Lien of Decree Not Devested by Creation of a Xew District or Division nor by the Division or Transfer of Territory. 1080. Form of Decree. Equity Rule 71* Form of decree. "In drawing up de- crees and orders, neither the bill nor answer nor other plead- ings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in sub- stance, as follows: 'This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel ; and thereupon, upon consideration there- of, it was ordered, adjudged, and decreed as follows, viz.:' '' (Here insert the decree or order.) Equity Rule 10* Decree for deficiency in foreclosures, etc. "In suits for the foreclosure of mortgages, or the en- forcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in Rule 8 when the decree is solely for the payment of money." Pt. Equity Rule 8. c ". . . If the decree be for the performance of any special act, as, for example, the ex- ecution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, pre- scribe the time within which the act shall be done. . . ." See Equity Rule 71, with Annotations, in Appendix, post. b See Equity Rule 10, with Annotations, in Appendix, post. See Equity Rule 8, with Annotations, in Appendix, post. 476 1082 DECREE EQUITY SUITS 477 1081. Correction of Mistakes Rehearing. Equity Rule 7#. d "Clerical mistakes in decrees or de- cretal orders, or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a hearing." Petition for rehearing. Equity Rule 69.* "Every petition for a rehearing shall contain the special matter or cause on which such re- hearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other per- son. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and re- corded, if an appeal lies to the circuit court of appeals or the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court." 1082. Enforcement. Equity Rule 8* Enforcement of final decrees. "Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the district court in suits at common law in actions of assumpsit. If the decree be for the per- formance of any specific act, as, for example, for the exe- cution of a conveyance of land or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge there- of, upon motion and affidavit, enlarging the time for the per- 1 See Equity Rule 72, with Annotations, in Appendix, post. See Equity Rule 69, with Annotations, in Appendix, post. * See Equity Rule 8, with Annotations, in Appendix, post. 478 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 1083 formance thereof. If the delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non esi invenius, to compel obedience to the decree. If a mandatory order, injunction, or decree for the specific performance of any act or contract be not com- plied with, the court or a judge, besides, or instead of, pro- ceedings against the disobedient party for a contempt or by sequestration, may by order direct that the act required to be done, be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him." Equity Rule 9. K Writ of assistance. "When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court." 1083. Lien of Decree Not Devested by Creation of a New District or Division nor by the Division or Transfer of Territory. By 60, Judicial Code, already quoted and 170, supra, it is provided that the lien of a decree, etc., shall not be devested by a change of boundaries of any territory, and that a certified copy thereof may be filed in the proper court of the divi- sion or district in which the property is located after such transfer, and have the same effect as an original. See Equity Rule 9, with Annotations, in Appendix, post. CHAPTER 39. APPELLATE JURISDICTION OF SUPREME COURT. Sec. 2000. In General. 2001. Appeals from District Courts Direct to the Supreme Court. 2002. What Constitutes a Question of Jurisdiction. 2003. Rules for Determining the Respective Jurisdiction of the Circuit Courts of Appeal, and the Supreme Court Where the Jurisdiction of the Court Is in Issue. 2004. Appeals from Final Sentences and Decrees in Prize Causes. 2005. Cases Involving the Construction or Application of the United States Constitution. 2006. Constitutionality of United States Law, or Validity or Construction of Treaty Drawn in Question. 2007. State Law or Constitution Claimed to Contravene the Constitution of the United States. 2008. Clauses 3, 4, and 5 of 238, Judicial Code. 2009. Appeal and Error, Circuit Courts of Appeal to Supreme Court. 2010. Certiorari by Supreme Court in Decisions Otherwise Final in Circuit Courts of Appeal. 2011. Certification to Supreme Court by Circuit Court of Appeals. 2012. Appeals from Court of Claims. 2013. Appeal and Error from Courts of Porto Rico. 2014. Appeal and Error from Supreme Court of Hawaii. 2015. Appeal and Error from District Courts of Alaska. 2016. Appeal and Error from the Supreme Court of the Philippine Islands. 2017. Jurisdiction When Territory Admitted after Judgment Rendered. 2018. Appeal and Error from the Court of Appeals for the District of Columbia. 2019. Review of Final Decisions of the Court of Appeals of the District of Columbia, by the Supreme Court. 2020. Appeals from Bankruptcy Courts. 2021. Mandamus to Revise and Correct Proceedings in Lower Courts. 2000. In General. The appellate jurisdiction of the Su- preme Court is now prescribed by chapter 10, Judicial Code, 236 et seq. It is to be noted that the "appellate jurisdiction con- 479 480 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2001 f erred by this chapter includes jurisdiction of writs of error as well as appeals, and the most of the sections herein quoted apply alike to appellate procedure in law as well as in equity. The appellate jurisdiction of the Supreme Court, as herein treated, is divided into two general classes : 1. Appellate jurisdiction over decisions of district courts. 2. Appellate jurisdiction over decisions of circuit court of ap- peals. The appellate jurisdiction of the Supreme Court over state courts is treated in chapter 11, under the head of "Removal from State Court of Last Resort." The Supreme Court's appellate jurisdiction over the decrees of the court of claims, the courts of Porto Rico, Hawaii, Alaska, the Philippine Islands, District of Columbia, and bankruptcy courts are treated in the present chapter under separate sections, as is the Supreme Court's power to revise and correct proceedings by mandamus, etc. 2001. Appeals from District Courts Direct to the Su- preme Court. 238, Judicial Code,* 36 Stat. at L. 1151, Comp. St. 1911, p. 228, 1912 Supp. F. 8. A. 231. "Appeals and writs of error may be taken from the district courts including the United States district court of Hawaii, direct to the Supreme Court in the following cases : "(1) In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision; (2) from the final sentences and decrees in prize causes ; ( 3 ) in any case that involves the construction or the application of the Constitution of the United States ; (4) in any case in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question; (5) and in any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States." a Drawn from act of March 3, 1891, 5, ch. 517, 26 Stat. at L. 827, Comp. St. 1901, p. 549, 4 F. S. A. 398, as amended by act of Jan. 20, 1897, ch. 68, 29 Stat. at L. 492, Comp. St. 1901. p. 549, 4 F. S. A. 433, which sections are repealed by 297, Judicial Code. 2002 APPELLATE JURISDICTION OF SUPREME COURT 481 In order to maintain jurisdiction in the Supreme Court in the class of cases covered by clause ^o. 1, of the above quoted section of the Judicial Code, the record must distinctly show, without equivocation, that the court below sends up for consideration the single and definite question of jurisdiction. 1 Xo other question except that of jurisdiction can be certified to the Supreme Court under this provision, but it has been held in the case of Commercial Mutual Accident Company v. Davis, 123 U. S. 256, 53 L. ed. 787, 29 Sup. Ct. Rep. 445, that if the case is taken to the Supreme Court on the single ground of juris- diction and is thus before that court, then the supreme court will pass upon questions of fact where the decision below was errone- ous, and may then set aside the judgment of the court below. 2002. What Constitutes a Question of Jurisdiction. The question of jurisdiction may be certified to the Supreme Court upon the following grounds : (1) Where it appears that process has not been served. 2 (2) Where a party sues as assignee in a case in which his assignor could not have maintained the action. 3 (3) In cases of improper removal from a state court. 4 (4) Whenever the jurisdiction of the court below has been directly attacked (under former equity rules, by plea or demurrer, now by motion to dismiss or by answer). 6 1 Arkansas v. Schlierholz, 179 U. S. 600, 45 L. ed. 336, 21 Sup. Ct. Rep. 329 ; Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660, 15 Sup. Ct. Rep. 570; Chappell v. United States, 160 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397 ; Mexican C. R. Co. v. Eckman, 187 U. S. 429, 47 L. ed. 245, 23 Sup. Ct. Rep. 211; Cosmopolitan Mining Company v. Walsh, 193 U. S. 460, 48 L. ed. 74,9, 24 Sup. Ct. Rep. 489 ; Anglo-American Provision Company v. Davis Pro- vision Co. 191 U. S. 376, 48 L. ed. 228, 24 Sup. Ct. Rep. 93. 2 Board of Trade v. Hammond Elevator Co. 198 U. S. 424, 49 L. ed. 1111, 25 Sup. Ct. Rep. 740; Remington v. Central P. R. Co. 198 U. S. 95, 49 L. ed. 959, 25 Sup. Ct. Rep. 577; Kendall v. American Automatic Balloon Co. 198 U. S. 477, 49 L. ed. 1133, 25 Sup. Ct. Rep. 768; Davis v. Cleveland C. C. & St. L. R. R. Co. 217 U. S. 157, 54 L. ed. 708, 27 L.R.A.(N.S.) 823, 30 Sup. Ct. Rep. 463, 156 Fed. 775, 84 C. C. A. 453; St. Louis Cotton Compress Co. v. American Cotton Co. 60 C. C. A. 80, 125 Fed. 196. 3 Barling v. Bank of British N. A. 1 C. C. A. 510, 7 U. S. App. 194, 50 Fed. 261. 4 Powers v. Chesapeake & Ohio R. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Kansas City ST. W. R. R. Co. v. Zimmerman, 210 U. S. 336, 52 L. ed. 1084, 28 Sup. Ct. Rep. 730. 5 Davis & R. Bldg. & Mfg. Co. v. Barber. 9 C. C. A. 79. 18 U. S. App. 476 Montg. 31. 482 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2003 But the objection that a court of equity has no jurisdiction because of the presence of an adequate remedy at law does not constitute sufficient grounds for certification of the question of jurisdiction to the Supreme Court. 6 2003. Rules for Determining the Respective Jurisdiction of the Circuit Courts of Appeal, and the Supreme Court Where the Jurisdiction of the Court Is in Issue. Inasmuch as only "the question of jurisdiction alone" may be certified directly to the Supreme Court, under clause (1) of 238, we must consider the effect of a mixture of questions of jurisdic- tion, and of issues on the merits of the case. The Supreme Court, in the case of U. S. v. John, 155 U. S. 109, has laid down six rules, governing the various situations which arise in connection with this situation, as follows: "(1) If the jurisdiction of the circuit court is in issue, and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified, and take his appeal or writ of error directly to this court. (2) If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. (3) If the question of jurisdiction is in issue, and the jurisdiction sustained, and the judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified, and come directly to this court, or to carry the whole case to the circuit court of appeals, and the question of jurisdiction can be certified by that court. (4) If in the case last supposed the plaintiff has ground of complaint in respect of 60 Fed. 465 ; Hennessy v. Richardson Drug Co. 189 U. S. 25, 47 L. ed. 697, 23 Sup. Ct. Rep. 532: The Alliance, 70 Fed. 274, 17 C. C. A. 124, 44 U. S. App. 52; Equity Rule 29. 6 Kansas City N. W. R. R. Co. v. Zimmerman, 210 U. S. 338, 52 L. ed. 1084, 28 Sup. Ct. Rep. 730; Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119; Blythe v. Hinkley, 173 U. S. 501, 43 L. ed. 783. 19 Sup. Ct. Rep. 497; United States ex rel. Mudsill Mining Co. v. Swan, 65 Fed. 647, 13 C. C. A. 77, 31 U. S. App. ]12. 2003 APPELATE JURISDICTION OF SUPREME COURT 483 the judgment he has recovered, he may also carry the case to the circuit court of appeals on the merits, and this he may do by way of cross appeal or writ or error if the defendant has taken the case there, or independently if the defendant has carried the case to this court on the question of jurisdiction alone, and in this instance the circuit court of appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff ob- jects to the jurisdiction, and is, or both parties are, dissatisfied with the judgment on the merits. (6) In every case in which the complaining party has the right or has and exercises the option to carry his case to the circuit court of appeals for review, that court may decide the question of jurisdiction as well as the ques- tion on the merits, for the power of that court to certify the question of jurisdiction to the Supreme Court assumes the power to decide it." 7 It is evident, then, that if the jurisdiction of the district court is put in issue with other issues on the merits, then an election is given to the party desiring to appeal. He may have the ques- tion of jurisdiction alone certified directly to the Supreme Court, or he may appeal the entire case on the merits, to the circuit court of appeals, whereupon that court may either determine the jurisdictional question itself, or may certify it to the Supreme Court for determination. 8 Whether the same party may prosecute two appeals from the same determination of his suit, having the question of jurisdiction certified directly to the Supreme Court, while he appeals from the decision and the merits to the circuit court of appeals, is doubtful. 7 See also New Orleans v. Benjamin, 153 U. S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 905; Evans-Snyder Buel Co. v. McCaskill, 41 C. C. A. 577, 101 Fed. 658; McLish v. Roff, 141 U. S. 661, 35 L. ed. 895, 12 Sup. Ct. Rep. 118; Harris v. Rosenberger, 145 Fed. 449, 13 L.R.A.(N.S.) 762, 76 C. C. A. 225; Gates v. Bucki, 4 C. C. A. 116, 12 U. S. App. 69, 53 Fed. 965; Carter v. Roberts, 177 U. S. 500, 44 L. ed. 863, 20 Sup. Ct. Rep. 713; Reliable In- cubator & Brooder Co. v. Stahl, 44 C. C. A. 657, 105 Fed. 667; Northern P. R. Co. v. Glaspell, 1 C. C. A. 327, 4 U. S. App. 238, 49 Fed. 482; Robinson v. Caldwell, 165 U. S. 361, 41 L. ed. 746, 17 Sup. Ct. Rep. 343. 8 Ibid. 484 MOXTUOMKKY'S MAXUAL OF FEDERAL PROCEDURE 2005 The circuit court of appeals has held 9 that this is permissible, but the Supreme Court has reached the opposite conclusion. 10 2004. Appeals from Final Sentences and Decrees in Prize Causes. The second clause of 238 confers upon the Su- preme Court the jurisdiction of appeals from all final decrees in prize causes. The amount in controversy is immaterial, and no certificate of the district judge as to the importance of the par- ticular case is required. 11 2005. Cases Involving the Construction or Application of the United States Constitution. Under the third clause of 238, the district court must have actually construed or applied the Constitution to the case, or must have declined to do so upon being requested so to do. 12 The mere fact that the Constitution iniglit have been involved, or might have been challenged, if it was not actually so involved or challenged, does not vest the Supreme Court with jurisdiction. 13 The clause has been held to include a case involving the con- stitutional power of Congress over the navigable waters of the United States ; 14 a case involving the right of citizens of a state to vote for congressmen of the United States ; 15 a case in which the question whether the complainants are engaged in Interstate Commerce under paragraph 3 of 8 of article 1 of the Con- st it ution is involved. 16 9 Pullman Palace Car Co. v. Central Transportation Co. 22 C. C. A. 246, 39 U. S. App. 307, 76 Fed. 402. 10 American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646. See also Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745, 17 Sup. Ct. Rep. 343; Columbus Const. Co. v. Crane Company, 174 U. S. 601, 43 L. ed. 1103, 19 Sup. Ct. Rep. 721; Union & Planters Bank v. Memphis, 189 U. S. 74, 47 L. ed. 714, 23 Sup. Ct. Rep. 604. 11 Paquete Habana, 175 U. S. 677, 44 L. ed. 320. 20 Sup. Ct. Rep. 290. 12 Cornell v. Green, 163 U. S. 75, 41 L. ed. 76, ]6 Sup. Ct. Rep. 969. i3\Yorld's Columbian Exposition v. United States, 56 Fed. 654, 6 C. C. A. 58; Railroad Company v. Amato, 144 U. S, 465. 472. 36 L. ed. 596, 12 Sup. C t. Rep. 740; Snow v.' United States, 118 U. S. 346, 30 L. ed. 207, 6 Sup. Ct. Rep. 1059. l4Cummings v. Chicago, 188 U. S. 410, 47 L. ed. 525, 23 Sup. Ct. Rep. 472. 15 Wiley v. Sinkler. 179 U. S. 62. 45 L. ed. 84, 21 Sup. Ct. Rep. 17. la.Macdn v. Georgia Pkg. Co. 60 Fed. 781. 9 C. C. A. 202. 2008 APPELLATE JURISDICTION OF SUPREME COURT 485 2006. Constitutionality of United States Law, or Valid- ity or Construction of Treaty Drawn in Question. As in cases included under the preceding clause, the questions must be actually involved, and the court must have been required to pass upon them in reaching this decision. 17 Allegations that the ques- tions were involved, if not supported by the facts of the case, do not vest the Supreme Court with jurisdiction. 18 Questions of fact, although the facts be the outgrowth of the operation of a treaty or statute, do not confer jurisdiction upon the Supreme Court, as the validity or construction of a statute or treaty, or the consti- tutionality of a United States law, involves only questions of law. 19 2007. State Law or Constitution Claimed to Contravene the Constitution of the United States. The general requirement and propositions of law applicable to this clause are similar to those applicable to the two preceding clauses, and will be discussed jointly with them in the succeeding sections. "A state law" includes municipal ordinances as the acts of a state perpetrated through its properly constituted instrumentality, and if the constitutionality of such ordinances is involved the case comes within the purview of this clause. 20 However, a state law which is void under the state Constitution, as well as being in contravention of the Constitution of the United States, cannot raise the question so as to give the Supreme Court jurisdiction. 21 2008. Clauses three, four, and five of 238, Judicial Code. The questions included under the 3d, 4th, and 5th clauses "Muse v. Arlington Hotel Company, 168 U. S. 430, 42 L. ed. 533, 18 Sup. Ct. Rep. 109. 18 Budzisz v. Illinois Steel Co. 170 U. S. 41, 42 L. ed. 941, 18 Sup. Ct. Rep. 503. 19 In re Newman, 79 Fed. 615; Bordmeyer v. Idler, 359 U. S. 408, 40 L. ed. 19!), 16 Sup. Ct. Rep. 34. 20 Pike's Peak Power Co. v. Colorado Springs, 105 Fed. 1, 44 C. C. A. 333 ; Dawson v. Columbia Ave. Savings Fund, etc., Co. 102 Fed. 200, 42 C. C. A. 2o8; City R. R. Co. v. Citizens St. R. R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 053: Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142, 45 L. ed. 788, 21 Sup. Ct. Rep. 575; Davis Mfg. Co. v. Los Angeles, 18!) U. S. 207, 47 L. ed. 778, 23 Sup. Ct. Rep. 498; Owensboro v. Owensboro Water Works, 115 Fed. 318, 53 C. C. A. 146. 21 Indianapolis v. Central Trust Co. 83 Fed. 529, 27 C. C. A. 580. 486 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2008 of 238 relating to the Constitution, treaties, and laws of the United States, are so closely related, and partake so largely of the same nature that they have been construed and discussed together by the courts, and many of the rules and propositions of law which have been laid down apply to them all. The Supreme Court has said : "When our jurisdiction is invoked under 5 ... on the ground that the case falls within the fourth, fifth, or sixth of the classes of cases therein enumerated, it must appear that a title, right, privilege, or immunity was claimed under the Constitution, and a definite issue in respect to the possession of the right must be distinctly deducible from the record ; or that the constitutionality of the particular law or the validity or construction of the particular treaty was necessarily and directly drawn in question; or that the Constitution or law of a state was distinctly claimed to be in contravention of the Constitution of the United States." Where an appeal or writ of error is taken direct to the Supreme Court under clauses 3, 4, or 5 of 238, Judicial Code, the Su- preme Court acquires jurisdiction, not only of the questions speci- fied in that section, but of all the questions involved in the entire case. This is shown by the fact that under 238, where an appeal or writ of error is taken direct to the Supreme Court in a case in which the jurisdiction of the district court is in issue, it is specifically directed that the question of jurisdiction alone shal-1 be certified to the Supreme Court; and there is no such limita- tion prescribed in regard to any of the other cases in which juris- diction on appeal or error is conferred by 238. 22 j Upon review under these clauses a certificate, as required by clause (1) is unnecessary, and of no effect The questions raised under any of the clauses of 238 must be real, and must represent substantial controversies, not only as to the principles involved, but as to the relation of the party by whom they are raised, to them. 23 Under 238 only those questions which the record shows to 22 Homer v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522. 23 Lamposas v. Bell, 180 U. S. 284. 2011 APPELLATE JURISDICTION OF SUPREME COURT 487 have been raised in the lower court are available to confer juris- diction in the Supreme Court, and an assignment of errors cannot be availed of to import questions into a cause which the record does not so show to have been raised. 2009. Appeal and Error, Circuit Courts of Appeal to Supreme Court. 241, Judicial Code? 36 Stat. at L. 1157, Comp. St. 1911, p. 229, 1912 Supp. F. 8. A. v. 1, p. 232. "In any case in which the judgment or decree of the circuit court of ap- peals is not made final by the provisions of this title, there shall be of right an appeal or writ of error to the Supreme Court of the United States where the matter in controversy shall exceed $1,000 besides costs." 2010. Certiorari by Supreme Court in Decisions Other- wise Final in Circuit Courts of Appeal. 240, Judicial Code* 36 Stat. at L. 1157, Comp. St. 1911, p. 228, 1912 Supp. F. 8. A. v. 1, p. 232. a ln any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this title, it shall be competent for the Supreme Court to require, by certiorari or otherwise upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and 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." 2011. Certification to Supreme Court by Circuit Court of Appeals. 239, Judicial Code* 36 Stat. at L. 1157, Comp. St. 1911, p. 228, 1912 Supp. F. S. A. v. 1, p. 231. "In any case within its appellate jurisdiction as defined in 128, the cir- cuit court of appeals at any time may certify to the Supreme Court of the United States any question or propositions of law concerning which it desires the instruction of that court for its proper decision; and thereupon the Supreme Court * Drawn from 6 of act of March 3, 1891, ch. 517, 26 Stat. at L. 828, Rose's Code, 1904, Comp. St. 1901, p. 549, 4 F. S. A. 409, which is repealed by 297, Judicial Code. c For Annotation of this 240, Judicial Code, see footnote , ante, our 840. * For Annotation of this 239, Judicial Code, see footnote , ante, our 840. 488 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2012 may either give its instruction on the question and proposi- tions certified to, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." 2012. Appeals from Court of Claims. 242,. Judicial Code* 36 Stat. at L. 1157, Comp. St. 1911, p. 229, 1912 Supp. F. 8. A. v. 1, p. 232. "An appeal to the Supreme Court shall be allowed on behalf of the United States from all judgments of the court of claims, adverse to the United States, and on behalf to the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court as provided in 172." A jo gtifjoC) ^i'l-jii^J Hi If 172, Judicial Code,* 36 Stat. at L. 1141, Comp. St. 1911, p. 205, 1912 Supp. F. S. A. v. 1, p. 207. "Any person who corruptly practises or attempts to practise any fraud against the United States in the proof, statement, establish- ment, or allowance of any claim or any part of any claim against the United States, shall, ipso facto, forfeit the same to the government ; and it shall be the duty of the court of claims in such cases to find specifically that such fraud was practised or attempted to be practised, and thereupon to give judgment that such claim is forfeited to the government and that the claimant be forever barred from prosecuting the same." -- !% ' ''. 248, Judicial Code, K 36 Stat. at L. 1157, Comp. St. 1911, p. 229, 1912 Supp. F. 8. A. v. 1, p. 232. "All appeals from the court of claims shall be taken within ninety days af- ter the judgment is rendered, and shall be allowed, under such regulations as the Supreme Court may direct." e Re-enacting 707, R. S. Rose's Code, 38, Foster's Fed. Prac. (4th ed.) pp. 287, 1740, 1993, 2046, Comp. St. 1901, p. 574, 4 F. S. A. 467, which section is repealed by 297, Judicial Code. f Re-enacting 1086, R. S. Rose's Code, 1468, Foster's Fed. Prac. (4th ed.) p. 1737, Comp. St. 1901, p. 745, 2 F. S. A. 71, which section is repealed by 297, Judicial Code. Re-enacting 708, R. S. Rose's Code, 1907, Foster's Fed. Prac. (4th ed.) pp. 287, 2062, 2063, Comp. St. 1901, p. 575, 4 F. S. A. 467, which is repealed by 297, Judicial Code. 2014 APPELLATE JURISDICTION OF SUPREME COURT 480 2013. Appeal and Error from Courts of Porto Rico. 244, Judicial Code* 36 8 tat. at L. 1157, Comp. St. 1911, p. 229* 1912 Supp. F. 8. A. v. I, p. 233. "Writs of error and appeals from the final judgments and decree of the supreme court of, and the United States district court for, Porto Rico, may be taken and prosecuted to the Supreme Court of the United States in any case where is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, or wherein the Constitution of the United States, or a treaty thereof, or an act of Congress is brought in question and the right claimed thereunder is denied, without regard to the sum or value of the matter in dispute ; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars. Such writs of error and appeals shall be taken within the same time, and in the same manner, and under the same regulation, as writs of error and appeals are taken to the Supreme Court of the United States from the district court." 2014. Appeal and Error from Supreme Court of Hawaii. 246, Judicial Code, 1 36 Stat. at L. 1158, Comp. St. 1911, p. 230, 1912 Supp. F. S. A. v. 1, p. 233. "Writs of error and appeals from the final judgments and decrees of the Supreme Court of a territory of Hawaii may be taken and prosecuted to the Supreme Court of the United States, within the same time, under the same regulations, in the same manner, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of the state in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provision of 237 ; and also in all cases wherein the amount involved, exclusive of costs, . to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thou- sand dollars." h Drawn from 35 of the Organic Act of Porto Rico, of April 12, 1900, ch. 191, 31 Stat. at L. 77, Rose's Code, 1672, 2095, 5 F. S. A. 773. i Re-enacting act of April 30, 1900, ch. 339, 31 Stat. at L. 158, 3 F. S. A. 200. as amended by act of March 3, 1908, 35 Stat. at L. 838, Foster's Fed. Prac. (4th ed.) p. 230, 1909 Supp. F. S. A. 152. 490 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2016 2015. Appeal and Error from District Courts of Alaska. 247, Judicial Code, 1 36 Stat. at L. 1158, Comp. St. 1911, p. 230, 1912 Supp. F. S. A. v. 1, p. 234. "Appeals and writs of error may be taken and prosecuted from final judg- ment and decree of the district court for the district of Alaska or for any division thereof, direct to the Supreme Court of the United States in the following cases: In prize cases; and in all cases which involve the construction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question, or in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States. Such writs of error and appeal shall be taken within the same time, and in the same manner, and under the same regulation, as writs of error and appeals are taken from the district court to the Supreme Court." 2016. Appeal and Error from the Supreme Court of the Philippine Islands. 248, Judicial Code* 36 Stat. at L. 1158, Comp. St. 1911, p. 230, 1912 Supp. F. S. A. v. 1, p. 234. "The Su- preme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgment and decree of the supreme court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby, in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in con- troversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars to be ascertained by the oath of either party or of other competent witnesses, is in- volved or brought in question ; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said supreme court on appeal or writ of error by the party aggrieved, within the same time, in the same manner, under the same regulations, and by the same pro- J Drawn from 202 of the Criminal Code of Alaska, 1 F. S. A. 370, and 504, of the C. C. of Alaska, 1 F. S, A. 147. fc Re-enacting 10 of act of July 1, 1902, ch. 1369, 32 Stat. at L. 691, Foster's Fed. Prac. (4th ed.) pp. 2000, 2046, 5 F. S. A. 722. 2018 APPELLATE JURISDICTION OF SUPREME COURT 491 cedure, so far as applicable, as the final judgments and decrees of the district courts of the United States." 2017. Jurisdiction When Territory Admitted after Judg- ment Rendered. 249, Judicial Code, 1 36 Stat. at L. 1158, Comp. St. 1911, p. 231,1912 Supp. F. 8. A. v.l, p. 235. "In all cases where the judgment or -decree of any court of a territory might be reviewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken, within the time and in the manner provided by law, notwithstanding such territory has, after such judgment or decree, been ad- mitted as a state; and the Supreme Court shall direct the mandate to such court as the nature of the writ of error or ap- peal required." 2018. Appeal and Error from the Court of Appeals for the District of Columbia. 250, Judicial Code, 36 Stat. at L. 1159, Comp. St. 1901, p. 231, 1912 Supp. F. 8. A. v. 1, p. 235. "Any final judgment or decree of the court of appeals of the District of Columbia may be re-examined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases : "First. In cases in which the jurisdiction of the trial court is in issue ; but when any such case is not otherwise review- able in such Supreme Court, then the question of jurisdic- tion alone shall be certified to said Supreme Court for de- cision. "Second. In prize causes. "Third. In cases involving the construction or application of the Constitution of the United States, or the constitution- ality of any law of the United States, or the validity or con- struction of any treaty made under its authority. "Fourth. In cases in which the Constitution, or any law of a state, is claimed to be in contravention of the Consti- tution of the United States. "Fifth. In cases in which the validity of any authority 1 Re-enacting 703, R. S. Comp. St. 1901, p. 572, 4 F. S. A. 461, which section is repealed by 297, Judicial Code. Previous to this appeals were taken in the same manner as from the circuit courts. See 705, R. S. Foster's Fed. Prac. (4th ed.) p. 2062, Comp. St. 1901, p. 573, 4 F. S. A. 462, which is repealed by 297, Judicial Code. 492 MONTGOMKKY'S MANUAL OF FEDERAL PROCEDURE 2019 exercised under the United States, or the existence or scope of any power or duty of an officer of the United States, is drawn in question. "Sixth. In cases in which the construction of any law of the United States is drawn in question by the defendant. "Except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases arising under the patent laws, the revenue laws, the criminal laws, and in admiralty cases; and, except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases not reviewable as hereinbefore provided. "Writs of error and appeals shall be taken within the same time, in the same manner, and under the same regu- lation, as writs of error and appeals are taken from the dis- trict courts of appeals to the Supreme Court of the United States." 2019. Review of Final Decisions of the Court of Appeals of the District of Columbia, by the Supreme Court. 251, Judicial Code," 36 Stat at L. 1159, Comp. St. 1911, p. 232, 1912 Supp. F. S. A. v. 1, p. 236. "In any case in which the judgment or decree of said court of appeals is made final by the section last preceding, it shall be competent for the Supreme Court of the United States to require, by certiorari or otherwise, such case to be certified to it for its review and determination with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said court of appeals in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper division ; and thereupon the Supreme Court may either give its instruc- tions on the questions and propositions certified to it, which shall be binding upon said court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole n The part of the section authorizing oertiorari is from act of March 3, 1897, ch. 390, 29 Stat. at L. 692. Foster's Fed. Prac. (4th ed.) pp. 880, 1194, li;)8. the part referring to certifying questions is new legislation as concerns the District of Columbia. 2021 APPELLATE JURISDICTION OF SUPREME COURT 493 matter in controversy in the same manner as if it had been brought here for review by writ of error or appeal." 2020. Appeals from Bankruptcy Courts. Judicial Code, 252 36 Stat. at L. 1159, 1912 Supp. F. 8, A. v. 1, p. 237. "The Supreme Court of the Unit- ed States is hereby invested with appellate jurisdiction of controversies arising in bankruptcy procedure from the courts of bankruptcy from which it has appellate jurisdiction in other cases ; and shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia. "An appeal may be taken to the Supreme Court of the United States from any final decision of a court of appeals allowing or rejecting a claim under the laws relating to bank- ruptcy, under such rules and within such time as may be prescribed by the said Supreme Court in the following cases and no other : "1st. Where the amount in controversy exceeds the sum of $2,000, and the question involved is one which might have been taken on appeal or writ of error from the highest court of the state to the Supreme Court of the United States ; or "2d. Where some justice of the Supreme Court shall certify that in his opinion the determination of the question involved in the allowance or rejection of such claim is essen- tial to a uniform construction of the laws relating to bank- ruptcy throughout the United States. "Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof, and may issue writs of certiorari pursuant to the provisions of the United States laws now in force, or such as may be here- after enacted." 2021. Mandamus to Revise and Correct Proceedings in Lower Courts. 234, Judicial Code* 36 Stat. at L. 1156, Comp. St. 1911, p. 227, 1912 Supp. F. S. A. v. 1, p. 230. "The Su- o Re-enacting 24 and 25 of the Bankruptcy Act of July 1, 1898, Rose's Code, 2310. 2312. Foster's Fed. Prac. (4th ed.) p. 1850, Comp. St. 1901, p. 3431, 1 F. S. A. 593. P Re-enacting 688, R. S. Rose's Code, 844, Foster's Fed. Prac. (4th ed.) pp. 79, 115(5-73-75-76-77, 1866, Comp. St. 1901, p. 565, 4 F. S. A. 439, which section is repealed by 297, Judicial Code. 494 preme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or an ambassador, or other public minister, or a consul, or vice consul is a party." 262, Judicial Code* 36 Stat. at L. 1162, Comp. St. 1911, p. 235, 1912 Supp. F. 8. A. v. 1, p. 241. "The Su- preme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." Under these provisions (formerly 688 and 716, II. S.) the Supreme Court may revise and correct district court decisions by mandamus, but only in cases where the relief cannot be obtained by appeal or error. 24 Mandamus will lie to compel a district court to take jurisdic- tion of a proper case, 25 or to remand a cause improperly removed, if the defect appears on the face of the record, 26 and it is from 262 that the Supreme Court derives its power to issue a writ of certiorari upon suggestion of diminution of the record on ap- peal. 24 In re Pollitz, 206 U. S. 323, 51 L. ed. 1081, 27 Sup. Ct. Rep. 729; Ex parte Harding, 219 U. S. 363, 55 L. ed. 252, 31 Sup. Ct. Rep. 324, 37 L.R.A. (N.S.) 392. 25 In re Pollitz, 206 U. S. 323, 51 L. ed. 1081, 27 Sup. Ct. Rep. 729; Grossmayer, Petitioner, 177 U. S. 48, 44 L. ed. 665, 20 Sup. Ct. Rep. 535. 26 In re Winn, 213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. Rep. 515. For Annotation of this 262, Judicial Code, see footnote d } ante, our 1054. CHAPTER 40. APPELLATE JURISDICTION OF CIRCUIT COURT OF APPEALS. Sec. 2030. In General. 2031. Appeal and Error from District Courts to Circuit Court of Appeals. 2032. Appeals from Interlocutory Orders in Injunction and Receivership Proceedings in District Courts. 2033. Appellate and Supervisory Jurisdiction in Bankruptcy Cases. 2034. Appeal and Error from the United States Court for China. 2035. Appeals and Writs of Error from District Court for Alaska. 2036. Place of Hearing of Appeals and Writs of Error from Alaska. 2037. Appellate Jurisdiction from District Courts Canal Zone. 2038. Powers and Duties of Judges upon Appeal. 2030. In General. The jurisdiction of the circuit courts of appeals is wholly appellate, and is governed by chapter 6, Judicial Code, 128 et seq., which sections are largely re-enactments of the act of Mar. 3, 1891, Comp. St. 1901, p. 547, 4 F. S. A. 395. The jurisdiction includes not only appeals and writs of error from certain final decisions in district courts, 1 but also appeals from interlocutory orders granting, refusing, dissolving, or re- fusing to dissolve an injunction, or appointing a receiver, 2 and appeals and writs of error from the United States court for China, 8 appeals and writs of error in certain cases from the district courts of Hawaii, 4 Alaska, 6 and appellate supervision of bankruptcy cases, 6 and in the fifth circuit from final judgments and decrees of the district courts in the Canal Zone. 7 1 Infra, 2031. Infra, 2032. 3 infra, 2034. Infra, 2031. 5 Infra, 2035. 6 Infra, 2033. 1 Infra, 2037. 495 490 MOXTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2032 2031. Appeal and Error from District Courts to Cir- cuit Court of Appeals. 128, Judicial Code,* 36 Stat. at L. 1133, Comp. St. 1911, p. 193, 1912 Supp. F. S. A. v. 1, p. 195. "The circuit court of appeals shall exercise appellate jurisdiction to re- view by appeal or writ of error final decisions in district courts, including- the United States district court of Hawaii, in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in 238, unless otherwise provided by law; and except as provided in 239 and 240, the judgments and decrees of the circuit courts of appeal shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite par- ties to the suit or controversy, being aliens and citizens of the United States, or citizens of different states; also in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases." Final judgments and decrees appealable from district courts to the circuit court of appeal are determined by a process of elim- ination, and include "all final decisions in district courts, in all oases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided in 238, 8 unless otherwise provided by law." 2032. Appeals from Interlocutory Orders in Injunction and Receivership Proceedings in District Courts. 129, Judicial Code? $6 Stat. at L. 1134, Comp. St. 8 Supra, 2001. a Re-enacting part of 6. act of March 3, 3891, 26 Stat. at L. 828, Rose's Code. 1904, Foster's Fed. Prac. (4th ed.) pp. 1198, 1660, 1976, 1978. 11)87. 3988. 2015, 2016, 2031, 2044, 2063, 2064, Comp. St. 1901, p. 549, 4 F. S. A. 409. ''Final decision" means a final decision which was then appealable under the existing law. North American Trading Co. v. Smith, 93 Fed. 7, 35 C. C. A. 183. Appel- late jurisdiction, Four Hundred and Forty-three Cans of Frozen Egg Product v. United States, 226 U. S. 172. 57 L. ed.' 174, 33 Sup. Ct. Rep. 50, reversing United States v. Four Hundred and Fortv-three Cans of Frozen Egg Product. 193 Fed. 589, 113 C. C. A. 457. Final decisions of C. C. A., see Missouri, Kansas & Texas Railway Company v. \Vulf, 226 U. S. 570, 57 L. ed. 355, 33 Sup. Ct. Rep. 135. Final decisions of districts courts, In re Metropolitan Trust Co. 218 U S. 312, 54 L. ed. 1051, 31 Sup. Ct. Rep. 18. 1 Re-enacting 7. act of March 3, 1891, 31 Stat. at L. 660, Rose's Code, 1906, 2020 2056, Foster's Fed. Prac. (4th ed.) pp. 689, 737, 759, 1013, 2015, 2033 APPELLATE JURISDICTION OF C. C. A. 407 1911, p. 194, 1912 Supp. F. 8. A. v. 1, p. 195. "Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, re- fused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction, or appointing a re- ceiver to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the stat- utes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the pro- ceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the ap- pellate court, or a judge thereof, during the pendency of such appeal: Provided, however, That the court below may, in its discretion, require as a condition of the appeal an ad- ditional bond." 2033. Appellate and Supervisory Jurisdiction in Bank- ruptcy Cases. 130, Judicial Code? 36 8 tat. at L. 1134, Comp. St. 1911, p. 194, 1912 Supp. F. 8. A. v. 1, p. 196. "The circuit courts of appeals shall have the appellate and supervisory jurisdiction conferred upon them by the act entitled, 'An Act to Establish a Uniform System of Bankruptcy through- out the United States,' approved July 1, 1898, and all laws amendatory thereof, and shall exercise the same in the man- ner therein prescribed." This section is only declaratory of the appellate jurisdiction 2042, 2064. 2089, Comp. St. 1901, p. 550, 4 F. S. A. 422. The purpose of this section is to save the parties from the expense of further litigation should the appellate court be of the opinion that plaintiff was not entitled to an injunc- tion because his bill had no equity to support it.. Smith v. Vulean Iron Works, 165 U. S. 518, 41 L. ed. 810, 17 Sup. Ct. Rep. 407. In Gen. Jackson Co. et al. v. Gardiner Inv. Co. 200 Fed. 113, 118 C. C. A. 287; Pioneer Lace ]\lfg. Co. v. Dodd, 181 Fed. 688, 104 C. C. A. 586: Pressed Steel Car Co. v. Chicago & A. R. Co. 192 Fed. 517, 113 C. C. A. 73. c Referring to 24 and 25 of the Bankruptcy Act, Rose's Code, 2310, 2312, Foster's Fed. Prac. (4th ed.) p. 1850, Comp! St. 1901, p. 3431, 1 F. S. A. 593. Montg. 32. 498 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2035 conferred upon the circuit court of appeals by 24 and 25 of the bankruptcy act of 1898, and for a full treatment of this jurisdiction we refer to that act and to the various works on bank- ruptcy. 2034. Appeal and Error from the United States Court for China. 131, Judicial Code? 36 8 tat. at L. 1134, Comp. St. 1911, p. 194, 1912 Supp. F. S. A. v. 1, p. 196. "The circuit court of appeals for the ninth circuit is empowered- to hear and determine writs of error and appeals from the United States court for China as provided in the act entitled, 'An Act Creating a United States Court for China and Prescrib- ing the Jurisdiction Thereof/ approved June 30, 1906." This section, like the preceding one, is merely declaratory of the appellate jurisdiction conferred by 3 of the act referred to. .';. hi i:VK' ! ii.':'-./.:; ; - \. ^ '' : '' p'/V . it '<- V.i ': ic.'l ' 2035. Appeals and Writs of Error from District Court for Alaska. 134, Judicial Code,* 36 Stat. at L. 1134, Comp. St. 1911, p. 195, 1912 Supp. F. S. A. v. 1, p. 197. "In all cases other than those in which a writ of error or appeal will lie di- rect to the Supreme Court of the United States as provided in 247, in which the amount involved or the value of the subject-matter in controversy shall exceed five hundred dol- lars, and in all criminal cases, writs of error and appeals shall lie from the district court for Alaska or from any divi- sion thereof to the circuit court of appeals for the ninth circuit, and the judgments, orders, and decrees of such court shall be final in such cases. But whenever such circuit court of appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its in- struction upon the question or proposition certified to it, and its instruction shall be binding upon the circuit court of ap- peals." a Referring to 3, act of June 28, 1906. ch. 3934, 34 Stat. at L. 815, 1909 Supp. F. S. A. 294. In general, Price v. United States, 169 Fed. 791, 95 C. C. A. 257. For Annotation of this 134, Judicial Code, see footnote b, ante, our 842. APPELLATE JURISDICTION OF C. C. A. 499 2036. Place of Hearing of Appeals and Writs of Error from Alaska. 135, Judicial Code? 36 Stat. at L. 1135, Comp. St. 1911, p. 195, 1912 Supp. F. 8. A. v. 1, p. 197. "All appeals and writs of error, and other cases, coming from the district court for the district of Alaska to the circuit court of appeals for the ninth circuit, shall be entered upon the docket and heard at San Francisco, California, or at Portland, Oregon, or at Seattle, Washington, as the trial court before whom the case was tried below shall fix and determine: Provided, That at any time before the hearing of any appeal, writ of error, or other cases, the parties thereto, through their re- spective attorneys, may stipulate at which of the above named places the same shall be heard, in which case the case shall be remitted to and entered upon the docket at the place so stipulated, and shall be heard there." 2037. Appellate Jurisdiction from District Court Canal Zone. Pi. 9, Act Aug. 2J>, 1912, ch 390, 37 Stat. at L. 566. "The circuit court of appeals of the fifth circuit of the United States shall have jurisdiction to review, revise, modify, re- verse, or affirm the final judgments and decrees of the district court of the Canal Zone and to render such judgments as in the opinion of the said appellate court should have been ren- dered by the trial court in all actions and proceedings in which the Constitution, or any statute, treaty, title, right, or privilege of the United States, is involved and a right there- under denied, and in cases in which the value in controversy exceeds one thousand dollars, to be ascertained by the oath of either party, or by other competent evidence, and also in criminal causes wherein the offense charged is punishable as a felony. And such appellate jurisdiction, subject to the right of review by or appeal to the Supreme Court of the United States as in other cases authorized by law, may be exercised by said circuit court of appeals in the same manner, under the same regulations, and by the same procedure as nearly as practicable as is done in reviewing the final judg- ments and decrees of the district courts of the United States." * Re-enacting act of Jan. 11, 1909, ch. 15, 35 Stat. at L. 585, 1909 Supp. F. S. A. 30. 500 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2038 2038. Powers and Duties of Judges upon Appeal. 182, Judicial Code* 36 Stat. at L. 1134, Com p. ,-/. 1911, p. 194, 1912 Supp. F. S. A. 196. "Any judge of a circuit court of appeals, in respect of cases brought or to be brought before that court, shall have the same powers and duties as to allowances of appeals and writs of error, and the condition of such allowances, as by law belong to the justices or judges in respect of other courts of the United States respectively." Re-enacting 11 of C. C. A. act of March 3, 1891, ch. 517, 26 Stat. at L. 820. Rose's Code, 1890, 1905, Comp. St. 1901, p. 552, 4 F. S. A. 428. In -(iirral, McClellan v. Garland, 217 U. S. 268, 54 L. ed. 762, 30 Sup. Ct. Rep. 501. CHAPTER 41. APPELLATE PROCEDURE IN EQUITY. Sec. 2050. In General. 2051. Parties in Appeal. 2052. Time for Appeals from District Courts to the Supreme Court of the United States. 2053. Time for Appeals to Circuit Courts of Appeal. 2054. Time for Appeals to Circuit Courts of Appeal from Interlocutory Orders. 2055. Time for Appeals from Circuit Courts of Appeal to Supreme Court. 2056. Time to Secure Review of State Court Decisions. 2057. Procedure on Appeal to Circuit Courts of Appeal the Same as to Supreme Court. 2058. Allowance of Appeals. 2059. Assignment of Errors. 2060. Citation. 2061. Bond on Appeal. 2062. No bond Required of United States. 2063. Supersedeas. 2064. Injunction Pending Appeal. 2065. Proceeding in Forma Paupcris. 2066. Transcript on Appeal and Error. 2067. Reduction and Preparation of Record on Appeal and Error to Supreme Court. 2068. Reduction and Preparation of Record under New Equity Rules. 2069. Printing and Filing of Record on Appeal and Error to Circuit Courts bf Appeal. 2070. Printing and Filing of Record on Appeal and Error to Supreme Court Use of Record in Circuit Court of Appeals as Part of Transcript. 2071. One Record Sufficient When Both Parties Appeal to Supreme Court Direct. 2072. Time for Return of Appeals and Writs of Error. 2073. Summary of Procedure on Appeal. 2074. Review of Final Decisions of Circuit Courts of Appeal upon Certiorari. 2075. Certification by Circuit Courts of Appeal to Supreme Court. 2076. Appellate Procedure District Courts of Alaska to the Supreme Court. 2077. Appellate Procedure From Supreme and District Courts of Porto Rico. 2078. Appellate Procedure From Supreme Court of Philippines. 2079. Appellate Procedure From District of Columbia. 501 502 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2050 Sec. 2080. Appellate Procedure From District of Columbia Where Decision of Circuit Court of Appeals Is Otherwise Final. 2081. Appellate Procedure From Supreme Court of Hawaii to United States Supreme Court. 2082. Certiorari Ninth Circuit to Supreme Court in Alaska Cases. 2083. Procedure after Transcript Reaches Appellate Court. 2084. Dismissal of Appeal. 2085. Diminution of Record. 2086. Mandate. 2087. Death of Party after Judgment but before Appeal. 2088. Death of Party while Appeal to Supreme Court Pending. 2089. Supreme Court Procedure upon Death of Party Whose Personal Repre- sentative is without Jurisdiction of Trial Court. 2090. Death of Party Pending Appeal to Circuit Court of Appeals. 2091. Procedure in Circuit Court of Appeals Where Representative of De- ceased Is not within Trial Court's Jurisdiction. 2050. In General. While the distinction between appeals and writs of error is well defined and rigidly observed as stated in chapter 28, the procedure by which the review is obtained in each case is similar, the same steps being necessary and the same time limit usually applying in both proceedings. Consequently what is here stated with regard to procedure on appeal applies as well to procedure upon writ of error, subject to the qualifica- tions contained in chapter 28. Federal appeals as treated herein are of four general classes: 1st. Appeals from district courts to United States Supreme Court 1 2d. Appeals from district courts to circuit courts of appeal. 2 3d. Appeals from circuit courts of appeal to Supreme Court. 5 4th. Writs of error to state courts of last resort from the United States Supreme Court.* In addition to these four classes of appeals, there is provided a method of appeal by certiorari or by certification of questions of law from the circuit courts of appeal to the Supreme Court in cases where the decision of the circuit courts of appeal is otherwise final. 6 The procedure on appeal in each of the four classes is identical except as to the time within which the appeal must be taken, and 1 See chapter 39. 2 See chapter 40. 8 See chapter 39. * See chapter 11. 8 See chapter 39. g 2051 APPELLATE PROCEDURE IN EQUITY 503 as to the differences in practice due to variations in the rules of the various circuits which should always be examined by the prac- titioner. These rules will be found in the Appendix, where the corresponding rules of each circuit are grouped together, and where circuit courts of appeals rules are designated by number in this chapter, the compilation in the Appendix is referred to. Consequently the four classes of appeals enumerated are herein treated collectively except as to the time within which appeals must be taken, while proceedings upon certiorari or certification from the circuit courts of appeal to the Supreme Court are treated separately. Appellate procedure from courts of Porto Kico, Hawaii, Alaska, the Philippines, and the District of Columbia falls within one of the four classes previously enumerated, as indicated in separate sections. Procedure in the appellate court, after the transcript has been properly filed therein, dismissal of appeals, writ of mandate, and effect of death on appeals, are separately treated in the latter part of the chapter. 2051. Parties in Appeal. In cases of joint judgments or decrees, all parties interested or affected by the decree or judgment must join in an appeal therefrom unless it appears from the record that there is good cause why they cannot be so joined. However, if one or more of the interested parties refuse to join in the appeal, those who desire to do so may serve their co- defendants or plaintiffs, as the case may be, with a notice of their intention to appeal and a request for them to join therein. Then if they refuse to be made parties, a motion may be filed setting forth the facts and praying that the appeal may be prosecuted by those of the parties desiring to do so. This motion, being granted, constitutes what is called "severance," and the appeal by those of the parties who desire to institute it is maintainable. Failure to join all interested parties without having obtained a sev- erance is fatal to the jurisdiction of the appellate court, and the motion for the severance must be incorporated in the record in or- f>04 MONTGOMERY'S M AM AI. OF FEDERAL PROCEDURE 2051 dcr to vest that court with jurisdiction. This matter may be raised at any time before final disposition of the appeal. 6 It is said in the case of Hardee v. Wilson, 146 U. S. 179, that there are two reasons for the rule: (1) That the successful parties may be at liberty to proceed in the enforcement of his judgment or decree against the parties who do not desire to have it reviewed; (2) that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. An exception to this rule exists in a case where one of several defendants affected by a joint decree takes his appeal in open court when the decree is entered. 7 Inasmuch as all parties are then deemed present in court, the allowance of the appeal under these conditions takes the place of summons and severance, and if citation issues, or if other notice is given, it is considered superfluous, any defects being imma- terial. 8 Ordinarily only a party to the suit is entitled to appeal, 9 but there are cases in which the interest of persons not made parties to the original suit are so affected by the decree that they are entitled to a review. 10 When this is the case, the interest of such persons must clearly appear as well as the manner in which such interest is affected by the decree complained of, which should probably be done by a sworn petition for appeal, setting up those facts and petitioning for an order of intervention allowing them to become parties for the purposes of appeal. 11 Such intervention, however, rests within the discretion of the court, and if the petition is refused mandamus will not lie. 12 An example of a case in which an appeal may be allowed on behalf of one not a party to the original proceeding, is found in 6 Loveless v. Ransom, 107 Fed. 627, 46 C. C. A. 515. 7 Detroit v. Guarantee Co. 168 Fed. 611, 93 C. C. A. 604. 8 Swift v. Kortrecht, 110 Fed. 328. 49 C. C. A. 68. 9 Ex parte Cockcroft, 104 U. S. 578, 26 L. ed. 856; In re Woerishoffer 74 Fed 916, 21 C. C. A. 175 (cases cited). 10 Davis v. Mercantile Trust Co. 152 U. S. 594, 38 L. ed. 563, 14 Sup Ct. Rep. 693. "Aiken v. Smith, 54 Fed. 806, 4 C. C. A. 654. 12 In re Columbia Real Estate Co. 112 Fed. 645, 50 C. C. A. 406. 2053 APPELLATE PROCEDURE IN EQUITY 505 the case of an appeal by a reciever in a foreclosure suit who is not a party to the original suit, 13 and also, under certain conditions, the case of a purchaser of property at a foreclosure sale. 14 Where a corporation is a party to a suit, an appeal may be prosecuted in the corporate name, but if the appellant is a part- nership the appeal may not be taken in the firm name, but must be prosecuted in the name of the individual partners, each of whom must personally sign the appeal bond. 15 The rule that all parties must be joined in an appeal applies to appellees as well as to appellants, but where several appellees are representatives of a class, "citation need be served only upon a few of each class who should appear in good faith in defense of the interest of that class." 16 2052. Time for Appeals from District Courts to the Supreme Court of the United States. 1008, P. 8., Comp. St. 1901, p. 715, 4 F. 8. A. 622. "Xo judgment, decree, or order of a circuit or district court, in any civil action, at law or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the \vrit of error is brought, or the appeal is taken, within two years after the entry of such judgment, order, or decree: Provided, That where a party entitled to prosecute a writ of error or .to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted or such appeal may be taken, within two years after the judgment, decree, or order, exclusive of the term of such disability." 2053. Time for Appeals to Circuit Courts of Appeal. Those sections of the Judicial Code relating to circuit courts of appeal are largely re-enactments of the act of March 3, 1891. However 11 of that act prescribing the time, procedure, and method of appeal has not been re-enacted (except as to the con- is Honey v. McDonald, 109 U. S. 155, 27 L. ed. 889. 14 Davis v. Mercantile Trust Co. 152 U. S. 594, 38 L. ed. 563, 14 Sup. Ct. Rep. 693. 15 Estes v. Trabue, 128 U. S. 225, 32 L. ed. 437, 9 Sup. Ct. Rep. 58. 16 Kidder v. Fidelity Ins. Trust & Safe Deposit Co. 105 Fed. 821, 44 C. C A. 593. 506 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2055 eluding sentence thereof, which now constitutes 132 of the Judicial Code), but still remains in force. That part of the act relating to the time within which appeals must be taken is as follows: PL 11, Act March 8, 1891, Comp. St. 1901 , p. 552, 4 F. 8. A. 4^8. "No appeal or writ of error by which any order, judgment, or decree may be reviewed in the circuit court of appeals shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed: Provided, however, That in all cases in which a lesser time is now by law limited for appeals or writs of error, such limits of time shall apply to appeal or writs of error in such cases taken to or sued out from the circuit court of appeals." 2054. Time for Appeals to Circuit Courts of Appeal from Interlocutory Orders. PL 129, Judicial Code, 9 - 36 Stat. at L. 1134, Comp. St. 1911, p. 194, 1912 Supp. F. 8. A. v. 1, p. 195. "The appeal (from an interlocutory order or decree, granting, continuing, refusing, dissolving, or refusing to dissolve an injunction, or appointing a receiver, to the circuit court of appeals) must be taken within thirty days from the entry of such order or decree." 2055. Time for Appeals from Circuit Courts of Appeal to Supreme Court. Appeals in the third class of cases above enu- merated must be taken within the time prescribed by 6 of the act of March 3, 1891, that part of the act relating to the time limit in this classification being as follows: PL 6, Act March 3, 1891, Comp. St. 1901, p. 550, 4 F. 8. A. 409. "In all cases . . . not hereinbefore made final, there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs. But no such appeal shall be taken or a For Annotation of this 129, Judicial Code, see footnote b, ante, our 2032. 2057 APPELLATE PROCEDURE IN EQUITY 507 writ of error sued out unless within one year after the entry of the order, judgment, or decree sought to be reviewed." The above-quoted paragraph has been re-enacted except as to the concluding sentence relating to the time within which appeals must be taken, as 241, Judicial Code. But the act of 1891 still remains in force as to the time therein prescribed. 2056. Time to Secure Review of State Court Decisions. 1003, R. 8., Comp. St. 1901, p. 713, 4 F. S. A. p. 616. "Writs of error from the Supreme Court to a state court, in cases authorized by law, shall be issued in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States." The writ of error must, therefore, be allowed within two years after the entry of judgment or decree, as provided by 1008, R. S., Comp. St. 1901, p. 715, 4 F. S. A. p. 622, quoted 2052. 2057. Procedure on Appeal to Circuit Courts of Appeal the Same as to Supreme Court. PL 11, Act March 3, 1891, ch. 517, Comp. St. 1901, p. 552, 4 F- S. A. 428. "All provisions of law now in force regu- lating the method and system of review through appeals and writs of error shall regulate the methods and systems of ap- peals and writs of error provided for in this act in respect to the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error, and any judge of the circuit court 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 conditions of each allowance now belong to the justices or judges in respect of the existing courts of the United States respectively." The effect of this act is to make the practice and procedure upon appeals and writs of error to the circuit court of appeals identical of that upon appeal and error to the Supreme Court, 508 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2058 except as to difference resulting from differences between rules of the various circuits. 2058. Allowance of Appeals. The first step in prosecuting an appeal, whether to the Supreme Court or the circuit court of appeals, is to have the appeal "allowed." When this is done the appeal is "taken" in the sense prescribed by the statutes fix- ing the time for appeal. There are two methods of having an appeal allowed : First. When the decree of the lower court is rendered, appel- lant may give notice of appeal in open court, at the same time filing his assignment of errors (which by court rules must be filed before the allowance) and also filing and procuring the acceptance of the necessary bond within the ,term of court then pending. An appeal thus allowed in open court is perfected with- out any written petition for appeal or citation. Second. If the appeal is not perfected as above, the first step toward having it allowed is the preparation and filing of a petition for appeal addressed to the lower court, which may be substantial- ly in the following form: Title of court ) , (. In Equity, and cause I To the Honorable , District Judge, the above named feeling aggrieved by the decree rendered and entered in the above entitled cause on the day of A. D. 19 . . . , does hereby appeal from said decree to the circuit court of appeals for the circuit (or to the Supreme Court of the United States) for the reasons set forth in the assignment of errors filed herewith, and he prays that his appeal be allowed and that citation be issued as provided by law, and that a transcript of the record proceedings and document upon which said decree was based, duly authenticated be sent to the United States Circuit Court of Appeals for the Circuit (or to the Supreme Court of the United States, sitting at ) under the rules of such court in such cases made and provided. And your petitioner further prays that the proper order relating to the required security to be required of him be made. His petition having been filed, it must be allowed, for in all appealable cases, the right of appeal is absolute, the only discretion which the judge can exercise being as to the sufficiency of the 2059 APPELLATE PROCEDURE IN EQUITY 509 appeal bond, and if he refuses to allow the appeal mandamus may be resorted to. No particular form of allowance is required, the usual pro- ceeding being an indorsement upon the petition, to the follow- \ng effect: Appeal allowed upon giving bond as required by law for the sum of $ Judge. Or the following separate order of allowance may be made: ORDER ALLOWING APPEAL. (TITLE OF COURT AND CAUSE) On motion of , Esq., solicitor and counsel for complainant, it is hereby ordered that an appeal to the Supreme Court of the United States from the decree heretofore filed and entered herein, be, and the same is hereby allowed, and that a certified transcript of the record, testimony, exhibits, stipulations, and all proceedings be forthwith transmitted to said Supreme Court of the United States. It is further ordered that the bond on appeal be fixed at the sum of $ (If supersedeas be desired, here insert, "the same to act as a supersedeas bond and also as a bond for costs and damages on appeal.") Dated . .191.. Justice The mere approval of the bond or signing of the petition by the judge amounts to an allowance of the appeal, and if the petition for appeal and assignment of errors are filed within the time allowed, a subsequent allowance of the appeal operates by relation as of that time, and the appeal is properly perfected within that time. 2059. Assignment of Errors. With the petition for appeal, and in addition to it, there must be filed an assignment of errors. 17 This is a detailed statement of each of the alleged errors relied up- on and intended to be urged by the appellant. It differs from the " C. C. A. Rule 11: Supreme Court Rule 35. 510 MONTGOMERY'S MANUAL OF FEDERAL I-ROCEDI'RK 2060 petition for appeal in that it must set out specifically and directly every respect in which the decree is erroneous and the reason why it is so ; while the petition asks for the allowance of the appeal in general terms. The assignment of errors must be so complete and clear that the court may obtain therefrom a specific statement of the question presented without reference to the brief or any other source out- side of the assignment itself. 18 The following form is suggested : ASSIGNMENT OF ERRORS. (TITLE OF TRIAL COURT AND CAUSE) IN EQUITY. Now comes the defendant in the above entitled cause and files the following assignment of errors upon which he will rely upon his prosecution of the appeal in the above entitled cause, from the decree made by this Honorable court on the day of 191 . . . I. That the United States district court for the district of erred in over-ruling the demurrer interposed by the defendant and appellant to the original complaint filed in the cause. II. (State in separate paragraphs each error complained of.) WHEREFORE the appellant prays that said decree be reversed and that said district court for the district of be ordered to enter a decree reversing the decision of the lower court in said cause. Attorneys for Appellant. 2060. Citation. Except in cases of appeals allowed in open court at the term during which the decree appealed from was rendered, a citation returnable at the same term with the appeal or writ or error is necessary to perfect jurisdiction of the appeal or writ or error, unless waived. 19 18 Van Gunder v. Iron Co. 52 Fed. 838, 3 C. C. A. 294; Grape Creek Co. v. Farmers Co. 63 Fed. 891, 12 C. C. A. 350; Ibid. 19 Jacobs v. George, 150 U. S. 415, 37 L. ed. 1127, 14 Sup. Ct. Rep. 159; Hewitt v. Filbert, 116 U. S. 142, 29 L. ed. 581, 6 Sup. Ct. Rep. 319; West v. Irwin, 54 Fed. 419, 4 C. C. A. 401. 2060 APPELLATE PROCEDURE IN EQUITY 511 999, R. 8., Comp. St. 1901, p. 112, 4 F. 8. A. 609. "When the writ is issued by the Supreme Court to a circuit court, the citation shall be signed by a judge of such cir- cuit court, or by a justice of the Supreme Court, and the adverse party shall have at least thirty days' notice ; and when it is issued by the Supreme Court to a state court, the citation shall be signed by the chief justice or judge, or chancellor of said court, rendering the judgment or passing the decree complained of, or by a justice of the Supreme Court of the United States, and the adverse party will have at least thirty days' notice." 998, R. 8., Comp. St. 1901, p. 712, 4 F. 8. A. 609. "When the writ is issued by a circuit court to a district court, the citation shall be signed by the judge of such dis- trict court, or by the circuit judge of such circuit court, or by a justice of the Supreme Court, and the adverse party shall have at least twenty days' notice." This citation is a formal notice of the allowance of an appeal, is intended only for the purpose of notice, is not jurisdictional, and may be waived or substituted by proof of other equivalent notice. 20 No particular form of citation is required by statute, but, in the absence of a printed form supplied by the court from which the appeal is taken, the following is suggested: CITATION ON APPEAL. (TITLE OF TRIAL COURT AND CAUSE) United States of America, ss. To and , GREETING: You are hereby cited and admonished to be and appear at the Supreme Court of the United States, to be held at the city of Washington, in the District of Columbia, on the day of , A. D. 191. .. Pur- suant to an order allowing an appeal filed and entered in the clerk's office of the district court of the United States for the district of from a final decree signed, filed, and entered on the day of , 191 . . in that certain suit, being in equity No wherein is plaintiff and you are defendant and appellee, to show cause, if any there 20 Farmers Loan & Trust Co. v. C. & N. R. R. Co. 73 Fed. 317, 19 C. C. A. 477: Dayton v. Lash, 94 U. S. 112, 24 L. ed. 33; Grijjgsby v. Purcell, 99 U. S. 505, '25 L. ed. 354; R. R. Co. v. Blair, 100 U. S. 661, 25 L. ed. 587; Jacobs v. George, 150 U. S. 415, 37 L. ed. 1127, 14 Sup. Ct. Rep. 159. 512 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2061 be, why the decree rendered against the said appellant, as in said order allowing appeal mentioned, should not be corrected and why justice should not be done to the parties in that behalf. Witness the Honorable United States district judge for the district of this day of 191 . . and of the Independence of the United States U. S. .District Judge for the District of 2061. Bond on Appeal. The petition for appeal having been filed, accompanied by the assignment of errors, a bond is re- quired of the appellant payable to the appellee, conditioned as provided in the following quoted section: 1000, R. 8., Comp. St. 1901, p. 112, 4 F. 8. A. 612. "Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error 'or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid." This bond must be approved before the appeal is perfected, but it is not jurisdictional, and if not given at the time when the appeal is taken, the failure to do so constitutes a mere irregularity Avhich may be cured by the Supreme Court allowing the appel- lant to file the proper bond within a reasonable time. 81 In ac- cordance with this rule a bond furnished one month after the appeal is taken has been held to be furnished within a reasonable time, 22 while a lapse of four years where permission to supply the bond has never been asked has been held to constitute ground for dismissal of appeal. 23 Xot being jurisdictional, bond may be waived by the appellees. 24 21 Brown v. McConnel, 124 U. S. 489, 31 L. ed. 495, 8 Sup. Ct. Rep. 559 : Schenck v. Diamond Match Co. 73 Fed. 22, 19 C. C. A. 352; Anson v. Rail- road Co. 23 How. 1, 16 L. ed. 517; Davidson v. Lainer, 4 Wall. 447, 18 L. ed. 377: Seymour v. Freed, 5 Wall. 822. 18 L. ed. 564. 22 Schenck v. Diamond Match Co. 73 Fed. 22, 19 C. C. A. 352. 28 Beardsley v. Arkansas & L. R. R. Co. 158 U. S. 123, 39 L. ed. 919, 15 Sup. Ct. Rep" 786. 24Kingsbury v. Buckner, 134 U. S. 650 33 L. ed. 1047, 10 Sup. Ct. Rep. 638. 2061 APPELLATE PROCEDURE IN EQUITY 513 The sufficiency of the security is discretionary with the trial judge, and he may, within his discretion, accept a bond signed by any number of sureties, or one in which they are either jointly and severally -or jointly or severally bound, or one in which each surety is oiily 'bound Severally for a specified part of the security. 25 The security required upon appeal must be taken by the justice or judge signing the citation. He cannot delegate this power to the clerk, 26 but if he should do so, the appeal will not usually be dismissed, but opportunity will be afforded the appellant to secure a bond properly approved by the judge, 27 . All obligees should be individually named in the bond to insure certainty, but the fact that they are not, as where it is made payable to John Smith et al., will not be considered grounds for the dismissal of the appeal, and opportunity will be given to file a proper bond. 28 On the other hand, if others besides the party from whom the decree appealed from is taken are named as obligees in .the bond, its validity is not thereby affected. 29 The bond may be in the following form : BOND ON APPEAL. < TITLE OF TRIAL COURT AND CAUSE) KNOW all men by these presents, that we, as principal, and and as sureties, of the county of , State of '.;. ... . . . are held and firmly bound unto in the sum of $ lawful money of the United States, to be paid to them and their respective executors, administrators and successors; to which payment, well and truly to be made, we bind ourselves and each of us, jointly and severally, and each of our heirs, executors, and administrators, by these presents. Sealed with our seals and dated this day of 191 ... Whereas the above named , has prosecuted a writ of error to the Supreme Court of the United States to reverse the judgment of the district court for the district of , in the above entitled cause. 25 New Orleans Ins. Co. v. Albro Co. 112 U. S. 506, 28 L. ed. 809, 5 Sup. Ct. Rep. 289. 26 Freeman v. Clay, 48 Fed. 849, 1 C. C. A. 115; O'Reilley v. Edrington, 96 U. 8. 724. 24 L. 'ed. 659; Martin v. Hunter's Lessee, 1 Wheat. 361, 4 L. JA:? r W.'V,: to the court or judge in conformity with the provisions of paragraph (b) of this rule and shall be covered by the direc- tions which the court or judge may give on the subject." Equity Rule 76. A "In preparing the transcript on an appeal, especial care shall be taken to avoid the inclusion of more than one copy of the same paper and to exclude the formal and immaterial parts of all exhibits, documents and other papers included therein ; and for any infraction of this or any kindred rule the appellate court may withhold or impose costs as the circumstances of the case and the discouragement of like infractions in the future may require. Costs for such an infraction may be imposed upon offending solicitors as well as parties. "If, in the transcript, anything material to either party be omitted by accident or error, the appellate court, on a proper suggestion or its own motion, may direct that the omission be corrected by a supplemental transcript." Equity Rule 77. e "When the questions presented by an appeal can be determined by the appellate court without an d See Equity Rule 76, with Annotations, in Appendix, post. See Equity Rule 77, with Annotations, in Appendix, post. 522 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2070 examination of all the pleadings and evidence, the parties, with the approval of the district court or the judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when filed in the office of the clerk of the district court, shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the decree from which the appeal is taken, and, together with such decree, shall be copied and certified to the appellate court as the record on appeal." 2069. Printing and Filing of Record on Appeal and Error to Circuit Courts of Appeal. Paragraph 1, Act Feb. 13, 1911, ch. 147, Comp. St. 1911, p. 275, 1912 Supp. F. 8. A. v. 1, p. 255. "That in any cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to, or writ of error from, a United States circuit court of appeals the appellant or plain- tiff in error shall cause to be printed under such rules as the lower court shall prescribe, and shall file in the office of the clerk of such circuit court of appeals at least twenty days before the case is called for argument therein, at least twenty-five printed transcripts of the record of the lower court, and of such part or abstract of the proofs as the rules of such circuit court of appeals may require, and in such form as the Supreme Court of the United States shall by rule prescribe, one of which printed transcripts shall be cer- tified under the hand of the clerk of the lower court and under the seal thereof, and shall furnish three copies of such printed transcript to the adverse party at least twenty days before such argument: Provided, That either the court below or the circuit court of appeals may order any original document or other evidence to be sent up in addition to the printed copies of the record or in lieu of printed copies of a part thereof; and no written or typewritten transcript of the record shall be required." 2070. Printing and Filing of Record on Appeal and Error to Supreme Court Use of Record in Circuit Court of Appeals as Part of Transcript. Paragraph 2, Act Feb. 13, 1911, ch. 47, Comp. St. 1911, p. 275', 1912 Supp. F. S. A. v. 1, p. 255. "That in any 2072 APPELLATE PROCEDURE IN EQUITY 523 cause or proceeding wherein the final judgment or decree is sought to be reviewed on appeal to or by writ of error or of certiorari from the Supreme Court of the United States, in which the record has been printed and used upon the hearing in the court below and which substantially conforms to the printed record in said Supreme Court, if there have been at the time of filing the record in the court below twenty- five copies of said printed record, in addition to those pro- vided in the preceding section, lodged with the clerk of the court below, one copy thereof shall be used by the clerk of the court below in the preparation and as a part of the tran- script of the record of the court below ; and no fee shall be allowed the clerk of the court below in the preparation of the transcript for such part thereof as is included in said printed record so lodged with him. And the clerk of the court below, in transmitting the transcript of record to the Supreme Court of the United States for review, shall at the same time transmit the remaining uncertified copies of the printed record so lodged with him, which shall be used in the preparation and as a part of the printed record in the Supreme Court of the United States, and the clerk's fee for preparing the record for the printer, indexing the same, supervising the printing, and binding and distributing the copies, shall be at such rate per folio thereof, exclusive of the printed record so furnished by the clerk of the court below, as the Supreme Court of the United States may from time to time by rule prescribe ; and no written or typewritten transcript of so much of the record as shall have been print- ed as herein provided shall be required. (36 Stat. at L. 901.) " 2071. One Record Sufficient When Both Parties Appeal to Supreme Court Direct. 1013, R. 8., Comp. SL 1901, p. 716, 4 F. 8. A. 612. "Where appeal is duly taken by both parties from the judg- ment or decree of a circuit or district court to the Supreme Court, a transcript of the record filed in the Supreme Court by either appellant may be used on both appeals, and both shall be heard thereon in the same manner as if records had been filed by the appellants in both cases." 2072. Time for Return of Appeals and Writs of Error. Supreme Court Rule 8, Subd. 5. "AH appeals,' writs of error, and citations must be made returnable not exceeding 524 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 207'} thirty days from the day of signing the citation, whether the return clay fall in vacation or in term time, and be served before the return day, except in writs of error and appeals from California, Oregon, Nevada, Washington, Xew Mexico, Utah, Montana, Arizona, Wyoming, North Dakota, South Dakota, Alaska, Idaho, Hawaii, and Porto Rico, when the time shall be extended to sixty days, and from the Philippine Islands to one hundred twenty days." C. C. A. Rule 14, Sub. 5. "All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the re- turn day fall in vacation or in term time, and be served before the return day." 2073. Summary of Procedure on Appeal. In all appeals, whether from the district courts to the circuit courts of appeal, or from the district courts direct to the Supreme Court, or from the circuit courts of appeal to the Supreme Court in those cases where such appeals may be taken, the following steps must be taken in order to get the record into the appellate court : First. Except in cases of appeals allowed in open court at the time when the decree appealed from was rendered, a petition for appeal (or writ of error) in writing must be addressed to the lower court, or, if in vacation, to the judge thereof. Second. With this petition there must be filed an assignment of errors. Third. The allowance of the appeal must be indorsed upon the petition by the justice or judge of the lower court, or a separate order allowing the appeal must be signed by him. Fourth. Before the appeal can be perfected a satisfactory bond on appeal must be furnished by the appellant, which bond may act as a supersedeas if desired. This bond may be given either at the time when the appeal is allowed, or within a reasonable time thereafter, and must be approved by the justice or judge allowing the appeal, and by no one else. Fifth. The citation or notice of appeal, in cases where it is required, must be signed by the judge and served upon the ap- pellee. 2074 APPELLATE PROCEDURE IN EQUITY 525 All of these papers and proceedings are filed with the clerk of the court below, and constitute a part of the record on appeal. 2074. Review of Final Decisions of Circuit Courts of Appeal upon Certiorari. PL 240, Judicial Code,' 86 8 tat. at L. 1157, Comp. St. 1911, p. 228, 1912 Supp. F. S. A. v. 1, p. 232. "In any case, civil or criminal, in which the judgment or decree of a circuit court of appeals is made final by the provisions of this title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for writs of review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court." Before the petition for a writ of certiorari can be submitted to the Supreme Court, the following requirements must be complied with : Before the petition is placed on the docket, there must be filed with the clerk of the Supreme Court of the United States the orig- inal petition for the writ, bearing the signature of counsel ; a cer- tified copy of the transcript of the record, including all proceed- ings in the circuit court of appeals; and appearance of counsel for petitioner signed by a member of the bar of the Supreme Court of the United States; and a deposit of twenty-five dollars on account of costs. In addition to the above, before the petition can be submitted the Supreme Court requires "about two weeks' notice" of the date fixed for the submission. Satisfactory proof of service of this notice, together with proof of service of copies of petition and brief upon counsel for the respondent, must be made and filed with the clerk of the Supreme Court. Twenty-five printed copies of the petition, together with twenty- five printed copies of brief in support thereof, if there are any such, and at least nine uncertified copies of the record, containing all proceedings in the circuit court of appeals, must be filed with the clerk before the petition is submitted. 'For Annotation of this 240, Judicial Code, see footnote*, ante, our 840. 526 MONTGOMERY'S MANUAL OF FEDERAL, PBOCEDUKE 2074 No oral argument upon petition for writs of certiorari is per- mitted, and if the respondent wishes to oppose the petition, he must file twenty-five copies of his brief with the clerk of the Supreme Court. The respondent must also enter an appearance signed by a member of the bar of the Supreme Court, and the brief of re- spondent must also be signed by a member of that bar. The presence of such counsel, however, is not necessary when the peti- tion is submitted. All petitions for writs of certiorari must be presented upon Monday (motion day), and all papers in the case must be filed not later than the Saturday preceding the Monday fixed for sub- mission of the petition. The above requirements constitute the substance of instructions issued by James H. McKenney, clerk of the Supreme Court of the United -States. 40 The following forms are suggested : PETITION FOR WRIT OF CERTIORARI. (TITLE OF COURT AND CAUSE) To the Honorable the Supreme Court of the United States": The petition of respectfully shows to this Honorable Court (here state facts and proceedings numbered in separate paragraphs leading to and including the decree of the circuit court of appeals). A certified copy of the entire record of said case in the said circuit court of appeals is hereby furnished, attached to and made a part of this application and marked exhibit "A" in compliance with Rule 37 of this Honorable Court. Your petitioner is advised and believes that the said judgment of the United States circuit court of appeals in said case is erroneous, and that this Honorable Court should require the said case to be certified to it for its review and determination in conformity with the provision in 240, Judicial Code, said case being made final in said circuit court of appeals by the provision 128, Judicial Code. The said case was decided in said circuit court of appeals (here set forth argument advanced against the decision of the circuit court of appeals and the reasons why it should be reviewed by the Supreme Court). WHEREFORE your petitioner respectfully prays that a writ of certiorari may be issued out of and under the seal of this court, directed to the United States circuit court of appeals for the circuit, commanding the said court to certify and send to this court, on a day certain to be therein designat- ed, a full and complete transcript of the record and all proceedings of the said *" See Appendix. APPELLATE PROCEDURE IN EQUITY 527 circuit court of appeals in the said case, entitled v No , to the end that the said case may be reviewed and determined by this court as provided by section 240, Judicial Code, or that your petitioner may have such other or further relief or remedy in the premises as this court may deem appropriate and in conformity with said provision of the Judicial Code and that the said judgment of the said circuit court of appeals insthe said case and every part thereof may be reversed by this Honorable Court. Petitioner. (Verification.) WRIT OF CERTIORARI. (TITLE OF COURT AND CAUSE) United States of America, ss. The President of the United States of America, to the Honorable Judges of the United States circuit court for the circuit, GREETING : Being informed that there is now pending before you a suit in which is appellant (or plaintiff in error) and is appellee or (defendant in error,) which suit was removed to said circuit court of appeals by virtue of an appeal (or a writ of error) from the district court of the United States for the district of ; and we being willing for certain reasons, that the said cause and the record and proceedings therein should be certified by said circuit court of appeals and removed into the Supreme Court of the United States, do hereby command you that you send without delay to the said Supreme Court, as aforesaid, the record and proceedings in said cause, so that the said Supreme Court may act thereon as of right and according to law ought to be done. Witness the Honorable , Chief Justice of the Supreme Court of the United States. Clerk of the Supreme Court. 2075. Certification by Circuit Courts of Appeal to Su- preme Court. PL 239, Judicial Code* 36 8 tat. at L. 1157, Camp. St. 1911, p. 228, 1912 Supp. F. 8. A.v.l, p. 231. "In any case within its appellate jurisdiction . . . the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law con- cerning which it desires the instruction of that court for its proper decision ; and thereupon the Supreme Court may eith- er give its instruction on the questions and propositions K For Annotation of this 239, Judicial Code, see footnote a, ante, our 840. 528 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2076 certified to it, which shall be binding upon the circuit court of appeals is such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." In view of the final clause of the section above quoted, the only difference in procedure upon a review of this class of cases is in the manner of getting the questions before the Supreme Court, subsequent proceedings being the same as if the cause had been brought there by writ of error or appeal. The form of the certificate is substantially as follows : CERTIFICATE OF QUESTIONS BY CIRCUIT JUDGES TO THE SUPREME COURT. The United States Circuit Court of Appeals for the Circuit. (Title of Cause.) Appeal from the District Court of the United States for the District of This cause coming on for hearing before the court after full argument, it is ordered, in view of the important questions arising with the record and the doubt which the court has as to the correct decision thereof that certain questions shall be certified to the Supreme Court of the United States for its instruction thereon, that accompanying said question there shall also be. a statement from which such question can be fully understood; which question and the statement accompanying them, are as follows: (Questions and statements are here set forth.) (To be signed by all judges.) 2076. Appellate Procedure District Courts of Alaska to the Supreme Court. Ft, 247, Judicial Code* 36 Stat. at L. 1158, Comp. St. 1911, p. 230, 1912 Supp. F. 8. A. v. 1, p. 234. "Appeals and writs of error may be taken and prosecuted from final judgments and decrees of the district court for the district of Alaska or any division thereof, direct to the Supreme Court of the United States (in the cases enumerated) within the same time, in the same manner, and under the same regula- l For Annotation of this 247, Judicial Code, see footnote J, ante, our 2015. APPELLATE PROCEDURE IN EQUITY 529 tions as writs of error and appeals are taken from the district court to the Supreme Court." This procedure is included within the first class of appeals enumerated in 2050, supra, and the practice is the same as that in appeals from district courts direct to the United States Supreme Court, heretofore described. 2077. Appellate Procedure From Supreme and District Courts of Porto Rico. Pi. 244, Judicial Code, 1 36 8 tat. at L. 1151, Comp. St. 1911, p. 229, 1912 Hupp. F. 8. A. v. 1, p. 234- "Such writs of error and appeals (from final judgments and decrees of the Supreme Court of and the United States district court for Porto Rico in the cases enumerated in chapter 39) shall be taken within the same time, in the same manner, and under the same regulation as writs of error and appeals are taken to the Supreme Court of the United States from the district courts." Appellate procedure in this class of cases therefore falls within the first class of appeals enumerated in 2050, supra, and what has been said with regard to such procedure applies as well to appeals and writs of error from the courts of Porto Rico. 2078. Appellate Procedure From Supreme Court of Philippines. Pi: 248, Judicial Code? 36 Stat. at L. 1158, Comp. St. 1911, p. 230, 1912 Supp. F. 8. A. v. 1, p. 234- "Such final judgments and decrees (of the supreme court of the Philip- pine Islands in the cases enumerated in chapter 39) may and can be reviewed, reversed, modified, or affirmed by said supreme court on appeal or writ of error by the party ag- grieved within the same time, in the same manner, under the same regulation, and by the same procedure, as far as applicable, as the final judgments and decrees of the district courts of the United States." * For Annotation of this 244, Judicial Code, see footnote h, ante, our 2013. J For Annotation of this 248, Judicial Code, see footnote k, ante, our 20] 6. Montg. 34. 530 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2080 The procedure upon appeal in these cases also falls within the first classification enumerated in. 2050, supra. 2079. Appellate Procedure From District of Columbia. PL 250, Judicial Code* 36 Stat. at L. 1159, Comp. St. 1911, p. 231, 1912 Supp. F. 8. A. v. 1, p. 235. "Writs of er- ror and appeals (from final judgments or decrees of the court of appeals of the District of Columbia in the cases enumerat- ed and discussed in 2018 of chapter 39) shall be taken with- in the same time, in the same manner, and under the same regulation, as writs of error and appeals are taken from the circuit courts of appeals to the Supreme Court of the United States." Appellate procedure in the cases covered by this section falls within the third class of appeals enumerated in 2050 infra, and the discussion of that class of appeals applies to appellate pro- cedure under this section. 2080. Appellate Procedure From District of Columbia, Where Decision of Circuit Court of Appeals is otherwise Final. 251, Judicial Cade, 1 36 Stat. at L. 1159, Comp. St. 1911, p. 232, 1912 Supp. F. S. A. v. 1, p. 236. "In any case in which the judgment or decree of such court of appeals is made final by the section last preceding, it shall be competent for the Supreme Court of the United States to require, by certiorari or otherwise, any such case to be certified to it for review and determination with the same power and au- thority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said court of appeals, in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Supreme Court of the United States any questions or propositions of law concerning which it de- sires the instruction of that court for its proper decision ; and thereupon the Supreme Court may either give its in- struction on the question and propositions certified to it, 1* For Annotation of this 250, Judicial Code, see footnote m, ante, our 2018. 1 For Annotation of this 251, Judicial Code, see footnote n, ante, our 2019. 2081 APPELLATE PROCEDURE IN EQUITY 531 which shall be binding upon said court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall de- cide the whole mattej in controversy in the same manner as if it had been brought there for review by writ of error or appeal." The language of this section is substantially the same as that of 239 and 240, Judicial Code, which applies to appeals from circuit courts of appeals of the various circuits to the Supreme Court, and the procedure under the above-quoted section is the same as that discussed under 239, 240, Judicial Code in 2074, 2075, supra. 2081. Appellate Procedure From Supreme Court of Hawaii to United States Supreme Court. Pi. 246, Judicial Code, 36 Stat. at L. 1158, Camp St. 1911, p. 230, 1912 Supp. F. 8. A. v. 1, p. 233. "Writs of error and appeals from the final judgments and decrees of the supreme court of the territory of Hawaii may be taken and prosecuted to the Supreme Court of the United States within the same time, in the same manner, under the same regula- tions, and in the same classes of cases in which writs of error and appeals from the final judgments and decree of the high- est court of the state in which a decision in a suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of 237 Judicial Code' 41 and also in all cases wherein the amount involved ex- clusive of costs, . . . exceeds the sum or value of $5,000." The language of this section providing that "writs of error and appeals . . . may be taken . . . within the same time, in the same manner, and under the same regulations, and in the same classes of cases in which writs of error and appeals from the final judgments and decrees of the highest court of the state, etc.," is misleading, inasmuch as there is no appeal from See ch. 11. m For Annotation of this 246, Judicial Code, see footnote I, ante, our S 2014. 532 MONTGOMERY'S MANTAI, L*RE 2081 the decisions of a state court of last resort ; all such cases, whether at law or in equity, being reviewed by writ of error. The procedure in such cases is governed by 1003, R. S., Comp. St. 1901, p. 713, 4 F. S. A. 616, 42 and 'is identical with that upon error to the United States Supreme Court, discussed in chapter 28. The following form of writ may be employed : WRIT OF ERROR TO THE SUPREME COURT OF HAWAII. . (TITLE OF TRIAL COURT AND CAUSE.) THE UNITED STATES OF AMERICA SS. The President of the United States of America to the Supreme Court of the Territory of Hawaii, Greeting: Because in the record and proceedings as also in the rendition of the judg- ment and decree which is in the said supreme court of the territory of Hawaii, before you or some of you, being the highest court of law or equity of said territory in which a decision could be had in the said suit, where was drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States and the decision was against their validity; (or here state any other Federal question involved) a manifest error has happened to the great damage of , plaintiff in error herein as by their assignment of errors appears, we being willing that error, if any there be, should be duly corrected, and full justice done to the parties aforesaid in this behalf, do command you if judgment be therein given, that then under your seal, distinctly and openly you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, so that you have the same at Washington within thirty days from the date hereof in the said Supreme Court to be then and there heard, that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error, if any there be, what of right should be done according to the laws of the United States. WITNESS the Honorable . v'.'. : ..1V'.' Chief Justice of the said Supreme Court this day of A. D. 191 . . . Clerk of the Supreme Court of the Territory of Hawaii. (Seal of the Supreme Court, Title of Court and Cause.) Allowed by Chief Justice of the Supreme Court of the Territory of Hawaii. 825 supra. 2083 APPELLATE PROCEDURE IN EQUITY 533 2082. Certiorari Ninth Circuit to Supreme Court in Alaska Cases. Pt. 134, Judicial Code," 36 Stat. at L. 1134, Comp. St. 1911, p. 195, 1912 Supp. F. 8. A. v. l,p. 197. "Whenever such circuit court of appeals (for the ninth circuit) may de- sire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Su- preme Court shall give its instruction upon the question or proposition certified to it, and its instruction shall be bind- ing upon the circuit court of appeals." The cases covered by this section are those in w T hich appeals may be taken from district courts of Alaska to the circuit court of appeals for the ninth circuit, the decision of said circuit court of appeals being final except for the review by the Supreme Court as above provided. The language of the section is similar to that of 239, Judicial Code, which provides for like procedure in all cases decided by the circuit courts of appeals of the various circuits, in which their judgments are otherwise final, and the effect of the section above quoted is to provide the same procedure in this class of appeals from the district courts of Alaska, as is provided by 239, Judicial Code, in parallel appeals from dis- trict courts of the United States. 2083. Procedure after Transcript Reaches Appellate Court. Pt. Sup. Ct. Rule 8, a-nd Cir. Ct. App. Rule 14. "No case will be heard until a complete record containing in itself, and not by reference, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court, shall be filed." This rule having been complied with the cause is docketed, heard, and decided in accordance with the rules of the particular appellate court to which the cause has been taken. It is not prac- n For Annotation of this 134, Judicial Code, see footnote t, ante, our 842. 534 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2084 ticable in a manual of this size to here set forth at length the pro- visions of all these rules. They are contained in the Appendix, and to them the practitioner must refer for information as to docketing, printing, and filing of brief, time for argument, and all the details relating to the conduct of the appeal before the appellate tribunal. 2084. Dismissal of Appeal. Under the rules of the Supreme Court and the circuit courts of appeals, the appellee may secure the dismissal of an appeal upon any of the following grounds : 1. Transcript not properly filed or cause not docketed before return day named in citation.* 8 2. Record not printed in time. 4 * 3. Nonappearance of counsel for appellant or failure to file brief.* 6 4. Appearance not entered when case calls.* 6 5. Requisite numbers of copies of brief not filed, or not filed in time.* 7 6. By stipulation filed with clerk in vacation.* 8 7. Neither party prepared to argue cause upon second call when called at two successive terms.* 9 8. Failure of deceased appellants, representatives to appear. 60 In addition to the above-named grounds prescribed by the rules, the following, held by the courts sufficient to warrant dis- missal, have been gathered together and set forth in Simkins "A Federal Equity Suit," (2d ed.) chapter 115: 9. Appellant may dismiss by leave of court. 61 10. When it appears that further prosecution is collusive. 58 Sup. Ct. Rule 9, C. C. A. Rule 16. See Appendix. 44 Sup. Ct. Rule 10, C. C. A. Rule 23. See Appendix. Sup. Ct. Rule 16, C. C. A. Rule 22. See Appendix. 46 Sup. Ct. Rule 18, C. C. A. Rule 22. See Appendix. 47 Sup. Ct. Rule 21, C. C. A. Rule 24. See Appendix. Sup. Ct. Rule 28, C. C. A. Rule 20. See Appendix. 4 Sup. Ct. Rule 19. See Appendix. 60 C. C. A. Rule 19. See Appendix. 61 United States v. Griffith, 141 U. S. 212, 35 L. ed. 719, 11 Sup. Ct. Rep. 1005. 62 Mills v. Green, 159 U. S. 654, 40 L. ed. 293, 16 Sup. Ct. Rep. 132 ; Benner v. Hayes, 26 C. C. A. 271, 80 Fed. 953; Weaver v. Kelley, 92 Fed. 421, 34 C. C. A. 423. 2084 APPELLATE PROCEDURE IN EQUITY 535 11. When there is no material issue. 53 12. When the question is moot, or some abstract proposition. 64 13. Where relief becomes impossible. 55 14. An appeal will be dismissed if no citation is sued out, or sued out and not served, but the regular appearance of appellee waives it. 56 15. An appeal will be dismissed when based on grounds affect- ing the jurisdiction of the court a quo, or the jurisdiction of the appellate court, as when the appeal was not sued out within the time limited. 67 16. When decree joint, and appeal by one without notice to others. 68 17. W T hen no assignment of errors or brief. 59 To procure the dismissal of an appeal, a written motion must be prepared and filed, and notice given in accordance with Supreme Court Rule 6, 3, and Circuit Court of Appeals Rule 21, 3. The motion may be in the following form : MOTION TO DISMISS. (Title of Court and Cause.) The appellee moves the Court to dismiss the appeal filed herein for the following reasons: 1. Because, etc., (setting forth the facts upon which the motion is based). Solicitor. 53 Allen v. Georgia, 166 U. S. 140, 41 L. ed. 949, 17 Sup. Ct. Rep. 525. 54Kimball v. Kimball, 174 U. S. 158, 43 L. ed. 932, 19 Sup. Ct. Rep. 639; United States v. Evans, 213 U. S. 297, 53 L. ed. 803, 29 Sup. Ct. Rep. 507; Mills v. Green, 159 U. S. 653, 40 L. ed. 293, 16 Sup. Ct. Rep. 332. 55 Mills v. Green, 159 U. S. 653, 40 L. ed. 293, 16 Sup. Ct. Rep. 132; Flour Inspectors v. Glover, 160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep. 321; Katz v. San Antonio, 34 C. C. A. 10, 63 U. S. App. 452, 91 Fed. 567 ; Game- well Fire Alarm Teleg. Co. v. Municipal Signal Co. 23 C. C. A. 250, 33 U. S. App. 714, 77 Fed. 492 ; Lockwood v. Wickes, 21 C. C. A. 257, 36 U. S. App. 321, 40 U. S. App. 136, 75 Fed. 118, as when statutes repealed. Flour In- spectors v. Glover, 160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep. 321: Board of Flour Inspectors v. Glover, 161 U. S. 103, 40 L. ed. 632, 16 Sup. Ct. Rep. 492. 56 Peace River Phosphate Co. v. Edwards, 17 C. C. A. 359. 30 U. S. App. 513, 70 Fed. 728; Freeman v. Clay, 1 C. C. A. 115, 2 U. S. App. 151, 48 Fed. 849. 57 Gorman Wright Co. v. Wright, 67 C. C. A. 345, 134 Fed. 363-365: Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449-453, 44 L. ed. 842-844, 20 Sup. Ct. Rep. 690 ; Waxahachie v. Coler, 34 C. C. A. 349, 92 Fed. 284. 58 Fitxpatrick v. Graham, 56 C. C. A. 95, 119 Fed. 353, and cases cited. 59Moline Trust & Sav. Bank v. Wiley, 79 C. C. A. 440, 149 Fed. 734; Fitch v. Richardson, 77 C. C. A. 422, 147 Fed. 196. 536 MONTGOMERY'S MANUAL OF FEDERAL PROCEDI-UK 2085 The appellant must receive notice of the motion, which may be served in the following form: (Title of Court and Cause.) To appellant, and his counsel: Please take notice that the appellee will, on the day of , 191.., or as soon thereafter as counsel can be heard, submit to the above entitled court at , his motion to dismiss the appeal now pending in this cause, a copy of which is attached to this notice. Solicitor. 2085. Diminution of Record. If the transcript is incom- plete or defective, the proper practice is a suggestion of diminution of the record, which is done by motion or petition in writing in the appellate court. Supreme Court Rule 14, C. C. A. Rule 18. "No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court, accounting sat- isfactorily for the delay." The petition may be, substantially, as follows : PETITION FOR CERTIORARI FOR DIMINUTION OF RECORDS.60 (Title of Court and Cause.) To the Honorable Justices of the Supreme Court of the United States: The petition of respectfully shows to this Honorable Court as follows (here set forth the failure of the clerk in the lower court to incorporate in the record those proceedings for the lack of which the diminu- tion is suggested, or whatever the circumstances are, which are responsible for the diminution) : WHEREFORE your petitioner prays that a writ of certiorari may be issued out of and under the seal of this court, directed to the United States circuit court of appeals for the circuit (or whatever court the appeal may have been taken from) commanding the said court to certify and send eo M. K. & T. Ry. Co. v. Dinsmore, 108 U. S. 30, 27 L. ed. 640, 2 Sup. Ct. Rep. 9. 2086 APPELLATE PROCEDURE IN EQUITY 537 to this court on a day certain to be therein designated, a full and complete transcript of all and every part of the record and proceedings of the said court in the said case therein entitled, v No , remaining on file in the office of the clerk of the said court, and not embodied in the transcript on appeal in the said cause already filed in this court (or specify what parts of the record it is desired to have sent up). Petitioner. It seems that the motion or petition must be verified, unless the facts therein stated are admitted. 61 2086. Mandate. Mandate is the command of the appellate court, directing the lower court in its disposition of a cause after its determination upon appeal or writ of error. It is issued by the clerk of the appellate court, in accordance with the rules of that court, 62 and in form substantially as fol- lows : WRIT OF MANDATE TO DISTRICT COURT ON REVERSAL. (Title of Court and Cause.) United States of America, ss. The President of the United States of America, to the Honorable Judges of the District court of the United States for the district of : GREETING. (Seal of the U. S. Supreme Court.) Whereas, lately in the district court of the United States for the district of before you, or some of you, in a cause between appellant and appellee, wherein the decree of such district court entered in said cause on the day of 191.., is in the following words, viz: "(Here set forth the decree verbatim.)" As by the inspection of the transcript of the record which was brought into the Supreme Court of the United States by virtue of an appeal taken by , according to the act of Congress in such case made and provided, fully appears. And whereas, on the ...... day of 191. ., the said cause came on to be heard before the said Supreme Court, on the said transcript of record, on appeal, and was argued by counsel. 61 Chappell v. United States, 160 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397. 62 C. C. A. Rule 32, Supreme Ct. Rule 24, 5, and Rule 3!). See Appendix. 538 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2087 ON CONSIDERATION WHEREOF IT IS NOW HERE ORDERED, AD- JUDGED AND DECREED BY THIS COURT that the decree of said district court in this cause be, and the same is hereby reversed, with costs to the original plaintiff, , against the defendant ( Here set forth the decree of the Supreme Court. ) And it is further ordered that this cause be, and the same is hereby, re- manded to the said district court for further proceedings in conformity with the opinion of this court. You, therefore, are hereby commanded that such execution and further pro- ceedings be had in said cause, in conformity with the opinion and the decree of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding. WITNESS the Honorable , Chief Justice of the United States this day of A. D. 191 ... Clerk of the Supreme Court of the United States. Upon receipt of the mandate by the lower court, nothing is left except for that court to carry it into execution. 68 If, in ex- ecuting the directions contained in the writ of mandate, either party believes that the lower court has misconstrued those direc- tions, his remedy is by appeal or mandamus. 64 In such appeals the original judgment is not reviewable, the only question being as to the proper compliance with the direc- tions contained in the writ of mandate. 66 If the writ of mandate is clear, leaving nothing to the discre- tion of the lower court, and the action of that court does not con- form to the mandate, the proper remedy is not appeal, but man- damus. 66 2087. Death of Party after Judgment, but before Appeal. Prior to the act of March 3, 1875, it was the practice, upon the death of a party after judgment had been rendered, and before the 63 Durrant v. Storrow, 101 U. S. 555, 25 L. ed. 961 ; Great Northern R. Co. v. W. U. Tel. Co. 174 Fed. 321, 98 C. C. A. 193; In re S. F. & T. Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291. 64 In re Blake, 175 U. S. 117, 44 L. ed. 94, 20 Sup. Ct. Rep. 42; Metcalf v. Watertown, 68 Fed. 861, 16 C. C. A. 37 ; James v. Central Trust Co. 108 Fed. 931, 47 C. C. A. 374. 65 United States v. Camou, 184 U. S. 572, 46 L. ed. 694, 22 Sup. Ct. Rep. 505. 66 In re Stanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 44, 16 Sup. Ct. Rep. 291; Mason v. Pewabic Min. Co. 153 U. S. 361, 38 L. ed. 745, 14 Sup. Ct. Rep. 847 : In re Blake, 175 U. S. 117, 44 L. ed. 94, 20 Sup. Ct. Rep. 42. 2088 APPELLATE PEOCEDURE IN EQUITY 539 time for taking an appeal had elapsed, to apply to the court below for an order reviving tfye suit in the name of the representative of the deceased. 67 Section 9 of that act, however, made all formal revival pro- ceedings unnecessary, the representative of the deceased being merely required to file a certified copy of his appointment. 297, Judicial Code, repeals the act of Mar. 3, 1875, and furnishes no substitute for it. Consequently the old practice of formally applying for revivor in the name of the representative of the deceased is again necessary. 2088. Death of Party while Appeal to Supreme Court Pending. .Z and 2, Supreme Court Rule 15. "1. Whenever, pend- ing a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the case shall be heard and determined as in other cases ; and if such representatives shall not volun- tarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be en- titled 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 hearing have the judg- ment or decree reversed, if it be erronous: Provided, how- ever, That a copy of every such order shall be printed in some newspaper of general circulation within the state, ter- ritory, or district from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. "2. When the death of a party is suggested, and the rep- resentatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate." 7 McClane v. Boone, 6 Wall. 246, 18 L. ed. 836. 540 MONTQOMEKY'S MANUAL OF FEDERAL PROCEDI-KE 2089 2089. Supreme Court Procedure upon Death of Party Whose Personal Representative is without Jurisdiction of Trial Court. 3, Supreme Court Rule 15. "3. When either party to a suit in a 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 ren- dered in the circuit court, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead and have no proper representative within the jurisdic- tion of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some state or territory of the United States, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commence- ment of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal \vas taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some state or territory of the United States, and stating therein the name and character of such representative and the state or territory in which such representative resides; and, upon such suggestion, he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plain- tiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed if the same be erroneous: Provided, however, That a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: And provided, also, That in every such case, if the representative of the deceased party does not appear by the tenth day of the term next succeeding said suggestion, and the measures APPELLATE PROCEDURE IN EQUITY 541 above provided to compel the appearance of such represen- tative have not been taken within time as above required by the opposite party, the case shall abate: And provided, also, That the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases." 2090. Death of Party Pending Appeal to Circuit Court of Appeals. Par. 1 and 2, C. C. A. Rule 19. "1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admittecTparties to the suit, and thereupon the case shall be heard and determined as in other cases ; and, if such representatives shall not voluntarily be- come parties, then the other party m$j suggest the death on the record, and thereupon, on motion, obtain an order that, unless such representatives shall become parties within sixty days, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dis- missed, 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 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 rep- resentatives of the deceased do not appear 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 appearance, the case shall abate." 2091. Procedure in Circuit Court of Appeals Where Representative of Deceased is Not within Trial Court's Ju- risdiction. Par. 3, C. C. A. Rule 19. "When either party to a suit in a district court of the United States shall desire to prose- cute 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 suit shall be dead and have no proper 542 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2091 representative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit can- not be revived in that court, but shall have a proper rep- resentative 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 thirty days after the filing of the record in this court, the plaintiff in error or ap- pellant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper repre- sentative within the jurisdiction of the court which rendered such judgment or decree, so that the suit could not be re- vived in that court, and that said party had a proper repre- sentative 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 terri- tory or district in which such representative resides; and upon such suggestion he may on motion obtain an order that, unless such representative shall make himself a party within ninety days, the plaintiff in error or appellant shall be en- titled to open the record, and on hearing have the judgment or decree reversed, if the same be erroneous : Provided, how- ever, That a proper citation ; reciting the substance of such order, shall be served upon such representative either per- sonally or by being left at his residence, at least thirty days before the expiration of such ninety days: Provided, also, That in every such case, if the representative of the deceased party does not appear within ten days after the expiration of such ninety days, and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate ; And provided, also, That the said representative may, at anv time before or after said sugges- tion, come in and be made a party to the suit, and thereupon the suit shall proceed, and be heard and determined as in other cases." CHAPTEK 42. CRIMINAL PROCEDURE. Sec. 2100. Criminal Jurisdiction of the District Court. 2101. Places within Which the Criminal Laws of the United States Apply. 2102. Penal Laws Enforced in, and Governing the Federal Courts. 2103. Adoption of State Penal Laws for Reserved Federal Territory within State Boundaries. 2104. State and Federal Jurisdictions of Offenses. 2105. Jurisdiction of State Courts under State Laws Not Affected. 2106. Venue of Criminal and Penal Prosecutions. 2107. Statutes of Limitations Criminal Cases. 2108. How Offenses are Prosecuted. 2109. Qualifications and Exemptions of Jurors Same as under State Laws. 2110. Jurors Not Disqualified on Account of Race, Color, or Previous Condi- tion of Servitude. 2111. Jurors Drawn from District under Court's Direction. ' 2112. Impaneling Jurors. 2113. Venire Issuance and Return. 2114. Special Juries. 2115. When Grand Jury Summoned. 2116. Grand Jury to Have Not Less Than 16 Nor More Than 23 Members Talesmen. 2117. Foreman of Grand Jury. 2118. Discharge of Grand Juries. 2119. Grand Jury Indictments by at Least 12 Jurors. 2120. Form of Indictment for Perjury. 2121. Form of Indictment for Subornation of Perjury. 2122. Form of Indictment before a Navy Court-Martial. 2123. Joining Charges against a Person in One Indictment Consolidation of Indictments. 2124. Defects of Form in Indictment Immaterial unless Prejudicial. 2125. Judgment Respondeat Ouster on Demurrer to an Indictment. 2126. Arrest Imprisonment Bail Removal for Trial Offenders against the United States. 2127. Marshal Making Arrest to Take Prisoner to Nearest Judicial Officer and Return before Such Officer the Warrant with Certified Copy of Complaint Attached. 543 MO-NTGOMEJUYs MAiX UAL OF FEDEHAL, PKOCEDURE Sec. 2128. Officers Authorized to Hold to Security of the Peace and for Good Be- havior. 2129. Bail Admitted in Cases Not Capital. 2130. Bail Admitted in Capital Cases only by Court or Judge. 2131. Bail in Criminal Cases Removed by Writ of Error from State Court. 2132. Bail Surrender of. 2133. New Bail as Better Security. 2134. Recognizance Remittance of Forfeiture of. 2135. Copy of Writ Jailer's Authority and Original Returned with Officer's Return. 2136. Writ for Removal of Prisoner from One District to Another. 2137. One Writ Sufficient Where Several Indictments against Same Person. 2138. No Writ Necessary to Bring into Court Person in Custody. 2139. Duty of District Attorney to Prosecute. 2140. Standing Mute Plea Not Guilty. 2141. Indicted of Treason or Capital Offense Entitled to Copy of Indictment and List of Jurors and Witnesses. 2142. Persons Indicted for Capital Crimes Entitled to Counsel and to Compel Witnesses. 2143. Accused Has Right to Trial by Jury. 2144. Peremptory Challenges Criminal Cases. 2145. Excessive Peremptory Challenges in Capital Cases Disregarded. 2146. Challenges in Prosecutions for Bigamy or Polygamy. 2147. Trial of Criminal Cases. 2148. Verdict for Less Offense than Charged. 2149. Verdict against One or More Several Joint Defendants. 2150. Qualified Verdict in Cases of Murder in First Degree or Rape. 2151. Execution Postponed in Capital Case Carried to Appellate Court. 2152. Judgments for Fines How Collected. 2153. Discharge of Indigent Convicts Imprisoned for Fines. 2154. Confinement in State Jail or Penitentiary When Use of so Allowed by State Law. 2155. Where No Penitentiary or Jail Suitable or Available Attorney General May Designate in a Convenient State or Territory Transportation of Prisoners Change of Place to Preserve Health or Custody of Prisoner or Because of His Improper or Cruel Treatment. 2156. Transportation of Criminals to Places of Imprisonment by Marshal. 2157. Confinement of Juvenile Offenders under Sixteen in House of Refuge. 2158. Confinement of Juvenile Offenders under Twenty Separate from Prison- ers over Twenty. 2159. Mitigation or Remission of Fine, etc., by Secretary of Treasury upon Summary Investigation by District Judge. 2160. Same Rules and Mode of Proceeding may be Prescribed by Secretary of Treasury. 2161. Same Penalty of Imprisonment cr Removal from Office Excepted Preservation of Informer's Right to Share of Fine, etc. 2162. Execution of Death Penalty. 216:5. Death Penalty Abolished except in Certain Cases. 2101 CRIMINAL, PROCEDURE 545 Sec. 2164. Life Imprisonment Substituted for Death Penalty when Lesser Penalty in Court's Discretion. 2165. No Corruption of Blood or Forfeiture of Estate. 2166. Whipping and pillory Abolished. 21Q7. Pardoning Power of the President. 2168. Parole of Prisoners. 2100. Criminal Jurisdiction of the District Court. Par. Second, 24, Judicial Code? 36 Stat. at L. 1091, Comp. St. 1911, p. 135, 1912 Supp. F. 8. A. v. 1, p. 139. "Of all crimes and offenses cognizable under authority of the United States." Par. Ninth, 24, Judicial Code, 36 Stat. at L. 1091, Comp. St. 1911, p. 136, 1912 Supp. F. S. A. v. 1, p. 139. "Of all suits and proceedings for the enforcement of penal- ties and forfeitures incurred under any law of the United States." This jurisdiction is exclusive of the state courts under para- graphs first and second of 256, Judicial Code, Comp. St. 1911, p. 234, 1912 Supp. F. S. A. v. 1, p. 238. 2101. Places within Which the Criminal Laws of the United States Apply. 811} Penal Code, 1909 Supp. F. S. A. p. 490. "Except as otherwise expressly provided, the offenses defined in this chapter shall be punished as hereinafter provided, when committed within any territory or district or within or upon any place within the exclusive jurisdiction of the United States." 272, Penal Code, 1909 Supp. F. S. A. p. 481. "The crimes and offenses defined in this chapter shall be punished as herein prescribed : "First. When committed upon the high seas, or on any other waters within the admiralty and maritime jurisdic- tion of the United States and out of the jurisdiction of any particular state, or when committed within the admiralty and maritime jurisdiction of the United States and out of For Annotation of this S 24, Judicial Code, see footnote b, ante, our 104. Montg. 35. 546 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2102 the jurisdiction of any particular state on board any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any state, territory, or district thereof. "Second. When committed upon any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, namely : Lake Superior, Lake Michigan, Lake Huron, Lake Saint Clair, Lake Erie, Lake Ontario, or any of the waters connecting any of said lakes, or upon the River Saint Lawrence where the same constitutes the international bound- ary line. "Third. When committed within or on any lands reserved or acquired for the exclusive use of the United States, and under the exclusive jurisdiction thereof, or any place pur- chased or otherwise acquired by the United States by consent of the legislature of the state in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. "Fourth. On any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the 'United States." 810, Penal Cade 1909, Supp. F. 8. A. p. 490. "The words 'vessel of the United States/ wherever they occur in this chapter, shall be construed to mean a vessel belong- ing in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any state, territory, or district there- of." 2102. Penal Laws Enforced in and Governing the Fed- eral Courts. 722, R. S., Comp. Stat. 1901, p. 582, 4 F. 8. A. 529, Rose's Code, 29. "The jurisdiction in civil and criminal matters conferred on the district and circuit courts by the provisions of this title, and of title 'Civil Rights/ and of title 'Crimes/ for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not 2104 CRIMINAL, PROCEDURE 547 adapted to the object, or are deficient in the provisions nec- essary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the state wherein the court hav- ing jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on- the party found guilty." 2103. Adoption of State Penal Laws for Reserved Fed- eral Territory within State Boundaries. 289, Penal Code, 1909 Supp F. 8. A. 485. "Whoever, within the territorial limits of any state, organized territory, or district, but within or upon any of the places now existing or hereafter reserved or acquired, described in section two hundred and seventy-two of this act, shall do or omit the doing of any act or thing which is not made penal by any law of Congress, but which, if committed or omitted within the jurisdiction of the state, territory, or district in which such place is situated, by the laws thereof now in force, would be penal, shall be deemed guilty of a like offense and be subject to a like punishment ; and every such state, terri- torial, or district law shall, for the purpose of this section, continue in force, notwithstanding any subsequent repeal or amendment thereof by any such state, territory, or district." 2104. State and Federal Jurisdictions of Offenses. Except within reserved territory as set out in the preceding section under 289, Penal Code, the Federal courts do not execute the penal laws of a state ; nor have they any common-law criminal jurisdiction. 1 In criminal cases the law administered is entirely Federal, provided and prescribed by Congress under the limitations of the Constitution. 2 The statute adopting state laws as rules of decision 1 United States v. Britton, 108 U. S. 199, 27 L. ed. 698, 2 Sup. Ct. Rep. 531; Benson v. McMahon, 127 U. S. 457, 32 L. ed. 234, 8 Sup. Ct. Rep. 1240; Jones v. United States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764; United States v. Wilson, 3 Blatchf. (N. S.) 438, Fed. Cas. No. 16,731; United States v. Plummer, 3 Cliff. 28, Fed. Cas. No. 16,056. a United States v. Reid, 12 How. 363, 13 L. ed. 1023. 548 MONTGOMERY'S MANUAL OF FEDERAL PKOCEIM'KK :Mor> does not apply to criminal ])rosccutions in the Federal courts. 8 The laws of evidence in Federal criminal trials are those that existed in the states when the judiciary act was adopted in 1789 and as modified by subsequent acts of Congress. 4 The same act may be an offense against both state and Federal laws. 6 But this does not prevent the state court taking jurisdiction of and punishing the act done as an offense against the state; nor a territory from punishing an act also punishable under Fed- eral law. 8 So long as the act done is within the punishing power of both state and nation, the fact that the state courts may not take jurisdiction of the crime as denounced by the Federal law does not prevent their punishing it under the state law. 7 In a sense there are two distinct crimes involved in such cases ; 8 and an acquittal or conviction of one does not bar trial for the other on the ground of former jeopardy. 9 2105. Jurisdiction of State Courts under State Laws Not Affected. 326, Penal Code, 1909 Supp. F. S. A. 493. "Nothing in this title shall be held to take away or impair the juris- diction of the courts of the several states under the laws thereof." The making of certain offenses against the laws of the United States punishable does not prevent the states from taking hold of any offenses which may be involved that are contrary to state laws, and not cognizable under the United States laws. 10 3 Ibid. 4 Ibid; Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617; United States v. Hall, 53 Fed. 353. 5 United States v. Marigold, 9 How. 569, 13 L. ed. 261; Fox v. Ohio, 5 How. 433, 12 L. ed. 223; Moore v. Illinois, 14 How. 19, 14 L. ed. 306: Ex parte Siebold, 100 U. S. 390, 25 L. ed. 724; United States v. Wells, 28 Fed. Cas. Xo. 16,665; State v. Kirkpatrick, 32 Ark. 121; People v. Welch, 141 N. Y. 266, 38 Am. St. Rep. 793, 36 N. E. 328, 24 L.R.A. 117. 6 Cross v. North Carolina, 132 U. S. 139, 33 L. ed. 290. 10 Sup. Ct. Rep. 49; Crossley v. California. 168 U. S. 641, 42 L. ed. 610. 18 Sup. Ct. Rep. 242. 7 Pet'tibone v. United States, 148 U. S. 197, 37 L. ed. 419, 13 Sup. Ct. Rep. 542. 8 United States v. ftarnhart. 22 Fed. 285, 10 Sawy. 491; State v. Oleson, 26 Minn. 507, 5 N. W. 959. 9 State v. Sly, 4 Or. 279 ; United States v. Amy, 14 Md. 149, note, 4 Quart. L. J. 163, Fed. Cas. No. 14.445; Carter v. MeClaughry. 183 U. S. 365, 46 L. ed. 236, 22 Sup. Ct. Rep. 181. 10 Ex parte Houghton, 8 Fed. 897. 2106 CRIMINAL PROCEDURE 549 2 Act February 13, 1913, ch. 50, 37 Stat. at L. 670. (Act punishing larceny and asportation of interstate shipments.) 2. That nothing in this act shall be held to take away or im- pair the jurisdiction of the courts of the several states under " the laws thereof; and a judgment of conviction or acquittal on the merits under the laws of any state shall be a bar to any prosecution hereunder for the same act or acts. 2106. Venue of Criminal and Penal Prosecutions. This subject is treated in 174, 175, 177, and 178, chapter 5, supra, and is only summarized here. Capital offenses in the county where the offense is committed, where that can be done without great inconvenience ( 40, Judicial Code). Offenses on the high seas or elsewhere out of the jurisdiction of a particular state or district, in the district where the offender is found or first brought ( 41, Judicial Code). Larceny, etc., of interstate shipments "'in any district wherein the crime shall have been committed." Asporting such goods is a separate offense and "prosecutions therefor may be instituted in any district into which such freight, express, baggage, goods, or chattels shall have been removed or into which they shall have been brought by such offender. (Act February 13, 1913, ch. 50, 37 Stat. at L. 670.) Offenses committed in two districts, in either district ( 42, Judicial Code). Sale of arms and intoxicants on the Pacific islands deemed committed on high seas or vessel belonging to United States ( 309, Penal Code). Vessel is defined in 310, Penal Code, quoted in the last part, 2101 above. Pecuniary penalties and forfeitures where they accrue or the offender is found ( 43, Judicial Code). Seizures made on high seas for forfeitures, where the property is seized ( 45, Judicial Code). Condemnation of insurrectionary property where the same is seized or taken and proceedings first instituted ( 46, Judicial Code). Seizures on embargo or insurrection in any district into which 550 MONTGOMERY'S MANUAL OF FEDERAL PBOCEnriu-: :J110 the property so seized may be taken and proceedings instituted ( 47, Judicial Code). 2107. Statutes of Limitations Criminal Cases. Statutes of Limitations is the general subject of chapter 13, supra. Limita- tions as to capital offenses are set out in 391, supra ; offenses not capital 392-3 ; under the customs revenue laws, 394 ; under internal revenue laws, 395 ; seduction of female passenger, 396 ; violations of the naturalization laws, 397. 2108. How Offenses are Prosecuted. Capital offenses or otherwise infamous crimes. Pi. 5th Amend. U. 8. Const. "]STo person shall be held to answer for capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. . . ." Offenses not infamous. 1022, R. S., Comp. Stat. 1901, p. 720, 1 F. S. A. 802, Rose's Code, 1574- "All crimes and offenses committed against the provisions of chapter seven, title "Crimes," which are not infamous, may be prosecuted either by indictment or by information filed by a district attorney." 2109. Qualifications and Exemptions of Jurors Same as under State Laws. j 275, Judicial Code* 36 Stat. at L. 1164, Comp. St. 1911, p. 239, 1912 Supp. F. S. A. v. 1, p. 245. "Jurors to serve in the courts of the United States, in each state re- spectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of law in such state may have, and be entitled to at the time when such jurors for service in the courts of the tTnited States are summoned." 2110. Jurors Not Disqualified on Account of Race, Col- or, or Previous Condition of Servitude. 278, Judicial Code* 36 Stat. at L. 1165, Comp. St. < For Annotation of this 275. Judicial Code, see footnote a, ante, our 734. l For Annotation of this 278, Judicial Code, see footnote. t>, ante, our 735. 2112 CRIMINAL PROCEDURE 551 1911, p. 239, 1912 Supp. F. 8. A. v. 1, p. 246. "No citizen possessing all other qualifications which are or may be pre- scribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude." Punishment of officers or other persons selecting jurors ex- cluding citizens on above grounds fine not more than five thousand dollars. See 736, supra. 2111. Jurors Drawn from District under Court's Direc- tion. 277, Judicial Code* 36 Stat. at L. 1164, Comp. St. 1911, p. 239, 1912 Supp. F. S. A. v. 1, p. 245. "Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary ex- pense, or unduly burden the citizens of any part of the dis- trict with such service." 2112. Impaneling Jurors. 276, Judicial Code,' 36 Stat. at L. 1164, Comp. St. 1911, p. 239, 1912 Supp. F. S. A. v, 1, p. 245. "All such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications pre- scribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commis- sioner, to be appointed by the judge thereof, or by the judge senior in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations until the whole number required shall be placed therein." e For Annotation of this 277, Judicial Code, see footnote d, ante, our 738. * For Annotation of this 276, Judicial Code, see footnote e , ante, our 739. 552 MONTGOMERY'S .MANUAL OF FEDERAL PKOCEDTUK iMir> 2113. Venire Issuance and Return. 279 , Judicial Code," .id Stat. at L. 1165, Com/), ^t. 1911, p. 240, 1912 Supp. F. S. A. v. 1, p. 246. "Writs of venire facias, when directed by the Court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent person, or is interested ill the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. Any person named in such writ who resides elsewhere than at the place at which the court is held, shall be served by the marshal mailing a copy thereof to such person, 'commanding him to attend as a juror at a time and place designated therein, which copy shall be registered and deposited in the postoffice addressed to such person at his usual postoffice address. And the receipt of the person so addressed for such registered copy shall be regarded as per- sonal service of such writ upon such person, and no mileage shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts." 2114. Special Juries. 281, Judicial Code, 11 36 Stat. at L. 1165, Corn p. St. 1911, p. 240, 1912 Supp. F. 8. A. v. 1, p. 246. "When special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several states." 2115. When Grand Jury Summoned. 284, Judicial Code* 36 Stat. at L. 1165, Comp. St. 1911, p. 241. 1912 Supp. F. S. A. v. 1, p. 247. "Xo grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notifica- tion by the district attorney that such jury will be needed, K For Annotation of this 279, Judicial Code, see footnote *, ante, our 740. h For Annotation of this 281, Judicial Code, see footnote *, ante, our 742. Re-enacting 810, R. S., Rose's Code, 1711, Foster's Fed. Prac. (4th ed.) p. 1402, Comp. St. 1901, p. 627, 4 F. S. A. 744, as amended by Act of March 28, 1910, 36 Stat. at L. 267, which are repealed by 297, Judicial Code. In gen- eral, Powers v. United States, 223 U. S. 303, 56 L. ed. 448, 32 Sup. Ct. Rep. 281. 2117 CRIMINAL PROCEDURE , 553 orders a venire to issue therefor. If the United States at- torney for any district which has a city or borough contain- ing at least three hundred thousand inhabitants shall certify in writing to the district judge, or the senior district judge of the district, that the exigencies of the public service re- quire it, the judge may, in his discretion, also order a venire to issue for a second grand jury. And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judg- ment, it may be proper to do so. But nothing herein shall operate to extend beyond the time permitted by law the im- prisonment before indictment found of a person accused of a crime or offense, or the time during which a person so ac- cused may be held under recognizance before indictment found." 2116. Grand Jury to Have Not Less Than 16 Nor More Than 23 Members Talesmen. 282, Judicial Code, 1 36 Stat. at L. 1165, Comp. St. 1911, p. 240, 1912 Supp. F. S. A. v. 1, p. 246. "Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the by- standers, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose." 2117. Foreman of Grand Jury. 283, Judicial Code* 36 Stat. at L. 1165, Comp. St. 1911, p. 241, 1912 Supp. F. S. A. v. 1, p. 247. "From the persons summoned and accepted as grand jurors, the court J Re-enacting 808, R. S., Rose's Code, 1709, Comp. St. 1901, p. 626. 4 F. S. A. 743, which section is repealed by 297, Judicial Code. In general, United States v. Merchant's & Miners' Transp. Co. et al. 187 Fed. 363. k Re-enacting 809, R. S., Rose's Code, 1710, Foster's Fed. Prac. (4th ed.) pp. 1402, 1409, Comp. St. 1901, p. 627, 4 F. S. A. 744, which section is repealed by 297, Judicial Code. In general, Burchett v. United States, 194 Fed. 821, 114 C. C. A. 525. 554 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2121 shall appoint the foreman, who shall have power to admin- ister oaths and affirmations to witnesses appearing before the grand jury." 2118. Discharge of Grand Juries. 285, Judicial Code, 1 86 Stat. at L. 1166, Comp. St. 1911, p. 241, 1912 Supp. F. 8. A. v. 1, p. 247. "The district courts, the district courts of the territories, and the supreme court of the District of Columbia may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary." 2119. Grand Jury Indictments by at Least 12 Jurors. 1021, R. 8., Comp. Stat. 1901, p. 719, 2 F. 8. A. 336, Rose's Code, 1752. "No indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors." 2120. Form of Indictment for Perjury. 5396, R. S., Comp. Stat. 1901, p. 3655, 5 F. 8. A. 705. "In every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the sub- stance of the offense charged upon the defendant, and by which court, and before whom the oath was taken, averring such court or person to have competent authority to adminis- ter the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commis- sion or authority of the court or person before whom the perjury was committed." 2121. Form of Indictment for Subornation of Perjury. 5397, R. 8., Comp. Stat. 1901, p. 3655, 5 F. S. A. 707, Rose's Code, 1576. "In every presentment or indictment for subornation of perjury it shall be sufficient to set forth 1 Re-enacting 811, R. S., Rose's Code, 1712, Foster's Fed. Prac. (4th ed.) p. 1403, Comp. St. 1901, p. 627, 4 F. S. A. 744, which is repealed by 297, Judicial Code. Discharge, Jones et al. v. United States, 162 Fed. 417, 89 C. C. A. 303. 2124 CRIMINAL PKOCEDUKB 555 the substance of the offense charged upon the defendant, without setting forth the bill, answer, information, indict- ment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or cer- tificate, and without setting forth the commission or author- ity of the court or person before whom the perjury was committed, or was agreed or promised to be committed." 2122. Form of Indictment before a Navy Court-Martial. 1023, R. S. f Comp. Stat. 1901, p. 720, 5 F. 8. A. 708, Rose's Code, .2577. "In prosecutions for perjury com- mitted on examination before a naval general court-martial, or for the subornation thereof, it shall be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the par- ticular matters brought before, or intended to be brought before, said court." 2123. Joining Charges against a Person in One Indict- ment Consolidation of Indictments. 1024, R- 8., Comp. Stat. 1901, p. 720, 2 F. 8. A. 337, Rose's Code, 1578. "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indict- ment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated." 2124. Defects of Form in Indictment Immaterial un- less Prejudicial. 1025, R. 8., Comp. Stat. 1901, p. 720, 2 F. 8. A. 840, Rose's Code, 1579. "No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." 556 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2127 2125. Judgment Respondeat Ouster on Demurrer to an Indictment. 1026, R. S., C.omp. Stat. 1901, p. 720, 2 F. S. A. 343, Rose's Code, 1580. "In every case in any court of the United States, where a demurrer is interposed to an indict- ment, or to any count or counts thereof, or to any informa- tion, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered, as jus- tice may require." 2126. Arrest Imprisonment Bail Removal for Trial Offenders against the United States. 1014, R. S., Comp. Stat. 1901, p. 716, 2 F. S. A. 321, Rose's Code, 1537. "For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testi- fy in the case. And where any offender or witness is com- mitted in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned seasonably to issue, and of the marshal to execute, a warrant for his re- moval to the district where the trial is to be had." 2127. Marshal Making Arrest to Take Prisoner to Near- est Judicial Officer and Return before Such Officer the War- rant with Certified Copy of Complaint Attached. Act Aug. 18, 1894, cJi. 301, Comp. Stat. 1901, p. 717, 2 F. S. A. 33J,, Rose's Code, 1538. "Provided, That it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, 2130 CRIMINAL PROCEDURE 557 to take the defendant before the nearest circuit court com- missioner or the nearest judicial officer having jurisdiction under existing laws for a rehearing, commitment, or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before hini, and no mileage shall be allowed any officer violating the provisions hereof." 2128. Officers Authorized to Hold to Security of the Peace and for Good Behavior. 270, Judicial Code, 36 Stat. at L. 1163, Comp. St. 1911, p. 237, 1912 Supp. F. 8. A. v. 1, p. 243. "The judges of the Supreme Court and of the circuit court of appeals and district courts, United States commissioners, and the judges and other magistrates of the several states who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them." 2129. Bail Admitted in Cases Not Capital. 1015, R. S., Comp. Stat. 1901, p. 718, 1 F. S. A. 521, Rose's Code, 1514- "Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such cases it may be taken by any of the persons authorized by the preceding section mm to arrest and imprison offenders." 2130. Bail Admitted in Capital Cases only by Court or Judge. 1016, R. 8., Comp. Stat. 1901, p. 718, 1 F. 8. A. 522, Rose's Code, 1545. "Bail may be admitted upon all arrests in criminal cases where the punishment may be death ; but m Drawn from 727, R. S., Rose's Code, 1593, Comp. St. 1901, p. 485, 4 F. S. A. 519, which section is repealed by 297, Judicial Code. In general, Rice v. Ames, 180 U. S. 371, 45 L. ed. 577, 21 Sup. Ct. Rep. 406. mm 1014 R. S. quoted in 2126 above. 558 in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a cir- cuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law." 2131. Bail in Criminal Cases Removed by Writ of Error from State Court. 1017, R. S., Comp. Stat. 1901, p. 718, 1 F. S. A. 522, Rose's Code, 1546. "When a writ of error is issued for the revision of the judgment of a state court, in any criminal proceeding where is drawn in question the validity of a stat- ute of, or an authority exercised under, the United States, or where any title, right, privilege, or immunity is claimed under the Constitution, or any statute of, or commission held or authority exercised under, the United States the defend- ant, if charged with an offense that is bailable by the laws of such state, shall not be released from custody until a final judgment upon such writ, or until a bond, with sufficient sureties, in a reasonable sum, as ordered and approved by the state court, is given ; and if the offense is not so bailable, until a final judgment upon the writ of error." 2132. Bail Surrender of. 1018, R. 8., Comp. Stat. 1901, p. 719, 1 F. S. A. 522, Rose's Code, 1549. "Any party charged with a criminal offense and admitted to bail may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offense; and at the request of such bail, the judge or other officer shall recommit the party so arrested to the custody of the marshal, and indorse on the recognizance, or certified copy thereof, the discharge and exoneretur of such bail ; and the party so committed shall therefrom be held in custody until discharged by due course of law." 2133. New Bail as Better Security. 1019, R. 8., Comp. Stat. 1901, p. 719, 1 F. S. A. 523, Rose's Code, 1550. "When proof is made to any judge of the United States, or other magistrate having authority to commit on criminal charges as aforesaid, that a person 2136 CRIMINAL PROCEDURE 559 previously admitted to bail on any such charge is about to abscond, and that his bail is insufficient, the judge or magis- trate shall require such person to give better security, or, for default thereof, cause him to be committed to prison; and an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued by such judge or magistrate, setting forth the cause thereof." 2134. Recognizance Remittance of Forfeiture of. 1020, R. S., Comp. Stat. 1901, p. 719, 1 F. S. A. 523, Rose's Code, 1551. "When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition there- of, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no wilful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced." 2135. Copy of Writ Jailer's Authority and Original Returned with Officer's Return. 1028, R. S., 10 Stat. at L. 162, 3, Comp. Stat. 1901, p. 721, 2 F. S. A. 335, Roses Code, 1582. "Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant, or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his authority to hold the prisoner, and the original writ, warrant, or mittimus shall be returned to the proper court or officer, with the officer's return there- on." 2136. Writ for Removal of Prisoner from One District to Another. 1029, R. S., 10 Stat. at L. 162, 3, Comp. Stat. 1901, p. 721, 2 F. 8. A. 335, Rose's Code, 1588. "Only one writ or warrant is necessary to remove a prisoner from one district to another. One copy thereof may be delivered to the sheriff or jailer from whose custody the prisoner is taken, and an- other to the sheriff or jailer to whose custody he is committed, and the original writ, with the marshal's return thereon, shall be returned to the clerk of the district to which he is re- moved." 500 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2141 2137. One Writ Sufficient Where Several Indictments against Same Person. 1021, R. 8., Comp. Stat. 1901, p. 721, 2 F. 8. A. 334, Rose's Code, 1581. "When two or more charges are made, or two or more indictments are found against any person, only one writ or warrant shall be necessary to commit him for trial; and it shall be sufficient to state in the writ the name or general character of the offenses, or to refer to them only in very general terms." 2138. No Writ Necessary to Bring into Court Person in Custody. 1030, R.S.,10 Stat. at L. 169, Comp. Stat. 1901, p. 721, 2 F. S. A. 335, Rose's Code, 1584. "^o writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody; but the same shall be done on the order of the court or district attorney, for which no fees shall be charged by the clerk or marshal." 2139. Duty of District Attorney to Prosecute. Pt. 771, R. S., Comp. Stat. 1901, p. 601,4 F. S. A. 155, Rose's Code, 524- "It shall be the duty of every district attorney to prosecute, in his district, all delinquents for crimes and offenses cognizable under the authority of the United States. . . ." ' '/<"[&) B .etnifrlitfli !< . 2140. Standing Mute Plea Not Guilty. 1032, R. S., Comp. Stat. 1901, p. 722, 2 F. S. A. 343, Rose's Code, 1585. "When any person indicted for any offense against the United States, whether capital or other- wise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury." 2141. Indicted of Treason or Capital Offense Entitled to Copy of Indictment and List of Jurors and Witnesses. 1033, R. S., 1 Stat. at L. 118, Comp. Stat. 1901, p. 722, 2 F. S. A. 344, Rose's Code, 1586. "When any person is 2142 CRIMINAL PROCEDURE 501 indicted of treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for prov- ing the indictment, stating the place of abode of each juror and witness, shall be delivered to him at least three days be- fore he is tried for the same. When any person is indicted of any capital offense, such copy of the indictment and list of the jurors and witnesses shall be delivered to him at least two entire days before the trial." This provision is not directory only, but mandatory to the gov- ernment; and its purpose is to inform the defendant of the testi- mony he will have to meet and enable him to prepare his defense. Being enacted for his benefit, he may doubtless waive it, if he pleases ; but he has a right to insist upon it, and if he seasonably does so, the trial cannot lawfully proceed until the requirement has been complied with. 1 There would appear to be a negative pregnant here, and it has accordingly been held that in cases not capital the prisoner is not entitled to a copy of the indictment at government expense. 2 Nor is he entitled to a list of witnesses and jurors. 3 But in cases not capital, where there has been no prelim- inary examination, it is within the discretion of the court to order a list of the witnesses sworn before the grand jury to be furnished the accused. 4 The arraignment is to be regarded as the commence- ment of the trial, and the statutory time in which the copy of the indictment and a list of the jury are to be delivered to him must be exclusive of the day of delivery and the day of arraignment. 6 ' 2142. Persons Indicted for Capital Crimes Entitled to Counsel and to Compel Witnesses. 1034, R- S., 1 Stat. at L. 118, Comp. Stat. 1901, p. 722, 2 F. 8. A. 344, Roses Code, 1586. "Every person who is indicted of treason or other capital crime, shall be allowed 1 Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617; Hickory v. United States, 151 U. S. 303, 38 L. ed. 170, 14 Sup. Ct. Rep. 334; United States v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,&68. 2 United States v. Van Duzee, 140 U. S. 169, 35 L. ed. 399, 11 Sup. Ct. Rep. 758; Shelp v. United States, 81 Fed. 094, 26 C. C. A. 570. 3 United States v. Van Duzee, 140 U. S. 169, 35 L. ed. 399, 11 Sup. Ct. Rep. 758. 4 United States v. Southmayd, 6 Biss. 321, Fed. Cas. No. 16,361. 6 United States v. Dow, Taney, 34, Fed. Cas. No. 14,990. Montg. 36. 562 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2144: to make his full defense by counsel learned in the law ; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two as he may desire, and they shall have free access to him at all seasonable hours. He shall be allowed, in his defense, to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of the prose- cution." Pt. 6th Amend. U. S. Const. "In all criminal prosecu- tions the accused shall enjoy the right ... to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assist- ance of counsel in his defense." 2143. Accused Has Right to Trial by Jury. Pt. 6th Amend. U. 8. Const. "In all criminal prosecu- tions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, . . ." The provisions relating to qualifications and exemptions, etc., of petit jurors are about the same as for grand jurors set out in the preceding sections ; but in prosecutions for bigamy or polyg- amy there are special grounds of challenge set out in the follow- ing section. The subject of petit juries is treated in 733-743 inclusive, supra. Special provisions as to challenges in criminal cases are in the following sections. 2144. Peremptory Challenges Criminal Cases. 287, Judicial Code," 36 8 tat. at L. 1166, Comp. St. 1911, p. 24L 1912 Supp. F. 8. A. v. 1, p. 2J+8. "When the offense charged is treason or a capital offense, the defend- ant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States For Annotation of this 287, Judicial Code, see footnote *, ante, our 743. 2146 CRIMINAL PROCEDURE 563 to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defend- ants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers." 2145. Excessive Peremptory Challenges in Capital Cases Disregarded. 1031, R. S., Comp. Stat. 1901, p. 781, 4 F. S. A. 747, . Rose's Code, 1716. "If, in the trial of a capital offense, the party indicted peremptorily challenges jurors above the number allowed him by law, such excess of challenges shall be disallowed by the court, and the cause shall proceed for trial in the same manner as if they had not been made." 2146. Challenges in Prosecutions for Bigamy or Polyg- amy. 288, Judicial Code, 36 Stat. at L. 1166, Comp. St. 1911, p. 242, 1912 8upp. F. S. A. v. 1, p. 248. "In any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman "First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable either by sections one or three of an Act entitled, "An Act to Amend Section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in Eeference to Bigamy, and for Other Purposes," approved March twenty- second, eighteen hundred and eighty-two, or by section fifty- three hundred and fifty-two of the Revised Statutes of the United States, or the act of July first, eighteen hundred and sixty-two, entitled, "An Act to Punish and Prevent the Practice of Polygamy in the Territories of the United States Re-enacting 5 of Act of March 22, 1882, ch. 47, Rose's Code, 1718, Fos- ter's Fed. Prac. (4th ed.) p. 1398, 22 Stat. at L. 31, Comp. St. 1901, p. 3634, 4 F. S. A. 706. In general, France v. Connor, 161 U. S. 65, 40 L. ed. 619, 16 Sup. Ct. Rep. 497. 564 MONTGOMERY'S MANUAL OF FEDERAL PROCEDTKK 2148 and Other Places, and Disapproving and Annulling Certain Acts of the Legislative Assembly of the Territory of Utah;" or "Second, that he believes it right for a man to have more than one living and nndivorced wife at the same time, or to live in the practice of cohabiting with more than one woman. "Any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge; and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. "But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his an- swer may tend to criminate himself ; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense above named ; but if he declines to answer on any ground, he shall be rejected as incompetent." 2147. Trial of Criminal Cases. Provisions as to evidence are in chapter 14, and as to witnesses in chapter 15. The Federal courts follow their own rules and decisions re- specting the trial of criminal cases and matters incidental thereto. The rules of the district court in the various districts should be consulted. 2148. Verdict for Less Offense than Charged. 1035, R. 8., 7 Stat. at L. 198, Comp. Stat. 1901, p. 723, 2 F. 8. A. 352, Rose's Code, 1588. "In all criminal causes the defendant may be found guilty of any offense the commis- sion of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an at- tempt to commit the offense so charged: Provided, That such attempt be itself a separate offense." This section does not authorize a jury to find the defendant guilty of a less offense than the one charged, unless the evidence justified them in so doing. Congress did not intend to invest 2151 CRIMINAL PROCEDURE 565 juries in criminal cases with power arbitrarily to disregard the evidence and the principles of law applicable to the case on trial. 1 2149. Verdict against One or More Several Joint De- fendants. 1036, R. S., Comp. Stat. 1901, p. 123, 2 F. S. A. 353, Rose's Code, 1589. "On an indictment against several, if the jury cannot agree upon a verdict as to all, they may Tender a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury." 2150. Qualified Verdict in Cases of Murder in First Degree or Rape. 330, Penal Code, 1909 Supp. F. 8. A. 494. "In all cases where the accused is found guilty of the crime of murder in the first degree, or rape, the jury may qualify their verdict by adding thereto 'without capital punishment ;' and whenever the jury shall return a verdict qualified as afore- said the person convicted shall be sentenced to imprisonment at hard labor for life." 2151. Execution Postponed in Capital Case Carried to Appellate Court. 1040, R. S., 15 Slat, at L. 338, Comp. Stat. 1901, p. 724, 2 F. 8. A. 354, Roses Code, 2017. "Whenever a judgment of death is rendered in any court of the United States, and the case is carried to the Supreme Court in pursuance of law, the court rendering such judgment shall, by its order, post- pone the execution thereof from time to time and from term to term, until the mandate of the Supreme Court in the case is received and entered upon the records of such lower court. In case of affirmance by the Supreme Court, the court render- ing the original judgment shall appoint a day for the execu- tion thereof ; and in case of reversal, such further proceedings shall be had in the lower court as the Supreme Court may direct." The provision above quoted does not seem to have been expressly repealed. Section 238, Judicial Code, providing for appeals and iSparf v. United States, 156 U. S. 51, 39 L. ed. 343, 15 Sup. Ct. Rep. 273. 566 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2153 writs of error from the district courts to the Supreme Court, does not contain the clause, contained in the former law, giving ap- pellate review in criminal cases. Section 128, Judicial Code, now vests such criminal appellate jurisdiction in the circuit court of appeals. If the provision in 1040, R. S., above quoted does not apply to the circuit court of appeals by reason of the transfer of the Supreme Court's criminal appellate jurisdiction to it, never- theless the same result, the postponing of the execution, would be accomplished by the supersedeas. 2152. Judgments for Fines How Collected. 1041, R. 8., Comp. Stat. 1901, p. 724, 3 F. S. A. 98, Rose's Code, 1606. "In all criminal or penal causes in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like man- ner as judgments in civil cases are enforced : Provided, That where the judgment directs that the defendant shall be im- prisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid." 2153. Discharge of Indigent Convicts Imprisoned for Fines. 1042, R. 8., Cvrnp. Stat. 1901, p. 724, 3 F. S. A. 99, Rose's Code, 1607. "When a poor convict, sentenced by any court of the United States to pay a fine, or fine and cost, whether with or without imprisonment, has been con- fined in prison thirty days, solely for the nonpayment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in 2154 CRIMINAL PROCEDURE 507 value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath : 'I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of [state where. oath is admin- istered] ; and that I have no property in any way conveyed or concealed, or, in any way disposed of, for my future use or benefit. So help me God.' And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts." 5296, R. 8., Comp. St. 1901, p. 3608, 3 F. 8. A. 106. "When a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and costs, has been confined in prison thirty days, solely for the nonpayment of such fine, or fine and costs, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath: 'I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil process for debt by the laws of [naming the state where oath is administered], and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God.' Upon taking such oath, such convict shall be dis- charged; and the commissioner shall give to the keeper of the jail a certificate setting forth the facts." 2154. Confinement in State Jail or Penitentiary When Use of so Allowed by State Law. 554&, R. 8., Comp. 8tat. 1901, p. 3721, 6 F. 8. A. 37, Rose's Code, 1616. "In every case where any criminal 568 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2155 convicted of any offense against the United States is sen- tenced to imprisonment and confinement to hard labor, it shall be lawful for the court by which the sentence is passed to order the same to be executed in any state jail or peni- tentiary within the district or state where such court is held, the use of which jail or penitentiary is allowed by the legis- lature of the state for that purpose." 2155. Where No Penitentiary or Jail Suitable or Avail- able, Attorney General May Designate in a Convenient State or Territory Transportation of Prisoners Change of Place to Preserve Health or Custody of Prisoner or Because of His Improper or Cruel Treatment. 5546 f R. S., 31 Stat. at L. 1450, Comp. St. 1901, p. W2S, 6 F. S. A. 41, Rose's Code, 1620. "All persons who have been, or who may hereafter be, convicted of crime by any court of the United States, including consular courts, whose punishment is imprisonment in a district or territory or country where, at the time of conviction or at any time during the term of imprisonments, there may be no peni- tentiary or jail suitable for the confinement of convicts, or available therefor, shall be confined during the term for which they have been or may be sentenced, or during the residue of said term, in some suitable jail or penitentiary in a convenient state or territory, to be designated by the Attorney General, and shall be transported and delivered to the warden or keeper of such jail or penitentiary by the marshal of the district or territory where the conviction has occurred; and in case of convictions by a consular court the transportation shall be by some properly qualified agent or agents designated by the Department of State, the reasonable actual expense of transportation, necessary subsistence, and hire and transportation of guards and agent or agents to be de- frayed from the appropriation for bringing home criminals ; and if the conviction be had in the District of Columbia, the transportation and delivery shall be by the warden of the jail of that District, the reasonable actual expense of trans- portation, necessary subsistence, and hire and transporta- tion of guards and the marshal, or the warden of the jail in the District of Columbia only, to be paid by the Attorney General out of the judiciary fund. But if, in the opinion of the Attorney General, the expense of transportation from any state, territory, or the District of Columbia in which 2157 CRIMINAL PROCEDURE 569 there is no penitentiary will exceed the cost of maintaining them in jail in the state, territory, or the District of Colum- bia during the period of their sentence, then it shall be law- ful so to confine them therein for the period designated in their respective sentences. And the place of imprisonment may be changed in any case when, in the opinion of the At- torney General, it is necessary for the preservation of the health of the prisoner, or when, in his opinion, the place of confinement is not sufficient to secure the custody of the prisoner, or because of cruel and improper treatment: Pro- vided, however, That no change shall be made in the case of any prisoner on the ground of the unhealthiness of the prisoner or because of his treatment, after his conviction and during his term of imprisonment, unless such change shall be applied for by such prisoner, or some one in his behalf." 2156. Transportation of Criminals to Places of Imprison- ment by Marshal. 5, Act March 3, 1891, ch. 529, 26 Stat. at L. 839, Comp. Stat. 1901, p. 3126, 6 F. 8. A. 25, Rose's Code, 1610. "That the transportation of all United States prisoners con- victed of crimes against the laws of the United States in any state, district, or territory, and sentenced to terms of im- prisonment in a penitentiary, and their delivery to the super- intendent, warden, or keeper of such United States prisons, shall be by the marshal of the district or territory where such conviction may occur, after the erection and completion of said prisons. That the actual expenses of such marshal, in- cluding transportation and subsistence, hire, transportation, and subsistence of guards, and the transportation and sub- sistence of the convict or convicts, be paid, on the approval of the Attorney General, out of the judiciary fund." 2157. Confinement of Juvenile Offenders under Sixteen in House of Refuge. 7, Act March 3, 1891, ch. 529, 26 Stat. at L. 840, Comp. St. 1901, p. 3727, 6 F. S. A. 26. "That this act shall not apply to minors who, in the judgment of the judges presiding over United States courts, should be committed to reforma- tory institutions. And provided, That nothing in this act shall be construed as prohibiting the courts of the United States from sentencing to or confining prisoners, either civil 570 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2159 or military, in the United States military prison at Fort Leavenworth, Kansas." 5549, R. S., 17 Stat. at L. 35, Comp. Stat. 1901, p. 8725, 6 F. S. A. 46, Rose's Code, 1623. "Juvenile offenders against the laws of the United States, being under the age of sixteen years, and who may hereafter be convicted of crime, the punishment whereof is imprisonment, shall be confined during the term of sentence in some house of refuge to be des- ignated by the Attorney General, and shall be transported and delivered to the warden or keeper of such house of refuge by the marshal of the district where such conviction has oc- curred ; or if such conviction be had in the District of Colum- bia, then the transportation and delivery shall be by the war- den of the jail of that district, and the reasonable actual ex- pense of the transportation, necessary subsistence, and hire, and transportation of assistants and the marshal or warden, only, shall be paid by the Attorney General, out of the judi- ciary fund." 2158. Confinement of Juvenile Offenders under Twenty Separate from Prisoners over Twenty. 9, Act March 3, 1891, ch. 529, 26 Stat. at L. 840, Comp. Stat. 1901, p. 3728, 6 F. S. A. 26, Rose's Code, 1630. That the Attorney General shall be authorized to designate to which of said prisons persons convicted in such states or territories shall be carried for confinement: Provided, That in the construction of the prison buildings provided for in this act there shall be such arrangement of cells and yard space as that prisoners under twenty years of age shall not be in any way associated with prisoners above that age, and the man- agement of the class under twenty years of age shall be as far as possible reformatory." .>r.raHO afi/:jy,vl to : ?afim:?nfJn Costs to prevailing party. 152, Judicial Code 36 Slot, at L. 1138, Comp. St. 1911, p. 201, 1912 Supp. F. S. A. v. 1, p. 203. "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 witnesses, and for summoning the same, and fees paid to the clerk of the court." Cost of printing record. 176, Judicial Code," 36 Stat. at L. 1141, Comp. St. 1911, p. 206, 1912 Supp. F. S. A. v. 1, p. 208. ''There shall be taxed against the losing party in each and every cause pending in the court of claims the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerk of said court and paid into the Treasury of the United States." 2328. Effect of Judgment. Final judgment a bar. 179, Judicial Code, 36 Stat. at L. 1141, Comp. St. 1911, p. 206, 1912 Supp. F. S. A. v. 1, p. 208. "Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy." Effect of payment. 178, Judicial Code, 9 36 Stat. at L. 1U1, Comp. St. 1911, p. 206, 1912 Supp. F. S. A. v. 1, p. 208. "The pay- in Re-enacting 15, of act of March 3, 1889, ch. 359, 24 Stat. at L. 508, Foster's Fed. Prac. (4th ed.) pp. 287, 1035, Comp. St. 1901, p. 758, 2 F. S. A. 88, which section is repealed by 297, Judicial Code. Costs, United States v. Harmon, 147 U. S. 268, 37 L. ed. 164, 13 Sup. Ct. Rep. 327. " Drawn from act of March 3, 1877, ch. 105, Rose's Code, 1849, Comp. St. 1901, 705, 2 F. S. A. 293. Railroad Co. v. Collector, 96 U. S. 594, 24 L. ed. 825. In general, Railroad Co. v. Collector, 96 U. S. 594, 24 L. ed. 825. o Re-enacting 1092, R. S., Rose's Code, 1474, Comp. St. 1901, p. 747, 2 F. S. A. 74, which section is repealed by 297, Judicial Code. Silvey's Case, 7 Ct. Cl. 305; Spicer's Case, 5 Ct. Cl. 34. Dismissal for want of jurisdiction is not a final judgment upon the merits so as to bar the claimant. Green v. United States, 18 Ct. Cl. 93. In general, United States v. O'Grady, 89 U. S. 641, 22 L. ed. 772. P Re-enacting 1092, R. S., Rose's Code, 1474, Foster's Fed. Prac. (4th ed.) p. 1739, Comp. St. 1901, p. 747, 2 F. S. A. 74, which section is repealed by 297, Judicial Code. 2329 COURT OF CIAIMS 633 nient of the amount due by any judgment of the court of claims, and of any interest thereon allowed by law, as pro- vided by law, shall be a full discharge to the United States of all claim and demand touching any of the matters in- volved in the controversy." Method of payment. 1089, R. 8., Comp. Stat. 1901, p. 745, 2 F. S. A. 73, Roses Code, 1471. "In all cases of final judgments by the court of claims, or, on appeal, by the Supreme Court, where the same are affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropria- tion made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the court of claims, and signed by the chief justice, or, in his absence, by the presiding judge of said court." 2329. Reports of Judgments to Congress and Executive Officers. 143, Judicial Code* 36 Stat. at L. 1136, Comp. St. 1911, p. 198, 1912 Supp. F. S. A. v. 1, p. 199. "On the first day of every regular session of Congress, the clerk of the court of claims shall transmit to Congress a full and complete statement of all the judgments rendered by the court during the previous year, stating the amounts thereof and the parties in whose favor they were rendered, together with a brief synopsis of the nature of the claims upon which they were rendered. At the end of every term of the court he shall transmit a copy of its decisions to the heads of de- partments; to the Solicitor, the Comptroller, and the Audit- ors of the Treasury; to the Commissioner of the General Land Office and of Indian Affairs ; to the chiefs of bureaus, and to other officers charged with the adjustment of claims against the United States." A motion for a new trial or to vacate a judgment will not be entertained after discharge of the judgment by payment. Vaughn v. United States, 34 Ct. Cl. 342; Russell's Motion, 15 Ct. Cl. 168; Michot v. United States, 31 Ct. Cl. 299. See also, Ravesies v. United States, 24 Ct. Cl. 224. Discharge, United States v. Frerichs, 124 U. S. 315, 31 L. ed. 471, 8 Sup. Ct. Rep. 514. a Re-enacting 1057, R. S., Rose's Code, 593, Comp. St. 1901, p. 731, 2 F. S. A. 55, which section is repealed by 297, Judicial Code. 634 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2330 The purpose of these reports is to furnish guides in like cases. 8 Attorney General's report of, to Congress. 188, Judicial Code,* 36 Stat. at L. 1142, Comp. St. 1911, p. 207, 1912 Supp. F. S. A. v. 1, p. 209. "The At- torney General shall report to Congress, at the beginning of each regular session, the suits under section one hundred and eighty ( 2311, infra), in which a final judgment or decree has been rendered, giving the date of each and a statement of the costs taxed in each case." 2330. Payment of Judgments. On claims referred from departments. 150, Judicial Code," 36 Stat. at L. 1138, Comp. St. 1911, p. 200, 1912 Supp. F. S. A. v. 1, p. 202. "The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the court of claims under the two preceding sections ( 2309, above), shall be paid out of any specific appropriation applicable to the case, if any such there be ; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court." Reports to Congress of adjudicated claims referred from de- partments and Congress. 187, Judicial Code* 36 Stat. at L. 1148, Comp. St. 1911, p. 208, 1912 Supp. F. S. A. v. 1, p. 210. "Reports of the court of claims to Congress, under sections one hun- dred and forty-eight ( 2309, above) and one hundred and fifty-one ( 2330, above), if not finally acted upon during the session at which they are reported, shall be continued from session to session and from Congress to Congress until the same shall be finally acted upon." SMeigs v. United States, 20 Ct. Cl. 181. 'Re-enacting 11 of Tucker act of March 3, 1887, ch. 359, Rose's Code, 1487, Foster's Fed. Prac. (4th ed.) p. 287, 24 Stat. at L. 507, Comp. St. 1901, p. 756. 2 F. S. A. 86, which section is repealed by 297, Judicial Code. In general, Sena v. American Turquoise Co. 220 U. S. 497, 55 L. ed. 559, 31 Sup. Ct. Rep. 488. * Re-enacting 1065, R. S., Rose's Code, 1453, Comp. St. 1901, p. 739, 2 F. S. A. 64, which section is repealed by 297, Judicial Code. t Drawn from 7 of the Bowman act of March 3, 1883, ch. 116, Rose's Code, 1479, 22 Stat. at L. 486, Comp. St. 1901, p. 750, 2 F. S. A. 79, which section is repealed by 297, Judicial Code. 2332 COURT OF CLAIMS 635 2331. Judgments for Set-Off or Counterclaim Enforce- ment of. 146, Judicial Code 36 Stat. at L. 1137, Comp. 8t. 1911, p. 199, 1912 Supp. F. 8. A. v. 1, p. 201. "Upon the trial of any cause in which any set-off, counterclaim, claim for damages, or other demand is set up on the part of the government against any person making claim against the government in said court, the court shall hear and deter- mine such claim or demand both for and against the gov- ernment and claimant; and if upon the whole case it finds that the claimant is indebted to the government it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's office of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such court are enforced." 2332. Appeals. % 181, Judicial Code? 36 Stat. at L. 1142, Comp. St. 1911, p. 207, 1912 Supp. F. S. A. v. 1, p. 209. "The plaintiff or the United States, in any suit brought under the provision of the section last preceding ( 2311, above), shall have the same right of appeal as is conferred under sections two hundred and forty-two ( 2012, supra), and two hundred and forty-three ( 2012, supra) ; and such right shall be exer- cised only within the time and in the manner therein pre- scribed." In Indian cases. 182, Judicial Code, 36 Stat. at L. 1142, Comp. St. 1911, p. 207, 1912 Supp. F. S. A. v. 1, p. 209. "In 'any case brought in the court of claims under any act of Congress Re-enacting 1061, R. S., Rose's Code, 1449, Foster's Fed. Prac. (4th ed.) p. 1686, Comp. St. 1901, p. 737, 2 F. S. A. 61, which section is repealed by 297, Judicial Code. In general, Wisconsin Central Railroad Co. v. United States, 164 U. S. 190, 41 L. ed. 406, 17 Sup. Ct. Rep. 45. v Drawn from 9 of Tucker act of March 3, 1887, ch. 359, Rose's Code, 1487, 1892, Comp. St. 1901, p. 756, 2 F. S. A. 85, which section is repealed by 297, Judicial Code. In general, Miltenberger v. Loganport Railway Co. 106 U. S. 286, 27 L. ed. 117, 1 Sup. Ct. Rep. 140. w Re-enacting 10 of act of March 3, 1891, ch. 538, 26 Stat. at L. 854, Comp. St. 1901, p. 763, 2 F. S. A. 100. 636 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2332 by which that court is authorized to render a judgment or decree against the United States, or against any Indian tribe or any Indians, or against any fund held in trust by the United States for any Indian tribe or for any Indians, the claimant, or the United States, or the tribe of Indians, or other party in interest, shall have the same right of appeal as is conferred under sections two hundred and forty-two and two hundred and forty-three; ( 2012, supra) and such right shall be exercised only within the time and in the manner therein prescribed." CHAPTER 48. CIRCUIT COURT OF APPEALS. Sec. 2400. Judicial Circuits. 2401. Organization Judges, Marshals, Clerks. 2402. Organization Allotment of Supreme Court Judges. 2403. Organization Competence and Presiding of Supreme Court Judges. 2404. Clerk and Deputies. 2405. Marshals. 2406. Terms. 2407. Rules of Procedure. 2408. Admission to Practice. 2409. Reports of Decisions. 2400. Judicial Circuits. 116, Judicial Code* 36 Stat. at L. 1131, Comp. St. 1911, p. 190, 1912 Supp. F. S. A. v. 1, p. 191. "There shall be nine judicial circuits of the United States, con- stituted as follows: "First. The first circuit shall include the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. "Second. The second circuit shall include the districts of Vermont, Connecticut, and New York. "Third. The third circuit shall include the districts of Pennsylvania, New Jersey, and Delaware. "Fourth. The fourth circuit shall include the districts of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. "Fifth. The fifth circuit shall include the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. a Including 604, R. S., Foster's Fed. Prac. (4th ed.) pp. 223, 225, Comp. St. 1901, p. 485, 4 F. S. A. 59, and parts of acts in 4 F. S. A. 60, 34 Stat. at L. 275, 1909 Supp. F. S. A. 641, which statutes are repealed by 297, Judicial Code. In general. Barrett v. United States, 169 U. S. 218, 42 L. ed. 723, 18 Sup. Ct. Rep. 327. 637 638 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2401 "Sixth. The sixth circuit shall include the districts of Ohio, Michigan, Kentucky, and Tennessee. "Seventh. The seventh circuit shall include the districts of Indiana, Illinois, and Wisconsin. "Eighth. The eighth circuit shall include the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyoming, North Dakota, South Dakota, Utah, and Oklahoma (now also New Mexico). "Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Mon- tana, and Hawaii (now also Arizona)." 2401. Organization Judges, Marshals, Clerks. 777, Judicial Code? 36 Slot, at L. 1131, Comp. St. 1911, p. 190, 1912 Supp. F. S. A. v. 1, p. 191. "There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appel- late jurisdiction, as hereinafter limited and established." 775, Judicial Code* 36 Stat. at L. 1131, Comp. St. 1911, p. 190, 1912 Supp. F. 8. A. v. 1, p. 192, as amended Jan, 13, 1912, ch. 9, 37 Stat. at L. 53. "There shall be in the second, seventh, and eighth circuits, respectively, four circuit judges; in the fourth circuit, two circuit judges; and in each of the other circuits, three circuit judges, to be appointed by the President, by and with the advice and con- sent of the Senate. They shall be entitled to receive a salary at the rate of seven thousand dollars a year, each, payable monthly. Each circuit judge shall reside within his circuit. The circuit judges in each circuit shall be judges of the cir- cuit court of appeals in that circuit, and it shall be the duty of each circuit judge in each circuit to sit as one of the judges of the circuit court of appeals in that circuit from time to time according to law : Provided, That nothing in this section shall be construed to prevent any circuit judge holding dis- trict court or serving in the commerce court, or otherwise, as provided for and authorized in other sections of this act." * Re-enacting 26 Stat. at L. 826, Foster's Fed. Prac. (4th ed.) pp. 223, 759, 835, 1047, 1237, 1238, 1659, 2042, 2044, 2045, 2089, 2128, 2148-9, Comp. St. 1901, p. 547, 4 F. S. A. 396. In general, Ex parte United States. 226 U. S. 420, 57 L. ed. 281, 33 Sup. Ct. Rep. 170. c Superseding 2, act of March 3, 1891, 26 Stat. at L. 826, Rose's Code, 563, 709, 804, Comp. St. 1901, p. 547, 4 F. S. A. 396, which statute is repealed by 297, Judicial Code. 2403 CIRCUIT COURT OF APPEALS G39 121 f Judicial Code* 36 Stat. at L. 1132, Comp. St. 1911, p. 191, 1912 Supp. F. 8. A. v. 1, p. 193. "The words 'circuit justice' and l justice of a circuit/ when used in this title, shall be understood to designate the jus- tice of the Supreme Court who is allotted to any circuit; but the word 'judge,' when applied generally to any cir- cuit, shall be understood to include such justice." 2402. Organization Allotment of Supreme Court Judges. 119, Judicial Code* 36 Stat. at L. 1131, Comp. St. 1911, p. 191, 1912 Supp. F. S. A. v. 1, p. 192. "The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made whenever it becomes necessary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or otherwise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. When- ever, by reason of death or resignation, no justice is allotted to a circuit, the Chief Justice may, until a justice is regu- larly allotted thereto, temporarily assign a justice of another circuit to such circuit." 2403. Organization Competence and Presiding of Su- preme Court Judges. 120, Judicial Code* 36 Stat. at L. 1132, Comp. St. 1911, p. 121, 1912 Supp. F. S. A. v. 1, p. 192. "The Chief Justice and the associate justices of the Supreme Re-enacting 605, R. S., Foster's Fed. Prac. (4th ed.) p. 682, Comp. St. 1901, p. 486, 4 F. S. A. 238. The justices of the Supreme Court are members of the circuit courts. In re Xi-agle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658. - Superseding 606, R. S., Foster's Fed. Prac. (4th ed.) p. 682, Comp. St. 1901, p. 487, 4 F. S. A. 238, and 618, Comp. St. 1901, p. 496, 4 F. S. A. 245, which sections are repealed by 297, Judicial Code. * Re-enacting 3, act of March 3, 1891, ch. 217, 26 Stat. at L. 827, Rose's Code, 309, Foster's Fed. Prac. (4th ed.) pp. 1236, 1451, 1681, 1965, 1972, 1981, 2013, 2014, 2016, 2048, Comp. St. 1901, p. 548, 4 F. S. A. 396. A decree in which a disqualified judge took part will be quashed and set aside without regard to its merits. Moran v. Dillingham, 174 U. S. 153, 43 L. ed. 930, 19 Sup. Ct. Rep. 620. American Construction Co. v. Jacksonville, etc., R. Co. 148 U. S. 372, 37 L. ed. 486, 33 Sup. Ct. Rep. 758. 64:0 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2404: Court assigned to each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective cir- cuits. In case the Chief Justice or an associate justice of the Supreme Court shall attend at any session of the cir- cuit court of appeals, he shall preside. In the absence of such Chief Justice, or associate justice, the circuit judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full court at any time shall not be made up by the attendance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court according to such order or provision among the district judges as either by general or particular assign- ment shall be designated by the court: Provided, That no judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals." A judge who sat at the hearing below of a whole cause at any stage thereof is undoubtedly disqualified to sit in the circuit court of appeals at the hearing of the whole cause at the same or at any later stage. 8 A decree in which a disqualified judge took part will be quashed and set aside without regard to the merits. 4 2404. Clerk and Deputies. 124, Judicial Code* 36 Stat. at L. 1132, Comp. St. 1911, p. 192, 1912 Supp. F. 8. A. v. 1, p. 193. "Each court shall appoint a clerk, who shall exercise the same powers and perform the same duties in regard to all matters within its jurisdiction, as are exercised and performed by the clerk of the Supreme Court, so far as the same may be applicable." 125, Judicial Code? 36 Stat. at L. 1132, Comp. St. SMoran v. Dillingham, 174 U. S. 153, 43 L. ed. 930, 19 Sup. Ct. Rep. 620. 4 Ibid.; American Constr. Co. v. Jacksonville, etc., R. Co. 148 U. S. 372, 37 L. ed 486, 13 Sup. Ct. Rep. 758. s Re-enacting part of 2, act of March 3, 1891, ch. 517, 26 Stat. at L. 826, Comp. St. 1901, p. 547, 4 F. S. A. 396. In general. Morton v. United States, 59 Fed. 349. h New legislation. In general, Bryan, Collector of the Port of Charleston, v. Ker, Executrix, 222 U. S. 107, 56 'L. ed. 114, 32 Sup. Ct. Rep. 26. 2405 CIRCUIT COURT OF APPEALS 641 1911, p. 192, 1912 Supp. F. S. A. v. 1, p. 193. "The clerk of the circuit court of appeals for each circuit may, with the approval of the court, appoint such number of dep- uty clerks as the court may deem necessary. Such deputies may be removed at the pleasure of the clerk appointing them, with the approval of the court. In case of the death of the clerk his deputy or deputies shall, unless removed by the court, continue in office and perform the duties of the clerk in his name until a clerk is appointed and has qualified ; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his executor or administrator shall have such remedy for such defaults or misfeasances commit- ted after his death as the clerk would be entitled to if the same had occurred in his lifetime." Act Feb. 3, 1911, cli. 33, 36 Stat. at L. 895, 1912 Supp. F. 8. A. v. 1, p. 129. "(United States courts circuit courts of appeals deputy clerks authorized.) That one deputy of the clerk of each circuit court of appeals may be appointed by the court on the application of the clerk and may be removed at the pleasure of the court. In case of the death of the clerk his deputy shall, unless removed, continue in office and per- form the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults or misfeas- ances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his ex- ecutor or administrator shall have such, remedy for such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime." 2405. Marshals. 128, Judicial Code, 1 36 Stat. at L. 1132, Comp. St. 1911, p. 192, 1912 Supp. F. S. A. v. 1, p. 193. "The United States marshals in and for the several districts of said courts shall be the marshals of said circuit courts of appeals, and shall exercise the same powers and perform the same duties, under the regulations of the court, as are Suporsodine part of 2, act of March 3. 1891, cli. 517, 20 Stat. at L. 826, Rose's Code, g| .->f>3, 70!). 804, Comp. St. 1001, p. 547, 4 K. S. A. 306. Montg. 41. 642 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2406 exercised and performed by the marshal of the Supreme Court of the United States, so far as the same may be appli- cable." 2406. Terms. 126, Judicial Code, 1 S6 Stat. at L. 1132, Comp. St. 1911, p. 192, 1912 Supp. F. S. A. v. 1, p. 193. "A term shall be held annually by the circuit courts of appeals in the several judicial circuits at the following places, and at such times as may be fixed by said courts, respectively: In the first circuit, in Boston ; in the second circuit, in New York ; in the third circuit, in Philadelphia; in the fourth circuit, in Richmond; in the fifth circuit, in New Orleans, Atlanta, Fort Worth, and Montgomery; in the sixth circuit, in Cin- cinnati ; in the seventh circuit, in Chicago ; in the eighth circuit, in St. Louis, Denver or Cheyenne, and St. Paul; in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judges of said court ; and in each of the above circuits, terms may be held at such other times and in such other places as said courts, respectively, may from time to time designate : Provided, That terms shall be held in Atlanta on the first Monday in October, in Fort Worth on the first Monday in November, in Montgomery on the third Monday in October, in Denver or in Cheyenne on the first Monday in September, and in St. Paul on the first Monday in May. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the state of Georgia, in the state of Texas, and in the state of Alabama, to the circuit court of appeals for the fifth judicial circuit shall be heard and disposed of, respec- tively, by said court at the terms held in Atlanta, in Fort Worth, and in Montgomery, except that appeals or writs of error in cases of injunctions and in all other cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearing may be heard and disposed of wherever said court may be sitting. All appeals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the dis- J Re-enacting 26 Stat. at L. 827, Corap. St. 1901, p. 548, 4 F. S. A. 689, 32 Stat. at L. 548, Foster's Fed. Prac. (4th ed.) 256, 4 F. S. A. 690, 32 Stat. at L. 756, 4 F. S. A. 691, 32 Stat. at L. 329, 4 F. S. A. 692, which statute: are repealed by 297, Judicial Code. 2407 CIRCUIT COURT OF APPEALS 643 trict court of the United States at Beaumont, Texas, to the circuit court of appeals for the fifth circuit, shall be heard and disposed of by the said circuit court of appeals at the terms of court held at New Orleans : Provided, That nothing herein shall prevent the court from hearing appeals or writs of error wherever the said courts shall sit, in cases of in- junctions and in all other cases which, under the statutes and the rules, or in the opinion of the court, are entitled to be brought to a speedy hearing. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the states of Colorado, Utah, and Wyoming, and the su- preme court of the territory of New Mexico to the circuit court of appeals for the eighth judicial circuit, shall be heard and disposed of by said court at the terms held either in Denver or in Cheyenne, except that any case arising in any of said states or territory may, by consent of all the parties, be heard and disposed of at a term of said court other than the one held in Denver or Cheyenne." 2407. Rules of Procedure. 122, Judicial Code* 36 Stat. at L. 1132, Comp. St. 1911, p. 191, 1912 Supp. F. 8. A. v. 1, p. 193. "Each of said circuit courts of appeals shall prescribe the form and style of its seal, and the form of writs and other process and procedure as may be conformable to the exercise of its ju- risdiction; and shall have power to establish all rules and regulations for the conduct of the business of the court with- in its jurisdiction as conferred by law." Under the authority of this statute, rules have been promul- gated for each of the nine circuits. These rules are so similar in many respects that they are print- ed in our Appendix as one set of rules with notations of differ- ences where any exist in any of the several circuits from the gen- eral rule existing in the other circuits. In taking an appeal in any circuit these rules should be con- sulted. k Re-enacting part of 2, act of March 3, 1891, ch. 517, 26 Stat. at L. 826, Rose's Code, "563, 709, 804, Comp. St. 1901, p. 547, 4 F. S. A. 396. Bradford v. Southern Railway Co. 195 U. S. 243, 49 L. ed. 178, 25 Sup. Ct. Rep. 55. 644: MOJXTUOMEKY'S MANUAL OF FEDERAL PROCEDURE 2400 2408. Admission to Practice. Under rule 7 all circuits, an attorney may be admitted to practise in the circuit court of appeals when admitted to practise in the Supreme or District Court of the United States on taking the oath or affirmation in the form prescribed in rule 2 of the Supreme Court of the Unit- ed States. In the sixth, eighth, and ninth circuits it is enough if the attorney has been admitted to the court of last resort in the state of his residence and takes the requisite oaths. Fees are prescribed in last named circuits. 2409. Reports of Decisions. All decisions from the time when the circuit courts of appeals were established, in 1891, have been reported currently in the Federal Reporter, and are now reported also in the C. C. A. Reports, of which there are now more than one hundred volumes. CHAPTEK 49. THE SUPREME COURT. Sec. 2450. Judges. 2451. Clerk. 2452. Deputies. 2453. Marshal. 2454. Supreme Court Reporter. 2455. Admission to Practice. 2450. Terms. 2457. Adjournments. 2458. Original Jurisdiction Issues of Fact. 2459. Prohibition and Mandamus. 2450. Judges. 215, Judicial Code* 36 Stat. at L. 1152, Comp. St. 1911, p. 221, 1912 Supp. F. 8. A. v. 1, p. 224. "The Su- preme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." 216, Judicial Code? 36 Stat. at L. 1152, Comp. St. 1911, p. 221, 1912 Supp. F. S. A. v. 1, p. 224. "The associate justices shall have precedence according to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages." . 217, Judicial Code, c 36 Stat. at L. 1152, Comp. St. 1911, p. 221, 1912 Supp. F. S. A. v. 1, p. 22J+. "In case of a vacancy in the office of Chief Justice, or of his inabil- Re-enacting 673, R. S. Rose's Code, 32, Comp. St. 1901, p. 558, 4 F. S. A. 434, which section is repealed by 297, Judicial Code. b Re-enacting 674, R. S. Rose's Code, 83, Foster's Fed. Prac. (4th ed.) p. 2068, Comp. St. 1901, p. 558, 4 F. S. A. 434, which section is repealed by 297, Juducial Code. c Re-enacting 675, R. S. Rose's Code, 34, Comp. St. 1901, p. 558, 4 F. S. A. 435, which section is repealed by 297, Judicial Code. 645 646 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 24:51 ity to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of Chief Justice." 218, Judicial Code* 36 Stat. at L. 1152, Comp. St. 1911, p. 221, 1912 Supp. F. S. A. v. 1, p. 225. "The Chief Justice of the Supreme Court of the United States shall receive the sum of fifteen thousand dollars a year, and the justices thereof shall receive the sum of fourteen thousand five hundred dollars a year each, to be paid monthly." 2451. Clerk. 219, Judicial Code? 36 Stat. at L. 1152, Comp. St. 1911, p. 221, 1912 Supp. F. 8. A. v. 1, p. 225, "The Su- preme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions." 220, Judicial Code, 1 36 Stat. at L. 1152, Comp. St. 1911, p. 222, 1912 Supp. F. S. A. v. 1, p. 225. "The clerk of the Supreme Court shall, before he enters upon the ex- ecution of his office, give bond, with sufficient sureties, to be approved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thou- sand dollars, to be determined and regulated by the Attorney General, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determina- tions of the court. The Supreme Court may at any time, upon the motion of the Attorney General, to be made upon thirty days' notice, require a new bond, or a bond for an increased amount within the limits above prescribed; and the failure of the clerk to execute the same shall vacate his office. All bonds given by the clerk shall, after approval, be recorded in his office, and copies thereof from the records, certified by the clerk under seal of the court, shall be com- d Re-enacting 676, R. S. Comp. St. 1901, p. 558, 4 F. S. A. 435, which action is repealed by 297, Judicial Code. Re-enacting 677, R. S. Rose's Code, 559, 614. 680, Comp. St. 1901, p. 559, 4 F. S. A. 73, which section is repealed by 297, Judicial Code. 'Drawn from act of February 22, 1875, ch. 95, Rose's Code, 575, 628, Comp. St. 1901, p. 619, 4 F. S. A. 83. Bond of clerk. Howard v. United States, 184 U. S. 676, 46 L. ed. 754. 22 Sup. Ct. Rep. 543. 2453 THE SUPREME COURT 647 petent evidence in any court. The original bonds shall be filed in the Department of Justice." 2452. Deputies. 221, Judicial Code* 36 8 tat. at L. 1153, Comp. St. 1911, p. 222, 1912 Supp. F. 8. A. v. 1, p. 225. "One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless re- moved, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond shall be liable ; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime." 2453. Marshal. 219, Judicial Code, 11 36 Stat. at L. 1152, Comp. 8 tat. 1911, p. 221, 1912 Supp. F. 8. A. v. 1, p. 225. "The Su- preme Court shall have power to appoint a clerk and a mar- shal for said court and a reporter of its decisions." 824, Judicial Code, 1 36 Stat. at L. 1153, Comp. St. 1911, p. 222, 1912 Supp. F. S. A. v. 1, p. 225. "The mar- shal is entitled to receive a salary at the rate of four thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issu- ing from it, or made by the Chief Justice or an associate justice in pursuance of law; and shall take charge of all property of the United States used by the court or its mem- bers. With the approval of the Chief Justice he may appoint assistants and messengers to attend the court, with the com- K Re-enacting 678, R. S. Rose's Code, 560, Comp. St. 1901, p. 559, 4 F. S. A. 73, which section is repealed by 297, Judicial Code. h For Annotation of this 219, Judicial Code, see footnote , ante, our 2451. 1 Re-enacting 680, R. S. Rose's Code, 615, 683, Comp. St. 1901, p. 560. 4 F. S. A. 159, changing the salary from $3,500 to $4,500 a year. This section is repealed by 297, Judicial Code. 648 MONTGOMERY'S MANUAL OF FEDERAL PROCEDURE 2455 pensation allowed to officers of the House of Representatives of similar grade." 2454. Supreme Court Reporter. The duties of the re- porter are defined in 225 of the Judicial Code, his salary and allowances are designated in 226 of the Judicial Code, and the distribution of reports and digests is set out in 227 of the Judicial Code. The cost of these books and provision for addi- tional reports and digests is made in 228 of the Judicial Code. Provision is made for distribution of sets of the Federal Reporter and Digests in 229 of the Judicial Code. These sections may be found with annotations in the Appendix. 2455. Admission to Practice. Rule 2 of the Supreme Court of the United States. 1. It shall be requisite to the admission of attorneys or counselors to practise in this court, that they shall have been such for three years past in the supreme courts of the states to which they respectively belong, and that their private and profes- sional character shall appear to be fair. 2. They shall respectively take and subscribe the following oath or affirmation, viz. : I, , do solemnly swear [or affirm] that I will de- mean myself, as an attorney and counselor of this court, up- rightly, and according to law; and that I will support the Constitution of the United States. 255, Judicial Code* 36 Stat. at L. 1160, Comp. St. 1911, p. 233, 1912 Supp. F. 8. A. v. 1, p. 238. "Any woman who shall have been a member of the bar of the high- est court of any state or territory, or of the court of appeals of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record,, be admitted to practise before the Supreme Court of the United States." J Re-enacting act of February 15, 1879, ch. 81, 20 Stat. at L. 282, Rose's Code, 490, Con.p. St. 1901, p/590, 1 F. S. A. 518. 2458 THE SUPREME COL'BT 649 2456. Terms. 230, Judicial Code* 36 Stat. at L. 1156, Com p. SI. 1911, p. 226, 1912 Supp. F. 8. A. v. 1, p. 229. "The Su- preme Court shall hold at the seat of government, one term annually, commencing on the second Monday in October, and such adjourned or special terms as it may find necessary for the despatch of business." 2457. Adjournments. 231, Judicial Code, 1 36 Stat. at L. 1156, Comp. St. 1911, p. 226, 1912 Supp. F. S. A. v. 1, p. 229. "If, at any session of the Supreme Court, a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to day for twenty days after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days, the business of the court shall be continued over till the next appointed session; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn without day." 232, Judicial Code 36 Stat. at L. 1156, Comp. St. 1911, p. 227, 1912 Supp. F. S. A. v. 1, p. 229. "The jus- tices attending at any term, when less than a quorum is pres- ent, may, within the twenty days mentioned in the preceding- section, make all necessary orders touching any suit, pro- ceeding, or process, depending in or returned to the court, preparatory to the hearing, trial, or decision thereof." 2458. Original Jurisdiction Issues of Fact. 233, Judicial Code," 36 Stat. at L. 1156, Comp. St. 1911, p. 227, 1912 Supp. F. S. A. v. 1, p. 229. "The Su- preme Court shall have exclusive jurisdiction of all contro- ls Re-enacting 684, R. S. Rose's Code, 304, Foster's Fed. Prac. (4th ed.) p. 223, Comp. St. 1901, p. 563, 4 F. S. A. 692, which section is repealed by 297, Judicial Code. Re-enacting 685, R. S. Rose's Code, 305, Comp. St. 1901, p. 563, 4 F. S. A. 692, which section is repealed by 297, Judicial Code. m Re-enacting 686, R. S. Comp. St. 1901, p. 564, 4 F. S. A. 693, which section is repealed by 297, Judicial Code. n Re-enacting 687, R. S. Rose's Code, 36, Foster's Fed. Prac. (4th ed.) pp. 75, 76, Comp. St. 1901, p. 565, 4 F. S. A. 436, which section is repealed by 297, Judicial Code. 650 MONTGOMERY'S MANUAL OP FEDERAL PROCEDURE 2459 versies of a civil nature where a state is a party, except be- tween a state and its citizens, or between a state and citizens of other states, or aliens, in which latter cases it shall have original but not exclusive jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their do- mestics or domestic servants, as a court of law can have con- sistently with the law of nations; and original, but not ex- clusive, jurisdiction, of all suits brought by ambassadors, or other public ministers, or in which a consul or vice con- sul is a party." 285, Judicial Code, 36 Stat. at L. 1156, Comp. St. 1911, p. 227, 1912 Supp. F. 8. A. v. 1, p. 230. "The trial of issues of fact in the Supreme Court, in all actions of law against citizens of the United States shall be by jury." 2459. Prohibition and Mandamus. 234, Judicial Code* 36 Stat. at L. 1156, Comp. St. 1911, p. 227, 1912 Supp. F. S. A. v. 1, p. 230. "The Su- preme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admir- alty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or an ambassador, or other public minister, or a consul, or vice consul is a party." o Re-enacting 689, R. S., Rose's Code, 913, Comp. St. 1901, p. 565, 4 F. S. A. 443, which section is repealed by 297, Judicial Code. In gen- eral, Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580. P For Annotation of this 234, Judicial Code, see footnote , ante, our 2021. APPENDIX. PAGE 1. JUDICIAL, CODE IN FOKCE JANUARY 1, 1912 655 2. SUPREME COURT RULES 767 3. CIRCUIT COURTS OF APPEALS RULES 793 4. RULES IN ADMIRALTY 871 5. EQUITY RULES IN FORCE FEBRUARY 1, 1913. ANNO- TATED 879 651 JL 1. THE JUDICIAL CODE IN EFFECT JANUARY 1, 1912. 653 APPENDIX. THE JUDICIAL CODE. CHAPTER ONE. DISTRICT COURTS ORGANIZATION. Sec. 1. District courts established; ap- pointment and residence of judges. 2. Salaries of district judges. 3. Clerks. 4. Deputy clerks. 5. Criers and bailiffs. 6. Records; where kept. 7. Efl'ect of altering terms. 8. Trials not discontinued by new term. 9. Courts always open as courts of admiralty and equity. 10. Monthly adjournments for trial of criminal causes. 11. Special terms. 12. Adjournment in case of nonat- tendance of judge. 13. Designation of another judge in case of disability of judge. 14. Designation of another judge in case of an accumulation of business. 1. In each of the districts described in chapter five, there shall be a court called a district court, for which there shall be appointed one judge, to be called a district judge; except that in the northern district of Cali- fornia, the northern district of Illinois, the district of Maryland, the dis- trict of Minnesota, the district of Nebraska, the district of New Jersey, the eastern district of New York, the northern and southern districts of Ohio, the district of Oregon, the eastern and western districts of Penn- sylvania, and the western district of Washington, there shall be an additional district judge in each, and in the southern district of New York, three 655 Sec. 15. When designation to be made by Chief Justice. 16. New appointment and revoca- tion. 17. Designation of district judge in aid of another judge. 18. When circuit judge may be des- ignated to hold district court. 19. Duty of district and circuit judge in such cases. 20. When district judge is interest- ed or related to parties. 21. When affidavit of personal bias or prejudice of judge is filed. 22. Continuance in case of vacancy in office. 23 Districts having more than one judge; division of business. 656 APPENDIX additional district judges: Provided, That whenever a vacancy shall occur in the office of the district judge for the district of Maryland, senior in commission, such vacancy shall not be filled, and thereafter there shall be but one district judge in said district: Provided further, That there shall be one judge for the eastern and western districts of South Carolina, one judge for the eastern and middle districts of Tennessee, and one judge for the northern and southern districts of Mississippi: Provided further, That the district judge for the middle district of Alabama shall continue as heretofore to be a district judge for the northern district thereof. Every district judge shall reside in the district or one of the districts for which he is appointed, and for offending against this provision shall be deemed guilty of a high misdemeanor. Annotated, our 22 note a. 2. Each of the district judges shall receive a salary of six thousand dollars a year, to be paid in monthly instalments. 36 Stat. at L. 1087, Comp. St. 1911, p. 129, 1912 Supp. F. S. A. v. 1. p. 133. Superseding act of Feb. 12, 1903, ch. 54", 32 Stat. at L. 825, Rose's Code, 469, 10 F. S. A. 198, and 554, R. S., 4 F. S. A. 217, which is repealed by 297, Judicial Code. 3. A clerk shall be appointed for each district court by the judge there- of, except in cases otherwise provided for by law. Annotated, our 33 note m. 4. Except as otherwise specially provided by law, the clerk of the dis- trict court for each district may, with the approval of the district judge thereof, appoint such number of deputy clerks as may be deemed neces- sary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concurrence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk, in his name, until a clerk is appointed and quali- fied; and for the default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable; and his executor or admin- istrator shall have such remedy for any such default or misfeasances com- mitted after his death as the clerk would be entitled to if the same had occurred in his lifetime. Annotated, our 34 note n. 5. The district court for each district may appoint a crier for the court; and the marshal may appoint such number of persons, not exceeding five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes. Annotated, our 38 note o. 6. The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. Annotated, our 68 note h. JUDICIAL CODE 657 i 7. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court, but the same shall be deemed to be returnable to, pend- ing, and triable in the terms established next after the return day thereof. Annotated, our 67 note g. ' 8. When the trial or hearing of any cause, civil or criminal, in a dis- trict court has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclusion in the same manner and with the same effect as if another stated term of the court had not intervened. Annotated, our 65 note e. 9. The district courts, as courts of admiralty and as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any dis- trict judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Annotated, our 61 note a. 10. District courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. Annotated our 66 note f. 11. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. Any business may be transacted at such special term which might be transacted at a regular term. Annotated, our 62 note b. 12. If the judge of any district court is unable to attend at the com- mencement of any regular, adjourned, or special term, or any time during such term, the court may be adjourned by the marshal, or clerk, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. Annotated, our 63 note c. 13. When any district judge is prevented, by any disability, from hold- ing any stated or appointed term of his district court, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, any such circuit judge or justice may, if in his judgment the public interests so require, designate and appoint the judge of any other district in the same circuit to hold said court, and to dis- charge all the judicial duties of the judge so disabled, during such dis- ability. Whenever it shall be certified by any such circuit judge or, in Montg. 42. 658 APPENDIX his absence, by the circuit justice of the circuit in which the district lies, that for any sufficient reason it is impracticable to designate and appoint a judge of another district within the circuit to perform the duties of such disabled judge, the chief justice may, if in his judgment the public interests so require, designate and appoint the judge of any district in an- other circuit to hold said court and to discharge all the judicial duties of the judge so disabled, during such disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said dis- trict court, and a certified copy thereof, under the seal of the court, shall be transmitted by the clerk to the judge so designated and appointed. Annotated our 24 note c. 14. When, from the accumulation or urgency of business in any district court, the public interests require the designation and appointment herein- after provided, and the fact is made to appear, by the certificate of the clerk, under the seal of the court, to any circuit judge of the circuit in which the district lies, or, in the absence of all the circuit judges, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge thereof. Each of the said district judges may, in case of such appointment, hold separately at the same time a district court in such district, and discharge all the judicial duties of the district judge therein. Annotated, our 25 note d. 15. If all the circuit judges and the circuit justice are absent from the circuit, or are unable to execute the provisions of either of the two preceding sections, or if the district judge so designated is disabled or neg- lects to hold the court and transact the business for which he is designated, the clerk of the district court shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint in the manner aforesaid the judge of any district within such circuit or within any other circuit; and said appointment shall be transmitted to the clerk and be acted upon by him as directed in the preceding section. Annotated, our 26 note f. 16. Any such circuit judge, or circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public inter- ests so require, make a new designation and appointment of any other district judge, in the manner, for the duties, and with the powers mentioned in the three preceding sections, and revoke any previous designation and ap- pointment. Annotated, our 27 note g. 17. It shall be the duty of the senior circuit judge then present in the circuit, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section four- teen, the district judge of any judicial district within his circuit to hold a district court in the place or in aid of any other district judge within the same circuit. Annotated, our 25 note e. 18. Whenever, in the judgment of the senior circuit judge of the circuit JUDICIAL CODE 659 in which the district lies, or of the circuit justice assigned to such circuit, or of the Chief Justice, the public interest shall require, the said judge, or associate justice, or Chief Justice, shall designate and appoint any circuit judge of the circuit to hold said district court. As amended by Act of October 3, 1913, ch. 8. See our 28. Annotated, our 28 note h. 19. It shall be the duty of the district or circuit judge who is desig- nated and appointed under either of the six preceding sections, to discharge all the judicial duties for which he is so appointed, during the time for which he is so appointed; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, shall have the same effect and validity as if done by or before the district judge of the said district. Annotated, our 29 note i. 20. Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel or is a material witness for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on the records of the court; and also an order that an authenticated copy thereof shall be forthwith certi- fied to the senior circuit judge for said circuit then present in the circuit; and thereupon such proceedings shall be had as are provided in section fourteen. Annotated, our 30 note j. 21. Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be desig- nated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action. Annotated, our 31 note k. 22. When the office of judge of any district court becomes vacant, all process, pleadings, and proceedings pending before such court shall, if necessary, be continued by the clerk thereof until such times as a judge shall be appointed, or designated to hold such court; and the judge so designated, while holding such court, shall possess the powers conferred by, and be subject to the provisions contained in, section nineteen. Annotated, our 64 note d. 060 APPENDIX 23. In districts having more than one district judge, the judges may agree upon the division of business and assignment of cases for trial in said district; but in case they do not so agree, the senior circuit judge of the circuit in which the district lies, shall make all necessary orders for the division of business and the assignment of cases for trial in said district. Annotated, our 23 note b. CHAPTER TWO. DISTRICT COURTS JURISDICTION. Sec. 24. Original jurisdiction. Par. 1. Where the United States are plain- tiffs; and of civil suits at common law or in ecfiiity. 2. Of crimes -arid of- fenses. 3. Of admiralty causes, seizures, and prizes. 4. Of suits under any law relating to the slave trade. 5. Of cases under inter- nal revenue, cus- toms, and tonnage laws. 6. Of suits under postal laws. 7. Of suits under the patent, tne copy- right, and the trade-mark laws. 8. Of suits for violation of interstate com- merce laws. 9. Of penalties and for- feitures. >". 13 10. Of suits on deben- tures. 11. Of suits for injuries on account of acts done under laws of the United States. 12. Of suits concerning civil rights. 13. Of suits against per- sons having knowl- edge of conspiracy, etc. 14. Of suits to redress the deprivation, un- der color of law, of civil rights. Sec. 24. Original jurisdiction Cont'd. Par. 15. Of suits to recover .,fi. ..certain offices. 16. Of suits against na- tional-banking asso- ciations. 17. Of suits by aliens for torts. 18. Of suits against con- suls and vice-con- suls. 19. Of suits and proceed- ings in bankrupt- cy. 20. Of suits against the United States. 21. Of suits for the un- lawful inclosure of public lands. 22. Of suits under immi- gration and con- tract-labor laws. 23. Of suits against trusts, monopolies, and un- lawful combinations. 24. Of suits concerning al- lotments of land to Indians. 25. Of partition suits where United States is joint tenant. 25. Appellate jurisdiction under Chi- nese-exclusion laws. 26. Appellate jurisdiction over Yel- lowstone National Park. 27. Jurisdiction of crimes on Indi- an reservations in South Da- kota. JUDICIAL CODE 661 24. The district courts shall have original jurisdiction as follows: First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or, where the matter in controversy exceeds, exclusive . of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of -the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens, or subjects. No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assign- ment had been made : 1'rovided, however, That the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of this section. Second. Of all crimes and offenses cognizable under the authority of the United States. ';'.* Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. Fourth. Of all suits arising under any law relating to the slave trade. Fifth. Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the court of customs appeals. Sixth. Of all cases arising under the postal laws. Seventh. Of all suits at law or in equity arising under the patent, the copyright, and the trade-mark laws. Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the commerce court. Ninth. Of all suits and proceedings for the enforcement of penalties and forfeitures incurred under any law of the United States. Tenth. Of all suits by the assignee of any debenture for drawback of ditties, issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. Eleventh. Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States, for the protection or collection of any of the revenues thereof, or to enforce the right of citizens of the United States to vote in the several states. 662 APPENDIX Twelfth. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or prop- erty, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty, Revised Statutes. Thirteenth. Of all suits authorized by law to be brought against any person who, having knowledge that any of the wrongs mentioned in section nineteen hundred and eighty, Revised Statutes, are about to be done, and, having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act. Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the juris- diction of the United States. Fifteenth. Of all suits to recover possession of any office, except that of elector of President or Vice-President, Representative in or Delegate to Congress, or member of a state legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude; Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the states. Sixteenth. Of all cases commenced by the United States, or by direc- tion of any officer thereof, against any national banking association, and cases for winding up the affairs of any such bank; and of all suits brought by any banking association established in the district for which the court is held, under the provisions of title "National Banks," Revised Statutes, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. And all national banking asso- ciations established under the laws of the United States shall, for the purposes of all other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located. Seventeenth. Of all suits brought by any alien for a tort only, in viola- tion of the laws of nations or of a treaty of the United States. Eighteenth. Of all suits against consuls and vice consuls. Nineteenth. Of all matters and proceedings in bankruptcy. Twentieth. Concurrent with the court of claims, of all claims not ex- ceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or JUDICIAL CODE 663 admiralty, if the United States were suable, and of all set-offs, counter- claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to Gather the district courts or the court of claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as "war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission au- thorized to hear and determine the same, or to hear and determine claims for pensions; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claim- ing as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further, That no suit against the government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury. Twenty-first. Of proceedings in equity, by writ of injunction, to restrain violations of the provisions of laws of the United States to prevent the unlawful inclosure of public lands; and it shall be sufficient to give the court jurisdiction if service of original process be had in any civil pro- ceeding on any agent or employee having charge or control of the in- closure. Twenty-second. Of all suits and proceedings arising under any law regulating the immigration of aliens, or under the contract labor laws. Twenty-third. Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies. Twenty-fourth. Of all actions, suits, or proceedings involving the right of any person, in whole or in part of Indian blood or descent, to any allot- ment of land under any law or treaty. Twenty-fifth. Of suits in equity brought by any tenant in common or joint tenant for the partition of lands in cases where the United States is one of such tenants in common or joint tenants, such suits to be brought in the district in which such land is situate. Annotated, our 194 note b. Referred to in our 216, 230, 237, 261, 263, 351, 381, 2100. 25. The district courts shall have appellate jurisdiction of the judg- 664: APPENDIX mcnts and orders of United States commissioners in cases arising under the Chinese exclusion laws. Annotated, our 202 note c. 26. The district court for the district of Wyoming shall have jurisdic- tion of all felonies committed within the Yellowstone National Park and appellate jurisdiction of judgments in cases of conviction before the com- missioner authorized to be appointed under section five of an act entitled "An Act to Protect the Birds and Animals in Yellowstone National Park, and to Punish Crimes in said Park, and for Other Purposes," approved May seventh, eighter- hundred and ninety-four. Annotated, our 203 note d. 27. The district court of the United States for the district of South Dakota shall have jurisdiction to hear, try, and determine all actions and pro- ceedings in which any person shall be charged with the crime of murder, man- slaughter, rape, assault with intent to kill, arson, burglary, larceny, or assault with a dangerous weapon, committed within the limits of any Indian reservation in the state of South Dakota. Annotated, our 204 note e. CHAPTER THREE. DISTRICT COURTS REMOVAL OF CAUSES. Sec. Sec. 28. Removal of suits from state to 34. Removal of suits by aliens. United States district courts. 35. When copies of records are re- 20. Procedure for removal. fused by clerk of state court. 30. Suits under grants of land from 36. Previous attachment bonds, or- difTerent states. ders, etc., remain valid. 31. Removal of causes against per- 37. Suits improperly in district' sons denied any civil rights, court mav be dismissed or re- etc. manded. 32. When petitioner is in actual 38. Proceedings in suits removed. custody of state court. 39. Time for filing record; return of 33. Suits and prosecutions against record, how enforced. revenue officers, etc. 28. Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any state court, may be removed hy the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any state court, may be removed into the district court of the United States for the proper district by the defendant or de- fendants therein, being nonresidents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly be- JUDICIAL CODE 665 tween citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district. And where a suit is now pending, or may hereafter be brought, in any state court, in which there is a contro- versy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said district court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said district court may direct the suit to be remanded, so far as relates to such other de- fendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in said state court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any state court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execu- tion, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed: Provided, That no case arising under an act entitled "An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Cases," approved April twenty- second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction, shall be removed to any court of the United States. Annotated, our 221 note c. Referred to in our 261, 286, 280, 295, 299. 351, 353, 358, 361, 363. 365, 372. 373. 378, 381, as amended Act June 20. 1914, ch. 48. See our 299. 29. Whenever any party entitled to remove any suit mentioned in the last preceding section, except suits removable on the grounds of preju- dice or local influence, may desire to remove such suit from a state court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the 666 APPENDIX declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such suit is pend- ing, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then by the duty of the state court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for re- moval shall be given the adverse party or parties prior to filing the same. The said copy being entered within said thirty days as aforesaid in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declara- tion or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court. Annotated, our 290 note e. Referred to in our 291, 292, 293. 294. 30. If in any action commenced in a state court the title of land be concerned, and the parties are citizens of the same state and the matter in dispute exceeds the sum or value of three thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant or give it in evidence upon the trial. If he or they inform the court that he or they do claim under such grant, any one or more of the party moving for such informa- tion may then, on petition and bond, as hereinbefore mentioned in this chapter, remove the cause for trial to the district court of the United States next to be holden in such district; and any one of either party re- moving the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim. Annotated, our 262 note a. Referred to in our 300, 352. 31. When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is de- nied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any JUDICIAL CODE 667 arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next district court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the state courts shall cease, and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court. It shall be the duty of the clerk of the state court to furnish such defend- ant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies are filed by said petitioner in the district court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process ; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may," upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his de- fault, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, under the seal of the district court, stating such failure, shall be given, and upon the production thereof in said state court the cause shall proceed therein as if no petition for removal had been filed. Annotated, our 216 note b. Referred to in our 302, 370. 32. When all the acts necessary for the removal of any suit or prose- cution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by suid state court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said state court a duplicate copy of said writ. Annotated, our 303 note r. 33. When any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by au- thority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law; or is commenced against any person 068 APPENDIX holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or when any suit is commenced against any person for on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit, and, together with a certifi- cate signed by an attorney or counselor at law of some court of record of the state where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be pre- sented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court. When the suit is commenced in the state court by sum- mons, subpoena, petition, or other process except capias, the clerk of the district court shall issue a writ of certiorari to the state court, requiring it to send to the district court the record and proceedings in the cause. When it is commenced by capias or by any other similar form or proceed- ing by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of winch shall be delivered to the clerk of the state court, or left at his office, by the marshal of the district or his deputy, or by some person duly authorized thereto; and thereupon it shall be the duty of the state court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial, or judgment therein in the state court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the state court can be obtained, the district court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant. Annotated, our 304 note s. Referred to in our 305, 306, 307. 34. Whenever a personal action has been or shall be brought in any state court by an alien against any citizen of a state who is, or at the JUDICIAL CODE time the alleged action accrued was, a civil officer of the United States, being a nonresident of that state wherein jurisdiction is obtained by the state court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a state court by the provisions of the preceding section. Annotated, our 301 note p. Referred to in our 373. 35. In any case where a party is entitled to copies of the records and proceedings in any suit or prosecution in a state court, to be used in any court of the United States, if the clerk of said state court, upon de- mand, and the payment or tender of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such records and proceedings are needed may. on proof by affidavit that the clerk of said state court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by affidavit or otherwise, as the circumstances of the case may require and allow; and thereupon such proceeding, trial, and judgment may be had in the said court of the United States, and all such process awarded, as if certified copies of such records and proceed- ings had been regularly before the said court. Annotated, our 308 note w. 36. When any suit shall be removed from a state court to a dis- trict court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the state court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which said suit was commenced. All bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual notwithstanding said removal; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. Annotated, our 311 note z. 37. If in any suit commenced in a district court, or removed from a state court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially invoke a dispute or controversy properly within the juris- diction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was re- moved, as justice may require, and shall make such order as to costs aa shall be just. Annotated our 310 note g. Referred to in our 601. 38. The district court of the United States shall, in all suits removed 670 APPENDIX under the provisions of this chapter, proceed therein as if the suit had been originally commenced in said district court, and the same proceedings had been taken in such suit in said district court as shall have been had therein in said state court prior to its removal. Annotated, our 312 note a. 39. In all causes removable under this chapter, if the clerk of the state court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same, a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall, on conviction thereof in the district court of the United States to which said action or proceeding was removed, be fined not more than one thousand dollars, or imprisoned not more than one year, or both. The district court to which any cause shall be removable under this chapter shall have power to issue a writ of certiorari to said state court com- manding such state court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this chapter for the removal of the same, and enforce said writ according to law. If it shall be impossible for the parties or persons removing any cause under this chapter, or complying with the provisions for the removal thereof, to obtain such copy, for the reason that the clerk of said state court re- fuses to furnish a copy, on payment of legal fees, or for any other reason, the district court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty, as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said district court shall require the other party to plead, and said action or proceeding shall proceed to final judgment. The said district court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as afore- said, shall be discharged so far as it requires copy of the record to be filed as aforesaid. Annotated, our 309 note z. JUDICIAL CODE 671 CHAPTER FOUR. DISTRICT COURTS MISCELLANEOUS PROVISIONS. Sec. 40. Capital cases; where triable. 41. Offenses on the high seas, etc., where triable. 42. Offenses begun in one district and completed in another. 43. Suits for penalties and forfeit- ures, where brought. 44. Suits for internal-revenue taxes, where brought. 45. Seizures, where cognizable. 46. Capture of insurrectionary prop- erty, where cognizable. 47. Certain seizures cognizable in any district into which the prop- erty is taken. 48. Jurisdiction in patent cases: 49. Proceedings to enjoin Comptrol- ler of the Currency. 50. When a part of several defend- ants cannot be served. 51. Civil suits; where to be brought. 52. Suits in states containing more than one district. 53. Districts containing more than one division; where suit to be brought; transfer of criminal cases. 54. Suits of a local nature, where to be brought. , 55. When property lies in different districts in same state. 56. When property lies in different states in same circuit; juris- diction of receiver. Sec. 57. Absent defendants in suits to en- force liens, remove clouds on titles, etc. 58. Civil causes may be transferred to another division of district by agreement. 59. Upon creation of new district or division, where prosecution to be instituted or action brought. 60. Creation of new district, or transfer of territory not to divest lien; how lien to be en- forced. 61. Commissioners to administer oaths to appraisers. 62. Transfer of records to district court when a territory be- comes a state. 63. District judge shall demand and compel delivery of records of territorial court. 64. Jurisdiction of district courts in cases transferred from terri- torial courts. 65. Receivers to manage property ac- cording to state laws. 66. Suits against receiver. 67. Certain persons not to be ap- pointed or employed as offi- cers of courts. 68. Certain persons not to be mas- ters or receivers. 40. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. Annotated, our 174 note n. 41. The trial of all offenses committed upon the high seas, or else- where out of the jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first brought. Annotated, our 174 note o. 42. When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been com- mitted in either, and may be dealt with, inquired of, tried, determined, 672 APPENDIX and punished in either district, in the same manner as if it had been actually and wholly committed therein. Annotated, our 174 note p. 43. All pecuniary penalties and forfeitures may be sued for and re- covered either in the district where 'they accrue or in the district where the offender is found. Annotated, our 175 note g. Referred to in our 366. 44. Taxes accruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent resides. Annotated, our 176 note s. Referred to in our 362. 45. Proceedings on seizures made on the high seas, for forfeiture under any law of the United States, may be prosecuted in any district into which the property so seized is brought and proceedings instituted. Pro- ceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided. Annotated, our 175 note r. 46. Proceedings for the condemnation of any property captured, whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. Annotated, our 177 note t. 47. Proceedings on seizures for forfeiture of any vessel or cargo enter- ing any port of entry which has been closed by the President, in pursuance of law, or of goods and chattels coming from a state or section declared by proclamation of the President to be in insurrection into other parts of the United States, or of any vessel or vehicle conveying such property, or conveying persons to or from such state or section, or of any vessel belonging, in whole or in part, to any inhabitant of such state or section, may be prosecuted in any district into which the property so seized may be taken and proceedings instituted; and the district court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. Annotated, our 178 note v. 48. In suits brought for the infringement of letters patent the dis- trict courts of the United States shall have jurisdiction, in law or in equity, in the district in which the defendant is an inhabitant, or in any district, in which the defendant, whether a person, partnership, or corpora- tion, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regu- lar and established place of business, service of process, summons, or sub- poena upon the defendant may be made by service upon the agent or agents JUDICIAL CODE 673 engaged in conducting such business in the district in which suit is brought. Annotated, our 171 note k. Referred to in our 364. 49. All proceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating lo national banking associations, shall be had in the district where such association is located. Annotated, our 172 note 1. Referred to in our 173 m. 50. Where there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and nonjoinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit. Annotated, our 173 note m. 51. Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sec- tions, no civil suit shall be brought in any district court against any per- son by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Annotated, our 161 note a. Referred to in our 230, 248, 356. 52. When a state contains more than one district, every suit not of a local nature, in the district court thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides; but if there are two or more defendants, residing in different -districts of the state, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the mar- shal of any district in the same state. Annotated, our 162 note b. 53. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if Montg. 13. G74 APPENDIX the state contains more than one district, then in any of such districts, as provided in the preceding section. All prosecutions for crimes or offenses shall be had within the division of such districts where the same were com- mitted, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to an- other division of the district. When a transfer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall he trans- mitted by the clerk, under the seal of the court,' to the division to which the cause is so ordered transferred; and thereupon the cause shall be pro- ceeded with in said division in the same manner as if the offense had been committed therein. In all cases of the removal of suits from the courts of a state to the district court of the United States such removal shall be to the United States district court in the division in which the county is situated from which the removal is made; and the time within which the removal shall be perfected, in so far as it refers to or is regulated by the terms of the United States courts, shall be deemed to refer to the terms of the United States district court in such division. Annotated, our 163 note c. 54. In suits of a local nature, where the defendant resides in a different district, in the same state, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides. Annotated, our 164 note d. 55. Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same state, may be brought in the district court of either district; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the district for which such court is constituted. Annotated, our 165 note e. 56. Where in any suit in which a receiver shall be appointed the land or other property of a fixed character, the subject of the suit, lies within different states in the same judicial circuit, the receiver so appointed shall, upon giving bond as required by the court, immediately be vested with full jurisdiction and control over all the property, the subject of the suit, lying or being within such circuit; subject, however, to the dis- approval of such order, within thirty days thereafter, by the circuit court of appeals for such circuit, or by a circuit judge thereof, after reason- able notice to adverse parties and an opportunity to be heard upon the motion for such disapproval: and subject, also, to the filing and entering in the district court for each district of the circuit in which any portion of the property may lie or be, within ten days thereafter, of a duly certified copy of the bill and of the order of appointment. The disap- proval of such appointment within such thirty days, or the failure to file such certified copy of the bill and order of appointment within ten days, as herein required, shall divest, such receiver of jurisdiction over all such property except that portion thereof lying or being within the state in which the suit is brought. In any case coming within the provisions of JUDICIAL CODE 675 this section, in which a receiver shall be appointed, process may issue and be executed within any district of the circuit in the same manner and to the same extent as if the property were wholly within the same district; but orders affecting such property shall be entered of record in each district in which the property affected may lie or be. Annotated, our 167 note g. 57. When in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon .the title to, real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or de- fendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defend-, ants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not prac- ticable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks. In case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hear- ing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants with- out appearance, affect only the property which shall have been the sub- ject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same state, such suit may be brought in either district in said state: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law. Annotated, our 166 note f. Referred to in our 656. 58. Any civil cause, at law or in equity, may, on written stipulation of the parties or of their attorneys of record signed and filed with the papers in the case, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred 676 APPENDIX to a court in any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocu- tory decrees, or other entries in the cause; and he shall certify, under the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature. Annotated, our 168 note g. 59. Whenever any new district or division has been or shall be estab- lished, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial. Civil actions pending at the time of the creation of any such district or division, or the transfer of any such county or territory, and arising within the district or division so created or the county or territory so transferred, shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or territory is. or shall be so transferred, as may be agreed upon by the parties, or as the court shall direct. The transfer of such prosecutions and actions shall be made in the manner provided in the section last pre- ceding, i Annotated, our 169 note i. 60. The creation of a new district or division, or the transfer of any county or territory from one district or division to another district or division, shall not affect or divest any lien theretofore acquired in the circuit or district court by virtue of a decree, judgment, execution, at- tachment, seizure, or otherwise, upon property situated or being within the district or division so created, or the county or territory so transferred. To enforce any such lien, the clerk of the court in which the same is acquired, upon the request and at the cost of the party desiring the same, shall make a true and certified copy of the record thereof, which, when so made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such tra^-fer, shall constitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof ; and thereafter JUDICIAL CODE 677 like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court. The provisions of this section shall apply not only in all cases where a district or division is created, or a county or any territory is transferred by this or any future act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted. Annotated, our 170 note g. 61. Any district judge may appoint commissioners, before whom ap- praisers of vessels or goods and merchandise seized for breaches of any law of the United States, may be sworn; and such oaths, so taken, shall be as effectual as if taken before the judge in open court. Annotated, our 42 note pp. 62. When any territory is admitted as a state, and a district court is established therein, all the records of the proceedings in the several cases pending in the highest court of said territory at the time of such admission, and all records of the proceedings in the several cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the Supreme Court or to the circuit court of appeals, shall be transferred to and deposited in the district court for the said state. Annotated, our 69 note i. 63. It shall be the duty of the district judge, in the case provided in the preceding section, to demand of the clerk, or other person having pos- session or custody of the records therein mentioned, the delivery there- of, to be deposited in said district court; and in case of the refusal of such clerk or person to comply with such demand, the said district judge shall compel the delivery of such records by attachment or otherwise, according to law. Anotated, our 69 note j. 64. When any territory is admitted as a state, and a district court is established therein, the said district court shall take cognizance of all cases which were pending and undetermined in the trial courts of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court or to the circuit court of appeals, and shall proceed to hear and determine the same. Annotated, our 209 note g. 65. Whenever in any cause pending in any court of the United States there shall be a receiver or manager in possession of any property, such receiver or manager shall manage and operate such property according to the requirements of the valid laws of the state in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof. Any receiver or manager who shall wilfully violate any provision of this section shall be fined not more than three thousand dollars, or imprisoned not more than one year, or both. Annotated, our 1062 note h. C78 APPENDIX 66. Every receiver or manager of any properly appointed by any court of the United States may be sued in respect of any act or transac- tion of his in carrying on the business connected with such property, with- out the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdic- tion of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice. Annotated, our 1053 note c. 67. No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court. As amended, Act Dec. 21, 1911, ch. 4, 37 Stat. at L. 46. See our 32. Annotated, our 32 note 1. 68. No clerk of a district court of the United States or his deputy shall be appointed a receiver or master in any case, except where the judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment. Annotated, our 41, note p. CHAPTER FIVE. DISTRICT COURTS DISTRICTS, AND PROVISIONS APPLICABLE TO PARTICULAR STATES. Sec. Sec. 69. Judicial districts. 93. Nebraska. 70. Alabama. 94. Nevada. 71. Arkansas. 95. New Hampshire. 72. California. 96. New Jersey. 73. Colorado. 97. New York. 74. Connecticut. 98. North Carolina. 75. Delaware. 99. North Dakota. 76. Florida. 100. Ohio. 77. Georgia. 101. Oklahoma. 78. Idaho. 102. Oregon. 79. Illinois. 103. Pennsylvania. 80. Indiana. 104. Rhode Island. 81. Iowa. 105. South Carolina. 82. Kansas. 106. South Dakota. 83. Kentucky. 107. Tennessee. 84. Louisiana. 108. Texas. 85. Maine. 109. Utah. 86. Maryland. 110. Vermont. 87. Massachusetts. 111. Virginia. 88. Michigan. 112. Washington. 89. Minnesota. 113. West Virginia. 90. Mississippi. 114. Wisconsin. 91. Missouri. 115. Wyoming. 92. Montana. 69. The United States are divided into judicial districts as follows: 36 Stat. at L. 1105, Comp. St. 1911, p. 156, 1912 Supp. F. S. A. v. 1, p. 160. Re-enacting 297, R. S. U. S., Comp. St. 1901, p. 316, 4 F. S. A. 16, JUDICIAL CODE 679 which section is repealed by 297, Judicial Code. In general, Barrett v. United States, 169 U. S. 218, 42 L. ed. 723, 18 Sup. Ct. Rep. 327. 70. The state of Alabama is divided into three judicial districts, to be known as the northern, middle, and southern districts of Alabama. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cullman, Jackson, Law- rence, Limestone, Madison, and Morgan, which shall constitute the north- eastern division of said district; also the territory embraced on the date last mentioned in the counties of Colbert, Franklin, and Lauderdale, which shall constitute the northwestern division of said district; also the territory embraced on the date last mentioned in the counties of Cherokee, De Kalb, Etowah, Marshall, and Saint Clair, which shall constitute the middle division of said district; also the territory embraced on the date last mentioned in the counties of Blount, Jefferson, and Shelby, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Walker, Winston, Marion, Fayette, and Lamar, which shall constitute the Jasper division of said district; also the territory embraced on the date last mentioned in the counties of Calhoun, Clay, Cleburne, and Talladega, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Bibb, Greene, Pickens, Sumter, and Tuscdloosa, which shall con- stitute the western division of said district. Terms of the district court for the northeastern division shall be held at Huntsville on the first Tuesday in April and the second Tuesday in October; for the northwestern division, at Florence on the second Tuesday in February and the third Tuesday in October: Provided, That suitable rooms and accommodations for holding court at Florence shall be furnished free of expense to the government : for the middle division, at Gadsden on the first Tuesdays in February and August: Provided, That suitable rooms and accommodations for the hold- ing court at Gadsden shall be furnished free of expense to the govern- ment; for the southern division, at Birmingham on the first Mondays in March and September, which courts shall remain in session for the transac- tion of business at least six months in each calendar year; for the Jasper division, at Jasper on the second Tuesdays in January and June: Pro- vided, That suitable rooms and accommodations for holding court at Jasper shall be furnished free of expense to the government; for the eastern division, at Anniston on the first Mondays in May and November; and for the western division, at Tuscaloosa on the first Tuesdays in January and June. The clerk of the court for the northern district shall main- tain an office in charge of himself or a deputy at Anniston, at Florence, at Jasper, and at Gadsden, which shall be kept open at all times for the transaction of the business of said court. The district judge for the northern district shall reside at Birmingham. The middle district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Autauga, Barbour, Bullock, Butler, Chilton, Chambers, Coosa, Covington, Crensha.v, Elmorc, Lee, Lowndes, Macon, Mont- gomery, Pike, Randolph, Russell, and Tallapoosa, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Coffee, Dale. Geneva, Henry, and Houston, 080 APPENDIX which shall constitute the southern division of said district. Terms of the district court for the northern division shall be held at Montgomery on the first Tuesdays in May and December; and for the southern division, at Dothan on the first Mondays in June and December. The clerk for the middle district shall maintain an office, in charge of himself or a deputy, at Dothan, which shall be open at all times for the transaction of the business of said division. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baldwin, Choctaw, Clarke, Conecuh, Escambia, Mobile, Monroe, and Washington, which shall constitute the southern division of said district; also the territory embraced on the date last mentioned in the counties of Dallas, Hale, Marengo, Perry, and Wilcox, which shall constitute the north- ern division of said district. Terms of the district court for the southern division shall be held at Mobile on the fourth Mondays in May and No- vember; and for the northern division, at Selma on the first Mondays in May and November. Annotated, our 101 note a. As amended, Act Feb. 28. 1913, ch. 89. See our 101. 71. The state of Arkansas is divided into two districts, to be known as the eastern and western districts of Arkansas. The western district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Sevier, Howard, Little River, Pike, Hempstead r Miller, Lafayette, Columbia, Nevada, Ouachita, Union, and Calhoun, which shall constitute the Texarkana division of said district; also the territory embraced on the date last mentioned in the counties of Polk, Scott, Yell, Logan, Sebastian, Franklin, Crawford, Washington, Benton, and Johnson, which shall constitute the Fort Smith division of said district; also the territory embraced on the date last mentioned in the counties of Baxter, Boone, Carroll, Madison, Marion, Newton and Searcy, which shall constitute the Harrison division of said district. Terms of the district court for the Texarkana division shall be held at Texarkana on the second Mondays in May and November; for the Fort Smith division, at Fort Smith on the second Mondays in January and June; and for the Harrison division, at Harrison on the second Mondays in April and October. The eastern district shall include the territory embraced on the first day of July, nineteen hun- dred and ten, in the counties of Lee, Phillips, Saint Francis, Cross, Monroe, and Woodruff, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Independence. Cleburne, Stone, Izard, Sharp, and Jackson, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Crittenden, Clay, Craighead, Greene, Mississippi, Poinsett, Fulton, Randolph, and Lawrence, which shall constitute the Jonesboro division of said district; and also the territory embraced on the date last mentioned in the counties of Arkansas, Ashley, Bradley, Chicot, Clark, Cleveland, Conway, Dallas, Desha, Drew, Faulk- ner, Garland, Grant, Hot Spring, Jefferson, Lincoln, Lonoke, Montgomery, Perry, Pope, Prairie, Pulaski, Saline, Van Buren, and White, which shall constitute the western division of said district. Terms of the district court for the eastern division shall be held at Helena on the second Mondav in JUDICIAL CODE 681 March and the first Monday in October; for the northern division, at Bates- ville on the fourth Monday in May and the second Monday in December: for the Jonesboro division, at Jonesboro on the second Mondays in May and November; and for the western division at Little Rock on r the first Monday in April and the third Mondays in October. The clerk of the \;ourt for the eastern district shall maintain an office in charge of himself or a deputy at Little Rock, at Helena, at Jonesboro, and at Batesville, which shall be kept open at all times for the transaction of the business of the court. And the clerk of the court for the western district shall maintain an office in charge of himself or a deputy at Fort Smith, at Har- rison, and at Texarkana, which shall be kept open at all times for tin- transaction of the business of the court. Annotated, our 102 note b. 72. The state of California is divided into two districts, to be known as the northern and southern districts of California. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, and Tulare, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura, which shall con- stitute the southern division of said district. Terms of the district court for the northern division shall be held at Fresno on the first Monday in May and the second Monday in November; and for the southern division, at Los Angeles, on the second Monday in January and the second Monday in July, and at San Diego on the second Mondays in March and September. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alameda, Alpine, Ama- dor, Butte, Calaveras, Colusa. Contra Costa, Del Norte, El Dorado, Glenn, Humboldt. Lake, Lassen, Marin, Mendocino, Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San Francisco, San Jo- aquin, San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba. Terms of the district court for the northern district shall be held at San Francisco on the first Monday in March, the second Monday in July, and the first Monday in November; at Sacramento on the second Monday in April; and at Eureka on the third Monday in July. Annotated, our 104 note c. 73. The state of Colorado shall constitute one judicial district, to be known as the district of Colorado. Terms of the district court shall be held at Denver on the first Tuesdays in May and November; at Pueblo on the first Tuesday in April; and at Montrose on the second Tuesday in Sep- tember. Annotated, our 105 note d. 74. The state of Connecticut shall constitute one judicial district, to be known as the district of Connecticut. Terms of the district court shall be held at New Haven on the fourth Tuesdays in February an.d September, and at Hartford on the fourth Tuesday in May and the first Tuesday in December, Annotated, our 106 note e. 682 APPENDIX 75. The state of Delaware shall constitute one judicial district, to be known as the district of Delaware. Terms of the district court shall be held at Wilmington on the second Tuesdays in March, June, September, and December. Annotated, our 107 note f. 76. The state of Florida is divided into two districts, to be known as the northern and southern districts of Florida. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Baker, Bradford, Brevard, Citrus, Clay, Columbia, Dade, De Soto, Duval, Hamilton, 'Hernando, Hillsboro, Lake, Lee, Madison, Manatee,' Marion, Monroe, Nassau, Orange, Osceola, Palm Beach, Pasco, Polk, Putnam, Saint John, Sumter, Suwanee, Saint Lucie, and Volusia. Terms of the district court for the southern district shall be held at Ocala on the third Monday in January; at Tampa on the second Monday in Feb- ruary; at Key West on the first Mondays in May and November; at Jackson- ville on the first Monday in December; at Fernandina on the first Monday in April; and at Miami on the fourth Monday in April. The district court for the southern district shall be open at all times for the purpose of hear- ing and deciding causes of admiralty and maritime jurisdiction. The north- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Alachua, Calhoun, Escambia, Franklin, Gadsden, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Santa Rosa, Taylor, Wakulla, Walton, and Washington. Terms of the district court for the northern district shall be held at Tallahassee on the second Monday in January; at Pensacola on the first Mondays in May and November; at Marianna on the first Monday in April; and at Gaines- ville on the second Mondays in June and December. Annotated, our 108 note f. 77. The state of Georgia is divided into two districts, to be known as the northern and southern districts of Georgia. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Campbell, Carroll, Clayton, Cobb, Coweta, Chero- kee, Dekalb, Douglas, Dawson, Fannin, Fayette, Fulton, Forsyth, Gilmer, Gwinnett, Hall, Henry, Lumpkin, Milton, Newton, Pickens, Rockdale, Spald- ing, Towns, and Union, which shall constitute the northern division of said district; also the territory embraced on the date last mentioned in the counties of Banks, Clarke, Elbert, Franklin, Greene, Habersham, Hart, Jack- son, Morgan, Madison, Oglethorpe, Oconee, Rabun, Stephens, Walton, and W 7 hite, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Chatta- hoochee, Clay, Early, Harris, Heard, Meriwether, Marion, Muscogee, Quit- man, Randolph, Schley, Stewart, Talbot, Taylor, Terrell, Troup, and Webster, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Bartow, Chattooga, Catoosa, Dade, Floyd, Gordon, Haralson, Murray, Paulding, Polk, Walker, and Whitfield, which shall constitute the northwestern division of said dis- trict. Terms, of the district court for northern division of said district shall be held at Atlanta on the second Monday in March and the first Monday in October; for the eastern division, at Athens on the second Monday in JUDICIAL CODE 683 April and the first Monday in November; for the western division, at Co- lumbus on the first Mondays in May and December; and for the northwestern division, at Rome on the third Mondays in May and November. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Athens, at Columbus, and at Rome, which shall be kept open at all times for the transaction of the business of the court. The southern district shall include the territory embraced on the said first day of July, nineteen hundred and ten, in the counties of Appling, Bulloch, Bryan, Camden, Chatham, Emanuel, Effingham, Glynn, Jeff Davis, Liberty, Montgomery, Mclntosh, Screven, Tatnall, Toombs, and Wayne, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties of Baldwin, Bibb, Butts, Crawford, Dodge, Dooly, Hancock, Houston, Jasper, Jones, Laurens, Macon, Monroe, Pike, Pulaski, Putnam, Sumter, Telfair, Twiggs, Upson, Wilcox, and Wilkin- son, which shall constitute the western division; also the territory embraced on the date last mentioned in the counties of Burke, Columbia, Glascock, Jefferson, Jenkins, Johnson, Lincoln, McDuffie, Richmond, Taliaferro, Wash- ington, Wilkes, and Warren, which shall constitute the northeastern division; also the territory embraced on the date last mentioned in the counties of Ber- rien, Brooks, Charlton, Clinch, Coffee, Decatur, Echols, Grady, Irwin, Lowndes, Pierce, and Ware, which shall constitute the southwestern divi- sion; and also the territory embraced on the date last mentioned in the counties of Baker, Benn Hill, Calhoun, Crisp, Colquitt, Dougherty, Lee, Miller, Mitchell, Thomas, Tift, Turner, and Worth, which shall constitute the Albany division. Terms of the district court for the western division shall be held at Macon on the first Mondays in May and October; for the eastern division, at Savannah on the second Tuesdays in February, May, August, and November; for the northeastern division, at Augusta on the first Monday in April and the third Monday in November; for the south- western division, at Valdosta on the second Mondays in June and December; and for the Albany division, at Albany on the third Mondays in June and December. Annotated, our 109 note h. As amended March 4, 1913, ch. 167. See our 109. 78. The state of Idaho shall constitute one judicial district, to be known as the district of Idaho. It is divided into four divisions, to be known as the northern, central, southern, and eastern divisions. The territory em- braced on the first day of July, nineteen hundred and ten, in the counties of Bonner, Kootenai, and Shoshone, shall constitute the northern division of said district; and the territory embraced on the date last mentioned in the counties of Idaho, Latah, and Nez Perce, shall constitute the central division of said district; and the territory embraced on the date last men- tioned in the counties of Ada, Boise, Blaine, Cassia, Twin Falls, Canyon, El- more, Lincoln, Owyhee, and Washington, shall constitute the southern divi- sion of said district; and the territory embraced on the date last mentioned in the counties of Bannock, Bear Lake, Bingham, Custer, Fremont, Lemhi, and Oneida, shall constitute the eastern division of said district. Terms of the district court for the northern division of said district shall be held at Coeur d'Alene city on the fourth Monday in May and the third Monday in 684 APPENDIX November; for the central division, at Moscow on the second Monday in May and the first Monday in November; for the southern division, at Boise city on the second Mondays in February and September; and for the eastern division, at Pocatello on the second Mondays in March and October. The clerk of the court shall maintain an office in charge of himself or a dep- uty at Coeur d'Alene city, at Moscow, at Boise city, and at Pocatello, which shall be open at all times for the transaction of the business of the court. Annotated, our 110 note i. 79. The state of Illinois is divided into three districts, to be known as the northern, southern, and eastern districts of Illinois. The north- ern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Cook, Dekalb, Dupage, Grun- dy, Kane, Kendall, Lake, Lasalle, McHenry, and Will, which shall con- stitute the eastern division; also the territory embraced on the date last mentioned in the counties of Boone, Carroll, Jo Daviess, Lee, Ogle, Stephen- son, Whiteside, and Winnebago, which shall constitute the western division. Terms of the district court for the eastern division shall be held at Chicago on the first Mondays in February, March, April, May, June, July, September, October, and November, and the third Monday in December; and for the western division, at Freeport on the third Mondays in April and October. The clerk of the court for the northern district shall maintain an office in charge of himself or a deputy at Chicago and at Freeport, which shall be kept open at all times for the transaction of the business of the court. The marshal for the northern district shall maintain an office in the division in which he himself does not reside and shall appoint at least one deputy who shall reside therein. The southern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Bureau, Fulton, Henderson, Henry, Knox, Livingston, McDonough, Mar- si) all, Mercer, Putnam, Peoria, Rock Island, Stark, Tazewell, Warren, and VVoodford, which shall constitute the northern division; also the territory embraced on the date last mentioned in the counties of Adams. Bond, Brown, Calhoun, Cass, Christian, Dewitt, Greene, Hancock, Jersey, Logan, McLean, Macon, Macoupin, Madison, Mason, Menard, Montgomery, Morgan, Pike, Sangamon, Schuyler, and Scott, which shall constitute the southern division. Terms of the district court for the northern division shall be held at Peoria on the third Mondays in April and October; for the southern division, at Springfield on the first Mondays in January and June, and at Quincy on the first Mondays in March and September. The clerk of the court for the south- ern district shall maintain an office in charge of himself or a deputy at Peoria, at Springfield, and at Quincy, which shall be kept open at all times for the transaction of the business of the court. The marshal for said southern district shall appoint at least one deputy residing in the said northern division, who shall maintain an office at Peoria. The eastern dis- trict shall include the territory embraced on the first day of July, nineteen hundred and ten,* in the counties of Alexander, Champaign, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Ford, Franklin, Gallatin, Hamilton, Hardin, Iroquois, Jackson, Jas- per, Jefferson, Johnson, Kankakee, Lawrence, Marion, Massac. Monroe, Moul- JUDICIAL CODE 685 trie, Perry, Piatt, Pope, Pulaski, Randolph, Richland, Saint Clair, Saline, Shelby, Union, Vermilion, Wabash, Washington, Wayne, White, and William- son. Terms of the district court for the eastern district shall be held at Danville on the first Mondays in March and September; at Cairo on the first Mondays in April and October; and at East Saint Louis on the first Mon- days in May and November. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Danville, at Cairo, and at East Saint Louis, which shall be kept open at all times for the transaction of the business of the court, and shall there keep the records, files, and documents pertaining to the court at that place. 80. The state of Indiana shall constitute one judicial district, to be known as the district of Indiana. Terms of the district court shall be held at Indianapolis on the first Tuesdays in May and November; at New Al- bany on the first Mondays in January and July; at Evansville on the first Mondays in April and October; at Fort Wayne on the second Tuesdays in June and December; and at Hammond on the third Tuesdays in April and October. The clerk of the court shall appoint four deputy clerks, one of whom shall reside and keep his office at New Albany, one at Evansville, one at Fort Wayne, and one at Hammond. Each deputy shall keep in his office full records of all actions and proceedings of the district court held at that place. Annotated, our 112 note k. 81. The state of Iowa is divided into two judicial districts, to be known as the northern and southern districts of Iowa. The northern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Allamakee, Dubuque, Buchanan, Clayton, Dela- ware, Fayette, Winneshiek, Howard, Chickasaw, Bremer, Blackhawk, Floyd, Mitchell, and Jackson, which shall constitute the eastern division of said district; also the territory embraced on the date last mentioned in the counties on Jones, Cedar, Linn, Johnson, Iowa, Benton, Tama, Grundy, and Hardin, which shall constitute the Cedar Rapid division; also the territory embraced -on the date last mentioned in the counties of Emmit, Palo Alto, Pocahontas, Calhoun, Kossuth, Humboldt, Webster, Winnebago, Hancock, Wright, Hamilton, Worth, Cerro Gordo, Franklin, and Butler, which shall constitute the central division ; also the territory embraced on the date last mentioned in the counties of Dickinson, Clay, Buena Vista, Sac, Osceola, O'Brien, Cherokee, Ida, Lyon, Sioux, Plymouth, Woodbury, and Monona, which shall constitute the western division. Terms of the district court for the eastern division shall be held at Dubuque on the fourth Tuesday in April and the first Tuesday in December, and at Waterloo on the second Tuesdays in May and September; for the Cedar Rapids division, at Cedar Rapids on the first Tuesday in April and the fourth Tuesday in September; for the central division, at Fort Dodge on the second Tuesdays in June and No- vember; and for the western division, at Sioux City on the fourth Tuesday in May and the third Tuesday in October. The southern district shall in- clude the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Louisa, Henry. Des Moines, Lee, and Van Buren, which shall constitute the eastern division of said district; also the terri- tory embraced on the date last mentioned in the counties of Marshall, Story, 686 APPENDIX Boone, Greene, Guthrie, Dallas, Polk, Jasper, Poweshiek, Marion, Warren, and Madison, which shall constitute the central division of said district; also the territory embraced on the date last mentioned in the counties of Carroll, Crawford, Harrison, Shelby, Audubon, Cass, Pottawattamie, Mills, and Montgomery, which shall constitute the western division of said district; also the territory embraced on the date last mentioned in the counties of Adair, Adams, Clarke, Decatur, Fremont, Lucas, Page, Ringgold, Taylor, Union, and Wayne, which shall constitute the southern division of said dis trict; also the territory embraced on the date last mentioned in the counties of Scott, Muscatin, Washington, and Clinton, which shall constitute the Davenport division of said district; also the territory embraced on the date last mentioned in the counties of Davis, Appanoose, Mahaska, Keokuk, Jeffer- son, Monroe, and Wapello, which shall constitute the Ottumwa division of said district. Terms of the district court for the eastern division shall be held at Keokuk on the second Tuesday in April and the third Tuesday in October; for the central division, at Des Moines on the second Tuesday in May and the third Tuesday in November; for the western division, at Council Bluffs on the second Tuesday in March and the third Tuesday in September; for the southern division, at Creston on the fourth Tuesday in March and the first Tuesday in November; for the Davenport division, at Davenport on the fourth Tuesday in April and the first Tuesday in October; and for the Ottumwa division, at Ottumwa on the first Monday after the fourtli Tuesday in March, and the first Monday after the third Tuesday in October. The clerk of the court for said district shall maintain an office in charge of himself or a deputy at Davenport and at Ottumwa. for the transaction of the business of said divisions. Annotated, our 113 note 1, as amended Mch. 3, 1913. See our 113. 82. The state of Kansas shall constitute one judicial district, to be known as the district of Kansas. It is divided into three divisions, to be known as the first, second, and third divisions of the district of Kansas. The first division shall include the territory embraced on the first day of July, nine- teen hundred and ten, in the counties of Atchison, Brown, Chase, Cheyenne, Clay, Cloud, Decatur, Dickinson, Doniphan, Douglas, Ellis, Franklin, Geary, Gove, Graham, Jackson, Jefferson, Jewell, Johnson, Leavenworth, Lincoln, Logan, Lyon, Marion, Marshall, Mitchell, Morris, Nemaha, Norton, Osage, Osborne, Ottawa, Phillips, Pottawatomie, Rawlins, Republic. Riley, Rooks, Russell, Saline, Shawnee, Sheridan. Sherman, Smith, Thomas, Trego, Wabaun- see, Wallace, Washington, and Wyandotte. The second division shall include the territory embraced on the date last mentioned in the counties of Barber, Barton, Butler, Clark, Comanche, Cowley, Edwards, Ellsworth, Finney, Ford, Grant, Gray, Greeley, Hamilton, Harper, Harvey, Hodgeman, Haskell, King- man, Kiowa, Kearny, Lane, McPherson, Morton, Meade, Ness, Pratt, Pawnee, Reno, Rice, Rush, Scott, Sedgwick, Stafford, Stevens, Seward, Suniner, Stan- ton, and Wichita. The third division shall include the territory embraced on the said date last mentioned in the counties of Allen, Anderson, Bourbon, Cherokee, Coffey, Chautauqua, Crawford, Elk, Greenwood. Labette, Linn. Mi- ami,* Montgomery, Neosho, Wilson, and Woodson. Terms of the district court for the first division shall be held at Leavenworth on the second Monday JUDICIAL CODE 687 in October; at Topoka on the second Monday in April; at Kansas City on the second Monday in January and the first Monday in October; and at Salina on the second Monday in May; but no cause, action, or proceed- ing shall be tried or considered at any term held at Salina unless by consent of all the parties thereto, or by order of the court for cause. Terms of ^the district court for the second division shall be held at Wichita on the second Mondays in March and September; and for the third division, at Fort Scott on the first Monday in May and the second Monday in November. The clerk of the district court shall appoint two deputies, one of whom shall reside and keep his office at Fort Scott, and the other at Wichita; and the marshal shall appoint a deputy who shall reside and keep his office at Fort Scott. Annotated, our 114 note m. 83. The state of Kentucky is divided into two districts, to be known as the eastern and western districts of Kentucky. The eastern district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Carroll, Trimble, Henry, Shelby, Anderson, Mercer, Boyle, Gallatin, Boone, Kenton, Campbell, Pendleton, Grant, Owen, Franklin, Bourbon, Scott, Woodford, Fayette, Jessamine, Garrard, Madison, Lincoln, Rockcastle, Pulaski, Wayne, Whitley, Bell, Knox, Harlan, Laurel, Clay, Leslie, Letcher, Perry, Owsley, Jackson, Estill, Lee, Breathitt, Knott, Pike, Floyd, Magofiin, Martin, Johnson, Lawrence, Boyd, Greenup, Carter, Elliott, Morgan, Wolfe, Powell, Menifee, Clark, Montgomery, Bath, Rowan, Lewis, Fleming, Mason, Bracken, Robertson, Nicholas, and Harrison, with the waters thereof. Terms of the district court for the eastern district shall be held at Frank- fort on the second Monday in March and the fourth Monday in September ; at Covington on the first Monday in April and the third Monday in October; at Richmond on the fourth Monday in April and the second Monday in No- vember; at London on the second Monday in May and the fourth Monday in November; at Catlettsburg on the fourth Monday in May and the second Monday in December; and at Jackson on the first Monday in March and the third Monday in September: Provided, That suitable rooms and accom- modations are furnished for holding court at Jackson free of expense to the government until such time as a public building shall be erected there. The western district shall include the territory embraced on the first day of July, nineteen hundred and ten, in the counties of Oldham, Jefferson, Spencer, Bullitt, Nelson, Washington, Marion, Larue, Taylor, Casey, Green, Adair, Russell, Clinton, Cumberland, Monroe, Metcalfe, Allen, Barren, Simpson, Lo- gan, Warren, Butler, Hart, Edmonson, Grayson, Hardin, Meade, Breckinridge, Hancock, Daviess, Ohio, McLean, Muhlenberg, Todd, Christian, Trigg, Lyon, Caldwell, Livingston, Crittenden, Hopkins, Webster, Henderson, Union, Mar- shall, Calloway, McCracken, Graves, Ballard, Carlisle, Hickman, and Fulton, with the waters thereof. Terms of the district court for the western district shall be held at Louisville on the second Mondays in March and October; at Owensboro on the first Monday in May and the fourth Monday in November; at Paducah on the third Mondays in April and November; and at Bowling Green on the third Monday in May and the second Monday in December. The clerk of the court for the eastern district shall maintain an office in charge of himself or a deputy at Frankfort, at Covington, at Richmond, at 688 APPENDIX London, at Catlettsburg, and at Jackson; and the clerk for the western district shall maintain an office in charge of himself or a deputy at Louis- ville, at Owensboro, at Paducah, and at Bowling Green, each of which offices shall be kept open at all times for the transaction of the business of said court. The clerks of the courts for the eastern and western districts, upon issuing original process in a civil action, shall make it returnable to the court nearest to the county of the resiednce of the defendant, or of that defendant whose county is nearest to a court, and shall, immediately upon payment by the plaintiff of his fees accrued, send the papers filed to the clerk of the court to which the process is made returnable; and whenever th;nk. on such dates as the court may order. The marshal and clerk of the said court shall each, respectively, appoint at least one deputy to reside at Evanston, and one to reside at Lander, unless he himself shall reside 708 APPENDIX there, and shall also maintain an office at each of those places: Provided, That until a public building is provided at Lander, suitable accommodations for holding court in said town shall be furnished the government at an expense not to exceed three hundred dollars annually. The marshal of the United States for the said district may appoint one or more deputy marshals for the Yellowstone National Park, who shall reside in said park. Annotated, our 148 notes. CHAPTER SIX. CIRCUIT COURTS OF APPEALS. Sec. 116. Circuits. 117. Circuit courts of appeals. 118. Circuit judges. 119. Allotment of justices to the cir- cuits. 120. Chief Justice and associate jus- tices of Supreme Court, and district judges, may sit in cir- cuit court of appeals. 121. Justices, alloted to circuits, how designated. 122. Seals, forms of process, and rules. 123. Marshals. 124. Clerks. 125. Deputy clerks; appointment and removal. 126. Terms. 127. Rooms for court, how provided. 128. Jurisdiction; when judgment final. Sec. 129. Appeals in proceedings for in- junctions and receivers. 130. Appellate and supervisory ju- risdiction under the bankrupt act. 131. Appeals from the United States court for China. 132. Allowance of appeals, etc. 133. Writs of error and appeals from the supreme courts of Arizona and New Mexico. 134. Writs of error and appeals from district court for Alaska to circuit court of appeals for ninth circuit; court may cer- tify question to the Supreme Court. 135. Appeals and writs of error from Alaska; where heard. 116. There shall be nine judicial circuits of the United States, con- stituted as follows: First. The first circuit shall include the districts of Rhode Island, Massa- chusetts, New Hampshire, and Maine. Second. The second circuit shall include the districts of Vermont, Con- necticut, and New York. Third. The third circuit shall include the districts of Pennsylvania, New Jersey, and Delaware. Fourth. The fourth circuit shall include the districts of Maryland, Vir- ginia, West Virginia, North Carolina, and South Carolina. Fifth. The fifth circuit shall include the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. Sixth. The sixth circuit shall include the districts of Ohio, Michigan, Kentucky, and Tennessee. Seventh. The seventh circuit shall include the districts of Indiana, Illinois, and Wisconsin. Eighth. The eighth circuit shall include the districts of Nebraska, Min- JUDICIAL CODE 709 nesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyoming, North Dakota, South Dakota, Utah and Oklahoma. Ninth. The ninth circuit shall include the districts of California, Oregon, Nevada, Washington, Idaho, Montana, and Hawaii. Annotated, our 2400 note a. 117. There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record, with appellate jurisdiction as hereinafter limited and established. Annotated, our 2401 note b. 118. There shall be in the second, seventh, and eighth circuits, re- spectively, four circuit judges, in the fourth circuit, two circuit judges, and in each of the other circuits, three circuit judges, to be appointed by the President, by and with the advice and consent of the Senate. They shall be entitled to receive a salary at the rate of seven thousand dollars a year, each, payable monthly. Each circuit judge shall reside within his circuit. Annotated, our 2401 note c, as amended January 13, 1912, ch. 9. See our 2401. 11 0. The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made whenever it becomes necessary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or otherwise. If a new allotment be- comes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. Whenever, by reason of death or resig- nation, no justice is allotted to a circuit, the Chief Justice may, until a justice is regularly allotted thereto, temporarily assign a justice of another circuit to such circuit. Annotated, our 2402 note e. 120. The Chief Justice and the associate justices of the Supreme Court assigned to each circuit, and the several district judges within each cir- cuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits. In case the Chief Justice or an associate justice of the Supreme Court shall attend at any session of the circuit court of appeals, he shall preside. In the absence of such Chief Justice, or associate justice, the circuit judges in attendance upon the court shall preside in the order of the seniority of their respective commissions. In case the full, court at any time shall not be made up by the attendance of the Chief Justice or the associate justice, and the circuit judges, one or more district judges within the circuit shall sit in the court accord- ing to such order or provision among the district judges as either by general or particular assignment shall be designated by the court: Provided, That no judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of ap- peals. Annotated, our 2403 note f. 710 APPENDIX 121. The words "circuit justice" and "justice of a circuit," when used in this title, shall be understood to designate the justice of the Supreme! Court who is allotted to any circuit; but the word "judge," when applied generally to any circuit, shall be understood to include such justice. Annotated, our 2401 note d. 122. Kach of said circuit courts of appeals shall prescribe the form and style of its seal, and the form of writs and other process and pro- cedure as may be conformable to the exercise of its jurisdiction : and shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law. Annotated, our 2407 note k. 123. The United States marshals in and for the several districts of said courts 1 shall be the marshals of said circuit courts of appeals, and shall exercise the same powers and perform the same duties, under the regulations of the court, as are exercised and performed by the marshal of the Supreme Court of the United States, so far as the same may be ap- plicable. Annotated, our 2405 note i. 124. Each court shall appoint a clerk, who shall exercise the same powers and perform the same duties in regard to all matters within its jurisdiction, as are exercised and performed by the clerk of the Supreme Court, so far as the same may be applicable. Annotated, our 2404 note g. 125. The clerk of the circuit court of appeals for each circuit may, with the approval of the court, appoint such number of deputy clerks as the court may deem necessary. Such deputies may be removed at the pleasure of the clerk appointing them, with the approval of the court. In case of the death of the clerk his deputy or deputies shall, unless removed by the court, continue in office and perform the duties of the clerk in his name until a clerk is appointed and has qualified; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable, and his executor or administrator shall have such remedy for such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Annotated, our 2404 note h. 126. A term shall be held annually by the circuit courts of appeals in the several judicial circuits at the following places, and at such times as may be fixed by said courts, respectively: In the first circuit, in Boston; in the second circuit, in New York; in the third circuit, in Phila- delphia; in the fourth circuit, in Richmond; in the fifth circuit, in New Orleans, Atlanta, Fort Worth, and Montgomery; in the sixth circuit, in Cincinnati ; in the seventh circuit, in Chicago; in the eighth circuit, in Saint Louis, Denver, or Cheyenne, and Saint Paul: in the ninth circuit, in San Francisco, and each year in two other places in said circuit to be designated by the judges of said court; and in each of the above circuits, terms may be held at such other times and in such other places as said courts, respectively, may from time to time designate: Provided, That JUDICIAL CODE 711 terms shall be held in Atlanta on the first Monday in October, in Fort Worth on the first Monday in November, in Montgomery on the third Monday in October, in Denver or in Cheyenne on the first Monday in September, and in Saint Paul on the first -Monday in May. All appeals, writs of error, and other appellate proceedings which may be taken or prosecuted from the district courts of the United States in the state of Georgia, in the state of Texas, and in the state of Alabama, to the circuit court of appeals for the fifth judicial circuit shall be heard and disposed of, respectively, by said court at the terms held in Atlanta, in Fort Worth, and in Mont gomery, except that appeals or writs of error in cases of injunctions and in all other cases which, under the statutes and rules, or in the opinion of the court, are entitled to be brought to a speedy hearing may be heard and disposed of wherever said court may be sitting. All appeals, writs of errors, and other appellate proceedings which may hereafter be taken or prosecuted from the district court of the United States at Beaumont, Texas, to the circuit court of appeals for the fifth circuit, shall be heard and disposed of by the said circuit court of appeals at the terms of court held at New Orleans: Provided, That nothing herein shall prevent the court from hearing appeals or writs of error wherever the said court shall sit, in cases of injunctions and in all other cases which, under the stat- utes and the rules, or in the opinion of the court, are entitled to be brought to a speedy hearing. All appeals, writs of error, and other appellate pro- ceedings which may be taken or prosecuted from the district courts of the United States in the states of Colorado, Utah, and Wyoming, and the supreme court of the Territory of New Mexico to the circuit court of appeals for the eighth judicial circuit, shall be heard and disposed of by said court at the terms held either in Denver or in Cheyenne, except that any case arising in any of said states or territory may, by consent of all the parties, be heard and disposed of at a term of said court other than the one held in Denver or Cheyenne. Annotated, our 2406 note j. 127. The marshals for the several districts in which said circuit courts of appeals may be held shall, under the direction of the Attorney Gen- eral, and with his approval, provide such rooms in the public buildings of the United States as may be necessary for the business of said courts, and pay all incidental expenses of said court, including criers, bailiffs, and messengers: Provided, That in case proper rooms can not be provided in such buildings, then the marshals, with the approval of the Attorney General, may, from time to time, lease such rooms as may be necessary for such courts. 36 Stat. at L. 1133, Comp. St. 1911, p. 193, 1912 Supp. F. S. A. v. 1, p. 194. Re-enacting part of 26 Stat. at L. 829, Foster's Fed. Prac. pp. 79, 1156, 1451, 1661. 1607, 1955, 2017, 2063, 2132, 2133, Comp. St. 1901, p. 552, 4 F. S. A. 427. In general, In re Lyman, 55 Fed. 29. 128. The circuit courts of appeals shall exercise appellate jurisdic- tion to review by appeal or writ of error final decisions in the district courts, including the United States district court for Hawaii, in all cases other than those in which appeals and writs of error may be taken direct 712 APPENDIX to the Supreme Court, as provided in section two hundred and thirty- eight, unless otherwise provided by law; and, except as provided in sec- tions two hundred and thirty-nine and two hundred and forty, the judg- ments and 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 aliens and citizens of the United States, or citizens of different states; also in all cases arising under the patent laws, under the copyright laws, under the revenue laws, and under the criminal laws, and in admiralty cases. Annotated, our 2031 note a. 129. Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolv- ing, or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take prec- edence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal: Provided, however, That the court below may, in its discretion, require as a condition of the appeal an additional bond. Annotated, our 2032 note b. Referred to in our 2054. 130. The circuit courts of appeals shall have the appellate and super- visory jurisdiction conferred upon them by the act entitled "An Act to Establish a Uniform System of Bankruptcy throughout the United States," approved July first, eighteen hundred and ninety-eight, and all laws amenda- tory thereof, and shall exercise the same in the manner therein prescribed. Annotated, our 2033 note c. 13L The circuit court of appeals for the ninth circuit is empowered to hear and determine writs of error and appeals from the United States court for China, as provided in the act entitled "An Act Creating a United States Court for China and Prescribing the Jurisdiction thereof," ap- proved June thirtieth, nineteen hundred and six. Annotated, our 2034 note d. 132. Any judge of a circuit court of appeals, in respect of cases brought or to be brought before that court, shall have the same powers and duties as to allowances of appeals and writs of error, and the conditions of such allowances, as by law belong to the justices or judges in respect of other courts of the United States, respectively. Annotated, our 2037 note g. 133. The circuit courts of appeals, in cases in which their judgments and decrees are made final by this title, shall have appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of Arizona and New Mexico, as by this title they JUDICIAL CODE 71 '6 may have to review the judgments, orders, and decrees of the district courts; and for that purpose said territories shall, by orders of the Su- preme Court of the United States, to be made from time to time, be assigned to particular circuits. -36 Stat. at L. 1134, Comp. St. 1911, p. 195, 1912 Supp. F. S. A. v. 1, p. 196. Re-enacting 15, C. C. A. act of 1891, Comp. St. 1901, p. 554, 4 F. S. A. 431. In general, Int. Com. Com. v. Humboldt Steamship Co. 224 U. S. 474, 56 L. ed. 849, 32 Sup. Ct. Rep. 556. 134. In all cases other than those in which a writ of error or appeal will lie direct to the Supreme Court of the United States as provided in section two hundred and forty-seven, in which the amount involved or the value of the subject-matter in controversy shall exceed five hundred dollars, and in all criminal cases, writs of error and appeals shall lie from the district court for Alaska or from any division thereof, to the circuit court of appeals for the ninth circuit, and the judgments, orders, and decres of said court shall be final in all such cases. But whenever such circuit court of appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the question or proposition certified to it, and its in- structions shall be binding upon the circuit court of appeals. Annotated, our 842 note b. Referred to in our 2035, 2082. 135. All appeals, and writs of error, and other cases, coming from the district court for the district of Alaska to the circuit court of appeals for the ninth circuit, shall be entered upon the docket and heard at San Francisco, California, or at Portland, Oregon, or at Seattle, Washington, ;is the trial court before whom the case was tried below shall fix and determine: Provided, That at any time before the hearing of any appeal, writ of error, or other case, the parties thereto, through their re- spective attorneys, may stipulate at which of the above-named places the same shall be heard, in which case the case shall be remitted to and entered upon the docket at the place so stipulated and shall be heard there. Annotated, our 2036 note b. 714 APPENDIX CHAPTER SEVEN. THE COURT OF CLAIMS. Sec. 136. Appointment, oath, and salary of judges. 137. Seal. 138. Session; quorum. 139. Officers of the court. 140. Salaries of officers. 141. Clerk's bond. 142. Contingent fund. 143. Reports to Congress; copies for departments, etc. 144. Members of Congress not to practice in the court. 145. Jurisdiction. Par. 1. Claims against the United States. 2. Set-offs. 3. Disbursing officers. 146. Judgments for set-off or coun- ter-claims; how enforced. 147. Decree on accounts of disburs- ing officers. 148. Claims referred by departments. 149. Procedure in cases transmitted by departments. 150. Judgments in cases transmit- ted by departments; how paid. Either House of Congress may refer certain claims to court. Costs may be allowed prevail- ing party. Claims growing out of treaties not cognizable therein. 154. Claims pending in other courts. 355. Aliens. 156. All claims to be filed within six- years; exceptions. 157. Rules of practice; may punish contempts. 158. Oaths and acknowledgments. 159. Petitions and verification. 160. Petition dismissed, when. 161. Burden of proof and evidence as to loyalty. 162. Claims for " proceeds arising from sales of abandoned prop- erty. 136. The court of claims, established by the act of February twenty- fourth, eighteen hundred and fifty-five, shall be continued. It shall con- sist of a chief justice and four judges, who shall be appointed by the President, by and with the advice and consent of the Senate, and hold Sec. 163. Commissioners to take testi- mony. 164. Power to call upon departments for information. 165. When testimony not to be tak- en. 166. Examination of claimant. 167. Testimony ; where taken. 168. Witnesses before commission- ers. 169. Cross-examinations. 170. Witnesses; how sworn. 171. Fees, of commissioners, by whom paid. 172. Claims forfeited for fraud. 173. Claims under act of June 16, 1874. 174. New trial on motion of claim- ant. 175. New trial ' on motion of United States. 176. Cost of printing record. 177. No interest on claims. 178. Effect of payment of judgment. 179. Final judgments a bar. 180. Debtors to the United States may have amount due ascer- tained. 181. Appeals. 182. Appeals in Indian cases. 183. Attorney General's report to Congress. 184. Loyalty a jurisdictional fact in certain cases. 185. Attorney General to appear for the defense. 186. Persons not to be excluded as witnesses on account of color or because of interest; plain- tiff may be witness for govern- ment. 187. Reports of court to Congress. JUDICIAL CODE 715 their offices during good behavior. Each of them shall take an oath to support the Constitution of the United States, and to discharge faith- fully the duties of his office. The chief justice shall be entitled to re- ceive an annual salary of six thousand five hundred dollars, and each of the other judges an annual salary of six thousand dollars, payable monthly, from the Treasury. Annotated, our 2300 note a. 137. The court of claims shall have a seal, with such device as it may order. Annotated, our 2300 note b. 138. The court of claims shall hold one annual session at the city of Washington, beginning on the first Monday in December and continuing as long as may be necessary for the prompt disposition of the business of the court. Any three of the judges of said court shall constitute a quorum, and may hold a court for the transaction of business: Pro- vided, That the concurrence of three judges shall be necessary to the decision of any case. Annotated, our 2304 note f. 139. The said court shall appoint a chief clerk, an assistant clerk, if deemed necessary, a bailiff, and a chief messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the performance thereof; and for miscon- duct or incapacity they may be removed by it from office; but the court shall report such removals, with the cause thereof, to Congress, if in session, or if not, at the next session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. Annotated, our 2301 note c. 140. The salary of the chief clerk shall be three thousand five hundred dollars a year; of the assistant clerk two thousand five hundred dollars a year; of the bailiff one thousand five hundred dollars a year, and of the chief messenger one thousand dollars a year, payable monthly from the Treasury. 36 Stat. at L. 1136, Comp. St. 1911, p. 197, 1912 Supp. F. S. A. v. 1, p. 199. He-enacting 1054, R. S. U. S., Rose's Code, 578, 685, Foster's Fed. Prac. p. 1683, Comp. St. 1901, p. 730, 2 F. S. A. 54, and appropriation acts under it, which section is repealed by 297, Judicial Code. 141. The chief clerk shall give bond to the United States in such amount, in such form, and with such security as shall be approved by the Secretary of the Treasury. 36 Stat. at L. 1136, Comp. St. 1911, p. 197, 1912 Supp. F. S. A. v. I, p. 199. Re-enacting 1055 R. S. U. S.. Rose's Code, 594 (see Ref. 140, supra), Comp. St. 1901, p. 731, 2 F. S. A. 54, which is repealed by 297, Judicial Code. 142. The said - clerk shall have authority when he has given bond as provided in the preceding section, to disburse, under the direction of the court, the contingent fund which may from time to time be appropriated 716 APPENDIX for its use; and his accounts shall be settled by the proper accounting officers of the Treasury in the same way as the accounts of other disbursing agents of the government are settled. Annotated, our 2303 note e. 143. On the first day of every regular session of Congress, the clerk of the court of claims shall transmit to Congress a full and complete statement of all the judgments rendered by the court during the previous year, stating the amounts thereof and the parties in whose favor they were rendered, together with a brief synopsis of the nature of the claims upon which they were rendered. At the end of every term of the court he shall transmit a copy of its decisions to the heads of departments; to the Solicitor, the Comptroller, and the Auditors of the Treasury; to the Commissioner of the General Land Office and of Indian Affairs; to the chiefs of bureaus, and to other officers charged with the adjustment of claims against the United States. Annotated, our 2329 note g. 144. Whoever, being elected or appointed a Senator, Member of, or Delegate to Congress, or a Resident Commissioner, shall, after his elec- tion or appointment, and either before or after he has qualified, and during his continuation in office, practice in the court of claims, shall be fined not more than ten thousand dollars and imprisoned not more than two years; and shall, moreover, thereafter be incapable of holding any office of honor, trust, or profit under the government of the United States. Annotated, our 2302 note d. 145. The court of claims shall have jurisdiction to hear and determine the following matters: First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an Executive Department, upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliqui- dated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: Provided, however, That nothing in this section shall be construed as giving to the said court jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as "war claims," or to hear and determine other claims which, prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. Second. All set-offs, counterclaims, claims for damages, whether liqui- dated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the govern- ment in said court: Provided, That no suit against the government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the JUDICIAL CODE 717 proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office. Third. The claim of any paymaster, quartermaster, commissary of sub- sistence, or other disbursing officer of the United States, or of his ad- ministrators or executors, for relief from responsibility on account of loss by, capture or otherwise, while in the line of his duty, of government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. Annotated, our 2305 note g. 146. Upon the trial of any cause in which any set-off, counterclaim, claim for damages, or other demand is set up on the part of the govern- ment against any person making claim against the government in said court, the court shall hear and determine such claim or demand both for and against the government and claimant; and if upon the whole case it finds that the claimant is indebted to the government it shall render judg- ment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's office of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judg/nents in such court are enforced. Annotated, our 2331 note u. 147. Whenever the court of claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other dis- bursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree set- ting forth the amount thereof, and upon such decree the proper account- ing officers of the Treasury shall allow to such officer the amount so decreed as a credit in the settlement of his accounts. Annotated, our 2326 note j. 148. When any claim or matter is pending in any of the executive departments which involves controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, documents, and proofs pertaining thereto, to the court of claims and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted for its guidance and action: Provided, however, That if it shall have been transmitted with the consent of the claimant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, in the latter case giving to either party such further opportunity for hearing as in its judg- ment justice shall require, and shall report its findings therein to the department by which the same was referred to said court. The Secretary of the Treasury may, upon the certificate of any auditor, or of the Comptroller of the Treasury, direct any claim or matter, of which, by reason of the subject matter or character, the said court might under existing laws, take jurisdiction on the voluntary action of the claimant, to be transmitted, 718 APPENDIX with all the vouchers, papers, documents and proofs pertaining thereto, to the said court for trial and adjudication. Annotated, our 2309 note 1. 149. All cases transmitted by the head of any department, or upon the certificate of any auditor, or of the Comptroller of the Treasury, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the court of claims, and shall, in all re- spects, be subject to the same rules and regulations. Annotated, our 2309 note m. 150. The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the court of claims under the two preceding sections, shall be paid out of any specific appropria- tion applicable to the case, if any such there be; and where no such ap- propriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. Annotated, our 2330 note s. 151. Whenever any bill, except for a pension, is pending in either House of Congress providing for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person, the House in which such bill is pending may, for the investiga- tion and determination of facts, refer the same to the court of claims, which shall proceed with the same in accordance with such rules as it may adopt and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has been delay or laches in presenting such claim or applying for such grant, gift, or bounty, and any facts bearing upon the question whether the bar of any statute of limitations should be removed or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy, together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally or equitably due from the United States to the claimant: Provided, however, That if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter, the subject matter of the bill is such that it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and it shall report its proceedings therein to the House of Congress by which the same was referred to said court. Annotated, our 2310 note n. 152. 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 witnesses, and for summoning the same, and fees paid to the clerk of the court. Annotated, our 2327 note m. 153. The jurisdiction of the said court shall not extend to any claim against the government not pending therein on December first, eighteen JUDICIAL CODE 710 hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes. Annotated, our 2306 note h. 154. No person shall file or prosecute in the court of claims, or in t\ie Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the United States. Annotated, our 2306 note i. 155. Aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prose- cuting claims against the United States in the court of claims, whereof such court, by reason of their subject matter and character, might take jurisdiction. Annotated, our 2307 note j. 156. Every claim against the United States cognizable by the court of claims shall be forever barred unless the petition setting forth a state- ment thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues : Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in tiie court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. Annotated, our 403 note a. Referred to in our 2314. 157. The said court shall have power to establish rules for its govern- ment and for the regulation of practice therein, and it may punish for contempt in the manner prescribed by tiie common law, may appoint com- missioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. Annotated, our 2315 note q. 158. The judges and clerks of said court may administer oaths and affirmations, taking acknowledgments of instruments in writing, and give certificates of the same. Annotated, our 2316 note s. 159. The claimant shall in all cases fully set forth in his petition the claim, the action thereon in Congress or by any of the departments, if such action has been had, what persons are owners thereof or inter- ested therein, when and Upon what consideration such persons became so interested ; that no assignment or transfer of said claim or of any part thereof or interest therein has been made, except as stated in the petition , Tl'O APPENDIX that said claimant is justly entitled to the amount therein claimed from the United States after allowing all just credits and off-sets; that the claimant and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said government, and that he believes the facts as stated in the said petition to be true. The said petition shall be verified by the affidavit of the claimant, his agent or attorney. Annotated, our 2316 note r. 160. The said allegations as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the government may be traversed by the government, and if on the trial such issues shall be decided against the claimant, his petition shall be dismissed. Annotated, our 2319 note xx. 161. Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to forces or government of the late Confederate States during the Civil War, the claimant as- serting the loyalty of any such person to the United States during such Civil War shall be required to prove affirmatively that such person did, during said Civil War, consistently adhere to the United States and did give no aid or comfort to persons engaged in said Confederate service in said Civil War. Annotated, our 2320 note y. 162. The court of claims shall have jurisdiction to hear and deter- mine the claims of those whose property was taken subsequent to June the first, eighteen hundred and sixty-five, under the provisions of the act of Congress approved March twelfth, eighteen hundred and sixty-three, entitled "An Act to Provide for the Collection of Abandoned Property and for the Prevention of Frauds in Insurrectionary Districts within the United States," and acts amendatory thereof, where the property so taken was sold and the net proceeds thereof was placed in the Treasury of the United States; and the Secretary of the Treasury shall return said net proceeds to the owners thereof, on the judgment of said court, and full jurisdiction is uiven to said court to adjudge said claims, any statutes of limitations to the contrary notwithstanding. Annotated, our 2308 note k. 163. The court of claims shall have power to appoint comvjiis- sioners to take testimony to be used in the investigation of claims which come before it, to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such testi- mony, whether taken at the instance of the claimant or of the United States. Annotated, our 2321 note z. 164. The said court shall have power to call upon any of the de- partments for any information or papers it may deem necessary, and shall have the use of all recorded and printed records made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply JUDICIAL CODE 721 with any call for Information or papers when, in his opinion, such com- pliance would be injurious to the public interest. Annotated, our 2323 note e. 165. When it appears to the court in any case that the facts set forth in the petition of the claimant do not furnish any ground for relief, it shall not authorize the taking of any testimony therein. Annotated, our 2318 note x. 166. The court may, at the instance of the attorney or solicitor ap- pearing in behalf of the United States, make an order in any case pending therein, directing any claimant in such case to appear, upon reasonable notice, before any commissioner of the court and be examined on oath touching any or all matters pertaining to said claim. Such examina- tion shall be reduced to writing by the said commissioner, and be returned to and filed in the court, and may, at the discretion of the attorney or solicitor of the United Spates appearing in the case, be read and used as evidence on the trial thereof. And if any claimant, after such order is made and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. Annotated, our 2322 note d. 167. The testimony in cases pending before the court of claims shall be taken in the county where the witness resides, when the same can be conveniently done. Annotated, our 2321 note a. 168. The court of claims may issue subpoenas to require the attend- ance of witnesses in order to be examined before any person commis- sioned to take testimony therein. Such subpoenas shall have the same force as if issued from a district court, and compliance therewith shall be com- pelled under such rules and orders as the court shall establish. Annotated, our 2321 note b. 169. In taking testimony to be used in support of any claim, oppor- tunity shall be given to the United States to file interrogatories, or by attorney to examine witnesses, under such regulations as said court shall prescribe; and like opportunity shall be afforded the claimant, in cases where testimony is taken on behalf of the United States, under like regu- lations. Annotated, our 2324 note g. 170. The commissioner taking testimony to be used in the court of claims shall administer an oath or affirmation to the witness brought be- fore him for examination. Annotated, our 2321 note c. 171. When testimony is taken for the claimant, the fees of the com- missioner before whom it is taken, and the cost of the commission and notice, shall be paid by such claimant; and when it is taken at the instance of the government, such fees shall be paid out of the contingent fund Montg.- -46. 722 APPENDIX provided for the court of claims, or other appropriation made by Congress for that purpose. Annotated, our 2327 note 1. 172. Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance of any claim or of any part of any claim against the United States shall, ipso facto, forfeit the same to the government; and it shall be the duty of the court of claims, in such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prosecuting the same. Annotated, our 2012 note f. Referred to in our 2317. 173. No claim shall be allowed by the accounting officers under the provisions of the act of Congress approved June sixteen, eighteen hundred and seventy-four, or by the court of claims, or by Congress, to any person where such claimant, or those under whom lie claims, shall wilfully, know- ingly, and with intent to defraud the United States, have claimed more than was justly due in respect of such claim, or presented any false evidence to Congress, or to any department or court, in support thereof. Annotated, our 2317 note v. 174. When judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. Annotated, our 2325 note h. 175. The court of claims, at any time while any claim is pending be- fore it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion, on behalf of the United State*. grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. Annotated, our 2325 note i. 176. There shall be taxed against the losing party in each and every cause pending in the court of claims the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerk of said court and paid into the Treasury of the United States. Annotated, our 2327 note n. 177. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the court of claims, unless upon a contract expressly stipulating for the payment of interest. Annotated, our 2326 note k. 178. The payment of the amount due by any judgment of the court of claims, and of any interest thereon allowed by law, as provided by law, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the controversy. Annotated, our 2328 note p. JUDICIAL CODE 723 179. Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the con- troversy. Annotated, our 2328 note o. . 180. Whenever any person shall present his petition to the court of claims alleging that he is or has been indebted to the United States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal representative of any officer or agent or contractor so indebted, or that he or the person for whom he is such surety, guarantor, or personal representative has held any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States had arisen and exists, and that he or the person he represents has applied to the proper department of the government requesting that the account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application, and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said department and to the Attorney Gen- eral of the United States, proceed to hear the parties and to ascertain the amount, if any, due the United States on said account. The Attorney Gen- eral shall represent the United States at the hearing of said cause. The court may postpone the same from time to time whenever justice shall require. The judgment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The pay- ment of such amount so found due by the court shall discharge such obli- gation. An action shall accrue to the United States against such principal, or surety, or representative to recover -the amount so found due, which may be brought at any time within three years after the final judgment of said court; and unless suit shall be brought within said time, such claim and the claim on the original indebtedness shall be forever barred. The provisions of section one hundred and sixty-six shall apply to cases under this section. Annotated, our 2311 note o. 181. The plaintiff or the United States, in any suit brought under the provision of the section last preceding, shall have the same right of appeal as is conferred under sections two hundred and forty-two and two hundred and forty-three; and such right shall be exercised only within the time and in the manner therein prescribed. Annotated, our 2332 note v. 182. In any case brought in the court of claims under any act of Congress by which that court is authorized to render a judgment or decree against the United States, or against any Indian tribe or any Indiana, or against any fund held in trust by the United States for any Indian tribe or for any Indians, the claimant, or the United States, or the tribe of Indians, or other party in interest shall have the same right of appeal as is conferred under sections two hundred and forty-two and two hundred 724 APPENDIX and forty-three; and such right shall be exercised only within the time and in the manner therein prescribed. Annotated, our 2332 note w. 183. The Attorney General shall report to Congress, at the beginning of each regular session, the suits under section one hundred and eighty, in which a final judgment or decree has been rendered, giving the date of each and a statement of the costs taxed in each case. Annotated, our 2329 note r. 184. In any case of a claim for supplies or stores taken by or furnished to any part of the military or naval forces of the United States for their use during the late Civil War, the petition shall aver that the person who furnished such supplies or stores, or from whom such supplies or stores were taken, did not give any aid or comfort to said rebellion, but was throughout that war loyal to the government of the United States, and the fact of such loyalty shall be a jurisdictional fact; and unless the said court shall, on a preliminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed. Annotated, our 2316 note t. 185. The Attorney-General, or his assistants under his direction, shall appear for the defense and protection of the interests of the United States in all cases which may be transmitted to the court of claims under the provisions of this chapter, with the same power to interpose counterclaims, offsets, defenses for fraud practiced or attempted to be practiced by claim- ants, and other defenses, in like manner as he is required to defend the United States in said court. Annotated, our 2317 note u. 186. No person shall be excluded as a witness in the court of claims on account of color, because he or she is a party to or interested in the cause or proceeding; and any plaintiff or party in interest may be examined as a witness on the part of the government. Annotated, our 2324 note f, as amended, Act February 5, 1912, ch. 28. See our 2324. 187. Reports of the court of claims to Congress, under sections one hundred and forty-eight and one hundred and fifty-one, if not finally acted upon during the session at which they are reported, shall be continued from session to session and from Congress to Congress until the dame shall be finally acted upon. Annotated, our 2330 note t. JUDICIAL CODE 7Zi> CHAPTER EIGHT. THE COURT OF CUSTOMS APPEALS. Sec. Sec. 188. Court of customs appeals; ap- 195. Final decisions of board of pointment and salary of judg- general appraisers to be re- es; quorum; circuit and dis- viewed only by customs court. trict judges may act in place 196 . other courts deprived of juris- , of judge disqualified, etc. diction in customs cases ; 189. Court to be always open for pending cases excepted. business; terms may be held m Trangfer e to CU9to ms court of in any circuit; when expenses ,. , ,. e of judges to be paid. P en f din S case8 ' completion of 190. Marshal of the court; appoint- testimony. ment, salary, and duties. 198 ' Appeals from board of general 191. Clerk of the court; appoint- appraisers; time within ment, salary, and duties. which to be taken; record to 19-2. Assistant clerk, stenographic be transmitted to customs clerks, and reporter; appoint- court, ment, salary, and duties. 199. Records filed in customs court 193. Rooms for holding court to be to be at once placed on cal- provided; bailiffs and messen- endar; calendar to be called gers. every sixty days. 194. To be a court of record; to pre- scribe form and style of seal, and establish rules and regu- lations; may affirm, modify, or reverse and remand case, etc. 188. There shall be a United States court of customs appeals, which shall consist of a presiding judge and four associate judges, each of whom shall be appointed by the President, by and with the advice and consent of the Senate, and shall receive a salary of seven thousand dollars a year. The presiding judge shall be so designated in the order of appointment and in the commission issued to him by the President; and the associate judges shall have precedence according to the date of their commissions. Any three members of said court shall constitute a quorum, and the concurrence of three members shall be necessary to any decision thereof. In case of a vacancy or of the temporary inability or disqualification, for any reason, of one or two of the judges of said court, the President may. upon the request of the presiding judge of said court, designate any qualified United States circuit or district judge or judges to act in his or their place; and such circuit or district judges shall be duly qualified to so act. Annotated, our 2253 note b. 189. The said court of customs appeals shall always be open for the transaction of business, and sessions thereof may, in the discretion of the court, be held in the several judicial circuits, and at such places as said court may from time to time designate. Any judge who, in pur- suance of the provisions of this chapter, shall attend a session of said court at any place other than the city of Washington, shall be paid, upon his written and itemized certificate, bv the marshal of the district in 7:26 APPENDIX which the court shall be held, his actual and necessary expenses incurred for travel and attendance, and the actual and necessary expenses of one stenographic clerk who may accompany him; and such payments shall be allowed the marshal in the settlement of his accounts with the United States. Annotated, our 2258 note g. 190. Said court shall have the services of a marshal, with the same duties and powers, under the regulations of the court, as are now pro- vided for the marshal of the Supreme Court of the United States, so far as the same may be applicable. Said services within the District of Colum- bia shall be performed by a marshal to be appointed by and to hold office during the pleasure of the court, who shall receive a salary of three thousand dollars per annum. Said services outside of the District of Columbia shall be performed by the United States marshals in and for the districts where sessions of said court may be held; and to this end said marshals shall be the marshals of said court. The marshal of said court for the District of Columbia, is authorized to purchase, under the direction of the presiding judge, such books, periodicals, and stationery, as may be neces- sary for the use of said court; and such expenditures shall be allowed and paid by the Secretary of the Treasury upon claim duly made and approved by said presiding judge. Annotated, our 2256 note e. 191. The court shall appoint a clerk, whose office shall be in the city of Washington, District of Columbia, and who shall perform and exercise the same duties and powers in regard to all matters within the jurisdic- tion of said court as are now exercised and performed by the clerk of the Supreme Court of the United States, so far as the same may be ap- plicable. The salary of the clerk shall be three thousand five hundred dollars per annum, which sum shall be in full payment for all service rendered by such clerk ; and all fees of any kind whatever, and all costs, shall be by him turned into the United States Treasury. Said clerk shall not be appointed by the court or any judge thereof as a commissioner, master, receiver, or referee. The costs and fees in the said court shall be fixed and established by said court in a table of fees to be adopted and approved by the Supreme Court of the United States within four months after the organization of said court: Provided, That the costs and fees so fixed shall not, with respect to any item, exceed the costs and fees charged in the Supreme Court of the United States; and the same shall be ex- pended, accounted for, and paid over to the Treasury of the United States. Annotated, our 2254 note c. 192. In addition to the clerk, the court may appoint an assistant clerk at a salary of two thousand dollars per annum, five stenographic clerks at a salary of one thousand six hundred dollars per annum each, one stenographic reporter at a salary of two thousand five hundred dollars per annum, and a messenger at a salary of eight hundred and forty dollars per annum, all payable in equal monthly instalments, and all of whom, including the clerk, shall hold office during the pleasure of and perform such duties as are assigned them by the court. Said reporter shall pre>- JUDICIAL CODE 727 pare and transmit to the Secretary of the Treasury once a week in time for publication in the Treasury Decisions copies of all decisions rendered to that date by said court, and prepare and transmit, under the direction of said court, at least once a year, reports of said decisions rendered to that date, constituting a volume, which shall be printed by the Treasury Pepartment in such numbers and distributed or sold in such manner as the Secretary of the Treasury shall direct. Annotated, our 2255 note d. 193. The marshal of said court for the District of Columbia and the marshals of the several districts in which said court of customs appeals may be held shall, under the direction of the Attorney General, and with his approval, provide such rooms in the public buildings of the United States as may be necessary for said court: Provided, That in case proper rooms cannot be provided in such buildings, then the said marshals, with the approval of the Attorney-General, may, from time to time, lease such rooms as may be necessary for said court. The bailiffs and messengers of said court shall be allowed the same compensation for their respective services as are allowed for similar services in the existing district courts. ]n no case shall said marshals secure other rooms than those regularly occupied by existing district courts, or other public officers, except where such cannot, by reason of actual occupancy or use, be occupied or used by said court of customs appeals. Annotated, our. 2257 note f. 194. The said court of customs appeals shall be a court of record, with jurisdiction as in this chapter established and limited. It shall prescribe the form and style of its seal, and the form of its writs and other process and procedure, and exercise such powers conferred by law as may be conformable and necessary to the exercise of its jurisdiction. It shall have power to establish all rules and regulations for the conduct of the business of the court, and as may be needful for the uniformity of decisions within its jurisdiction as conferred by law. It shall have power to review any decision or matter within its jurisdiction, and may affirm, modify, or reverse the same and remand the case with such orders as may seem to it proper in the premises, which shall be executed accord- ingly. Annotated, our 2252 note a. 195. The court of customs appeals established by this chapter shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided, final decisions by a board of general appraisers in all cases as to the construction of the law and the facts respecting the classification of merchandise and the rate of duty imposed thereon under such classifi- cation, and the fees and charges connected therewith, and all appealable questions as to the jurisdiction of said board, and all appealable ques- tions as to the laws and regulations governing the collection of the customs revenues; and the judgments and decrees of said court of customs appeals shall be final in all such cases. Annotated, our 2259 note h. 196. After the organization of said court, no appeal shall be taken or allowed from any board of United States general appraisers to any 728 APPENDIX other court, and no appellate jurisdiction shall thereafter be exercised or allowed by any other courts in cases decided by said board of United States general appraisers; but all appeals allowed by law from such board of general appraisers shall be subject to review only in the court of customs appeals hereby established, according to the provisions of this chapter: Provided, That nothing in this chapter shall be deemed to deprive the Supreme Court of the United States of jurisdiction to hear and determine all customs cases which have heretofore been certified to said court from the United States circuit courts of appeals on applications for writs of certiorari or otherwise, nor to review by writ of certiorari any customs case heretofore decided or now pending and hereafter decided by any circuit court of appeals, provided application for said writ be made within six months after August fifth, nineteen hundred and nine: Provided, further, That all customs cases decided by a circuit or district court of the United States or a court of a territory of the United States prior to said date above mentioned, and which have not been removed from said courts by appeal or writ of error, and all such cases theretofore submitted for decision in said courts and remaining undecided may be reviewed on appeal at the instance of either party by the United States court of customs appeals, provided sucli appeal be taken within one year from the date of the entry of the order, judgment, or decrees sought to be reviewed. Annotated, our 2259 note j. 197. Immediately upon the organization of the court of customs ap- peals, all cases within the jurisdiction of that court pending and not sub- mitted for decision in any of the United States circuit courts of appeals, United States circuit, territorial or district courts, shall, with the record and samples therein, be certified by said courts to said court of customs appeals for further proceedings in accordance herewith : Provided, That where orders for the taking of further testimony before a referee have been made in any of such cases, the taking of such testimony shall be 'com- pleted before such certification. Annotated, our 2259 note i. 198. If the importer, owner, consignee, or agent of any imported mer- chandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the board of general appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the court of customs appeals for a review of the questions of law and fact involved in such decision: Provided, That in Alaska and in the insular and other outside possessions of the United States ninety days shall be allowed for making such application to the court of customs appeals. Such application shall be made by filing in the office of the clerk of said court a concise statement of errors of law and fact complained of; and a copy of such statement shall be served on the col- lector, or on the importer, owner, consignee, or agent, as the case may be. Thereupon the court shall immediately order the board of general ap- praisers to transmit to said court the record and evidence taken by them, JUDICIAL CODE 729 together with the certified statement of the facts involved in the case and their decision thereon; and all the evidence taken by and before said board shall be competent evidence before said court of customs appeals. The decision of said court of customs appeals shall be final, and such cause shall be remanded to said board of general appraisers for further pro- ceedings to be taken in pursuance of such determination. Annotated, our 2260 note k. 199. Immediately upon receipt of any record transmitted to said court for determination the clerk thereof shall place the same upon the calendar for hearing and submission; and such calendar shall be called and all cases thereupon submitted, except for good cause shown, at least once every sixty days: Provided, That such calendar need not be called during the months of July and August of any year. Annotated, our 2261 note 1. CHAPTER NINE. THE COMMERCE COURT. The commerce court was abolished by the deficiency appropriation act of October 22, 1913, ch. 32, 38 Stat. at L. 219, 221. The jurisdiction of this court was transferred to the various district courts. The chapter is retained in our Appendix for an understanding of the jurisdiction so transferred. The portion of the deficiency bill abolishing the commerce court is as follows: "The commerce court, created and established by the act entitled 'An Act to Create a Commerce Court and to Amend the Act Entitled "An Act to Regulate Commerce," Approved February Fourth. Eighteen Hundred and Eighty-Seven, as Heretofore Amended, and for Other Purposes,' approved June eighteenth, nineteen hundred and ten, is abolished from and after De- cember thirty- first, nineteen hundred and thirteen, and the jurisdiction vested in said commerce court by said act is transferred to and vested in the several district courts of the United States, and all acts or parts of acts in so far as they relate to the establishment of the commerce court are repealed. Nothing herein contained shall be deemed to affect the tenure of any of the judges now acting as circuit judges by appointment under the terms of said act, but such judges shall continue to act under assign- ment, as in the said act provided, as judges of the district courts and circuit courts of appeals; and in the event of and on the death, resignation, or removal from office of any of such judges, his office is hereby abolished and no successor to him shall be appointed. "The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commis- sion shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition before the Commission arises, and except that 730 APPENDIX where the order does not relate either to transportation or to a matter ao complained oi before the Commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. In case such transportation relates to a through shipment the term "destination" shall be construed as meaning final destination of such shipment. "The procedure in the district courts in respect to cases of which jurisdic- tion is conferred upon them by this act shall be the same as that heretofore- prevailing in the commerce court. The orders, writs, and processes of the district courts may in these cases run, be served, and be returnable any- where in the United States; and the right of appeal from the district courts in such cases shall be the same as the right of appeal heretofore prevail! 1114 under existing law from the commerce court. No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Inter- state Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be pre- sented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, lie shall im- mediately call to his assistance to hear and determine the application two other judges. Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the Interstate Com- merce Commission, to the Attorney General of the United States, and to such other persons as may be defendants in the suit: Provided, That in cases where irreparable damage would otherwise ensue to the petitioner, a majority of said three judges concurring, may, on hearing, after not less than three days' notice to the Interstate Commerce Commission and the Attorney General, allow a temporary stay or suspension, in whole or in part, of the operation of the order of the Interstate Commerce Commis- sion for not more than sixty days from the date of the order of said judges pending the application for the order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judges making the order and identified by reference thereto, that such irrep- arable damage would result to the petitioner and specifying the nature of the damage. The said judges may, at the time of hearing such applica- tion, upon a like finding, continue the temporary stay or suspension in whole or in part until decision upon the application. The hearing upon such application for an interlocutory injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore pro- vided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case, if such appeal be taken within thirty days after the order, in respect to which complaint is made, is granted or refused; and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said Commission the same re- JUDICIAL CODE T31 quirement as to judges and the same procedure as to expedition and appeal shall apply. A final judgment or decree of the district court may be re- viewed by the Supreme Court of the United States if appeal to the Supreme Court be taken by an aggrieved party within sixty days after the entry of such final judgment or decree, and such appeals may be taken in like manner as appeals are taken under existing law in equity cases. And in such case the notice required shall be served upon the defendants in the case and upon the attorney general of the state. All cases pending in the commerce court at the date of the passage of this act shall be deemed pending in and be transferred forthwith to said district courts except cases which may previously have been submitted to that court for final decree, and the latter to be transferred to the district courts if not decided by the commerce court before December first, nineteen hundred and thirteen, and all cases wherein injunctions or other orders or decrees, mandatory or otherwise, have been directed or entered prior to the abolition of the said court shall be transferred forthwith to said district courts, which shall have jurisdiction to proceed therewith and to enforce said injunctions, orders, or decrees. Each of said cases and all the records, papers, and proceedings shall be trans- ferred to the district court wherein it might have been filed at the time it was filed in the commerce court if this act had then been in effect; and if it might have been filed in any one of two or more district courts it shall be transferred to that one of said district courts which may be designated by the petitioner or petitioners in said case, or, upon failure of said peti- tioners to act in the premises within thirty days after the passage of this act, to such one of said district courts as may be designated by the judges of the commerce court. The judges of the commerce court shall have author- ity, and are hereby directed, to make any and all orders and to take any other action necessary to transfer as aforesaid the cases and all the records, papers, and proceedings then pending in the commerce court to said district courts. All administrative books, dockets, files, and all papers of the com- merce court not transferred as part of the record of any particular case shall be lodged in the Department of Justice. All furniture, carpets, and other property of the commerce court is turned over to the Department of Justice, and the Attorney General is authorized to supply such portion there- of as in his judgment may be proper and necessary to the United States board of mediation and conciliation. "Any case hereafter remanded from the Supreme Court which, but for the passage of this act, would have been remanded to the commerce court, shall be remanded to a district court, designated by the Supreme Court, wherein it might have been instituted at the time it was instituted in the commerce court if this act had then been in effect, and thereafter such district court shall take all necessary and proper proceedings in such case in accordance with law and such mandate, order, or decree therein as may be made by said Supreme Court. "All laws or parts of laws inconsistent with the foregoing provisions re- lating to the commerce court, are rept-aled." 732 APPENDIX Sec. Sec. 200. Commerce court created; judg- sions to be against United es of, appointment and desig- States; restraining orders, nation; expense allowance to when granted without notice, judges. 209. Jurisdiction of the court, how 201. Additional circuit judges; ap- invoked; practice and pioced- pointment and assignment. ure. 202. Officers of the court; clerk, 210. Final judgments and decrees re- marshal, etc.; salaries, etc. viewable in Supreme Court. 203. Court to be always open for 211. Suits to be against United business; sessions of, to be States; when United States held in Washington and else- may intervene. where. 212. Attorney General to control all 204. Marshals to provide rooms for cases; Interstate Commerce holding court outside of Commission may appear as of Washington. right; parties interested may 205. Assignment of judges to other intervene, etc. duty; vacancies, how filled. 213. Complainants may appear and 206. Powers of court and judges; be made parties to case. writs, process, procedure, etc. 214. Pending cases to be transferred 207. Jurisdiction of the court. to commerce court ; exception : 208. Suits to enjoin, etc., orders of status of transferred cases. Interstate Commerce Commis- 200. There shall be a court of the United States, to be known as the commerce court, which shall be a court of record, and shall have a seal of such form and style as the court may prescribe. The said court shall be composed of five judges, to be from time to time designated and assigned thereto by the Chief Justice of the United States, from among the circuit judges of the United States, for the period of five years, except that in the first instance the court shall be composed of the five additional circuit judges referred to in the next succeeding section, who shall be designated by the President to serve for one, two, three, four, and five years, respectively in order that the period of designation of one of the said judges shall expire in each year thereafter. In case of the death, resignation, or termination of assignment of any judge so designated, the Chief Justice shall designate a circuit judge to fill the vacancy so caused and to serve during the un- expired period for which the original designation was made. After the year nineteen hundred and fourteen no circuit judge shall be redesignated to serve in the commerce court until the expiration of at least one year after the expiration of the period of his last previous designation. The judge first designated for the five year period shall be presiding judge of said court, and thereafter the judge senior in designation shall be the presiding judge. The associate judges shall have precedence and shall succeed to the place and powers of the presiding judge whenever he may be absent or incapable of acting in the order of the date of their designations. Four of said judges shall constitute a quorum, and at least a majority of the court shall concur in all decisions. Each of the judges during the period of his service in the commerce court shall, on account of the regular sessions of the court being held in the city of Washington, receive in addition to his salary as circuit judge an expense allowance at the rate of one thousand five hundred dollars per annum. 36 Stat. at L. 1146. Comp. St. 1911. p. 214. 1912 Supp. F. S. A. v. 1, p. 215. Re-enacting part of act of June 18, 1910, ch. 309, 36 Stat. at L. 539. JUDICIAL CODE 733 201. The five additional circuit judges authorized by the act to create a commerce court, and for other purposes, approved June eighteenth, nineteen hundred and ton, shall hold office during good behavior, and from time to time shall be designated and assigned by the Chief Justice of the United States for service in the district court of any district, or the circuit court o? appeals for any circuit, or in the commerce court, and when so designated and assigned for service in a district court or circuit court of appeals shall have the powers and jurisdiction in this act conferred upon a circuit judge in his circuit. 36 Stat. at L. 1146, Comp. St. 1911, p. 214, 1912 Supp. F. S. A. v. 1, p. 216. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. 202. The court shall also have a clerk and a marshal, with the same duties and powers, so far as they may be appropriate and are not altered by rule of the court, as are now possessed by the clerk and marshal, re- spectively, of the Supreme Court of the United States. The offices of tin; clerk and marshal of the court shall be in the city of Washington, in the District of Columbia. The judges of the court shall appoint the clerk and marshal, and may also appoint, if they find it necessary, a deputy clerk and deputy marshal; and such clerk, marshal, deputy clerk, and deputy marshal, shall hold office during the pleasure of the court. The salary of the clerk shall be four thousand dollars per annum; the salary of the marshal three thousand dollars per annum; the salary of the deputy clerk two thousand five hundred dollars per annum; and the salary of the deputy marshal two thousand five hundred dollars per annum. The clerk and marshal may, with the approval of the court, employ all requisite assistance. The costs and fees in said court shall be established by the court in a table thereof, approved by the Supreme Court of the United States, within four months after the organization of the court; but such costs and fees shall in no case exceed those charged in the Supreme Court of the United States, and shall be ac- counted for and paid into the Treasury of the United States. 36 Stat. at L. 1147, Comp. St. 1911, p. 215, 1912 Supp. F. S. A. v. 1, p. 216. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. 203. The commence court shall always be open for the transaction of business. Its regular sessions shall be held in the city of Washington, in the District of Columbia; but the powers of the court or of any judge there- of, or of the clerk, marshal, deputy clerk, or deputy marshal, may be exercised anywhere in the United States; and for expedition of the work of the court and the avoidance of undue expense or inconvenience to suitors the court shall hold sessions in different parts of the United States as may be found desirable. The actual and necessary expenses of the judges, clerk, marshal, deputy clerk, and deputy marshal of the court incurred for travel and attend- ance elsewhere than in the city of Washington, shall be paid upon the written and itemized certificate of such judge, clerk, marshal, deputy clerk, or deputy marshal, by the marshal of the court, and shall be allowed to him in the settlement of his accounts with the United States. 36 Stat. at L. 1148. Comp. St. 1911, p. 215. 1912 Supp. F. S. A. v. 1, p. 217. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. 734 APPENllIX 204. The United States marshals of the several districts outside of the city of Washington in which the commerce court may hold its sessions shall provide, under the direction and with the approval of the Attorney General, such rooms in the public buildings of the United States as may be necessary for the court's use; but in case proper rooms cannot be provided in such public buildings, said marshals, with the approval of the Attorney General, may then lease from time to time other necessary rooms for the court. .36 Stat. at L. 1148, Comp. St. 1911, p. 215, 1912 Supp. F. S. A. v. 1, p. 217. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. 205. If, at any time, the business of the commerce court does not require the services of all the judges, the Chief Justice of the United States may, by writing, signed by him and filed in the Department of Justice, terminate the assignment of any of the judges, or temporarily assign him for service in any district court or circuit court of appeals. In cases of illness or other disability of any judge assigned to the commerce court the Chief Justice of the United States may assign any other circuit judge of the United States to act in his place, and may terminate such assignment when the exigency therefor shall cease; and any circuit judge so assigned to act in place of such judge shall, during his assignment, exercise all the powers and perform all the functions of such judge. 36 Stat. at L. 1148, Comp. St. 1911. p. 216, 1912 Supp. F. S. A. v. 1, p. 217. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. 206. In all cases within its jurisdiction the commerce court, and each of the judges assigned thereto, shall, respectively, have and may exercise any and all of the powers of a district court of the United States and of the judges of said court, respectively, so far as the same may be appropriate to the effective exercise of the jurisdiction hereby conferred. The commerce court may issue all writs and process appropriate to the full exercise of its jurisdiction and powers and may prescribe the form thereof. It may also, from time to time, establish such rules and regulations concerning pleading, practice, or procedure in cases or matters within its jurisdiction as to the court shall seem wise and proper. Its orders, writs, and processes may run, be served, and be returnable anywhere in the United States; and the marshal and deputy marshal of said court and also the United States marshals and deputy marshals in the several districts of the United States shall have like powers and be under like duties to act for and in behalf of said court as pertain to United States marshals and deputy marshals generally when acting under like conditions concerning suits or matters in the district courts of the United States. 36 Stat. at L. 1148, Comp. St. 1911. p. 216, 1912 Supp. F. S. A. v. 1. p. 217. Re-enacting part of Act of June 18, 1910, 36 Stat. aft L. 539. Con- struction. Ex parte Metropolitan Water Co. 220 U. S. 539, 55 L. ed. 575, 31 Sup. Ct. Rep. 600. JUDICIAL CODE 735 207. The commerce court shall have the jurisdiction possessed by circuit courts of the United States and the judges thereof immediately prior to June eighteenth, nineteen hundred and ten, over all cases of the following kinds: First. All cases for the enforcement, otherwise than by adjudication and Collection of a forfeiture or penalty or by infliction of criminal punishment, of any order of the Interstate Commerce Commission other than for the pay- ment of money. Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission. Third. Such cases as by section three of the act entitled "An Act to Further Regulate Commerce with Foreign Nations and Among the States," approved February nineteenth, nineteen hundred and three, are authorized to be maintained in a circuit court of the United States. Fourth. All such mandamus proceedings as under the provisions of section twenty or section twenty-three of the act entitled "An Act to Regulate Com- merce," approved February fourth, eighteen hundred and eighty-seven, as amended, are authorized to be maintained in a circuit court of the United States. Nothing contained in this chapter shall be construed as enlarging the juris- diction now possessed by the circuit courts of the United States or the judges thereof, that is hereby transferred to and vested in the commerce court. The jurisdiction of the commerce court over cases of the foregoing classes shall be exclusive; but this chapter shall not affect the jurisdiction possessed by any circuit or district court of the United States over cases or proceed- ings of a kind not within the above-enumerated classes. 36 Stat. at L. 1148, Comp. Stat. 1911, p. 216, 1912 Supp. F. S. A. v. 1, p. 218. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. Construction. Proctor & Gamble Co. v. United states, 188 Fed. 221. Jurisdiction, Proctor & Gamble v. United States, 225 U. S. 282, 56 L. ed. 10!H. :i2 Sup. Ct. Rep. 761. Misconception of extent of powers by Commission, Interstate C'omm. v. Clyde Steamship Co. 181 U. S. 29, 45 L. ed. 729, 21 Sup. Ct. Rep. 512. Directing common carriers, Southern Pac. v. Interstate Com. Com. 200 U. S. 536, 50 L. ed. 594, 26 Sup. Ct. Rep. 330. Enforcing order of Commission, Farmer's Loan & Trust Co. v. Northern Pac. Ry. Co. 83 Fed. 249. Power of a court of equity, Re Central Stock Yards Co. v. Louisville & N. R. Co. 112 Fed. 823. Commerce Commission, an administrative body, Western N. Y. & P. R. Co. v. Penn. Refining Co. 137 Fed. 343, 70 C. C. A. 23. General powers, Chicago, R. I. & P. Ry. Co. v. Interstate Com. Com. 171 Fed. 680. 208. Suits to enjoin, set aside, annul, or suspend any order of the Inter- state Commerce Commission shall be brought in the commerce court against the United States. The pendency of such suit shall not of itself stay or suspend the operation of the order of the Interstate Commerce Commission ; but the commerce court, in its discretion, may restrain or suspend, in whole or in part, the operation of the Commission's order pending the final hearing and determination of the suit. No order or injunction so restraining or 736 APPENDIX suspending an order of the Interstate Commerce Commission shall be made by the commerce court otherwise than upon notice and after hearing, except that in cases where irreparable damage would otherwise ensue to the petition- er, said court, or a judge thereof may, on hearing after not less than three days' notice to the Interstate Commerce Commission and the Attorney General, allow a temporary stay or suspension in whole or in part of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of such court or judge, pending application to the court for its order or injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judge making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damage. The court may, at the time of hearing such application, upon a like finding, con- tinue the temporary stay or suspension in whole or in part until its decision upon the application. 36 Stat. at L. 1149, Comp. St. 1911, p. 217, 1912 Supp. F. S. A. v. 1, p. 221. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 542. In- junctions United States v. Bait. & Ohio R. Co. 225 U. S. 306, 56 L. ed. 1100, 32 Sup. Ct. Rep. 817. 209. The jurisdiction of the commerce court shall be invoked by filing in the office of the clerk of the court a written petition setting forth briefly and succinctly the facts constituting the petitioner's cause of action, and specifying the relief sought^ A copy of such petition shall be forthwith served by the marshal or a deputy marshal of the commerce court or by the proper United States marshal or deputy marshal upon every defendant therein named, and when the United States is a party defendant, the service shall be made by filing a copy of said petition in the office of the Secretary of the Inter- state Commerce Commission and in the Department of Justice. Within thirty days after the petition is served, unless that time is extended by order of the court or a judge thereof, an answer to the petition shall be filed in the clerk's office, and a copy thereof mailed to the petitioner's attorney, which answer shall briefly and categorically respond to the allegations of the petition. No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed. In case no answer shall be filed as provided herein the petitioner may apply to the court on notice for such relief as may be proper upon the facts alleged in the petition. The court may, by rule, prescribe the method of taking evidence in cases pending in said court; and may prescribe that the evidence be taken before a single judge of the court, with power to rule upon the admission of evidence. Except as may be other- wise provided in this chapter, or by rule of the court, the practice and pro- cedure in the commerce court shall conform as nearly as may be to that in like cases in a district court of the United States. 36 Stat. at L. 1149, Comp. St. 1911, p. 217, 1912 Supp. F. S. A. v. 1, p. 221. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539. A motion to dismiss the petition can be made under this section. Proctor & JUDICIAL CODE 737 Gamble Co. v. United States, 118 Fed. 221; Southern Pac. Co. v. Interstate Commerce Commission, 188 Fed. 241. 210. A final judgment or decree of the commerce court may be reviewed by the Supreme Court of the United States if appeal to the Supreme Court ba, taken by an aggrieved party within sixty days after the entry of said final judgment or decree. Such appeal may be taken in like manner as appeals from a district court of the United States to the Supreme Court, and the commerce court may direct the original record to be transmitted on appeal instead of a transcript thereof. The Supreme Court may affirm, re- verse, or modify the final judgment or decree of the commerce court as the case may require. Appeal to the Supreme Court, however, shall in no case supersede or stay the judgment or decree of the commerce court appealed from, unless the Supreme Court or a justice thereof shall so direct; and appellant shall give bond in such form and of such amount as the Supreme Court, or the justice of that court allowing the stay, may require. An ap- peal may also be taken to the Supreme Court of the United States from an interlocutory order or decree of the commerce court granting or continuing an injunction restraining the enforcement of an order of the Interstate Com- merce Commission, provided such appeal be taken within thirty days from the entry of such order or decree. Appeals to the Supreme Court under this section shall have priority in hearing and determination over all other causes except criminal causes in that court. 36' Stat. at L. 1150, Comp. St. 1911, p. 218, 1912 Supp. F. S. A. v. 1, p. 222. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539-542. In general, United States v. Bait. & Ohio R. Co. 225 U. S. 306, 56 L. ed. 1100, 32 Sup. Ct. Rep. 817. 211. All cases and proceedings in the commerce court which but for this chapter would be brought by or against the Interstate Commerce Commission, shall be brought by or against the United States, and the United States may intervene in any case or proceeding in the commerce court whenever, though it has not been made a party, public interests are involved. 36 Stat. at L. 1150, Comp. St. 1911, p. 218, 1912 Supp. F. S. A. v. 1, p. 1-1-2. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539, 542. 212. The Attorney General shall have charge and control of the in- terests of the government in all cases and proceedings in the commerce court, and in the Supreme Court of the United States upon appeal from the commerce court. If in his opinion the public interest requires it, he may retain and employ in the name of the United States, within the appropria- tions from time to time made by the Congress for such purposes, such special attorneys and counselors at law as he may think necessary to assist in the discharge of any of the duties incumbent upon him and his subordinate attorneys; and the Attorney General shall stipulate with such special at- torneys and counsel the amount of their compensation, which shall not be in excess of the sums appropriated therefor by Congress for such purposes, and shall have supervision of their action: Provided, That the Interstate Com- merce Commission and any party or parties in interest to the proceeding Montg. 47. 738 APPENDIX before the Commission, in which an order or requirement is made, may appear as parties thereto of their own motion and as to right, and be represented by their counsel, in any suit wherein is involved the validity of such order or requirement or any part thereof, and the interest of such party; and the court wherein is pending such suit may make all such rules and orders as to such appearances and representations, the number of counsel, and all matters of procedure, and otherwise, as to subserve the ends of justice and speed the determination of such suits: Provided, further, That communities, asso- ciations, corporations, firms, and individuals who are interested in the con- troversy or question before the Interstate Commerce Commission, or in any suit which may be brought by anyone under the provisions of this chapter, or the acts of which it is amendatory or which are amendatory of it, relating to action of the Interstate Commerce Commission, may intervene in said suit or proceedings at any time after the institution thereof; and the Attorney General shall not dispose of or discontinue said suit or proceeding over the objection of such party or intervenor aforesaid, but said intervenor or in- tervenors may prosecute, defend, or continue said suit or proceeding un- affected by the action or non-action of the Attorney General therein. 36 Stat. at L. 1150, Comp. St. 1911, p. 219, 1912 Supp. F. S. A. v. 1, p. 222. Re-enacting part of June 18, 1910, 36 Stat. at L. 539, 543. 213. Complainants before the Interstate Commerce Commission interested in a case shall have the right to appear and be made parties to the case and be represented before the courts by counsel, under such regulations as are now permitted in similar circumstances under the rules and practice of equity courts of the United States. 36 Stat. at L. 1151, Comp. St. 1911, p. 219, 1912 Supp. F. S. A. v. 1, p. 223. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539, 543. 214. Until the opening of the commerce court, all cases and proceedings of which from that time the commerce court is hereby given exclusive juris- diction may be brought in the same courts and conducted in like manner and with like effect as is now provided by law; and if any such case or proceeding shall have gone to final judgment or decree before the opening of the commerce court, appeal may be taken from such final judgment or decree in like manner and with like effect as is now provided by law. Any such case or proceeding within the jurisdiction of the commerce court which may have been begun in any other court as hereby allowed, before the said date, shall be forthwith transferred to the commerce court, if it has not yet proceeded to final judgment or decree in such other court unless it has been finally submitted for the decision of such court, in which case the cause shall proceed in such court to final judgment or decree and further proceeding thereafter, and appeal may be taken direct to the Supreme Court; and if remanded, such cause may be sent back to the court from which the appeal was taken or to the commerce court for further proceeding as the Supreme Court shall direct. All previous proceedings in such transferred case shall stand and operate notwithstanding the transfer, subject to the same control over them by the commerce court and to the same right of subsequent action JUDICIAL CODE 739 in the case or proceeding as if the transferred case or proceeding had been originally begun in the commerce court. The clerk of the court from which any case or proceeding is so transferred to the commere court shall transmit to and file in the commerce court the originals of all papers filed in such case or proceeding and a certified transcript of all record entries in the case or proceeding up to the time of transfer. 36 Stat. at L. 1151, Comp. St. 1911, p. 220, 1918 Supp. F. S. A. v. 1, p. 223. Re-enacting part of Act of June 18, 1910, 36 Stat. at L. 539, 544. See Hooker v. Interstate Commerce Commission, 188 Fed. 242. CHAPTER TEN. THE SUPBEME COUBT. Sec. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. Number of justices. Precedents of the associate jus- tices. Vacancy in the office of Chief Justice. Salaries of justices. Clerk, marshal, and reporter. The clerk to give bond. Deputies of the clerk. Records of the old court of ap- peals. Tables of fees. Marshal of the Supreme Court. Duties of the reporter. Reporter's salary and allow- ances. Distribution of reports and di- Additional reports and digests; limitation upon cost; esti- mates to be submitted to Con- gress annually. Distribution of Federal Report- er, etc., and Digests. Terms. Adjournment for want of a quorum. Certain orders made by less than quorum. Original disposition. Writs of prohibition and man- damus. Issues of fact. Appellate jurisdiction. Writs of error from judgments and decrees of state courts. Appeals and writs of error from United States district courts. Sec. 239. Circuit court of appeals may certify questions to Supreme Court for instructions. 240. Certiorari to circuit court of appeals. 241. Appeals and writs of error in other cases. 242. Appeals from court of claims. 243. Time and manner of appeals from the court of claims. 244. Writs of error and appeals from supreme court of, and United States district court for, Porto Rico. 245. Writs of error and appeals from the supreme courts of Arizo- na and New Mexico. 246. W 7 rits of error and appeals from the supreme court of Hawaii. 247. Appeals and writs of error from the district court for Alaska direct to Supreme Court in certain cases. 248. Appeals and writs of error from the supreme court of the Philippine Islands. 249. Appeals and writs of error when a territory becomes a state. 250. Appeals and writs of error from the court of appeals of the District of Columbia. 251. Certiorari to court of appeals, District of Columbia. 252. Appellate jurisdiction under the bankruptcy act. 253. Precedence of writs of error to state courts. 254. Cost of printing records. 255. Women may be admitted to practice. 740 APPENDIX 215. The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. Annotated, our 2450 note a. 216. The associate justices shall have precedence according to the dates of their commissions, or, when the commissions of two or more of them bear the same date, according to their ages. Annotated, our 2450 note b. 217. In case of a vacancy in the office of Chief Justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of Chief Justice. Annotated, our 2450 note c. 218. The Chief Justice of the Supreme Court of the United States shall receive the sum of fifteen thousand dollars a year, and the justices thereof shall receive the sum of fourteen thousand five hundred dollars a year each, to be paid monthly. Annotated, our 2450 note d. 219. The Supreme Court shall have power to appoint a clerk and a mar- shal for said court, and a reporter of its decisions. Annotated, our 2451 note e. Referred to in our 2453. 220. The clerk of the Supreme Court shall, before he enters upon the execution of his office, give bond, with sufficient sureties, to be approved by the court, to the United States, in the sum of not less than five thousand and not more than twenty thousand dollars, to be determined and regulated by the Attorney General, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments, and determinations of the court. The Supreme Court may at any time, upon the motion of the Attorney Gen- eral, to be made upon thirty days' notice, require a new bond, or a bond for an increased amount within the limits above prescribed : and the failure of the clerk to execute the same shall vacate his office. All bonds given by the clerk shall, after approval, be recorded in his office, and copies thereof from the records, certified by the clerk under seal of the court, shall be competent evidence in any court. The original bonds shall be filed in the Department of Justice. Annotated, our 2451 note f. 221. One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond, shall be liable; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Annotated, our 2452 note g. JUDICIAL CODE 741 222. The records and proceedings of the court of appeals, appointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court; and such copies shall have like faith and credit with all other proceedings of said * court. 36 Stat. at L. 1153, Comp. St. 1911, p. 222, 1912 Supp. F. S. A. v. 1, p. 266. Re-enacting 679, R. S., Rose's Code, 380, Comp. St. 1901, p. 559, 4 F. S. A. 435, which section is repealed by 297, Judicial Code. 223. The Supreme Court is authorized and empowered to prepare the tables of fees to be charged by the clerk thereof. 36 Stat. at L. 1153, Comp. St. 1911, p. 222, 1912 Supp. F. S. A. v. 1, p. 220. Re-enacting part of act of March 3, 1883, ch. 143, 22 Stat. at L. 631, Rose's Code, 576, 707, Foster's Fed. Prac. (4th ed.) p. 1045, Comp. St. 1901, p. 650, 4 F. S. A. 139. 224. The marshal is entitled to receive a salary at the rate of four thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice in pursuance of law; and shall take charge of all property of the United States used by the court or its members. With the approval of the Chief Justice he may appoint assistants and messengers to attend the court, with the compensation allowed to officers of the House of Representatives of similar grade. Annotated, our 2453 note i. 225. The reporter shall cause the decisions of the Supreme Court to be printed and published within eight months after they are made; and within the same time he shall deliver three hundred copies of the volumes of said reports to the Attorney General. The reporter shall, in any year when he is so directed by the court, cause to be printed and published a second volume of said decisions, of which he shall deliver a like number of copies in like manner and time. 36 Stat. at L. 1153, Comp. St. 1911, p. 223, 1912 Supp. F. S. A. v. 1, p. 226. Re-enacting 681, R. S., Rose's Code, 681, Comp. St. 1901, p. 5(50, 6 F. S. A. 767, which section is repealed by 2'97, Judicial Code. 226. The reporter shall be entitled to receive from the Treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume, and an additional sum of one thou- sand two hundred dollars when, by direction of the court, he causes to be printed and published in any year a second volume; and said reporter shall be annually entitled to clerk hire in the sum of one thousand two hundred dollars, and to office rent, stationery, and contingent expenses in the sum of six hundred dollars: Provided, That the volumes of the decisions of the court heretofore published shall be furnished by the reporter to the public at a sum not exceeding two dollars per volume, and those hereafter published at a sum not exceeding one dollar and seventy-five cents per volume; and the 742 APPENDIX number of volumes now required to be delivered to the Attorney General shall be furnished by the reporter without any charge therefor. Said salary and compensation, respectively, shall be paid only when he causes such de- cisions to be printed, published, and delivered within the time and in the manner prescribed by law, and upon the condition that the volumes of said reports shall be sold by him to the public for a price not exceeding one dollar and seventy-five cents a volume. 36 Stat. at L. 1153, Comp. St. 1911, p. 223, 1912 Supp. F. S. A. v. 1, p. 220. Drawn from (582. R. S., Comp. St. 1901, p. 561, 6 F. S. A. 767, which section is repealed by 297, Judicial Code. 227. The Attorney General shall distribute copies of the Supreme Court reports, as follows: To the President, the justices of the Supreme Court, the judges of the commerce court, the judges of the court of customs appeals, the judges of the circuit courts of appeals, the judges of the district courts, the judges of the court of claims, the judges of the court of appeals and of the supreme court of the District of Columbia, the judges of the several territorial courts, the Secretary of State, the Secretary of the Treas- \iry, the Secretary of War, the Secretary of the Navy, the Secretary of the Interior, the Postmaster General, the Attorney General, the Secretary of Agriculture, the Secretary of Commerce and Labor, the Solicitor General, the Assistant to the Attorney General, each Assistant Attorney General, each United States district attorney, each Assistant Secretary of each Exec- utive Department, the Assistant Postmasters General, the Secretary of the Senate for the use of the Senate, the Clerk of the House of Representatives for the use of the House of Representatives, the governors of the territories, the Solicitor for the Department of State, the Treasurer of the United States, the Solicitor of the Treasury, the Register of the Treasury, the Comptroller of the Treasury, the Comptroller of the Currency, the Commissioner of In- ternal Revenue, the Director of the Mint, each of the six Auditors in the Treasury Department, the Judge Advocate General, War Department, the Paymaster General, War Department, the Judge Advocate General, Navy Department, the Commissioner of Indian Affairs, the Commissioner of Pen- sions, the Commissioner of the General Land Office, the Commissioner of Patents, the Commissioner of Education, the Commissioner of Labor, the Commissioner of Navigation, the Commissioner of Corporations, the Commis- sioner General of Immigration, the Chief of the Bureau of Manufactures, the Director of the Geological Survey, the Director of the Census, the Forester. Department of Agriculture, the Purchasing Agent, Postoffice Department, the Interstate Commerce Commission, the Clerk of the Supreme Court of the United States, the Marshal of the Supreme Court of the United States, the Attorney for the District of Columbia, the Naval Academy at Annapolis, the Military Academy at West Point, and the heads of such other executive offices as may be provided by law, of equal grade with any of said offices, each one copy; to the Law Library of the Supreme Court, twenty-five copies: to the Law Library of the Department of the Interior, two copies; to the Law Library of the Department of Justice, two copies: to the Secretary of the Senate for the use of the committees of the Senate, twenty-five copies; to the Clerk of the House of Representatives for the use of the committees of the House, thirty copies; to the Marshal of the Supreme Court of the JUDICIAL CODE 743 United States, as custodian of the public property used by the court, for the use of the justices thereof in the conference room, robing room, and court room, three copies; to the Secretary of War for the use of the proper courts and officers of the Philippine Islands and for the headquarters of military departments in the United States, twelve copies; and to each of the places where district courts of the United States are now holden, including Hawaii, and Porto Rico, one copy. He shall also distribute one complete set of said reports, and one set of the digests thereof, to such executive officers as are entitled to receive said reports under this section and have not already received them, to each United States judge and to eacli United States district attorney who has not received a set, to each of the places where district courts are now held to which said reports have not been distributed, and to each of the places at which a district court may hereafter be held, the edition of said reports and digests to be selected by the judge or officer receiving them. No distribution of reports and digests under this section shall be made to any place where the court is held in a building not owned by the United States, unless there be at such place a United States officer to whose responsible custody they can be committed. The clerks of said courts (except the Supreme Court) shall in all cases keep said reports and digest for the use of the courts and of the officers thereof. Such reports and digest shall remain the property of the United States, and shall be preserved by the officers above named, and by them turned over to their successors in office. 36 Stat. at L. 1154, Comp. St. 1911, p. 223, 1912 Supp. F. S. A. v. 1, p. 227. Drawn from 683. R. S. Comp. St. 1901, p. 561, 6 F. S. A. 768, as amended by act of Feb. 12, 1889, ch. 135, 25 Stat. at L. 661, Comp. St. 1901, p. 562, 6 F. S. A. 769, which sections are repealed by 297, Judicial Code. 228. The publishers of the decisions of the Supreme Court shall deliver to the Attorney General, in addition to the three hundred copies delivered by the reporter, such number of copies of each report heretofore published, as the Attorney General may require, for which he shall pay not more than two dollars per volume, and such number of copies of each report hereafter published as he may require, for which he shall pay not more than one dollar and seventy-five cents per volume. The Attorney General shall include in his annual estimates submitted to Congress, an estimate for the current volumes *of such reports, and also for the additional sets of reports and digests required for distribution under the section last preceding. 36 Stat. at L. 1155, Comp. St. 1911, p. 225, 1912 Supp. F. S. A. v. 1, p. 228. Drawn from act of July 1, 1902, 32 Stat. at L. 631, Comp. St. 1901, p. 562, 6 F. S. A. 771. 229. The Attorney General is authorized to procure complete sets of the Federal Reporter or, in his discretion, other publication containing the de- cisions of the circuit courts of appeals, circuits courts, and district courts, and digests thereof, and also future volumes of the same as issued, and dis- tribute a copy of each such reports and digests to each place where a circuit court of appeals, or a district court, is now or may hereafter regularly be held, and to the Supreme Court of the United States, the court of claims, 744 APPENDIX the court of customs appeals, the commerce court, the court of appeals and the supreme court of the District of Columhia, the Attorney General, the Solicitor General, the Solicitor of the Treasury, the Assistant Attorney Gen- eral for the Department of the Interior, the Commissioner of Patents, and the Interstate Commerce Commission ; and to the Secretary of the Senate, for the use of the Senate, and to the Clerk of the House of Representatives, for the use of the House of Representatives, not more than three sets each. Whenever any such court room, office, or officer shall have a partial or complete set of any such reports, or digests, already purchased or owned by the United States, the Attorney General shall distribute to such court room, office, or officer, only sufficient volumes to make a complete set thereof. Xo distribution of reports or digests under this section shall be made to any place where the court is held in a building not owned by the United States, unless there be at such place a United States officer to whose re- sponsible custody they can be committed. The clerks of the courts (except the Supreme Court) to which the reports and digests are distributed under this section, shall keep such reports and digests for the use of the courts and the officers thereof. All reports and digests distributed under the pro- visions of this section shall be and remain the property of the United States and, before distribution, shall be plainly marked on their covers with the words "The Property of the United States," and shall be transmitted by the officers receiving them to their successors in office. Not to exceed two dollars per volume shall be paid for the back and current volumes of the Federal Re- porter or other publication purchased under the provisions of this section, and not to exceed five dollars per volume for the digest, the said money to be disbursed under the direction of the Attorney General; and the Attorney General shall include in his annual estimates submitted to Congress, an estimate for the back and current volumes of such reports and digests, the distribution of which is provided for in this section. 36 Stat. at L. 1155, Comp. St. 1911, p. 225, 1912 Supp. F. S. A. v. 1, p. 228. New legislation. 230. The Supreme Court shall hold at the seat of government, one term annually, commencing on the second Monday in October, and such adjourned or special term as it may find necessary for the dispatch of business. Annotated, our 2456 note k. <**, 231. If, at any session of the Supreme Court, a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to day for twenty days after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days the business of the court shall be continued over till the next appointed session; and if, during a terra, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn without day. Annotated, our 2457 note 1. 232. The justices attending at any term, when less than a quorum is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, proceeding, or process, depending JUDICIAL CODE 745 in or returned to the court, preparatory to the hearing, trial, or decision thereof. Annotated, our 2457 note m. 233. The Supreme Court shall have exclusive jurisdiction of all controver- sies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic serv- ants, as a court of law can have consistently with the law of nations ; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors, or other public ministers, or in which a consul or vice consul is a party. Annotated, our 2458 note n. 234. The Supreme Court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or an ambassador, or other public minister, or a counsel, or vice consul is a party. Annotated, our 2021 note o. Referred to in our 2459. 235. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. Annotated, one 2458 note o. 236. The Supreme Court shall have appellate jurisdiction in the cases hereinafter specially provided for. 36 Stat. at L. 1156, Comp. St. 1911, p. 227, 1912 Supp. F. S. A-. v. 1, p. 2:-J(). Re-enacting 690, R. S., Rose's Code, 37, Comp. St. 1901, p. 566, 4 F. S. A. 443, which section is repealed by 297, Judicial Code. 237. A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity: or where any title, right, privilege, or immunity is claimed under the Con- stitution, or any treaty or statute of, or commission held or authority ex- ercised under, the United States, and the decision is against the title, right, privilege, or immunity, especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be re- examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such state court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ. Annotated, our 331 note a. 238. Appeals and writs of error may be taken from the district courts, 746 APPENDIX including the United States district court for Hawaii, direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision; from the final sentences and decrees in prize causes; in any case that involves the construction or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question; and in any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States. Annotated, our 2001 note a. 239. In any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight, the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propo- sitions of law concerning which it desires the instruction of that court for its proper decision; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its 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. Annotated, our 840 note a. Referred to in our 2011, 2075. 240. In any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this Title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be cer- tified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court. Annotated, our 840 note a. Referred to in our 2010, 2074. 241. In any case in which the judgment or decree of the circuit court of appeals is not made final by the provisions of this Title, there shall be of right an appeal or writ of error to the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars, besides costs. Annotated, our 2009 note b. 242. An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judgments of the court of claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is for- feited to the United States by the judgment of said court as provided in section one hundred and seventy-two. Annotated, our 2012 note e. 243. All appeals from the court of claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regula- tions as the Supreme Court may direct. Annotated, our 2012 note g. 244. Writs of error and appeals from the final judgments and decrees of the supreme court of, and the United States district court for, Porto Rico, JUDICIAL CODE 747 may be taken and prosecuted to the Supreme Court of the United Statee, in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statute of, or authority ex- ercised under, the United States, or wherein the Constitution of the United States, or a treaty thereof, or an act of Congress, is brought in question and the right claimed thereunder is denied, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Such writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken to the Supreme Court of the United States from the district courts. Annotated, our 2013 note h. Referred to in our 2077. 245. Writs of error and appeals from the final judgments and decrees of the supreme courts of the territories of Arizona and New Mexico may be taken and prosecuted to the Supreme Court of the United States in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. 36 Stat. at L. 1158, Comp. St. 1911, p. 229, 1912 Supp. F. S. A. v. 1, p. ^3.3. Drawn from 702, R. S., Foster's Fed. Prac. (4th ed.) pp. 2046, 2062, Comp. St. 1901, p. 571, 4 F. S. A. 459, and 1 and 2 of the act of March 3, 1885, ch. 355, 23 Stat. at L. 443, Foster's Fed. Prac. (4th ed.) pp. 1994-97, 2045-46, Comp. St. 1901, p. 571, 4 F. S. A. 463, all of which are repealed by 297, Judicial Code. 246. Writs of error and appeals from the final judgments and decrees of the supreme court of the territory of Hawaii may be taken and prosecuted to the Supreme Court of the United States, within the same time, in the same manner, under the same regulations, and in the same classes of cases, in which writs of error and appeals from the final judgments and decrees of the highest court of a state in which a decision in the suit could be had, may be taken and prosecuted to the Supreme Court of the United States under the provisions of section two hundred and thirty-seven; and also in all cases wherein the amount involved, exclusive of costs, to be ascertained by the oath of either party or of other competent witnesses, exceeds the sum or value of five thousand dollars. Annotated, our 2014 note i. Referred to in our 2081. 247. Appeals and writs of error may be taken and prosecuted from final judgments and decrees of the district court for the district of Alaska or for any division thereof, direct to the Supreme Court of the United States, in the following cases: In prize cases; and in all cases which involve the con- struction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or 748 AIMM.XDIX construction of any treaty made under its authority is drawn in question, or in which the Constitution or law of a state is claimed to be in contra- vention of the Constitution of the United States. Such writs of error and appeal shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the dis- trict courts to the Supreme Court. Annotated, our 2015 note j. Referred to in our 2076. 248. The Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the supreme court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby, in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court on appeal or writ of error by the party aggrieved, within the same time, in the same manner, under the same regulations, and by the same pro- cedure, as far as applicable, as the final judgments and decrees of the district courts of the United States. Annotated, our 2016 note k. Referred to in our 2078. 249. In all cases where the judgment or decree of any court of a terri- tory might be reviewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken, within the time and in the man- ner provided by law, notwithstanding such territory has, after such judgment or decree, been admitted as a state; and the Supreme Court shall direct the mandate to such court as the nature of the writ of error or appeal requires. Annotated, our 2017 note 1. 250. Any final judgment or decree of the court of appeals of the Dis- trict of Columbia may be re-examined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases: First. In cases in which the jurisdiction of the trial court is in issue; but when any such case is not otherwise review-able in said Supreme Court, then the question of jurisdiction alone shall be certified to said Supreme Court for decision. Second. In prize cases. Third. In cases involving the construction or application of the Constitu- tion of the United States, or the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority. Fourth. In cases in which the Constitution, or any law of a state, is claimed to be in contravention of the Constitution of the United States. Fifth. In cases in which the validity of any authority exercised under the United States, or the existence or scope of any power or duty of an officer of the United States, is drawn in question. Sixth. In cases in which the construction of any law of the United States is drawn in question by the defendant. JUDICIAL CODE 749 Except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases arising under the patent laws, the copyright laws, the revenue laws, the criminal laws, and in admiralty cases; and, except as provided in the next succeeding section, the judgments and decrees of said court of appeals shall be final in all cases not reviewable as hereinbefore provided. s \Vrits of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the circuit courts of appeals to the Supreme Court of the United States. Annotated, our 2018 note m. Referred to in our 2079. 251. In any case in which the judgment or decree of said court of appeals is made final by the section last preceding, it shall be competent for the Supreme Court of the United States to require, by certiorari or otherwise, any such case to be certified to it for its review and determination, with the same power and authority in the case as if it had been carried by writ of error or appeal to said Supreme Court. It shall also be competent for said court of appeals, in any case in which its judgment or decree is made final under the section last preceding, at any time to certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for their proper decision; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon said court of appeals . in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. Annotated, our 2019 note n. Referred to in our 2080. 252. The Supreme Court of the United States is hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings, from the courts of bankruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the su- preme court of the District of Columbia. An appeal may be taken to the Supreme Court of the United States from any final decision of a court of appeals allowing or rejecting a claim under the laws relating to bankruptcy, under such rules and within such time as may be prescribed by said Supreme Court, in the following cases and no other : First. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a state to the Supreme Court of the United States; or Second. Where some justice of the Supreme Court shall certify that in his opinion the determination of the question involved in the allowance or rejection of such claim is essential to a uniform construction of the laxvs relating to bankruptcy throughout the United States. Controversies may be certified to the Supreme Court of the Unitod States from other courts of the United States,, and the former court may exercise 750 APPENDIX jurisdiction thereof, and may issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted. Annotated, our 2020 note o. 253. Cases on writ of error to revise the judgment of a state court in any criminal case shall have precedence on the docket of the Supreme Court, of all cases to which the government of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public importance. 36 Stat. at L. 1160, Comp. St. 1911, p. 233, 1912 Supp. F. S. A. v. 1, p. 238. Re-enacting 710, R. S., Rose's Code, 2041, Foster's Fed. Prac. (4th ed.) pp. 2004, 2121, Comp. St. 1901, p. 576, 4 F. S. A. 490. 254. There shall be taxed against the losing party in each and every cause pending in the Supreme Court the cost of printing the record in such case, except when the judgment is against the United States. 36 Stat. at L. 1160, Comp. St. 1911, p. 233, 1912 Supp. F. S. A. v. 1, p. 238. Drawn from sundry civil appropriation act of March 3, 1877, ch. 105, 19 Stat, at L. 344, 2 F. S. A. 293. Cost, Railroad Co. v. Collector, 96 U. S. 594, 24 L. ed. 825. 255. Any woman who shall have been a member of the bar of the high- est court of any state or territory, or of the court of appeals of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral char- acter, shall, on motion, and the production of such records, be admitted to practice before the Supreme Court of the United States. Annotated, our 2455 note j. CHAPTER ELEVEN. PBOVISIONS COMMON TO MORE THAN ONE COtJBT. Sec. Sec. 256. Cases in which jurisdiction of 266. Injunctions based upon alleged United States courts shall be unconstitutionality of state exclusive of state courts. statutes; when and by whom 257. Oath of United States judges. ma y be granted. 258. Judges prohibited from practic- 26 ?- When suits equity may be ' e law maintained. f 268. Power to administer oaths and 259. Traveling expenses etc., of cir- igh conte ts . cuit justices and circuit and 26g N w trials district judges. 270 ; p ower to ho i d to security foi 260. Salary of judges after resigna- the peace and good behavior. tion. 271. Power to enforce awards of for- 261. Writs of ne exeat. ei gn consuls, etc., in certain 262. Power to issue writs. cases. 263. Temporary restraining orders. 272. Parties may manage their caus- 264. Injunctions; in what cases judge es personally or by counsel. mav grant. 273. Certain officers forbidden to act 265. Injunctions to stay proceedings as attorneys. in state courts. 274. Penalty for violating preceding section. JUDICIAL CODE 751 256. The jurisdiction vested in the courts of the United States in tin- cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states: First. Of all crimes and offenses cognizable under the authority of the United States. Second. Of all suits for penalties and forfeitures incurred under the laws of the United States. Third. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. Fifth. Of all cases arising under the patent-right or copyright laws of the United States. Sixth. Of all matters and proceedings in bankruptcy. Seventh. Of all controversies of a civil nature, where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens. Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice consuls. Annotated, our 192 note a. Referred to in our 359, 360, 364, 366, 367, 374, 375. 257. The justices of the Supreme Court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices: "I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States: So help me God." 36 Stat. at L. 1161, Comp. St. 1911, p. 234, 1912 Supp. F. S. A. v. 1, p. 240. Re-enacting 712, R. S., Rose's Code, 466, Comp. St. 1901, p. 578, 4 F. S. A. 497, which section is repealed by 297, Judicial Code. 258. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law. Any person offend- ing against the prohibition of this section shall be deemed guilty of a high misdemeanor. 36 Stat. at L. 1161, Comp. St. 1911, p. 234, 1912 Supp. F. S. A. v. 1, p. 240. Re-enacting 713, R. S., Rose's Code, 476, Comp. St. 1901, p. 578, 4 F. S. A. 497, which section is repealed by 297, Judicial Qode. 259. The circuit justices, the circuit and district judges of the United States, and the judges of the district courts of the United States in Alaska, Hawaii, and Porto Rico, shall each be allowed and paid his necessary ex- 752 APPENDIX penses of travel, and his reasonable expenses (not to exceed ten dollars per day) actually incurred for maintenance, consequent upon his attending court or transacting other official business in pursuance of law at any place other than his official place of residence, said expenses to be paid by the marshal of the district in which such court is held or official business transacted, upon the written certificate of the justice or judge. The official place of residence of each justice and of each circuit judge while assigned to the commerce court shall be at Washington; and the official place of residence of each circuit and district judge, and of each judge of the district courts of the United States in Alaska, Hawaii, and Porto Rico, shall be at that place nearest his actual residence at which either a circuit court of appeals or a district court is regularly held. Every such judge shall, upon his appoint- ment, and from time to time thereafter whenever he may change his official residence, in writing notify the Department of Justice of his official place of residence. 36 Stat. at L. 1161, Comp. St. 1911. p. 234, 1912 Supp. F. S. A. v. 1, p. 240. Drawn from 554, R. S., Comp. St. 1901, p. 449, 4 F. S. A. 217, which section is repealed by 297, Judicial Code. 260. When any judge of any court of the United States appointed to hold his office during good behavior resigns his office, after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his retirement for the office that he held at the time of his resignation. 36 Stat. at L. 1161, Comp. St. 1911. p. 235. 1912 Supp. F. S. A. v. 1, p. 24]. Re-enacting 714, R. S., Rose's Code, 471, Foster's Fed. Prac. (4th ed. ) p. 68, Comp. St. 1901, p. 576, 4 F. S. A. 498, as amended by act of Feb. 15, 1 !)()!), ch. 127, 35 Stat. at L. 619, 1909 Supp. F. S. A. 294, which section is re- pealed by 297, Judicial Code. In general, James v. United States, 202 U. S. 401, 50 L. ed. 1079, 26 Sup. Ct. Rep. 685. 261. Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any district judge, in cases where they might be granted by the district court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States. Annotated, our 1067 note n. 262. The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals. and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. Annotated, our 1054 note d. Referred to in our 1068, 2021, 2201. 2G3. Whenever notice is given of a motion for an injunction out of a district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought JUDICIAL CODE 753 to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge. Annotated, our 1056 note f. 264. Writs of injunction may be granted by any justice of the Supreme court. But no justice of the Supreme Court shall hear or allow any appli- any judge of a district court in cases where they might be granted by such xourt. But no justice of the Supreme Court shall hear or allow any appli- cation for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it can not be heard by the district judge of the district. In case of the absence from the district of the district judge, or of his disability, any circuit judge of the circuit in which the district is situated may grant an injunction or restraining order in any case pending in the district court, where the same might be granted by the district judge. Annotated, our 1055 note e. 265. The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. Annotated, our 1062 note 1. 266. Xo interlocutory injunction suspending or restraining the enforce- ment, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the un- constitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. Whenever such application as aforesaid is presented to a justice to the Su- preme Court, or to a judge, he shall immediately call to his assistance to hear and determine the application two other judges: Provided, hoivever, That one of such three judges shall be a justice of the Supreme Court, or a circuit judge. Said application shall not be heard or determined before at least five days' notice of the hearing has been given to the governor and to the attorney general of the state, and to such other persons as may be de- fendants in the suit: Provided, That if of opinion that irreparable loss or damage would result to the complainant unless a temporary restraining order is granted, any justice of the Supreme Court, or any circuit or district judge, may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction, but such temporary restraining order shall remain in force only until the hearing and determination of the application for an interlocutory injunction upon notice as aforesaid. The hearing upon such application for an inter- locutory injunction shall be given precedence and shall be in every way ex- Montg. 48. 754 APPENDIX pedited and be assigned for a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order grant- ing or denying, after notice and hearing, an interlocutory injunction in such case. As amended, Act March 4, 1913, ch. 160. See our 1063. 267. Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law. 36 Stat. at L. 1163. Comp. St. 1911. p. 237. 1912 Supp. F. S. A. v. 1. p. 243. Re-enacting 723, R. S. Rose's Code, 935, Foster's Fed. Prac. (4th ed.) pp. 9, 729, Comp. St. 1901, p. 583, 4 F. S. A. 530, which section id repealed by 297, Judicial Code. In general, Baum v. Longwell, 200 Fed. 450. 268. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to ob- struct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resist- ance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. Annotated 487 note a. Referred to in our 1069. 269. All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. Annotated, our 764 note a. 270. The judges of the Supreme Court and of the circuit courts of appeals and district courts, United States commissioners, and the judges and other magistrates of the several States, who are or may be authorized by law to make arrests for offenses against the United States, shall have the like authority to hold to security of the peace and for good behavior, in cases aris- ing under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them. Annotated, our 2128 note m. 271. The district courts and the United States commissioners shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice consul, or commercial agent of any foreign nation, made or rendered by virtue of au- thority conferred on him as such consul, vice consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the cap- tains and crews of the vessels belonging to the nation whose interests are committed to his charge, application for the exercise of such power being first made to such court or commissioner, by petition of such consul, vice consul, or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such JUDICIAL CODE 755 award, arbitration, or decree, and to enforce obedience thereto by imprison- ment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise discharged therefrom, by the consent in writing of such consul, vice consul, or commercial agent, or his successor in office, or by ^the authority of the foreign government appointing such consul, vice consul, or commercial agent: Provided, however, That the expenses of the said imprisonment and maintenance of the prisoners, and the cost of the pro- ceedings, shall be borne by such foreign government, or by its consul, vice consul, or commercial agent requiring such imprisonment. The marshals of the United States shall serve all such process, and do all other acts necessary and proper to carry into effect the premises, under the authority of the said courts and commissioners. Annotated, our 205 note f. 272. In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein. 36 Stat. at L. 1164, Comp. St. 1911, p. 238, 1912 Supp. F. S. A. v. 1, p. 244. Re-enacting 747, R. S. Rose's Code, 493, Foster's Fed. Prac. (4th ed.) p. 42.3. 4 F. S. A. 556, Comp. St. 1901, p. 590, which section is repealed by 297, Judicial Code. In general, United States v. Stone, 8 Fed. 232. 273. No clerk, or assistant or deputy clerk, of any territorial, district, or circuit court of appeals, or of the court of claims, or of the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cause depending in any of said courts, or in any district for which he is acting as such officer. 36 Stat. at L. 1164. Comp. St. 1911, pp. 238, 458, 491, 532, 1436, 1912 Supp. F. S. A. v. 1, p. 244. Re-enacting 748, R. S. Rose's Code, 496, Comp. St. 1901, p. 590, 4 F. S. A. 153, which section is repealed by 297, Judicial Code. 274. Whoever shall violate the provisions of the preceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice and be heard in his defense; and in the case of a marshal or deputy marshal so acting, he shall be recommend- ed by the court for dismissal from office. 36 Stat. at L. 1164, Comp. St. 1911, p. 238, 1912 Supp. F. S. A. v. 1, p. 246. Re-enacting 749, R. S. Rose's Code, 497, Comp. St. 1901, p. 591, 4 F. S. A. 153, which section is repealed by 297, Judicial Code. 756 APPENDIX CHAPTER TWELVE. JURIES. Sec. Sec. 275. Qualifications and exemptions 283. Foreman of grand jury. of jurors. 284. Grand juries, when summoned. 276. Jurors, how drawn. 285. Discharge of grand juries. 277. Jurors, how to be apportioned 286. Jurors not to serve more than in the district. once a year. 278. Race or color not to exclude. 287. Challenges. 27!. Venire, how issued and served. 288. Persons disqualified for service 280. Talesmen for petit juries. on jury in prosecutions for 281. Special juries. polygamy, etc. 282. Number of grand jurors. 275. Jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject to the provisions here- inafter contained, and be entitled to the same exemptions, as jurors of the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are sum- moned. Annotated, our 734 note a. Referred to in our 1209. 276. All such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, or by the judge senior in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held,. and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations until the whole number required shall be placed therein. Annotated, our 739 note e. Referred to in our 2112. g 277. Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service. Annotated, our 738 note d. Referred to in our 2111. 278. No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude. Annotated, our 735 note b. Referred to in our 2110. 279. Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent JUDICIAL CODE 757 person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. Any person named in such writ who resides elsewhere than at the place at which the court is held, shall be served by the marshal mailing a copy ^thereof to such person commanding him to attend as a juror at a time and place designated .-therein, which copy shall be registered and deposited in the postoffice addressed to such person at his usual postoffice address. And the receipt of the peison so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts. Annotated, our 740 note f. Referred to in our 2113. 280. When, from challenges or otherwise, there, is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section. Annotated, our 741 note g. 281. When special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several states. Annotated, our 742 note h. Referred to in our 2114. 282. Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. Annotated, our 2116 note i. 283. From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to administer oaths and affirmations to witnesses appearing before the grand jury. Annotated, our 2117 note k. 284. No grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. If the United States attorney for any district which has a city or borough containing at least three hundred thousand inhabitants shall cer- tify in writing to the district judge, or the senior district judge of the district, that the exigencies of the public service require it, the judge may, in his discretion, also order a venire to issue for a second grand jury. And said court may in term order a grand jury to be summoned at such time, 758 APPENDIX and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. But nothing herein shall operate to extend beyond the time permitted by law the imprisonment before indictment found of a person accused of a crime or offense, or the time during which a person so accused may be held under recognizance before indictment found. Annotated, our 2115 note i. 285. The district courts, the district courts of the territories, and the supreme court of the District of Columbia may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. Annotated, our 2118 note 1. 286. No person shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as. a juror at any term of said court held within one year prior to the time of such challenge. Annotated, our 737 note c. 287. When the offense charged is treason or a capital offense, the defend- ant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. Annotated, our 743 note i. Referred to in our 2144. 288. In any prosecution for bigamy, polygamy, or unlawful cohabita- tion, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable either by sections one or three of an act entitled "An Act to Amend Section Fifty-Three Hundred and Fifty-Two of the Revised Statutes of the United States, in Reference to Bigamy, and for Other Purposes," approved March twenty-second, eighteen hundred and eighty-two, or by section fifty-three hundred and fifty-two of the Revised Statutes of the United States, or the act of July first, eighteen hundred and sixty-two, entitled "An Act to Punish and Prevent the Practice of Polygamy in the Territories of the United States and Other Places, and Disapproving and Annulling Certain Acts of the Legislative Assembly of the Territory of Utah;" or Second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabit- ing with more than one woman. Any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge; and other evidence may be in- JUDICIAL CODE 759 troduced bearing upon the question raised by such challenge ; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person chal- lenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense above named; but if he declines to answer on any ground, he' shall be re- jected as incompetent. Annotated, our 2146 note o. CHAPTER THIRTEEN. GENERAL PROVISIONS. Sec. Sec. 289. Circuit courts abolished; rec- 293. Sections 1 to 5, Revised Stat- ords of to be transferred to utes. to govern construction district courts. of this act. 290. Suits pending in circuit courts 294. Laws revised in this act to be to be disposed of in district construed as continuations of courts. existing laws. 291. Powers and duties of circuit 295. Inference of legislative con- courts imposed upon district struction not to be drawn by courts. reason of arrangement of sec- 292. References to laws revised in tions. this act deemed to refer to 296. Act may be designated as "The sections of act. Judicial Code." 289. The circuit courts of the United States, upon the taking effect of this act, shall be, and hereby are, abolished; and thereupon, on said date, the clerks of said courts shall deliver to the clerks of the district courts of the United States for their respective, districts all the journals, dockets, books, files, records, and other books and papers of or belonging to or in any manner connected with said circuit courts; and shall also on said date deliver to the clerks of said district courts all moneys, from whatever source re- ceived, then remaining in their hands or under their control as clerks of said circuit courts, or received by them by virtue of their said offices. The journals, dockets, books, files, records, and other books and papers so delivered to the clerks of the several district courts shall be and remain a part of the official redords of said district courts, and copies thereof, when certified under the hand and seal of the clerk of the district court, shall be received as evi- dence equally with the originals thereof; and the clerks of the several district courts shall have the same authority to exercise all the powers and to perform all the duties with respect thereto as the clerks of the several circuit courts had prior to the taking effect of this act. 36 Stat. at L. 1167, Comp. St. 1911, p. 243, 1912 Supp. F. S. A. v. 1, p. 2-4:). New legislation. In general, Dallyn et al. v. Brady, 197 Fed. 494. 760 APPENDIX 200. All suits and proceedings pending in said circuit courts on the date of the taking effect of this act, whether originally brought therein or certified, thereto from the district courts, shall thereupon and thereafter l>i' proceeded with and disposed of in the district courts in the same manner and with the same effect as if originally begun therein, the record thereof being entered in the records of the circuit courts so transferred as above provided. 36 Stat. at L. 1167, Comp. St. 1911, p. 243, 1912 Supp. F. 8. A. v. 1, p. 24!). New legislation. In general, Lincoln v. Robinson et al. 394 Fed. 571. 291. Wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upon, the circuit courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the district courts. Annotated, our 744 note i. 292. Wherever, in any law not contained within this act, a reference is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this act into which has been carried or revised the provision of law to which refer- ence is so made. Annotated, our 2220 note d. 293. The provisions of sections one to five, both inclusive, of the Re- vised Statutes, shall apply to and govern the construction of the provisions of this act. The words "this title," wherever they occur herein, shall be construed to mean this act. Annotated, our 2220 note a. 294. The provisions of this act, so far as they are substantially the same as existing statutes, shall be construed as continuations thereof, and not as new enactments, and there shall be no implication of a change of intent by reason of a change of words in such statute, unless such change of intent shall be clearly manifest. Annotated, our 2220 note b. 295. The arrangement and classification of the several sections of this act have been made for the purpose of a more convenient and orderly ar- rangement of the same, and therefore no inference or presumption of a legis- lative construction is to be drawn by reason of the chapter under which any particular section is placed. Annotated, our 2220 note c. 296. This act may be designated and cited as "The Judicial Code." 36 Stat. at L. 1168, Comp. St. 1911, p. 244, 1912 Supp. F. S. A. v. 1, p. 250. New legislation. JUDICIAL CODE 761 CHAPTER FOURTEEN. REPEALING PROVISIONS. \ Sec. Sec. 297. Sections, acts, and parts of acts 300. Offenses committed, and penal- repealed, ties, forfeitures, and liabili- 298. Repeal not to affect tenure of ties incurred, how to be prose- office, or salary, or compensa- cuted and enforced. tion of incumbents, etc. 301. Date this act shall be effective. 299. Accrued rights, etc., not affect- ed. 297. The following sections of the Revised Statutes and acts and parts of acts are hereby repealed: Sections five hundred and thirty to five hundred and sixty, both inclusive; sections five hundred and sixty-two to five hundred and sixty-four, both inclusive; sections five hundred and sixty-seven to six hundred and twenty- seven, both inclusive; sections six hundred and twenty-nine to six hundred and forty-seven, both inclusive; sections six hundred and fifty to six hun- dred and ninety-seven, both inclusive; section six hundred and ninety-nine; sections seven hundred and two to seven hundred and fourteen, both inclu- sive; sections seven hundred and sixteen to seven hundred and twenty, both inclusive; section seven hundred and twenty-three; sections seven hundred and twenty-five to seven hundred and forty -nine, both inclusive; sections eight hundred to eight hundred and twenty -two, both inclusive; sections ten hundred and forty-nine to ten hundred and eighty-etght, both inclusive; sections ten hundred and ninety-one to ten hundred and ninety-three, both inclusive, of the Revised Statutes. "An Act to Determine the Jurisdiction of Circuit Courts of the United States and to Regulate the Removal of Causes from State Courts, and for Other Purposes," approved March third, eighteen hundred and seventy-five. Section five of an act entitled "An Act to Amend Section Fifty-Three Hundred and Fifty-Two of the Revised Statutes of the United States, in Reference to Bigamy, and for Other Purposes," approved March twenty- second, eighteen hundred and eighty-two; but sections six, seven, and eight of said act, and sections one, two, and twenty-six of an act entitled "An Act to Amend an Act Entitled 'An Act to Amend Section Fifty-Three Hundred and Fifty-Two of the Revised Statutes of the United States, in Reference to Bigamy, and for Other Purposes,' Approved March Twenty- second, Eighteen Hundred and Eighty-Two," approved March third, eighteen hundred and eighty-seven are hereby continued in force. "An Act to Afford Assistance and Relief to Congress and Executive De- partments in the Investigation of Claims and Demands against the Govern- ment," approved March third, eighteen hundred and eighty-three. "An Act Regulating Appeals from the Supreme Court of the District of Columbia and the Supreme Courts of the Several Territories," approved March third, eighteen hundred and eighty-five. "An Act To Provide for the Bringing of Suits against the Government 762 APPENDIX of the United States," approved March third, eighteen hundred and eighty- seven, except sections four, five, six, seven, and ten thereof. Sections one, two, three, four, six, and seven of an act entitled "An Act to Correct the Enrollment of an Act Approved March Third, Eighteen Hundred and Eighty-Seven, Entitled 'An Act to Amend Sections One, Two, Three, and Ten of an Act to Determine the Jurisdiction of the Circuit Courts of the United States, and to Regulate the Removal of Causes from the State Courts, and for Other Purposes,' Approved March Third, Eighteen Hundred and Seventy-Five," approved August thirteenth, eighteen hundred and eighty-eight. "An Act to Provide for the Bringing of Suits against the Government Cases Not Capital and Confer the Same on the Circuit Courts of Appeals," approved January twentieth, eighteen hundred and ninety-seven. "An Act to Amend Sections One and Two of the Act of March Third, Eighteen Hundred and Eighty-Seven, Twenty-Fourth Statutes at Large, Chapter Three Hundred and Fifty-Nine," approved June twenty-seventh, eighteen hundred and ninety-eight. "An Act to Amend the Seventh Section of the Act Entitled 'An Act to Establish Circuit Courts of Appeals and to Define and Regulate in Certain Cases the Jurisdiction of the Courts of the United States, and for Other Purposes,' Approved March Third. Eighteen Hundred and Ninety-One, and the Several Acts Amendatory Thereto," approved April fourteenth, nineteen hundred and six. All acts and parts of acts authorizing the appointment of United States circuit or district judges, or creating or changing judicial circuits, or judicial districts or divisions thereof, or fixing or changing the times or places of holding court therein, enacted prior to February first, nineteen hundred and eleven. Sections one, two, three, foiir, five, the first paragraph of section six, and section seventeen of an act entitled "An Act to Create a Commerce Court, and to Amend an Act Entitled 'An Act to Regulate Commerce,' Ap- proved February Fourth, Eighteen Hundred and Eighty-Seven, as Heretofore Amended, and for Other Purposes," approved June eighteenth, nineteen hun- dred and ten. Also other acts and parts of acts, in so far as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed. 26 Stat. at L. 1168, Comp. St. 1911, pp. 244, 245, 1912 Supp. F. S. A. v. 1, p. 250. In general, United States v. Winslow, 227 U. S. 202, 57 L. ed. 481, 33 Sup. Ct. Rep. 253. 298. The repeal of existing laws providing for the appointment of judges and other officers mentioned in this act, or affecting the organization of the courts, shall not be construed to affect the tenure of office of the incumbents (except the office be abolished), but they shall continue to hold their respective offices during the terms for which appointed, unless removed JUDICIAL CODE 763 as provided by law; nor (except the office be abolished) shall such repeal affect the salary or fees or compensation of any officer or person holding office or position by virtue of any law. 36 Stat. at L. 1169, Comp. St. 1911, p. 246, 1912 Supp. F. S. A. v. 1, p. 252. In general, United States v. New Departure Mfg. Co. et al. 195 Fed. 778. 299. The repeal of existing laws, or the amendments thereof, embraced in this act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or in- cluded within, the provisions of this act, pending at the time of the taking effect of this act, but all such suits and proceedings, and suits and pro- ceedings for causes arising or acts done prior to such date, may be com- menced and prosecuted within the same time, and with the same effect, as if said repeal or amendments had not been made. 36 Stat. at L. 1169, Comp. St. 1911, p. 246, 1912 Supp. F. S. A. v. 1, p. 252. In general, Washington Home for Incurables v. Am. Security Co. 224 U. S. 486, 56 L. ed. 854, 32 Sup. Ct. Rep. 554. 300. All offenses committed, and all penalties, forfeitures, or liabilities incurred prior to the taking effect hereof, under any law embraced in, amended, or repealed by this act, may be prosecuted and punished, or sued for and recovered, in the district courts, in the same manner and with the same effect as if this act had not been passed. 36 Stat. at L. 1169, Comp. St. 1911, p. 246, 1912 Supp. F. S. A. v. 1, p. 252. In general, In re Steiner et al. 195 Fed. 299. 301. This act shall take effect and be in force on and after January first, nineteen hundred and twelve. Approved, March 3, 1911. 36 Stat. at L. 1169, Comp. St. 1911, p. 247, 1912 Supp. F. S. A. v. 1, p. 252. RULES OF THE UNITED STATES SUPREME COURT. PKOMULGATED DECEMBER 22, 1911. WITH AMENDMENTS OF FEBRUARY 26, APRIL 1, AND JUNK 10, 1912. 765 83JUH RULES OF THE SUPREME COURT OF THE UNITED STATES. CLERK. 1. The clerk of this court shall reside and keep the office at the seat of the national government, and he shall not practice, either as attorney or counselor, in this court, or in any other court, while he shall continue to be clerk of this court. 2. The clerk shall not permit any original record or paper to be taken from the court room, or from the office, without an order from the court, except as provided by rule 10. 2. ATTORNEYS AND COUNSELORS. 1. It shall be requisite to the admission of attorneys or counselors to prac- tice in this court, that they shall have been such for three years past in the highest courts of the states to which they respectively belong, and that their private and professional characters shall appear to be fair. 2. They shall respectively take and subscribe the following oath or affirm- ation, viz.: 1, , do solemnly swear (or affirm) that I will de- mean myself, as an attorney and counselor of this court, uprightly, and ac- cording 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. 767 768 APPENDIX 4. BILL OF EXCEPTIONS. The judges of the district courts in allowing bills of exception shall give effect to the following rules: 1. No bill of exceptions shall be allowed which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and those matters of law, and those only, shall be insert- ed in the bills of exceptions and allowed by the court. 2. Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it be set forth otherwise. 5. PROCESS. 1. All process of this court shall be in the name of the President of the United States, and shall contain the Christian names, as well as the sur- names, of the parties. 2. When process at common law or in equity shall issue against a state, the same shall be served on the governor, or chief executive magistrate, and attorney-general, of such state. 3. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and if the defendant, on such service of the subpoena, shall not ap- pear at the return day, the complainant shall be at liberty to proceed ex parte. 6. MOTIONS. 1. All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. Forty-five minutes on each side shall be allowed to the argument of a motion, and no more, without special leave of the court, granted before the argument begins. 3. No motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice 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 RULES OF THE SUPREME COURT 769 printed briefs or arguments. If the court desires further argument on that subject, it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief or argument, on the counsel for plaintiff in error or appellant of rec- ord in this court, at least three weeks before the time fixed for submitting the motion, in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. Affidavits of the deposit in the mail of the notice and brief to the proper address of the counsel to be served, duly post-paid, at such time as to reach him by due course of mail, the three weeks or thirty days before the time fixed by the notice, will be regarded as prima facie evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be considered, unless, for satisfactory reasons, fur- ther time be given by the court to either party. 5. The court in any pending cause will receive a motion to affirm on the ground that it is manifest that the writ or appeal was taken for delay only, or that the questions on which the decision of the cause depends are so frivolous as not to need further argument. The same procedure shall apply to and control such motions as is provided for in cases of motions to dismiss under paragraph 4 of this rule. 6. Although the court upon consideration of a motion to dismiss or a mo- tion to affirm may refuse to grant the motion, it may nevertheless, if the conclusion is arrived at that the case is of such a character as not to justify extended argument, order the cause transferred for hearing to a summary docket. The hearing of the causes on such docket will be expedited, the court providing from time to time for such speedy disposition of the docket as the regular order of business may permit, and on the hearing of such causes one half hour will be allowed each side for oral argument. 7. The court will not hear arguments on Saturday (unless for special cause it shall order to the contrary ) , but will devote that day to the other business of the court. The motion day shall be Monday of each week; and motions not required by the rules of the court to be put on the docket shall be entitled to preference immediately after the reading of opinions, if such motions shall be made before the court shall have entered upon the hearing of a case upon the docket. 7. LAW LIBRARY. 1. During the session of the court, any gentleman of the bar having a case on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one time three) from the li- brary, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, and also one dollar per day for each day's detention beyond the limited time. Montg. 49. 770 APPENDIX 2. The clerk shall deposit in the law library, to be there carefully pre- served, one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs, or arguments filed therein. 3. The marshal shall take charge of the books of the court, together with such of the duplicate law books as Congress may direct to be transferred to the court, and arrange them in the conference room, which he shall have fitted up in a proper manner; and he shall not permit such books to be taken there- from by any one except the justices of the court. WRIT OF ERROR AND APPEAL, RETURN AND RECORD. 1. The clerk of the court to which any writ of error may be directed shall make return of the same, by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings in the case, under his hand and the seal of the court. In order to enable the clerk to perform such duty and for the purpose of reducing the size of transcripts of record in cases brought to this court by appeal or writ of error, by eliminating all papers not necessay to the con- sideration of the questions to be reviewed, it shall be the duty of the appel- lant or plaintiff in error or his attorney to file with the clerk of the lower court, together with proof or acknowledgment of service of a copy on the appellee or defendant in error, or his counsel, a precipe which shall indicate the portions of the record to be incorporated into the transcript of the rec- ord on such appeal or writ of error. Should the appellee or defendant in er- ror, or his counsel, desire additional portions of the record incorporated into the transcript of the record to be filed in this court, he shall file with the clerk of the lower court his precipe also, within ten days thereafter (unless the time shall be enlarged by a judge of the lower court or by a justice of this court), indicating such additional portions of the record desired by him. The clerk of the lower court shall transmit to this court as the transcript of the record in the case only the portions of the record below designated by both parties as above provided. The parties or their counsel, however, may agree by written stipulation to be filed with the clerk of the lower court the portions of the record which shall constitute the transcript of record on appeal or writ of error, and the clerk in such case shall transmit only the papers designated in such stipula- tion. If this court shall find that portions of the record unnecessary to a proper presentation of the case have been incorporated into the transcript by either party, the court may order that the whole or any part of the clerk's fee for supervising the printing and of the cost of printing the record be paid by the offending party. 2. In all cases brought to this court, by writ of error or appeal, to review any judgment or decree, the clerk of the court by which such judgment or de- cree was rendered shall annex to and transmit with the record a copy of the opinion or opinions filed in the case. KULES OF THE SUPKEME COURT 771 3. No case will be heard until a complete record, containing in itself, and not by reference, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court, shall be filed. 4. Whenever it shall be necessary or proper, in the opinion of the presid- ing judge in any district court, that original papers of any kind should be inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safe-keeping, transporting, and return of such original papers as to him may seem proper, and this court will re- ceive and consider such original papers in connection with the transcript of the proceedings. 5. All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the re- turn day fall in vacation or in term time, and be served before the return day, except in writs of error and appeals from California, Oregon, Nevada, Washington, New Mexico, Utah, Arizona, Montana, Wyoming, North Dakota, South Dakota, Alaska, Idaho, Hawaii and Porto Rico, when the time shall be extended to sixty days and from the Philippine Islands to one .hundred and twenty days. 6. The record in cases of admiralty and maritime jurisdiction, when under the requirements of law the facts have been found in the court below, and the power of review is limited to the determination of questions of law aris- ing on the record, shall be confined to the pleadings, the findings of fact, and conclusions of law thereon, the bills of exceptions, the final judgment or de- cree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. 9. DOCKETING CASES. 1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term time. But, for good cause shown, the justice or judge who signed the citation, or any justice of this court, may enlarge the time, by or before its expiration, the order of enlargement to be filed with the clerk of this court. If the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed upon producing a certificate, whether in term time or vacation, from the clerk of the court wherein the judg- ment or decree was rendered, stating the case and certifying that such writ of error or appeal has been duly sued out or allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. 2. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of this court; and if the case is docketed and a copy of the record filed with the clerk of this court by the plaintiff in error or appellant within the period of time above limited 772 APPENDIX and prescribed by this rule, or by the defendant in error or appellee at any time thereafter, the case shall stand for argument. 3. Upon the filing of the transcript of a record brought up by writ of er- ror or appeal, the appearance of the counsel for the party docketing the case shall be entered. 10. PRINTING RECORDS. 1. In all cases the plaintiff in error or appellant, on docketing a case and filing the record, shall make such cash deposit with the clerk for the pay- ment of his fees as he may require or otherwise satisfy him in that behalf. 2. The clerk shall cause an estimate to be made of the cost of printing the record, and of his fee for preparing it for the printer and supervising the printing, and shall notify to the party docketing the case the amount of the estimate* If he shall not pay it within a reasonable time, and for want of such payment the record shall not have been printed when a case is reached in the regular call of the docket, the case shall be dismissed. 3. Upon payment of the amount estimated by the clerk, thirty copies of the record shall be printed, under his supervision, for the use of the court and of counsel. 4. In cases of appellate jurisdiction the original transcript on file shall be taken by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such original papers, sent up under rule 8, 4, as are necessary to be printed; and of the whole record in cases of original juris- diction. 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 ac- tual cost and clerk's fee shall exceed the estimate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. 7. In case of reversal, affirmance, or dismissal, with costs, the amount of the cost of printing the record and of the clerk's fee shall be taxed against the party against whom costs are given, and shall be inserted in the body of the mandate or other proper process. 8. Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, re- spectively, to compel payment of said fees. 9. The plaintiff in error or appellant may, within ninety days after filing the record in this court, file with the clerk a statement of the errors on which he intends to rely, and of the parts of the record which he thinks RULES OF THE SUPREME COURT 773 necessary for the consideration thereof, with proof of service of the same on the adverse party. 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 con- sider nothing but those parts of the record, and the errors so stated. If at the hearing it shall appear that any material part of the record has not been printed, the writ of error or appeal may be dismissed, or such other order made as the circumstances may appear to the court to require. If the defend- ant in error or appellee shall have caused unnecessary parts of the record to be printed, such order as to costs may be made as the court shall think proper. The fees of the clerk under rule 24, 7, shall be computed, as at present, on the folios in the record as filed, and shall be in full for the performance of his duties in the execution hereof. 11. TRANSLATIONS. Whenever any record transmitted to this court upon a writ of error or ap- peal shall contain any document, paper, testimony, or other proceedings in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceedings, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed; but the case shall be reported to this court by the clerk, and the court will order that a translation be supplied and inserted in the record. 12. FURTHER PROOF. 1. In all cases where further proof is ordered by the court, the depositions which may be taken shall be by a commission, to be issued from this court, or from any district court of the United States. 2. In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any district court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories, to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interroga- tories so filed, to file cross-interrogatories within twenty days from the serv- ice of such notice: Provided, liowever, That nothing in this rule shall pre- vent any party from giving oral testimony in open court in cases where by law it is admissible. 774: APPENDIX 13. OBJECTIONS TO EVIDENCE IN THE RECORD. In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, un- less objection was taken thereto in the court below and entered of record; but the same shall otherwise be deemed to have been admitted by consent. 14. CERTIORARI. No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay. 15. DEATH OF A PARTY. 1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the de- ceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the case shall be heard and determined as in other cases; and if such representatives shall not volun- tarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representa- tives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error or appellee, shall be en- titled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error or appellant he shall be entitled to open the record, and on hearing have the judgment or decree reversed, if it be erroneous: Provided, however, that a copy of every such order shall be printed in some newspaper of general circulation within the state, territory, or district from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. When the death of a party is suggested, and the representatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. 3. When either party to a suit in a court of the United States shall de- RULES OF THE SUPREME COURT 775 sire to prosecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree, rendered in such court, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead and have no proper representative within the juris- diction of the court which rendered such final judgment or decree, so that the suit can not be revived in that court, but shall have a proper representative in some state or territory of the United States, the party desiring such writ of error or appeal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in the same manner as is now al- lowed by law in other cases, and shall thereupon proceed with such writ of er- ror or appeal as in other cases. And within thirty days after the commence- ment of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, sup- ported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper rep- resentative in some state or territory of the United States, and stating therein the name and character of such representative, and the state or terri- tory in which such representative resides; and, upon such suggestion, he may, on motion, obtain an order that, unless such representative shall make him- self a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, having the judgment or decree reversed, if the same be erroneous: Provided, however, That a proper citation reciting the substance of such or- der shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing: And provided, also, That in every such case if the representative of the deceased party does not appear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within time as above required, by the opposite party, the case shall abate: And provided, also, That the said representative may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the case shall proceed, and be heard and determined as in other cases. 16. NO APPEARANCE OF PLAINTIFF IN ERROR OR APPELLANT. Where no counsel appears and no brief has been filed for the plaintiff in error or appellant, when the case is called for' trial, the defendant in error or appellee may have the plaintiff in error or appellant called and the writ of error or appeal dismissed, or may open the record and pray for an affirmance. 17. NO APPEARANCE OF DEFENDANT IN ERROR OR APPELLEE. Where the defendant in error or appellee fails to appear when the case 776 APPENDIX is called for trial, the court may proceed to hear an argument on the part of the plaintiff in error or appellant and to give judgment according to the right of the case. 18. NO APPEARANCE OF EITHER PARTY. When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff in error or appellant. 19. NEITHER PARTY READY AT SECOND TERM. When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dis- missed at the cost of the plaintiff in error or appellant, unless sufficient cause is shown for further postponement. 20. PRINTED ARGUMENTS. 1. In all cases brought here on writ of error, appeal, or otherwise, the court will receive printed arguments without regard to the number of the case on the docket, if the counsel on both sides shall choose to submit the same within the first ninety days of the term; and, in addition, appeals from the court of claims may be submitted by both parties within thirty days after they are docketed, but not after the first day of April; but thirty copies of the arguments, signed by attorneys or counselors of this court, must he h'rst filed. 2. When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument for the opposite party will be received, unless it is filed before the oral argu- ment begins, and the court will proceed to consider and decide the case upon the ex parte argument. 4. No brief or argument will .be received, either through the clerk or other- wise, after a case has been argued or submitted, except upon leave granted in open court after notice to opposing counsel. 21. BRIEFS. 1. The counsel for plaintiff in error or appellant shall file with the clerk c r BULES OF THE SUPKEME COURT 777 the court, at least three weeks before the case is called for argument, thirty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. 2. This brief shall contain, in the order here stated (1) A concise abstract, or statement of the case, presenting succinctly the questions involved and the manner in which they are raised. (2) A specification of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged; and in cases brought up by appeal the specifica- tion 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 rejec- tion of evidence, the specification shall quote the full substance of the evi- dence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. When the error alleged is to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 3. The counsel for a defendant in error or an appellee shall file with the clerk thirty printed copies of his argument, at least one week before the case is called for hearing. His brief shall be of like character with that required of the plaintiff in error or appellant, except that no specification of errors shall be required, and no statement of the case, unless that presented by the plaintiff in error or appellant is controverted. 4. When there is no assignment of errors, as required by 997 of the Re- vised Statutes, counsel will not be heard, except at the request of the court; and errors not specified according to this rule will be disregarded; but the court, at its option, may notice a plain error not assigned or specified. 5. When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion: and when a defendant in error or an appellee is in default, he will not be heard, except on consent of hi adversary, and by request of the court. 6. When no oral argument is made for one of the parties, only one coun- sel will be heard for the adverse party. 7. No brief or printed argument, required by the foregoing sections, shall be filed by the clerk unless the same shall be accompanied by satisfactory proof of service upon counsel for the adverse party. 8. Every brief of more than twenty pages shall contain on its front fly leaves a subject index with page references, the subject index to be supple- mented by a list of all cases referred to, alphabetically arranged, together with references to pages where the cases are cited. 22. ORAL ARGUMENTS. 1. The plaintiff in error or appellant in this court shall be entitled tr> 778 APPENDIX open and conclude the argument of the case. But when there are cross appeals they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. 2. Only two counsel will be heard for each party on the argument of a case. 3. One and one-half hours on each side will be allowed for the argument, and no more, without special leave of the court, granted before the argument begins. But in cases certified from the circuit courts of appeals, cases involv- ing solely the jurisdiction of the court below, and cases under the act of March 2, 1907, 34 Stat. 1246, forty-five minutes only on each side will be allowed for the argument unless the time be extended. The time thus allowed may be apportioned between the counsel on the same side, at their discretion; provided, always, that a fair opening of the case shall be made by the party having the opening and closing arguments. 23. INTEREST. 1. In cases where a writ of error is prosecuted to this court, and the judg- ment of the inferior court is affirmed, the interest shall be calculated and levied, from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment is rendered. 2. In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at a rate not exceeding 10 per cent, in addition to interest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court. 4. In cases in admiralty, damages and interest may be allowed if specially directed by the court. 24. COSTS. 1. In all cases where any suit shall be dismissed in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties, except where the dismissal shall be for want of jurisdiction, when the costs incident to the motion to dismiss shall be allowed. 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise ordered by the court. 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court. The cost of the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case. BULES OF THE SDPKEME COURT 779 4. Neither of the foregoing sections shall apply to cases where the United States are a party; but in such cases no costs shall be allowed in this court for or against the United States. 5. In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. 7. In pursuance of the act of March 3, 1883, authorizing and 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 indexing the same, one dollar. For entering a judgment or decree, one dollar. For every search of the records of the court, one dollar. For a certificate and seal, two dollars. For receiving, keeping, and paying money in pursuance of any statute or order of court, two per cent on the amount so received, kept, and paid. For an admission to the bar and certificate under seal, ten dollars. For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio; but when the necessary printed copies of the record, as printed for the use of the lower court, shall be furnished, the fee for supervising shall be five cents per folio. For making a manuscript copy of the record, when required under rule 10, twenty cents per folio, but nothing in addition for supervising the print- ing. For issuing a writ of error and accompanying papers, five dollars. For a mandate or other process, five dollars. For filing briefs, five dollars for each party appearing. For every printed copy of any opinion of the court or any justice thereof, certified under seal, two dollars. 25. OPINIONS OF THE COURT. 1. All opinions delivered by the court shall, immediately upon the delivery 780 APPENDIX thereof, be handed to the clerk to be printed. And it shall be the duty of the clerk to cause the aame to be forthwith printed, and to deliver a copy to the reporter as soon as the same shall be printed. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. Opinions printed under the supervision of the justices delivering the same need not be copied by the clerk into a book of records; but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded. 26. CALL AND ORDER OF THE DOCKET. 1. The court, on the second day in each term, will commence calling the cases for argument in the order in which they stand on the docket, and "proceed from day to day during the term in the same order (except as herein- after provided) ; and if the parties, or either of them, shall be ready when the case is called, the same will be heard ; and if neither party shall be ready to proceed in the argument, the case shall be continued to the next term of the court unless some good and satisfactory reason to the contrary shall be shown to the court. 2. Ten cases only shall be considered as liable to be called on each day during the term. But on the coming in of the court on each day the entire number of such ten cases will be called, with a view to the disposition of such of them as are not to be argued. 3. Criminal cases may be advanced by leave of the court on motion of either party. 4. Cases once adjudicated by this court upon the merits, and again brought up by writ of error or appeal, may be advanced by leave of the court on motion of either party. 5. Revenue and other cases in which the United States are concerned, which also involve or affect some matter of general public interest, or which may be entitled to precedence under the provisions of any act of Congress, may also by leave of the court be advanced on motion of the Attorney General. 6. All motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reasons for the application. 7. No other case will be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar circum- stances to be shown to the court. 8. Two or more cases, involving the same question, may, by the leave of the court, be heard together, but they must be argued as one case. 9. If, after a case has been passed, the parties shall desire to have it heard, they may file with the clerk their joint request to that effect, and the case shall then be by him reinstated for call ten cases after that under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, either may move to take RULES OP THE SUPREME COURT 781 up the case, and it shall then be assigned to such place upon the docket as the court may direct. 10. No stipulation to pass a case will be recognized as binding upon the court. A case can only be so passed upon application made and leave granted in open court. 27. ADJOURNMENT. The court will, at every term, announce on what day it will 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 appeal, shall in vacation, by their attorneys of record, sign- and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed; but no mandate or other process shall issue without an order of the court. 29. SUPERSEDEAS. Supersedeas bonds in the district courts and circuit courts of appeals must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and answer all dam- ages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, or where the property is in the custody of the marshal under admiralty process, as in case of capturo 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 oases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal. 782 APPENDIX 30. REHEARING. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. 31. 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 conveniently bound together, so as to make an ordinary octavo volume; and, as well as all quotations con- tained therein, and the covers thereof, must be printed in clear type (never smaller than small pica) and on unglazed paper. 32. WRITS OF ERROR AND APPEALS IN CASES INVOLVING JURIS- DICTION OF LOWER COURT. Cases brought to this court by writ of error or appeal, where the only question in issue is the question of the jurisdiction of the court below, will be advanced on motion, and heard under the rules prescribed by rule 6, in regard to motions to dismiss writs of error and appeals. 33. MODELS, DIAGRAMS, AND EXHIBITS OF MATERIAL. 1. Models, diagrams, and exhibits of material forming part of the evidence taken in the court below, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of the marshal of this court at least one month before the case is heard or submitted. 2. All models, diagrams, and exhibits of material, placed in the custody of the marshal for the inspection of the court on the 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 given, he shall destroy them, or make such other disposi- tion of them as to him may seem best. RULES OF THE SUPREME COURT 783 34. CUSTODY OF PRISONERS ON HABEAS CORPUS. 1. Pending an appeal from the final decision of any court or judge declin- ing to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge dis- charging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance as hereinafter provided. 3. Pending an appeal from the final decision of any court or judge dis- charging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. 35. ASSIGNMENT OF ERRORS. 1. Where an appeal or a writ of error is taken from a district court direct to this court, under section 238 of the act entitled "An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary,' approved March 3, 1911, chapter 231, the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assign- ment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been tiled. 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. When the error alleged is to the charge of the court, the assign- ment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record, and be printed with it. When this is not done counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. 2. The plaintiff in error or appellant shall cause the record to be printed, according to the provisions of sections 2, 3, 4, 5, 6, and 9, of rule 10. 36. APPEALS AND WRITS OF ERROR FROM DISTRICT COURTS. 1. An appeal or a writ of error from a district court direct to this court, in the cases provided for in 238 and 252 of the act entitled, "An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary," approved March 3, 1911, chapter 231, may be allowed, in term time or in vacation by 784 APPENDIX any justice of this court, or by any circuit judge assigned to the district court, or by any district judge within his district, and the proper security be taken and the citation signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal. 2. Where such writ of error is allowed in the case of a conviction of an infamous crime, or in any other criminal case in which it will lie under section 238, the district court, or any judge thereof, or any justice of this court, or any circuit judge assigned to the district court, shall have power, after the citation is served, tp admit the accused to bail in such amount as may be fixed. 37. CASES FROM CIRCUIT COURTS OF APPEALS. 1. Where, under section 239 of the act entitled "An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary," approved March 3, 1911, chapter 231, a circuit court of appeals shall certify to this court a ques- tion or proposition of law, concerning which it desires the instruction of this court for its proper decision, the certificate shall contain a proper statement of the facts on which such question or proposition of law arises. 2. If application is thereupon made to this court that the whole record and cause may be sent up to it for its consideration, the party making such application shall, as a part thereof, furnish this court with a certified copy of the whole of said record. 3. Where an application is submitted to this court for a writ of certiorari to review a decision of a circuit court of appeals or any other court, it shall be necessary for the petitioner to furnish as an exhibit to the petition a certified copy of the entire transcript of record of the case, including the proceedings in the court to which the writ of certiorari is asked to be directed. The petition shall contain only a summary and short statement of the matter involved and the general reasons relied on for the allowance of the writ. A failure to comply with this provision will be deemed a suffi- cient reason for denying the petition. Thirty printed copies of such petition and of any brief deemed necessary shall be filed. Notice of the date of submission of the petition, together with a copy of the petition and brief, if any, in support of the same shall be served on the counsel for the respond- ent at least two weeks before such date in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which cases the time shall be at least three weeks. The brief for the respondent, if any, shall be filed at least three days before the date fixed for the submission of the peti- tion. Oral argument will not be permitted on such petitions, and no petition will be received within three days next before the day fixed upon for the adjournment of the court for the term. 38. INTEREST, COSTS, AND FEES. The provisions of rules 23 and 24 of this court, in regard to interest and RULES OF THE SUPREME COURT 85 costs and fees, shall apply to writs of error and appeals and reviews under the provisions of sections 238, 239, 240, and 241 of the act entitled "An Act to Codify, Revise, and Amend the Laws Relating to the Judiciary," approved March 3, 1911, chapter 231. 39. MANDATES. Mandates shall issue as of course after the expiration of thirty days from the day the judgment or decree is entered, unless the time is enlarged by order of the court, or of a justice thereof when the court is not in session, but during the term. 40. PRACTICE IN CASES FROM CIRCUIT COURTS OF APPEALS. The provisions of these rules relating to the practice on direct writs of error to and appeals from the district courts shall also be deemed to relate to and cover the practice on writs of error to and appeals from the circuit court of appeals. Montg.- -50. INDEX TO RULES OF THE SUPREME COURT. Rules Sec. Adjournment 27 Admiralty, record in . . 8 6 Appearance of counsel 9 3 for plaintiff in error or appellant, no 16 defendant in error or appellee, no 17 either party, no 18 Appeals in cases involving jurisdiction of district court 32 Appeals under act of March 3, 1911 36 Appeals direct from district court, when and by whom allowed. ... 36 1 bail to be allowed, when 36 2 Argument, oral 22 order of 22 1 time allowed for 22 3 on motions 6 2 printed 20 submission on 20 1 not received after submission 20 4 Assignment of errors 21 2, 4 under act of March 3, 1911 35 1 Attachment for clerk's fees 10 8 Attorneys, admission of 2 1 oatli of 2 2 Bail, when and how granted 36 2 Bill of exceptions 4 Briefs 21 contents of 21 2 time for filing by plaintiff in error or appellant 21 1 defendant in error or appellee 21 3 service on opposing counsel required 21 7 index to, when required, etc 21 8 for respondent on certiorari, when to be filed 37 3 form of printed 31 not received after argument 20 4 Cases involving same question may be heard together 26 8 passed, how restored to call 26 9 dismissal of, in vacation 28 Certiorari 14 Certiorari to circuit court of appeals, regulations governing appli- 37 3 cations for 37 3 Circuit courts of appeals, cases from, etc 37 practice in 40 787 788 APPENDIX Rules Sec. Citation, service of 8 5 Clerk , 1 _ Clerk's fees, table of 24 7 attachment for 10 8 deposit for 10 1 Conference-room library 7 3 Costs of printing record 10 2, 6, 7 how taxed 24 none recoverable in cases where United States is party .... 24 4 Counsel, admission of 2 1 appearance of 9 3 no appearance of 18 two only to be heard on argument 22 2 time allowed for argument 22 3 motions 6 2 Custody of prisoners on habeas corpus 34 Damages for delay ....'...'...... 23 2 Defendant, no appearance of 17 Death of a party 15 defendant in error or appellee after judgment in lower court 15 3 Deposit for clerk's fees 10 1 Dismissal in vacation ; 28 Docketing cases 9 by plaintiff in error or appellant 9 1 defendant in error or appellee 9 2 Docket, call of 26 day-call 26 2 Errors, assignment of 21 4 specification of 21 2 Evidence, new, how taken 12 1 in admiralty 12 2 in the record, objection to 13 Exceptions, bill of 4 Exhibits of material 33 Fees, table of clerk's 24 7 attachment for 10 8 security for 10 1 Habeas corpus, custody of prisoners on 34 1 nterest 23 - in admiralty ; 23 4 in equity 23 3 at law 23 1 under act of March 3, 1911 38 Jurisdiction cases involving district court 32 Law library 7 mode of obtaining books from, by counsel 7 i clerk to deposit records in 7 2 of conference-room 7 3 INDEX TO SUPREME COURT RULES 780 Rules Sec. List of cases in briefs, when required, etc 21 8 Mandates 39 Mandate in case dismissed 24 5 in vacation 28 Motions 6 to be in writing 6 1 notice of- 6 3, 4 time allowed for argument i ..... 6 2 to affirm v. 1 ^ '; .-.'. < : ...... 6 5 to dismiss 6 4 Motions, notice and service of briefs 6 4 submission of 6 4 to advance 26 6 cases once adjudicated 26 4 criminal cases 26 3 revenue cases 26 5 cases involving jurisdiction of district court. . 32 Motion day 6 7 Opinions of the Supreme Court 25 court below to be annexed to record 8 2 Original papers not to be taken from court room or clerk's office. . . 1 2 from court below 8 4 Parties, death of 15 Petitions for certiorari to C. C. A. regulations governing 37 3 Plaintiff in error or appellant, no appearance of 16 Practice 3 Process, form of 5 1 service of 5 2, 3 Record 8 return of 8 1 designated record from court below 8 1 to contain all necessary papers in full 8 3 opinion of court below 8 2 translations of papers in foreign language 11 printed under supervision of clerk 10 5 printed form of 31 printing parts of 10 9 cost of 10 2 certiorari for diminution of 14 in admiralty cases 8 6 in cases coming up under act of March 3, 1911 37 how printed 35 2 Rehearing 30 Representatives of deceased parties appearing 15 1 not appearing 15 2 Return to writ of error 8 day 8 5 790 APPENDIX Rules Sec. Revenue cases advanced on motion 26 5 Second term, neither party ready for trial 19 Security for clerk's fees 10 1 Subpcena, service of 5 3 Supersedes* 29 Translations 11 Writ of error, return to 8 in cases involving jurisdiction of district courts... 32 under act of March 3, 1911 36 RULES OF THE UNITED STATES CIRCUIT COURTS OF APPEALS. (INDEXED m GENERAL INDEX.) 791 RULES OF THE UNITED STATES CIR- CUIT COURTS OF APPEALS. STATEMENT. The rules of the United States Circuit Courts of Appeals as they exist in each of the nine circuits are so similar that hut one statement of a rule is made where the rule is alike in all of the circuits. Where there is a variance in different cir- cuits the variance is shown either hy repeating the rule as it is in the several dif- fering circuits, or by explaining the difference. RULE 1. NAME. The court adopts "United States Circuit Court of Appeals for the Circuit" as the title of the court. The above is 1, rule 2, in Sixth circuit and its rule 1 is as follows: DEFINITIONS. In these rules "counsel" shall include attorneys, solicitors, proctors, and advocates; "appellant" shall include, also, plaintiff in error, petitioner for review or mandamus, and any other party seeking review in this court; "appellee" shall include, also, defendant in error and any other party re- spondent in this court. RULE 2. SEAL. The seal shall contain the words "United States" on the upper part of the outer edge; and the words "Circuit Court of Appeals" on the lower part of the outer edge, running from left to right; and the words " Circuit" in two lines, in the center, with a dash beneath. The above is 2, rule 2, in the Sixth circuit. 793 794 APPENDIX RULE 3. TERMS AND SESSIONS. First circuit. One term of this court shall be held annually at the city of Boston at ten o'clock in the forenoon on the first Tuesday of October. Stated sessions thereof shall be there held at the same hour on the first Tuesday of every month, and may be adjourned to such times and places as the court may from time to time designate. But, unless otherwise ordered, any adjournment shall be held to have been made to the first day of the next stated session. Second circuit. One term of this court shall be held annually at the city of New York on the second Monday of October, and shall be adjourned to such times and places as the court may from time to time designate. Third circuit. The terms of this court shall commence and be held on the first Tuesday of March and the first Tuesday of October in each year, at the city of Philadelphia. Fourth circuit. 1. There shall be held in the city of Richmond, Virginia, three regular terms of this court; one on the first Tuesday of February, one on the first Tuesday of May, and one on tfye first Tuesday of November, in each year. 2. Special sessions of this court shall be held at Richmond, Virginia, on the second Tuesday of every month of the year except in those months in which regular terms of the court are held. During said sessions such orders, judgments or decrees as may be necessary concerning pending cases may be considered and disposed of, opinions in cases theretofore argued may be filed and decrees and judgments relating thereto entered, mandates issued, and any such further action taken as is authorized by the statute in 'such case made and provided. 3. If at any such special session no judge shall be in attendance, the clerk shall adjourn the court until the next day, or to such time as the senior circuit judge shall direct, and then in case no direction be made, to the next session or term of the court. Fifth circuit. A session of this court shall be held annually at the city of Atlanta, Georgia, on the first Monday in October; at the city of Mont- gomery, Alabama, on the third Monday in October; at the city of Fort Worth, Texas, on the first Monday in November; at the city of New Orleans, Louisiana, on the third Monday in November, and shall be adjourned to such other time and places as the court may from time to time order and designate. Sixth circuit. One term of this court shall be held annually on the Tues- day after the first Monday in October, and adjourned sessions on the Tues- day after the first Monday of each other month in the year, except August and September. At the July session, no causes will be heard, except upon the special order of the court. All sessions shall be held at Cincinnati, unless otherwise specially ordered by the court. Seventh circuit. A term of this court shall be held annually at the city of Chicago on the first Tuesday in October, and continue until the RULES OF THE CIRCUIT COURTS OF APPEALS T95 first Tuesday in October of the succeeding year. Every term shall be ad- journed to such time and places as the court may from time to time designate. Unless otherwise specially ordered, the Court will hold at Chicago three sessions for the hearing of causes during each term, beginning on the first Tuesdays in October and January, respectively, and the second Tuesday in April. Eighth circuit. 1. Three terms of this court will be held annually, one at the city of St. Paul on the first Monday of May, one at the city of Denver, on the first Monday of September, and one at the city of St. Louis on the first Monday of December. 2. Cases from Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Kansas, Missouri, Arkansas, and Oklahoma, in which transcripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court, and proof by affidavit or admission that three copies of the printed transcripts have been served on the defendants in error or appellees, or their counsel, are filed on or before the first day of April, and cases from Colorado, Utah, Wyoming, and ISew Mexico in which transcripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or ad- mission that three copies of the printed transcripts have been served on the defendants in error or appellees, or their counsel, and stipulations of the parties for their hearing at the May term in St. Paul are filed on or before the first day of April, and those only, will be heard at the succeed- ing May term of the court in St. Paul. 3. Cases from Colorado, Wyoming, Utah, and New Mexico in which tran- scripts to be printed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed transcripts have been served on the defendants in error or appellees, or their counsel, are filed on or before the first day of July and cases from the remainder of the circuit in which transcripts to be printed under the super- vision of the clerk of this court are filed, or transcripts printed before cer- tification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed transcripts have been served on the defend- ants in error or appellees, or their counsel, and stipulations of the parties for their hearing at the September term in Denver are filed on or before the first day of July, and those only, will be heard at the succeeding Septem- ber term in Denver. 4. Cases from Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Kansas, Missouri, Arkansas, and Oklahoma in which transcripts to be print- ed under the supervision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admission that three copies of the printed transcripts have been served on the defendants in error or appellees, or their counsel, are filed on or before the first day of October, and cases from Colorado, Wyoming, Utah, and New Mexico in which transcripts to be printed under the super- vision of the clerk of this court are filed, or transcripts printed before certification by the clerk of the lower court and proof by affidavit or admis- 796 APPENDIX sion that three copies of the printed transcripts have been served on the defendants in error or appellees, or their counsel, and stipulations of the parties for their hearing at the December term in St. Louis are filed on or before the first day of October, and those only, will be heard at the succeed- ing December term in St. Louis. 5. These terms of the court may be adjourned to such times and places as the court may from time to time designate. Ninth circuit. One term of this court shall be held annually at the city of San Francisco on the first Monday of October, and shall be adjourned to such times and places as the court may from time to time designate. RULE 4. QUORUM. 1. If, at any time, a quorum does not attend on any day appointed for holding it, any judge who does attend may adjourn the court from time to time, or, in the absence of any judge, the clerk may adjourn the court from day to day. If, during 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 adjourn without day. 2. Any judge attending when less than a quorum is present may make all necessary orders touching any suit, proceeding, or process depending in or returned to the court, preparatory to hearing, trial, or decision thereof. In addition to those enumerated the marshal or his deputy may adjourn the court from day to day in the First circuit. In the Sixth circuit 2 is omitted. 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 annually. 2. The clerk shall not practice, either as attorney or counselor, in this court or in any other court while he shall continue to be clerk of this court. 3. He shall, before he enters on the execution of his office, take an oath in the form prescribed by 794 of the Revised Statutes and shall give bond in a sum to be fixed, and with sureties to be approved, by the court, faith- fully to discharge the duties of his office and seasonably to record the decrees, judgments, and determinations of the court. A copy of such bond shall be entered on the journal of the court, and the bond shall be deposited for safe-keeping as the court may direct. 4. He shall not permit any original record or paper to be taken from the courtroom or from the office, without an order from the court. In the Fifth circuit the amount of the bond is fixed at $10,000. In the others it is fixed by the court. Section 1 in the Third circuit reads, "in the city of Philadelphia." In the Fourth circuit, "at Richmond, Virginia." In the Fifth circuit, "at New RULES OF THE CIRCUIT COURTS OF APPEALS 797 Orleans, Louisiana." In the Sixth circuit, "at Cincinnati." In the Seventh, K in Chicago." In the Seventh circuit the following sections are added: 5. All fees collected by the clerk, which are not properly taxable as costs in any case, and which are not by law required to be by him w deposited in the Treasury of the United States, shall constitute a fund to be expended by the clerk, under the direction of the court, in the purchase of law books for the library of the court. 6. The clerk shall keep an accurate and itemized account of all moneys received by him officially, including costs and fees in cases in the court and fees and moneys collected on any account whatever, and shall deposit the same as received daily to his credit as clerk, and separately from all individual accounts, in a national bank designated by the senior judge, and at the end of each month, and whenever required by the court or senior judge, shall submit to the senior judge a detailed report showing by items all moneys received and all moneys paid out during the month, and the total balances on hand from each and all sources of receipt; each report shall be accompanied by a statement, over the signature of the cashier or other officer of the bank of which the deposit is kept, of the amount in the bank to the credit of the clerk at the close of the last day included in the report. RULE 6. MARSHAL, CRIER AND OTHER OFFICERS. The marshal and crier shall be in attendance during the sessions of the court, with such number of bailiffs and messengers as the court may from time to time order. This is contained in all circuits. In the Second circuit, 1 is as follows: 1. Every marshal and deputy marshal shall, before he enters on the duties of his appointment, take an oath in the form prescribed by 782 of the Revised Statutes, and the marshal shall, before he enters on the duties of his office, give bond in a sum to be fixed, and with sureties to be ap- proved, by the court, for the faithful performance of said duties by himself and his deputies. Said bond shall be filed and recorded in the office of the clerk of the court. In the Sixth circuit 1 and 2 are as follows: 1. The crier and bailiffs of the district court of any district where this court may be in session, are hereby authorized to act also during such ses- sion as crier and bailiffs of this court. 2. A crier or bailiff specially appointed for this court shall, before he nters on his duties, take an oath in the form prescribed by 782 of the Revised Statutes. In the Seventh circuit 1 is the same as 2 in the Sixth circuit. 798 APPENDIX RULE 7. ATTORNEYS AND COUNSELORS. First, Second, Third, Fourth, and Seventh circuits. All attorneys and counselors admitted to practice in the Supreme Court of the United States, or in any circuit or district court of the United States, shall become attorneys and counselors in this court on taking an oath or affirmation in the form prescribed by rule 2 of the Supreme Court of the United States and on subscribing the roll; but no fee shall be charged there- for. In the Fourth circuit a fee of $5 must be paid to the clerk. The rule in the Fifth circuit is as follows: All attorneys and counselors admitted to practice in the Supreme Court of the United States, or any circuit court of the United States, upon filing certificate of such admission with the clerk of this court, and upon taking an oath or affirmation in the following form, viz.: "I, , do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of this court uprightly and according to law, and that I will support the Constitution of the United States." (a copy of which shall be filed with the clerk), shall become attorneys and counselors of this court; provided, however, that any attorney or coxmselor eligible to admission as an attorney and counselor of this court may be admitted to practice, on motion in open court, upon taking the oath or affirmation as prescribed, and subscribing the roll. On each admission the clerk will collect ten dollars ($10) to be applied to the purchase of law books for the use of the court and bar. Sixth circuit. An attorney and counselor admitted to practice and in good standing in the Supreme Court or in a district court of the United States, or in the court of last resort in the state of his residence, may become attor- ney and counselor in this court on taking an oath or affirmation as prescribed by rule 2 of the Supreme Court of the United States, and upon subscribing the roll. The fee for such admission shall be $10. Every person taking the oath and paying such fee shall be entitled to a certificate of his admission, signed by the clerk. Eighth circuit. 1. All attorneys and counselors admitted to practice in the Supreme Court of the United States, or in any circuit court or district court of the United States, or in the supreme court of any state in this circuit, may, upon motion of some member of the bar of this court, be admitted as attorneys and counselors in this court on taking an oath or affirmation in the form prescribed by rule 2 of the Supreme Court of the United States and on subscribing the roll; but no fee shall be charged there- for. 2. And any attorney and counselor admitted to practice in the Supreme Court of the United States or in the supreme court of any state or in the district or circuit courts of the United States for this circuit, may be ad- mitted by order of this court to practice and may be enrolled as an attorney and counselor of this court, thirty days after he furnishes to the clerk RULES OF THE CIRCUIT COURTS OF APPEALS 799 of this court a certificate of a clerk or judge of any one of the courts named that the applicant is an attorney of any one of said courts; and upon sub- scribing and forwarding to the clerk the following oath: "I do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of the circuit court of appeals for the eighth circuit, uprightly and according to law; and that I will support the Constitution of the United States. So help me God." Ninth circuit. All attorneys admitted to practice in the Supreme Court of the United States, or in any district court of the ninth circuit, shall be deemed attorneys of the circuit court of appeals for the ninth circuit; but such attorneys, on or before their first appearance in open court, in said court, shall take an oath or affirmation, in the form prescribed by rule 2 of the Supreme Court of the United States and subscribe the roll of attor- neys. All other persons who have been admitted to practice in the highest court of any state or territory, upon presenting satisfactory evidence of good moral character and fair professional standing, may be admitted to practice in said court, upon taking the oath so prescribed, and subscribing the roll of attorneys. RULE 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. RULE 9. PROCESS. All process of this court shall be in the name of the President of the United States, and shall be in like form and tested in the same manner as process of the Supreme Court. In the Sixth circuit this is contained in rule 8, and the following is rule 9 in that circuit: SERVICE OF PAPERS. 1. Copies of all papers or proceedings filed by any party in any cause shall. at or before the time of filing, be served upon counsel representing each adverse interest, and proof or acknowledgment of such service shall be endorsed upon each paper filed. The clerk may insist upon such proof as a prerequisite to filing, or may file and require the prompt furnishing of such proof, as he may in each case think proper. 2. Service may be personal or by mail. If personal, it shall consist of delivery at his office to counsel or to a clerk therein. If by mail, it shall consist in depositing the same in the postoffice with postage paid, addressed to the counsel at his postoffice address, which address shall include his street 800 APPENDIX and number, unless the same are unknown. Each proof of service shall show a full compliance with this rule. RULE 10. BILL OF EXCEPTIONS. 1. The judges of the 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 matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court. In the Third circuit the following is added: Exceptions to the charge or to the judge's action upon the requests for instruction shall be taken immediately on the conclusion of the charge before the jury retire, shall be specified in writing or dictated to the stenographer, and shall be specific and not general. 2. Exceptions to the admission or rejection of evidence shall be specific and not general, and the bill of exceptions to such admission or rejection shall contain only so much of the evidence admitted or offered and rejected as is necessary for the presentation and decision of the questions saved for review. Unless there be saved a question which requires the consideration of all the evidence, a bill of exceptions containing all of it shall not be allowed. In the Fourth circuit the following is added: 2. Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save as a proper understanding of the questions presented may require that parts of it be set forth otherwise. In the Sixth circuit the following is the rule: 1. The assignments of error required by rule 11 shall be filed at or before the settling of the bill of exceptions. The evidence in a bill of exceptions shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of some one of the questions presented by the assignments of error being omitted, and the testimony of witnesses being stated only in narrative form, save that, if either party desires it and the judge so directs, any part of the testimony shall be repro- duced in the exact words of the witness. 2. No general exception to the whole or any charge to a jury on trials at law shall be allowed in any bill of exceptions. Exceptions to charge, in order to be allowed in a bill of exceptions, must be taken before the jury retires and must state distinctly the several matters of law to which excep- tion is taken. In cases where exception is taken to part of a charge, and such exception may be affected by other parts or by the charge as a whole, the entire charge shall be included in the bill of exceptions. RULES OF THE CIRCUIT COURTS OF APPEALS 801 In the Seventh circuit the following is added: 2. A bill of exceptions shall contain of the evidence only such a statement as is necessary for the presentation and decision of questions saved for review, and unless there be saved a question which requires the considera- tion of all the evidence, a bill of exceptions containing all the evidence shall not be allowed. 3. No document shall be copied more than once in a bill of exceptions or in a transcript of the record of the case, but instead there shall be inserted a reference to the one copy set out. A motion for a new trial and orders and entries relating thereto shall not be set out in the transcript unless required by written preecipe, of which a copy shall also be set out. 4. The cost of unnecessary matter in the bill of exceptions or transcript or in the printed record shall not be recovered of the appellee or defendant in error, and in its discretion the court will in case of dispute appoint a referee to determine and report what was necessary therein, and will tax the cost of the reference as shall seem just. RULE 11. ASSIGNMENT OF ERRORS. The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned. RULE 12. OBJECTIONS TO EVIDENCE IN THE RECORD. In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall be allowed to be taken to the admissibility of any 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. Montg.- -51. 802 APPENDIX RULE 13. SUPERSEDEAS AND COST BONDS. 1. Supersedeas bonds in the district courts must be taken with good and sufficient security, that the plaintiff in error or appellant will 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 interest and costs on the appeal; but in all suits where the property in controversy necessarily follows the suit, as in real actions and replevin, and in suits on mortgages, or where the property is the custody of the marshal under ad- miralty process, or where the proceeds thereof, or a bond for the ^value thereof, is in the custody of the court, indemnity in all such cases will be required only in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit and damages for delay and interest and costs on the appeal. 2. On all appeals from any interlocutory order or decree granting or con- tinuing an injunction in a district court, the appellant shall, at the time of the allowance of said appeal, file with the clerk of such district court a bond to the opposite party in such sum as such court shall direct, to answer all costs if he shall fail to sustain his appeal. In the Sixth circuit the above 2 is omitted, and the above rule 13 is rule 14 in that circuit. RULE 14. WRITS OF ERROR, APPEALS, RETURN, AND RECORD. 1. The clerk of the court to which any writ of error may be directed shall make a return of the same by transmitting a true copy of the record, opinion or opinions of the court, bill of exceptions, assignment of errors, and all proceedings in the case, under his hand and the seal of the court. In the Third circuit, 1 is as follows: 1. Any appeal to this court, or writ of error from this court, allowable by law, may be allowed, in term time or vacation, by the circuit justice, or by iiny of the circuit judges within this circuit, or by any district judge within the district where the case to be reviewed was heard or tried, who may also take the proper security, sign the citation, and, if he deem it proper so to opy of an opinion of the court, certified under seal, for each printed page (but not to exceed five dollars in the whole for any copy) .... 1 00 Attorneys' docket fee 20 00 REHEARING. Seventh circuit. A petition for rehearing must be filed within thirty days after entry of judgment or decree, or after filing of the opinion, shall be in print, and be served forthwith by copy upon the opposing party, who, within twenty days from such service, may file a printed answer, and the petition shall be determined without oral arguments, unless otherwise ordered. If a petition be not filed within the time allowed, and upon the overruling of a petition, the clerk shall, without special order, issue the mandate of the court to the court below. Twenty copies of such petition or answer shall be filed with the clerk of this court. Eighth circuit. The clerk shall cause to be bound in volumes in a substan- tial manner and shall carefully preserve in his office one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs, and arguments filed therein. RULE 28. 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 delivering the same need not be copied by the clerk into a book of records; but, at the end of each term, the clerk shall cause such printed opinions to be bound in a sub- stantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. INTEREST. Third circuit. 1. In cases where a writ of error is prosecuted in this court, and the judgment of the inferior court is affirmed, the interest shall be calcu- lated and levied, from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment was rendered. 2. In all cases where a writ of error shall delay the proceedings on tlie judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at a rate not exceeding ten per cent, in addition to in- terest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court. 842 APPENDIX 4. In cases in admiralty, damages and interest may be allowed, if specially directed by the court. Fourth circuit. 1. All opinions delivered by the court shall be printed un- der the supervision of the judge delivering the same, or of one of the circuit judges, the cost of such printing to be paid by the clerk out of the revenues of his office and charged to the litigants in the respective cases, to be taxed and allowed as other costs. 2. The original opinions of the court shall be filed with the clerk of this court for preservation. 3. The clerk of this court shall from time to time cause two sets of the printed opinions of this court to be bound in a substantial manner into vol- umes, one set to be kept in the clerk's office and one set to be kept in the court library. REHEARINGS. Sixth circuit. A petition for rehearing after judgment can be presented only within thirty days (at the same or succeeding term) after the day when the printed opinion of the court is filed, and can be obtained by coun- sel for the parties (which date the clerk will note upon the docket), unless by special leave granted during such thirty days by the court or a judge thereof, and must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel, and will not be granted, or permitted to be argued, unless a judge who concurred in the judgment desires it and a majority of the court so determines. INTEREST. Seventh circuit. 1. When a judgment for the payment of money is affirmed by this court, the interest thereon shall be calculated and levied from the date of the judgment below until the same is paid, and at the same rate that similar judgments bear interest in the courts of the state where such judgment was rendered. 2. In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at a rate not exceeding ten per cent, in addition to interest, shall be awarded on the amount of the judgment. 3. The same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court. 4. In cases in admiralty, damages and interest may be allowed, if specially directed by the court. 5. In cases where money is paid into court, any party interested may move for an order that the clerk deposit the same under the direction of the court. On deposits so made, the clerk shall account for such interest as he may have collected on the fund. But without such order he shall not be required to ac- count for interest. Ninth circuit. The original opinions of the court shall be filed with the RULES OF THE CIRCUIT COURTS OF APPEALS 843 clerk of this court for preservation, and when so filed the same shall be deemed to have been recorded within the meaning of this rule. RULE 29. REHEARING. First circuit. A petition for a rehearing after judgment may be filed at the term at which the judgment is entered, and within one calendar month after such entry, and not later unless by leave granted during the term. It must be in print, in the form and style required by rule 26, and it must briefly and distinctly state its grounds, and be supported by a certificate of counsel. It will not be granted, or permitted to be argued, unless a judge who concurred in the judgment desires it and a majority of the court so de- termines. Provided, Whenever a judgment is entered within less than a month before the term adjourns, the petition may be filed within a month after the entry of judgment, and with the same effect after the term as though filed before the adjournment. Second circuit. A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term; and must be printed and briefly and distinctly state its grounds, and be supported by certificate of counsel; and will not be granted, or permitted to be argued, unless a judge who concurred in the judgment de- sires it, and a majority of the court so determines. COSTS. Third circuit. 1. In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties. 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee unless otherwise or- dered by the court. 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court. The cost of transcript of record from the court below shall be taxable in that court as costs in the case. 4. Neither of the foregoing sections shall apply to cases where the United States are a party; but in such cases no costs shall be allowed in this court for or against the United States. 5. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other process sent to the court below and annexed to the same, the bill of items taxed in detail. 6. In all cases certified to the Supreme Court or removed thereto by cer- tiorari or otherwise, the fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to the Supreme Court. 7. In pursuance of the act of Congress of February 19, 1897 (29 Stat. at L. 844: APPENDIX 536, ch. 263), and of the order of the Supreme Court of January 10, 1898, as amended February 28, 1898 (90 Fed. Rep. clxxi), the following table of fees and costs is established for this court: Docketing a case and filing the record $5 00 Entering an appearance 25 Transferring a case to the printed calendar 1 00 Entering a continuance 25 Filing a motion, order, or other paper 25 Entering any rule, or making or copying any record or other paper, for each one hundred words 20 Entering a judgment or decree 1 00 Every search of the records of the court and certifying the same .... 1 00 Affixing a certificate and a seal to any paper 1 00 Receiving, keeping, and paying money, in pursuance of any statute or order of court, one per cent on the amount so received, kept and paid. Preparing the record for the printer, indexing the same, supervising the printing and distributing the copies, for each printed page of the record and index 25 Making a manuscript copy of the record, when required by the rules, for each one hundred words (but nothing in addition for supervising the printing) 20 Issuing a writ of error and accompanying papers, or a mandate or other process 5 00 Filing briefs, for each party appearing 5 00 Copy of an opinion of the court, certified under seal, for each printed page (but not to exceed five dollars in the whole for any copy) .... 1 00 Attorney's docket fee 20 00 Fourth circuit. A petition for rehearing can be presented only within thirty days after judgment is entered, unless by special leave granted during the term the judgment was entered; and must be printed and briefly and dis- tinctly state its grounds, and be supported by its certificate of counsel; and will not be granted, or permitted to be allowed, unless judge who concurred in the judgment desires it. and the majority of the court so determine. But such petition shall not operate to stay the mandate or other process pro- vided for in rule 32, except by special order of the court. Fifth circuit. Same as in second, except that the petition must be filed within twenty days after entry of judgment. MANDATE. Sixth circuit. In all cases finally determined in this court, a mandate, or other process in the nature of a procedendo, shall be issued to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. Such mandate shall not issue until time has elapsed for filing a petition to rehear, as defined by rule 28 ; and no mandate or other process of procedendo sliall issue when a petition to rehear is pending, unless specially ordered. v mandate shall be accompanied by a copy of the opinion filed in t'io RULES OF THE CIRCUIT COURTS OF APPEALS 845 cause in which it is issued, and the charge for the same shall be taxed in the costs of the case. N In cases not requiring special form of process, the mandate (unless other- wise directed by the court or a judge thereof) shall be issued by the clerk upon the expiration of time for filing rehearing petition, or upon the denial of such petition, and as well in vacation as in term time. COSTS. Seventh circuit. 1. When any suit shall be dismissed in this court, except for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties. 2. In every case of a judgment or decree affirmed in this court costs shall be allowed to the' defendant in error or appellee unless otherwise ordered by the court. 3. In every case of reversal of a judgment or decree in this court costs shall be allowed to the plaintiff in error or appellant unless otherwise ordered by the court. The costs of the transcript of the record from the court below shall be taxable in that court as costs in the case. 4. No costs shall be allowed in this court for or against the United States. 5. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, directing to award execution thereupon and to annex to the same the bill of items taxed in detail. 6. In all cases certified to the Supreme Court or removed thereto by cer- tiorari or otherwise, the fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to the Supreme Court. Eighth circuit. 1. A petition for rehearing may be presented and filed within sixty days after the date of the judgment or decree, and jurisdiction to hear and decide the question presented thereby is reserved, notwithstand- ing the representation of the term within the sixty days. 2. Such petition for hearing must be printed and twenty copies thereof filed with the clerk and must previously and distinctly state its grounds and be supported by a certificate of counsel, and will not be granted or be per- mitted to be allowed unless the judge who concurred in the judgment desires it, and a majority of the court so determines. Ninth circuit. A petition for rehearing may be presented within thirtj days after judgment, must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel that in his judgment it is well founded, and that it is not interposed for delay. Twenty printed copies must be filed with the clerk. RULE 30. INTEREST. First circuit. 1. In cases where a writ of error is prosecuted in this court and the judgment of the inferior court is affirmed, the interest shall be calcu- lated and levied, from the date of the judgment below until the same is paid, 846 APPENDIX at the same rate that similar judgments bear interest in the courts of the state where such judgment was rendered. 2. In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at a rate not exceeding ten per cent, in addition to interest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the payment of money in cases in equity, unless otherwise ordered by this court. 4. In cases in admiralty, damages and interest may be allowed, if specially directed by the court. Third circuit. 1. In each case finally determined in this court, a mandate or other proper process in the nature of a procedendo shall be issued to the court below, for the purpose of informing such court of the proceedings in this court so that further proceedings may be had in such court as to law and justice may appertain. Such mandate or other process may issue at any time on the order of the court, and, when not otherwise ordered, it shall issue as of course at the expiration of thirty days from the date of entering the final judgment or final decree of this court. The following is added to the above in the Fourth circuit: 5. In cases where money is paid into court, any party interested may move lor an order that the clerk deposit the same under the direction of the court. On deposits so made, the clerk shall account for such interest as he may have collected on the fund. But without such order he shall not be re- quired to account for interest. PHYSICAL EXHIBITS. Sixth circuit. 1. Physical exhibits, not returned with the record but which are to be used on the hearing, shall be placed in the custody of the marshal of this court at least ten days before the case is heard or submitted. 2. All such physical exhibits shall be taken away by the parties promptly after the mandate issues. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the require- ments of this rule, and if the articles are not removed within reasonable time after the notice is given, he shall -destroy them or make such other dispo- sition of them as to him may seem best. MANDATE. Seventh circuit. In all cases finally determined in this court, a mandate or other proper process in the nature of a procedendo shall be issued, on the order or by the rule of this court, to the court below, for the purpose of in- forming such court of the proceedings in this court, so that further proceed- ings may be had in such court as to law and justice may appertain. RULE 31. COSTS. 1. In all cases where any suit shall be dismissed in this court, except where RULES OF THE CIRCUIT COURTS OF APPEALS the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties. . 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise ordered by the court. 3. In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court. 4. The cost of the transcript of the record from the court below shall be taxable in that court as costs in the case. 5. Neither of the foregoing sections shall apply to cases where the United States are a party; but in such cases no costs shall be allowed in this court for or against the United States. 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. 7. In all cases certified to the Supreme Court or removed thereto by cer- tiorari or otherwise, the fees of the clerk of this court shall be paid before a transcript of the record shall be transmitted to the Supreme Court. In the Second circuit, 3 and 4 as given above are combined in 3, and the following is added to that section: "And the clerk of the court below shall send to the clerk of this court with the transcript of record a certifi- cate of the cost of such transcript." CUSTODY OF PRISONERS ON HABEAS CORPUS. Third circuit. 1. Pending an appeal from the decision of any court or judge declining to grant the writ of habeas corpus, the custody of the pris oner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge discharg- ing the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recogni- zance, as hereinafter provided. 3. Pending an appeal from a final decision of any court or judge discharg- ing the prisoner, he shall be enlarged upon recognizance, with surety, for ap- pearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. In the Fourth circuit, 4 is included in 3, as follows, and the following section is added to the above: Part of 3: "The cost of the transcript of the record and proofs from the court below, and the expense of printing the same, when printed below, shall be taxable in that court as costs in the case. The expense of printing, however, shall be taxed at actual cost (to be shown by the affidavit of the printer), but in no event to exceed twenty cents per folio of one hundred words." Added section: 7. The following table of fees and costs, established under the act of Con- gress of February 19, 1897 (29 Stat. 536, c. 263), shall remain and continue in effect with the promulgation of these rules: 848 APl'EXDIX Docketing a case and filing the record $ 5 00 Entering an appearance 25 Transferring a case to the printed calendar 1 00 Entering a continuance 25 Filing a motion, order or other paper 25 Entering any rule, or making or copying any record or other paper, for each one hundred words 20 Entering a judgment or decree 1 00 Every search of the records of the court and certifying the same .... 1 00 Affixing a certificate and a seal to any paper 1 00 Receiving, keeping and paying money, in pursuance of any statute or or- der of the court, one per cent on the amount so received, kept and paid. Preparing the record for the printer, indexing same, supervising the printing and distributing the copies, for each printed page of the record and index 25 Making a manuscript copy of the record, when required by the rules, for each one hundred words (but nothing in addition for super- vising the printing) 20 Issuing a writ of error and accompanying papers, or a mandate or other process 5 00 Filing briefs, for each party appearing 5 00 Copy of an opinion of the court, certified under seal, for each printed page (but not to exceed five dollars in the whole for any copy) . . 1 00 Attorney's docket fee .,1.^,^;., 20 00 In the Fifth circuit, 4 is included in 3. LIBRARY. Sixth circuit. All fees collected by the clerk, which are not by law re- quired to be deposited by him in the Treasury of the United States, shall constitute a fund to be expended by the clerk under the direction of the pre- siding judge, in the purchasing, repairing, and rebinding of law books for the library of the court; and it shall be his duty to render to the court, for its examination and approval, an annual account of such fees received by him and of his disbursements thereof. CUSTODY OF PRISONERS ON HABEAS CORPUS. Seventh circuit. 1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge dis- charging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in the custody 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 dis- RULES OF THE CIRCUIT COURTS OF APPEALS 849 charging the prisoner, he shall be enlarged upon recognizance, with surety for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. In the Eighth circuit, 4 is included in 3 as follows: Where the record has been printed in this court under the provisions of 1 and 2 of rule 23, the cost of printing thirty copies of the transcript of record from the court below shall be taxed as costs in the case, unless otherwise ordered by this court, but no allowance shall be made for the amount paid to the clerk of the court below for the written or typewritten transcript of the record. Where the record has been printed in the court below and a copy of such printed record certified to this court the cost of printing twenty-five copies of such record or portion thereof shall be taxable as costs in the case in the court below, unless otherwise ordered by this court. In the Ninth circuit 4 is included in 3, and the following section is added to the above: 7. Upon the clerk's producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of any bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties re- spectively to compel payment of said fees. RULE 32. MANDATE. In every case finally determined, a mandate, or other proper process in the nature of a procedendo, shall be issued to the court below, for the purpose of informing that court of the proceedings in this court, so that further pro- i-eodings may be had in the court below as to law and justice may appertain. Such mandate, or other process, may issue at any time on the order of the court; but, unless otherwise ordered, it shall issue as of course after two calendar months from the entry of judgment, unless a petition for rehear- ing has been filed and remains undisposed of. The part beginning, "such mandate," is omitted in the Second circuit. MODELS, DIAGRAMS AND EXHIBITS OF MATERIAL. Tnird circuit. 1. Models, diagrams and exhibits of material forming part of the evidence taken in the court below, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of the clerk 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 custody of the clerk 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 clerk to notify the counsel in the case, by mail or otherwise, of the requirements of this rule, and, if the articles are not removed within a reasonable time after the notice is given, he shall Montg.- -54. 850 destroy them, or make such other disposition of them as to him may seem best. This concludes the rules in the third circuit. In the Fourth circuit the words, "two calendar months," are changed to ''thirty days." Fifth circuit. Mandates shall issue at any time after twenty -one days from the date of the decision, unless an application for a rehearing has been grant- ed or is pending. A copy of the opinion of this court shall accompany the mandate when a new trial or further proceedings are to be had in the lower court, and the charge for such copy shall be taxed in the costs of the case. Provided that in all cases entitled to precedence in this court under 7 of the act approved March '6, 1891, and amendments thereto, the 'mandate or other proper process shall issue after the expiration of seven days from the date of the decision, unless otherwise ordered by the court or one of the judges. CUSTODY OF PRISONERS ON HABEAS CORPUS. Sixth circuit. 1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge dis- charging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cans*- shown, be detained in the custody 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 discharg- ing the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. MODELS, DIAGRAMS AND EXHIBITS. Seventh circuit. Models, diagrams and exhibits of material forming part of the evidence taken in the court below, and in any case pending in this court on writ of error or appeal, shall be placed in the custody of the mar- shal for the use of this court at least ten days before the case is heard or submitted; and shall 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 mar- shal to notify the counsel in the case, by mail or otherwise, of the requrie- ments of this rule, and, if the articles are not removed within a reasonable time after the notice is given, he shall destroy or make such other dispo- sition of them as to him may seem best. Eighth circuit. Same as in second circuit. ' *""' Ninth circuit. Beginning after the word "appertain," the rule concludes as follows in this circuit: Such mandate, if not stayed by the order of the court, shall be issued on the expiration of thirty days from the date of such final determination, unless within said time a petition for rehearing be filed, KULES OF THE CIRCUIT COURTS OF APPEALS 851 in which caso the mandate shall be stayed until five days after the determina- tion of such petition. 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 custody of the prisoner shall not be disturbed. 2. Pending an appeal from the final decision of any court or judge dis- charging the writ after it has been issued, the prisoner shall be remanded to the custody from which he was taken by the writ, or shall, for good cause shown, be detained in custody of the court or judge, or be enlarged upon recognizance, as hereinafter provided. 3. Pending an appeal from the final decision of any court or judge dis- charging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required. In the Third circuit this is rule 31. MANDAMUS AND PROHIBITION. Sixth circuit. 1. The alternative writ of mandamus will not be issued, but on proper showing an order to show cause will be made. 2. A party desiring a writ of mandamus or prohibition shall file his pe- tition therefor and showing in support thereof together with such brief or memorandum as he may desire. These need not be, at this time, printed, and notice need not be given. He shall deposit ten ($10) dollars with the clerk on account of fees. The clerk shall enter the application on his docket, and informally submit the papers to the court. 3. If the court is of the opinion that the application justifies a hearing, an order to show cause will be entered returnable as promptly as the situation permits; if of contrary opinion, an order of denial will be made, and the clerk shall notify the applicant accordingly, enter the case on his docket as closed and return to the applicant the surplus, if any, of the fee deposited. If such order to show cause is made, the clerk shall deliver a certified copy, to the applicant who shall cause the same to be served within the time and in the manner fixed in the order. An answer or return shall be filed on or be- fore the return day as specified in the order or as extended by a judge of this court. Unless within ten days after the filing of such answer or return the appellant makes special motion to award and frame issue, or, if an issue, then upon the return of the proceedings thereon, and unless the court orders a hearing as upon motion, the matter shall stand for hearing upon the calen- dar and the clerk shall receive the remaining five dollars of the usual fee de- posit, estimate and require a deposit for printing and print the record, briefs shall be filed, and the matter in all respects proceed like other docketed cauaes. APPENDIX LAW LIBRARY. Seventh circuit. 1. The library of the court shall be under general super- \ ision and custody of the clerk of the court. 2. No bonus shall be removed from the library except upon a written or- der of a judge of this court, except, that during the sessions of the court any lawyer who has a case on the docket, upon written application to the clerk and upon the clerk's written order, may take from the library not exceeding three volumes at a time, being responsible for the return thereof within twenty-four hours and in default of return shall pay to the clerk for the library fund twice the value thereof, but if returned in good condition one dollar for each day's detention beyond the limited time. RULE 34. MODELS, DIAGRAMS AND EXHIBITS OF MATERIAL. 1. Models, diagrams and exhibits of material, forming a part of the evi- dence taken in the court below, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of the marshal of this court at least ten days before the case is heard or submitted. 2. All models, diagrams, and exhibits of material, placed in the custody of the marshal for the inspection of the court on the hearing of a case, must be taken away by the parties within one month after the case is decided. Wiien 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 given, he shall destroy them, or make such other disposition of them as to him may seem best. In the Second circuit, 2 is as follows, and 3 is added: 2. Three copies must be furnished for the use of the court of any maps, harts, plans, diagrams, or other papers or documents which it is intended to refer to on the argument, and which are not contained in the transcript of record as certified from the court below. 3. All exhibits of material in customs cases must be filed with the clerk iit the time of filing the transcript of record, and such exhibits will be returned to the clerk of the district court at the expiration of sixty days trom the decision of the case by this court. All other models, diagrams, and exhibits of material placed in the custody of the clerk 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. It shall be the duty of the clerk to notify the counsel in the case, by mail or otherwise, of the re- i]uirements of this rule: and if the articles are not removed within the time above specified, he shall destroy them, or make such other disposition of them as to him may seem best. PETITION TO REVISE IN BANKRUPTCY. Sixth circuit. 1. A petition to revise shall contain, first, a concise history RULES OF THE CIRCUIT COURTS OF APPEALS 853 of so much of the proceedings before the referee and the district court as may be necessary to make plain the errors assigned; second, an assign- ^ment of the ^errors in respect to which revision in matter of law is sought; third, as exhibits to the petition, copies certified by the clerk of the district court of each paper or proceeding relied upon to support the errors as- signed; and fourth, any findings of fact that may be filed pursuant to la use 2 hereof; but a petition to revise shall not be filed so late as to delay the hearing of any appeal that may have been taken in the same matter; and it may incorporate, by reference and without repeating, any parts of the return in such appeal. 2. Whenever the district court has made any order in a proceeding in bankruptcy which involves or depends upon facts made to appear otherwise than solely by the pleadings in the matter, and the district judge is notified in writing by any party that he intends to file a petition to revise and deems finding of fact to be necessary, it shall be the duty of the district judge, as soon as possible, to make and file with the clerk of the district court his findings of fact in such matter. :>. At or before the filing of such petition, a complete copy thereof shall be served upon counsel for each separate, adverse interest, and the petition, when offered for filing, shall contain due proof or acknowledgment of such service. 4. Unless within ten days after the filing of such petition an adverse party in interest shall file an answer denying the accuracy of the exhibits to the petition, or setting out as exhibits certified copies of additional papers or proceedings which are thought to bear upon the errors assigned, the accuracy and completeness of the exhibits shall be presumed to be ad- mitted. Such answer may also incorporate by reference any orders or records in any co-pending appeal. .">. Upon the coming in of such answers or the expiration of such ten e liled, all as in other causes. This concludes the rules in the Sixth circuit. WRITS OF ERROR IN CRIMINAL CASES. Seventh circuit. Writs of error from this court to review criminal cases tried in any district court of the United States within this circuit, may be allowed in term time or in vacation by the circuit justice assigned to this circuit, or by any of the circuit judges, within the circuit or by any district judge within his district, or the proper security be taken, and the citation signed by him, and he may also grant a supersedeas and stay of execution of proceedings, pending the determination of each writ of error. 2. Where such writ of error is allowed in the criminal cases aforesaid, the district court before which the accused was tried or the district judge of the district wherein he was tried, within his district, or the circuit justice assigned to this circuit, or any of the circuit judges within the circuit, shall have the power, after the citation has been duly served, to admit the accused to bail and to fix the amount of such bail. This ronehide* the rules in the Seventh circuit. 854 APPENDIX RULE 35. ERROR IN CRIMINAL CASES. On or after the allowance of a writ of error in a criminal case, cognizable by this court, the justice or judge who allowed the writ, or the court which entered the judgment, or any judge thereof, shall have power to admit to bail the plaintiff in error, according to the rules of law applicable to his case. ALLOWANCE OF APPEALS AND WRIT OF ERROR BAIL. Second circuit. 1. An appeal or writ of error from a district court to this court in the cases provided for in 6 and 7 of the act entitled "An Act to Establish Circuit Courts of Appeals and to Define and Regulate in Cer- tain Cases the Jurisdiction of the Courts of the United State*, and for Other Purposes," approved March 3, 1891, and acts to amend said act approved February 18, 1895, and January 20, 1897, may be allowed in term time or vacation by the circuit justice or by any circuit judge within the circuit or by any district judge within his district, and the proper security be taken and the citation be signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal. 2. Where such writ of error from this court is allowed in the case of a conviction of an infamous crime or in any other criminal case in which it will lie, the district court or the judge thereof, or any circuit judge of the circuit or the circuit justice, shall have power, after the citation is served, to admit the accused to bail in such amount as may be fixed. SATURDAY CONFERENCE DAY. Fourth circuit. Clerk in making his docket shall not set down for argu- ment any cause for any Saturday of the term for which such docket is intended, and this court will meet on said days for consultation only. ORDER IN RELATION TO ASSIGNMENT OF CASES FOR HEARING. Fifth circuit. Unless otherwise ordered by the senior circuit judge, thirty days prior to the opening of a regular session of this court, the clerk is directed to assign cases for hearing as follows: At Atlanta, Georgia, four cases per day for the first three days of each week ; At Montgomery, Alabama, four cases for the first three days of each week ; At Fort Worth, Texas, four cases per day for the first three days of each week ; At New Orleans, Louisiana, two cases per daj^ for the first three days of each week. The above assignments shall be made in accordance with existing law BULBS OF THE CIRCUIT COURTS OF APPEALS 855 regulating the return of appeal, writs of error and other appellant pro- ceedings in the fifth judicial circuit: Provided that cases entitled by law to preference in hearing and bankruptcy cases shall be assigned, and cases, whether preference or not, upon stipulation of the parties filed with the clerk and approved by the court, be assigned for hearing at any other place or session of this court designated in such stipulation. Except as hereinafter provided, the assignment of cases at New Orleans, Louisiana, shall be grouped by states, so as to permit the hearing of cases from one state before the cases from the next state in order shall be called. WRITS OF ERROR IN CRIMINAL CASES. Eighth circuit. 1. Writs of error to review criminal cases tried in any district court of the United States within this circuit, which may be re- viewed under the provisions of The Judicial Code, approved March 3, 1911, may be allowed in term time or in vacation by the circuit justice assigned to this circuit, or by either of the circuit judges within the circuit, or by any district judge within his district, and the proper security be taken, and the citation signed by him, and he may also grant a supersedeas and stay of execution or proceedings, pending the determination of such writ of error. 2. Where such writ of error is allowed in the criminal cases aforesaid, the district court before which the accused was tried, or the district judge of the district wherein he was tried, within the district, or the circuit justice assigned to the circuit, or either of the circuit judges within the circuit, shall have the power, after the citation has been duly served, to admit the accused to bail in such amount as may be fixed, such bail bond to be, as near as may be, in the form prescribed in the Appendix to these rules. ASSIGNMENT OF CAUSES FOR HEARING. Ninth circuit. 1. Thirty days prior to the opening of any calendar session of a court, the clerk is directed to assign causes for hearing at the rate of one case for the first day of each term or session, and two cases per day for each of the ensuing court days of such term or session. The causes shall be grouped by statutes, and assignments made, so as to permit the hearing of causes from one state before the causes from the next state in order shall be called ; causes from the northern district of California shall be assigned for hearing last. Any causes entitled by law to preference in hearing shall be first assigned and take precedence over other causes from the same state. 2. A stipulation to continue a case to the foot of the calendar or in any way change the day assigned for hearing, will not be recognized as bind- ing upon the court, and no such change will be made except by order of the court for reason shown. 3. Ten days before each calendar session of the court the clerk shall prepare and cause to be printed a calendar of the causes assigned for the approaching session. 856 APPENDIX RULE 36. PETITION IN BANKRUPTCY CASES. First circuit. 1. On the filing of a petition for the exercise of the power of superintendence and revision vested in this court by the act to estab- lish a uniform system of bankruptcy throughout the United States, ap- proved July 1, 1898, or any accounts in addition thereto or amendatory thereon, the clerk shall issue, as of course, an order to show cause, return- able two weeks from the date thereof, which shall be served by copy on each of the adverse parties named in the petition as a person against whom relief is desired, or his solicitor in the proceeding in the district court, at least one week before the return day of the order, which service shall be made by the marshal or his deputy in the district where the parties or solicitor served resides. This concludes the rules in the First circuit. SECURITY FOR CLERK'S FEES TAXING COSTS. Second circuit. 1. In all cases the plaintiff in error or appellant on docket- ing a case and filing a record, shall enter into an undertaking with the clerk, for the payment of his fees or otherwise satisfy him in that behalf. 2. At the expiration of ten days after a case has been decided, the order or decree thereon will be entered by the court, and the clerk will there- upon prepare and tax the bill of costs and issue the mandate. Within said ten days the parties may file with the clerk their proposed orders or de- crees and bills of costs with proof of service of the same upon the opposing attorneys. BANKRUPTCY. Fourth circuit. 1. Upon the filing of the petition for review as provided for in -24 (b) of the act to establish a uniform system of bankruptcy throughout the United States, approved July 1st, 1898, the clerk of this court shall docket the cause, and shall forthwith serve a certified copy of petition upon the respondent or respondents, or their solicitors, through the mail or otherwise, together with a notice to the respondent or respond- ents, to answer, demur, or move to dismiss the said petition within the fifteen days from the date of such notice. 2. The petitioner shall cause a certified printed transcript of the record and proceedings of the bankruptcy court of the matter to be reviewed, to be filed in the clerk's office of this court within forty days from the date of the filing of his petition for review. 3. By consent of all parties to the cause, by stipulation in writing filed with the clerk of this court, the petitioner may cause a transcript of the record and proceedings of the bankruptcy court of the matter to be reviewed to be filed in the clerk's office of this court in lieu of a certified printed transcript as above mentioned, and thereupon the clerk of this court shall cause he record to be printed as provided in the 23d rule of this court, and furnish counsel on both sides with three copies each. RULES OF THE CIRCUIT COURTS OF APPEALS 857 4. And such causes shall stand for hearing in their regular order. But either side may, upon ten days' notice given to the opposing counsel, have -the cause heard, either at term time, or in vacation, or in chambers/ upon the briefs, unless at its own suggestion, or for good cause shown, the court shall order oral argument. 5. That all causes coming up by appeal as provided in 25 of said bank- ruptcy act shall stand for hearing in this court, either in term time or in vacation, and may be called up by either party upon ten days' notice, as provided in 4 of this rule. 6. All rules of this court (except as herein modified) shall apply to the proceedings in bankruptcy to which this rule relates. 7. Nothing herein shall prevent the court, from time to time, from making, for special cause, orders diminishing or enlarging the times named herein, or any other order suitable to expedite the proceeding or to prevent in- justice. ASSIGNMENT OF JUDGES. Fifth circuit. It is ordered that whenever a full bench of three judges shall not be made up by the attendance of the associate justice of the Supreme Court assigned to the circuit, and of the circuit judges, so many of the district judges, in the order of seniority of their respective com- missions and qualified to sit, as may be necessary to make up a full court of three judges, are hereby designated and assigned to sit in this court: Proridrd, however, that the court may at any time, by particular assign- ment, designate any district judge to sit as aforesaid. PETITIONS TO REVISE. Eighth circuit. A petition to revise, under the provisions of 24 (b) of the bankruptcy law, approved July 1st, 1898, shall be filed and designated as an original action in this court, and be entitled, " , Petitioner, v. , Respondent," and shall specifically designate the respondent or respondents upon whom the petitioner desires notice to be served, and a sufficient number of copies of such petition shall be furnished the clerk at the time of filing so that a copy may be served upon each of the re- spondents. TERMS AND SESSIONS OF THE COURT. Ninth circuit. 1. One term of this court shall be held annually on the first Monday of October and adjourned sessions on the first Monday of each month in the year. All sessions shall be held at San Francisco, unless otherwise especially ordered by the court. 2. The October, February, and May sessions shall be known as calendar sessions, and shall be sessions for the trial of all causes that shall have been placed upon the calendar in pursuance of rule 35. :?. A term of this court shall be held annually in the city of Seattle, in the state of Washington, and in the city of Portland, in the state of Oregon. The Seattle term shall be held beginning upon the second Monday in Sep- tember, and the term at Portland shall be held beginning upon the third 858 APPENDIX Monday in September. All appeals and writs of error from the district courts for the districts of Washington, the transcripts of which shall be filed fh this court between the first day of April and the first day of August of each year, shall be heard at said annual term in the city of Seattle, unless it be stipulated by the parties thereto that they be heard at San Francisco. All other appeals and writs of error from said district courts for those districts shall be heard at San Francisco, unless it be stipulated by the parties thereto that they be heard at said annual term in the city of Seattle. All appeals and writs of error from the district court for the district of Oregon, the transcripts of which shall be filed in this court between the first day of April and the first day of August of each year, shall be heard at said annual term in the city of Portland, unless it be stipulated by the parties thereto that they be heard at San Francisco. All other appeals and writs of error from said district court for that district shall be heard at San Francisco, unless it be stipulated by the parties thereto that they be heard at said annual term in the city of Portland. Appeals and writs of error from the district courts of the districts of Idaho and Montana and from the district court of Alaska, may, upon the stipulation of the parties thereto, be heard at the annual term, and be held either at Seattle or Portland. RULE 37. CITATIONS OF AUTHORITIES. Second circuit. In the preparation of briefs any citations made from "Fed- eral Cases" must be accompanied by the citation of the original report of the case, and where a citation is made from the American Bankruptcy Reports, citation in the Federal Reporter or United States Supreme Court Reports must also be given. If the case is not reported elsewhere than in Federal Cases or American Bankruptcy Reports, the fact must be so stated. Fourth circuit. The foregoing rules shall be in force on and after April 1st, 1912. Since April 1st, 1912, another rule has been added in the Fourth circuit, numbered 38. WRITS OF ERROR IN CRIMINAL CASES. Fifth circuit. 1. Writs of error to review criminal cases tried in any dis- trict or circuit court of the United States within this circuit, which may be reviewed under the provisions of the act of March 3, 1891, creating this court, and the act of Congress amendatory thereof, approved January 20, 1897, may be allowed in term time or in vacation by the circuit justice assigned to this circuit by either of the circuit judges, or by any district judge who presided on the trial, and the proper security be taken, and the citation be signed by him, and he may also grant a supersedeas and stay of execution or proceedings pending the determination of such writ of error. 2. Where such writ of error is allowed in any criminal case as afore- said, the circuit court or district court, before which the accused was tried, or the trial judge, or the circuit justice assigned to the circuit, or either RULES OF THE CIRCUIT COURTS OF APPEALS 859 of the circuit judges, shall have the power, after the citation has been duly served, to admit the accused to bail in such amount as may be fixed, such bail bond to be, as near as may be, in the form prescribed in the Appendix to these rules. APPENDIX TO RULE 37. (Form of Appearance Bond on Writ of Error in Criminal Cases.) Know all men by these presents: That we, , as principal, and , as sureties, are held and firmly bound unto the United States of America in the full and just sum of dollars, to be paid to the said United States of America, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals and dated this day of , in the year of our Lord one thousand eight hundred and ninety . Whereas, lately at the term, A. D. 189 , of the court of the United States for the district of , in a suit pend- ing in said court, between the United States of America, plaintiff, and , defendant, a judgment and sentence was rendered against the said , and the said has obtained a writ of error from the United States Circuit Court of Appeals for the Fifth Circuit, to reverse the judgment and sentence in the aforesaid suit, and a citation directed to the said United States of America, citing and admonishing the United States of America to be and appear in the United States Circuit Court of Appeals for the Fifth Circuit, at the City of New Orleans, Louisiana, thirty days from and after the date of said citation, which citation has been duly served. Now the condition of the above obligation is such that if the said shall appear in the United States Circuit Court of Appeals for the Fifth Circuit, on the first day of the next term thereof, to be held at the city of - , on the first Monday in , A. D. 189 , and from day to day thereafter during said term, and from term to tern':, and from time to time, until finally discharged therefrom, and shall abide by and obey all orders made by the said United States Circuit Court of Appeals for the Fifth Circuit, in said cause, and shall surrender himself in execution of the judgment and sentence appealed from as said court may direct, if the judgment and sentence of the said court against him shall be affirmed by the said United States Circuit Court of Appeals for the Fifth Circuit then the above obligation to be void, else to remain in full force, virtue and effect. - [Seal] - [Seal] [Seal] Approved : Judge of the This concludes the rules in the Fifth circuit. 860 APPENDIX ORDER OF COURT. Eighth circuit. 1. Before the filing of a petition to revise, the same shall be presented to the court, or one of the circuit judges, for leave to file the same and for an order fixing the return day to the notice required by law. 2. When such petition is accompanied by a written consent that the petition to revise may be filed and waived by the respondent or respondents, or their counsel, of such notice, no notice will be issued. In such cases the case will be docketed by the clerk. PHOTOGRAPH OF CHINESE TO BE ATTACHED TO BAIL BOND. Ninth circuit. Whenever, in cases of deportation of Chinese, the defend- ant be admitted to bail pending appeal before the bond be approved and the party released from custody, a photograph of the defendant shall be attached to said bond. This concludes the rules in the Ninth circuit. RULE 38. PETITIONS TO REVIEW IN BANKRUPTCY. Second circuit. Petitions to review orders in bankruptcy filed under the provisions of 24b of the bankruptcy act must be filed and served within ten days after the entry of the order sought to be reviewed, and a transcript of the record of the proceedings in the bankruptcy court of the matter to be reviewed must be filed and the cause docketed within thirty days there- after, but the judge of the bankruptcy court may for good cause shown enlarge the time for filing the petition or record, the order of enlargement to be made and filed with the clerk of this court before the expiration of the times hereby limited for filing the petition and record respectively. This concludes the rules in the Second Circuit. Fourth circuit. On and after February 1, 1913. the contents of transcripts of record on appeal in equity and admiralty causes and on appeal (as dis- tinguished from petitions for revision) in bankruptcy causes, shall be governed by rules 75, 76, and 77 of the Rules of Practice for the Courts of Equity of the United States, promulgated by the Supreme Court of the United States November 4, 1912, which rules are as follows : This concludes the rules in the Fourth circuit. The remainder of the rules in the Eighth circuit are as follows: NOTICE. The notice to be given, as provided by law, shall be issued by the clerk of this court, under the seal thereof, and shall be addressed to the respondent or respondents and be served by the marshal unless an acknowledgment or acceptance of services thereof is made by the respondent or respondents, or their counsel. EULES OF THE CIRCUIT COURTS OF APPEALS 861 RULE 39. RESPONSE. The response to the petition, when the respondent elects to make a written response, shall be filed within thirty days after the service of the notice of the filing of a waiver thereof. RULE 40. PRINTING OF RECORD. 1. The clerk shall cause the petition and exhibits thereto, if any, and the order, notice, and response, if any, to be printed as soon as convenient after the response is filed or the time for filing such response has expired and shall distribute the printed copies of same to counsel for the respective parties, as soon as the same are printed. RULE 41. BRIEFS AND ARGUMENTS. Twenty copies of the brief and argument in behalf of petitioner shall be printed and filed twenty days before the day set for the hearing and twenty copies of the brief and argument for the respondent or respondents shall be printed and filed eight days before the day of hearing. RULE 42. HEARING. 1. Petitions to revise filed in vacation, shall be assigned by the clerk for hearing in their regular order at the next session or term of the court in the same manner as appeals and writs of error in other cases. 2. Petitions to revise filed during a session of the court, when a sufficient showing of urgency is presented, may be set for hearing at that term and upon such terms and conditions as the court may direct. 3. Petitions to revise assigned by the clerk in their regular order as provided in section one of this rule, when such assignment is for a day near the close of the session, may be advanced by order of the court and set for an earlier day, upon good cause shown therefor by either of the parties. RULE 43. COSTS. 1. The costs and fees now provided by law in cases upon appeal or writ of error, .shall, so far as the same are applicable, be taxed on petitions to revise. 862 APPENDIX 2. Upon the determination of a petition to revise such order as to costs will be made as the court may deem necessary. RULE 44. PROCEDENDO. 1. In all cases on a petition to revise wherein the action or decree of the district court, complained of, is disapproved by this court, the clerk shall, at the expiration of thirty days from and after the date of entering the decree in this court, issue process in the nature of a procedendo to the said district court for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such district court in conformity with the decree of this court. 2. In all cases on petition to revise, wherein the action or decree of the district court, complained of, is approved and confirmed, or certain petition dismissed, by this court, the clerk shall at the expiration of thirty days certify a copy of such decree to the district court. RULE 45. APPEALS AND WRITS OF ERROR IN BANKRUPTCY CASES. 1. The appeals and writs of error provided for by 25 of the bank- ruptcy law, approved July 1st, 1898, shall be governed by the same rules and regulations as to costs and procedure as are provided by this court for appeals and writs of error in other cases. ADDENDA. [Form of Writ of Error for use in the United States Circuit Court of Appeals, Eighth Circuit.] UNITED STATES OF AMERICA, ss. The President of the United States of America, To the Honorable Judges of the ( 1 ) Greeting : BECAUSE, in the records and proceedings, as also in the rendition of the judgment of a plea which is in the said '. .Court, before you, at the Term, 19 , thereof, between (2) a manifest error hath happened, to the great damage of the said (3) as by complaint appears. NOTES 1 Here insert correct name of the Court to which the writ is addressed and whose judgment is to be reviewed. 2 Here insert correct style of cause showing who was plaintiff and who defendant in Court below. 8 Here insert name of party who sues out writ of error. RULES OF THE CIRCUIT COURTS OF APPEALS 863 We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then, under your seal, dis- tinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the United States Circuit Court of Appeals, for the Circuit, together with this writ, so that you have the said record and proceedings aforesaid at the City of , and filed in the office of the Clerk of the United States Circuit Court of Appeals, for the Circuit, on or before the (4) day of . 19 . . . . , to the end that the record and proceed- ings aforesaid being inspected, the United States Circuit Court of Appeals may cause further to be done therein to correct that error, what of right, and according to the laws and customs of the United States, should be done. WITNESS, the Honorable EDWARD D. WHITE, Chief Justice of the United States, this day of in the year of our Lord one thousand nine hundred ISSUED at office in with the seal of the ( 5 ) and dated as aforesaid. Clerk of ALLOWED BY Judge. [Form of Return to be indorsed on Writ of Error by the Clerk of the Court to which the Writ is addressed.] UNITED STATES OF AMERICA, ~| } ss. J In obedience to the command of the within Writ, I herewith transmit to the United States Circuit Court of Appeals, a duly certified transcript of the record and proceedings in the within entitled case, with all things concerning the same. In Witness Whereof, I hereto subscribe my name and affix the seal of (6) Clerk of * Rule XIV. subdivision 5, requires writs of error and appeals to be made returnable sixty days after citation is signed. This blank must be filled accordingly, naming a day not more than sixty days after the date of the citation. 5 This blank should be so filled as to show whether the writ is issued by the clerk of a United States District Court or by the Clerk of the Circuit Court of Appeals. 6 Here describe the Court to which the writ is addressed. 864 APPENDIX [Form of Citation.] UNITED STATES OF AMERICA, To Greeting : You are hereby cited and admonished to be and appear in the United States Circuit Court of Appeals for the Circuit, at the City of , , sixty days from and after the day this citation bears date, pur- suant to ( 1 ) filed in the Clerk's Office of the (2 ) wherein is ( 3 ) and you are (4) , to show cause, if any there be, why the (5) rendered against the said (6) as in said (7) mentioned should not be corrected, and why speedy justice should not be done the parties in that behalf. WHEREAS, lately at the term of the Judge of this day of ..A. D. 19.. Judge of (Form of Supersedeas or Cost Bond.) KNOW AIX MEN BY THESE PUESEXTS: That we, are held and lirmly bound unto in the full and just sum of to be paid to the said heirs, executors, administrators, successors or assigns, to which payment well and truly to be made, we bind ourselves, OUT heirs, executors and administrators, successors or assigns, jointly and severally by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand nine hundred WHHEREAS, lately at the term of the in a suit depending in said Court between , plain- tiff, and , defendant, was rendered against the said and the said has obtained of the said Court to reverse the in the aforesaid suit, and a citation directed to the said '. citing and admonishing to be and appear in the L nited States Circuit Court of Appeals for the Circuit, at the City of , sixty days from and after the date of said citation. Now, the condition of the above obligation is such, that if the said shall prosecute said to effect, XOTES 1 Insert (a writ of error) or (an appeal allowed and). 2 Insert name of Court to which writ of error is addressed, or from which appeal is allowed. 8 Insert Plaintiff in Error or Appellant, * Insert Defendant in Error or Appellee. 5 Insert Judgment or Decree. 6 Insert Plaintiff in Error or Appellant. ' Insert Writ of Error or Appeal. EULES OF THE CIRCUIT COUETS OF APPEALS 805 and answer all damages and costs if fail to make good plea, then the above obligation to Jbe void, else to remain in full force and virtue. Sealed and delivered in presence of Approved by ( Seal ) (Seal) (Seal) (The foregoing bond and citation is adapted for appeals in equity cases as well as in cases of writs of error in actions at law.) [Form of Appearance Bond on Writ of Error in Criminal Cases.] KNOW ALL MEN BY THESE PRESENTS: That we, as principal, and as sureties, are held and firmly bound unto the United States of America in the full and just sum of Dollars, to be paid to the United States of America, to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators jointly and severally by these presents. Sealed with our seals and dated this day of in the year of our Lord, One Thousand Nine Hundred WHEREAS, lately at the Term, A. D. 19 , of the Court of the United States for the District of . . . . , in a suit depending in said Court between the United States of America, plaintiff, and defendant. . . . , a judgment and sentence was rendered against the said and the said lias obtained a writ of error from the United States Circuit Court of Appeals for the ........ Circuit, to reverse the judgment and sentence in the aforesaid suit, and a citation directed to the said United States of America, citing and admonishing the United States of America to be and appear in the United States Circuit Court of Appeals for the . . Circuit, at the city of , , sixty days from and after the date of said citation, which citation has been duly served. Now the condition of the above obligation is such that if the said shall appear either in person or by attorney in the United States Circuit Court of Appeals for the Circuit on such a day or days as may be appoint- ed for the hearing of said cause in said Court and prosecute his said writ of error and shall abide by and obey all orders made by the United States Circuit Court of Appeals for the Circuit in said cause, and shall surrender himself in execution of the judgment and sentence appealed from as said Court may direct, if the judgment and sentence against him shall be affirmed or the writ of error or appeal is dismissed; and if he shall appear for trial in the Court of the United States for the District of on such day or days as may be appointed for a retrial by said Court and abide by and obey all orders made by said Court pro- Montg. 55. 866 APPENDIX vided the judgment and sentence against him shall be reversed by the United States Circuit Court of Appeals for the Circuit ; then the above obligation to be void, otherwise to remain in full force, virtue and effect. [SEAL.] [SEAL.] [SEAL.] Approved: Judge of the INSTRUCTIONS AS TO APPLICATIONS FOR WRITS OF CERTIORARI UNDER 240 OF THE JUDICIAL CODE. The following are the requirements of the Supreme Court on applications for writs of certiorari under 240 of the Judicial Code. Petitions are docketed in this court as , Petitioner, vs , Respondent. Before the petition will be docketed there must be furnished this office: 1. An original petition, with written signature of counsel. 2. A certified copy of the transcript of the record, including all proceed- ings in the circuit court of appeals. 3. An appearance of counsel for petitioner, signed by a member of the bar of this court. 4. A deposit of twenty-five dollars on account of costs. Before submission of the petition there must be furnished: 1. Proof of service of notice of date fixed for submission and of copies of petition and brief upon counsel for the respondent. About two weeks' notice should be given. 2. Twenty-five (25) printed copies of the petition. 3. Twenty -five (25) printed copies of brief in support of petition, if any such brief is to be filed. 4. At least nine (9) uncertified copies of record, which must contain all the proceedings in the circuit court of appeals. These copies may be made up by using copies of the record as printed for the circuit court of appeals and adding thereto printed copies of the proceedings in that court. If a sufficient number of records thus made up can not be obtained, making it necessary to reprint the record for use on the hearing of the petition, fifty (50) copies must be printed under my supervision, in order that, should the petition be granted, there may be a sufficient number for use on the final hearing. Monday being motion day, some Monday must be fixed upon for the sub- mission of the petition. No oral argument is permitted on such petitions, but they must be called up and submitted in open court by counsel for pe- titioner, or by some attorney in his behalf. If a respondent desires to oppose a petition, twenty-five (25) copies of a brief for such respondent must be filed. These briefs must bear the name of a member of the bar of this court, who should also enter an appearance for the respondent. It is not necessary, however, for such counsel to be present in court when the petition is submitted. All papers in the case must be filed not later tlian the Saturday preceding the Monday fixed for the submission of the petition. JAMES H. MCKENXEY, Clerk of the Supreme Court of the United States. BULES OF THE CIRCUIT COURTS OF APPEALS 867 INSTRUCTIONS AS TO TAKING APPEALS, SUING OUT WRITS OF ERROR, MAKING UP RECORDS, ETC. METHOD OF TAKING APPEALS. Writs of error and citations are no longer made returnable to the term day of the appellate court, but are made returnable not exceeding forty days from the day of signing the citation, whether that day, which is the return day, fall in vacation or in term time; and the record must be filed in the clerk's office of this court before the return day, unless the time be enlarged as provided in 1 of rule 16, and 6 of rule 23. In that case the order of enlargement must be filed with the clerk of this court. Rule 11, entitled "Assignment of Errors," requires the plaintiff in error, or appellant, to file with the court below, with his petition for the writ of error or appeal, an assignment of errors. Appeals and writs of error should be prayed for by petition in writing addressed to the court below, or to the judge in vacation, who allows the writ or the appeal, by an order in writing, approves the appeal or supersedeas bond, and signs the citation. In cases brought up by writ of error from the district court, the clerk of the district court, or the clerk of this court, issues the writ of error, which writ fixes the return day, and the citation should bear the same return day. But in cases of appeal (in admiralty or in equity), the citation alone fixes the return day. All appeals, therefore, whether by writ of error or appeal, should here- after be taken in the following manner: 1. Petition in wjiting for the appeal, or writ of error, addressed to the court below, or the judge thereof in vacation. 2. The petition must be accompanied with an assignment of errors, and a prayer for reversal. 3. Appeal or writ of error bond, approval thereof, and the signing of the citation by the judge allowing the appeal or writ. 4. Order in writing of the judge allowing the writ of error or appeal. 5. Issuing the writ of error by the clerk of the district court or under this court. 6. In case it is desired to have the writ of error issued by the clerk of this court, a certified copy of the petition and order allowing the writ, under the seal of the court with a fee of five dollars for issuing it, must be transmitted to the clerk of this court, and the writ will be issued and forwarded to the clerk of the court below. All of the above papers and proceedings should be filed by the clerk of the lower court. The writ of error and the citation, the originals of which, after having been duly served, must be attached to and bound in the record at their respective places. (For service of writ of error see 1007, R. S.) In cases brought up by petitions to superintend and revise in bankruptcy, see rule 36. Rules of this court, blank writs of error, appeals and supersedeas bonds, citations, and orders of appearance may be had of the clerks of the lower courts or of the clerks of this court upon application. MAKING UP RECORDS. In making up a transcript of the record, clerks are requested to make a APPENDIX distinct title or heading to each paper or proceeding copied into the record, with the date of filing the same, or the date of such proceeding and to write upon but one side of the paper in a clear, legible hand. And a com- plete index should be made in chronological order and attached to the record at the beginning of it. In order to have uniformity, records should be commenced in the style and the term of the court to which the judgment or decree is entered as the following form: The United States of America, District of , to-wit: At a District Court of the United States for the District of , begun and held at the Court-house in the city of , on the first Monday of being the day of the same month, in the year of our Lord one thousand, nine hundred and Present: The Honorable , District Judge, for the District of Among others were the following proceedings, to-wit: A. B. 1 In Equity (or) vs. L In Admiralty (or) C. D. J At Law. Bill of Complaint (or) Libel (or) Declaration (or Complaint) Filed , 191 (date of filing)." (Copy same with all material indorsements, and any accompanying papers and exhibits, and so on with every paper or proceeding in the case.) As to the general order of making up a record, the following examples are given: IN EQUITY. IN ADMIRALTY. AT LAW. 1. Style of Court as Above. 2. Bill of Complaint, etc. 3. Process. 4. Marshal's Return. 5. Answer. 6. Replication. 7. Testimony and Exhibits for Com- plainant. 8. Testimony and Exhibits for De- fendant. 9. Testimony and Exhibits in Re- buttal. 10. Opinion. 11. Decree. 12. Assignment of Er- rors. 1. Style of Court as Above. 2. Libel. 3. Process. 4. Marshal's Return. 5. Claim. 6. Stipulation. 7. Answer. 8. Testimony and Exhibits fof Libellant. 9. Testimony and Exhibits for Respondent. 10. Testimony and Exhibits in Re- buttal. 11. Opinion. 12. Decree. 13. Assignment of Er- rors. 1. Style of Court as Above. 2. Declaration. 3. Process. 4. Marshal's Return. 5. Plea or Demur- rer, etc. 6. Joining of Issue. 7. Impaneling Jury. 8. Verdict. 9. Judgment. 10. Bill of Excep- tions. 11. Assignment of Errors. BULES OF THE CIRCUIT COURTS OF APPEALS 869 FORM OF MEMORANDUM TO BE INSERTED IN A COMMON LAW CASE AS PROVIDED BY SEC. 7 OF RULE 14. \ ( 1 ) Petition for writ of error filed day of , 19 ... ( 2 ) Writ of error granted .' day of , 19 ... ( 3 ) Writ of error issued day of , 19 ... ( 4 ) Copy of writ of error lodged for adverse party day of , 1!) . (5) Appeal Bond: Dated day of , 19... Penalty $ Obligors : Condition for costs and damages (or for costs). (6) Citation. Dated day of , 19. .. Return. Dated day of , 19 ... Or Waiver of service Dated day of , 19 ... Note: Similar memorandum mutatis mutandis to be used in admiralty and equity cases. The petition for writ of error or appeal, the order granting writ of error or appeal, the writ of error, the appeal bond, the citation, the return of service or waiver of service should not be copied into the record, but the originals thereof shall be sent up and accompany the transcript of the record. In transcribing bills of exceptions into the record in cases at law, clerks will carefully inspect such bills of exceptions and wherever the words "here insert," occur, the paper or matter called for should be bodily in- corporated into the record at that place. In making up records in admiralty cases, the following should be omit- ted (See rule 52 of the Supreme Court in Admiralty.): 1. The continuances. 2. All motions, rules, and orders not excepted to which are merely pre- paratory for trial. 3. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to a deposi- tion in the district court was founded on some one or more of these; in which case, so much of either of them as may be involved in the exceptions shall be set out. In all other cases it shall be sufficient to give the name of the witness and to copy the interrogatories and answers, and to state the name of the commissioner and the place where and the date 'when the deposi- tion was sworn to, and in copying of depositions taken on interrogatory, the answer shall be inserted immediately following the question. 870 APPENDIX FORM FOB THE COVER OF A TRANSCRIPT OF THE RECORD. TRANSCRIPT OF THE RECORD. UNITED STATES CIRCUIT COURT OF APPEALS. Fourth Circuit. No. . Plaintiff in Error, or Appellant, or Petitioner, versus Defendant in Error, or Appellee, or Respondent. In erroi to (or appeal from or on petition for review from) the District Court of the United States for the District of , at DOCKETING CASES AND PRINTING RECORDS. ' Upon a record being filed, the case is docketed and is put upon the calendar for argument at the next term, or adjourned term, occurring thereafter, provided the record has been printed and copies thereof are delivered to opposing counsel twenty days before the said term or adjourned term, as provided in sec. 2, rule 17. Clerk or counsel transmitting a record to this court must accompany the same with an order of appearance for the appellant or plaintiff in error, and also with a deposit of $25 for account of his costs to accrue in this court, and the names and addresses of the attorneys on both sides. The clerk of this court will immediately upon a transcript of the record being filed under rule 23, send to the counsel an estimate of the cost of printing, supervising fees, etc., which amount must be deposited, either in cash or by New York exchange, with the clerk within ten days after notice. See rule 23. It is important that records should be made up and forwarded to this office as promptly as possible after the appeal or writ of error is allowed, and not held until the near approach of the next term. Defendants in error, appellees, or respondents are required, at the time of entering their appearance by attorney, to make a deposit of $20 for ac- count of costs to be incurred by them in this court. In case of affirmance, or dismissal, when all costs shall have been paid by the plaintiff in error, appellant, or petitioner, the said deposit will be returned. This is applicable to all cases except when the United States is defendant in error or appellee. See 5, rule 16. RULES IN ADMIRALTY. UNITED STATES CIRCUIT COURT OF APPEALS. In the First, Second, Third, Fifth, Seventh, and Eighth circuits these rules are the same as provided in General Admiralty Rule No. 52 of the Supreme Court, with the addition in the First Circuit of 6 and 7 of rule 14 of the C. C. A. In the Fourth circuit they are as follows: Rules 1, 2, 3, 4, 5, 6, 7, 8, 10, and 11 are the same as corresponding rules in the Ninth circuit, and the remainder are as follows: RULE 9. NEW TESTIMONY HOW TAKEN. Such testimony shall be taken by deposition before any United States com- missioner, or notary public, upon reasonable notice in writing given to the opposite party; or by commission issued out of this court with interrogatories annexed. Upon proper cause shown, the court may grant an open commis- sion. RULE 12. WRIT OF INHIBITION. A writ of inhibition may be awarded by this court on motion of the ap- pellant to stay proceedings in the court below when circumstances require. RULE 13. MANDAMUS. A mandamus may, in like manner, be obtained to compel a return of the apostles when unreasonably delayed by the clerk, or court below. 871 872 APPENDIX RULE 14. CASES TO BE PLACED ON DOCKET. Each case shall be filed on the docket as soon as the printing of the apostles is completed by the clerk. RULE 15. BRIEFS. Sec. 1. Counsel for the appeal shall file with the clerk of this court, at least twenty days before the case is called for argument ten copies of a print- ed brief, and shall at the same time serve two copies thereof on the proctors of record, or on the counsel engaged upon the opposite side. This brief shall contain in order here stated: (1) A statement of the nature of the appeal, the court from which the ap- peal is taken, and a concise abstract or statement of the case, presenting suc- cinctly the questions involved, and the manner in which they were raised. (2) If the pleadings have been amended in this court or new proofs have been taken, it shall be stated what amendments have been made and in what respect the new proofs have changed, or tended to change, the case as made in the court below. (3) A brief of the argument, exhibiting a clear statement of the point* of law or fact to be discussed, with a reference to the folios of the record or to the numbers of the questions, and the authorities relied upon in support- of each point. Sec. 2. The counsel for the appellee shall file with the clerk of the court ten printed copies of his brief and serve two copies thereof at least ten days before the case is called for argument. His brief shall be of a like char- acter with that required of the appellant, and in case new proofs are taken on behalf of the appellee, the brief shall so state and wherein the new proofs have changed the case as made in the court below. Sec. 3. The reasonable expense of printing briefs shall be an item of tax- able costs. RULE 17. EXTENSION OF TIME. The time specified in the foregoing rule for any proceeding may be extended by order of judge of this court. RULE 18. WHEN RULES OF DISTRICT COURTS TO APPLY. In all matters in civil causes of admiralty not expressly provided for by the foregoing rules of this court, the rules of practice of the district court RULES IN ADMIRALTY 873 of the district by which the cause was decided, being in force at the time (not being inconsistent with these rules), will be adopted so far as may seem proper. RULE 19. WHAT GENERAL. RULES SHALL BE DEEMED ADMIRALTY RULES. The following of the General Rules of this Court, and no others, shall be deemed admiralty rules, viz.: Rules 3, 4, 5, 6, 7, 9, 11, 12; Sec. 4 of rule 14; Rules 15, 16, 17, 18, 19, 20, 21, 22, 23; Sec. 5 of General Rule 24; Rules 25, 26, 27, 28, 29; Sec. 4 of Rule 30; Rules 31, 32, 34, 36 and 37. In the Sixth circuit these rules are same as the general Equity Rules. In the Ninth circuit these rules are as follows: 1. APPEALS AND NEW PLEADINGS. An appeal to the circuit court" of appeals shall be taken by filing in the office of the clerk of the district court, and serving on the proctor of the ad- verse party a notice signed by the appellant or his proctor that the party appeals to the circuit court of appeals from the decree complained of. The appeal shall be heard qn the pleadings and evidence in the district court, unless the appellate court, on motion, otherwise order. NOTICE AND BOND. Sec. 1. When a notice of appeal is served, the appellant shall file in the clerk's office of the district court a bond for costs of the appeal, with suffi- cient surety in the sum of $250, conditioned that the appellant shall prosecute his appeal to effect and pay the costs, if the appeal is not sustained. Such security shall be given within ten days after filing the notice, or the appeal t*hall be deemed abandoned, and the decree of the court below enforced, unless otherwise ordered by a judge of this court. This rule so far modifies rule 11 of the General Rules that a petition for an appeal and the allowance thereof is not required in an admiralty case, nor is the assignment of errors required to be filed with notice of appeal. The assignment of errors must, however, be sent up to the appellate court with the apostles, as required in rule 4 of the Admiralty Rules. (Kenney v. Louie, No. 939. Motion to dismiss appeal denied, May 6, 1903.) Sec. 2. And if the appellant desires to stay the execution of the decree of the court below, the bond which he shall give shall be a bond with suffi- cient surety in such further sum as the judge of the district court or a judy of this court shall order, conditioned that he will abide by and perform what- 874 APPENDIX ever decree may be rendered by this court in the cause, or on the mandate of this court by the court below. Sec. 3. The appellant shall, on filing either of such bonds, give notice of such filing, and of the names and residences of the- sureties, and if the ap- pellee, within two days, excepts to the sureties they shall justify, on no- tice, within two days after such exception. 3. REVIEW IN PART ONLY. The appellant may also, at his option, state in his notice of appeal that he desires only to review one or more questions involved in the cause, which questions must be clearly and succinctly stated; and he shall be concluded in this behalf by such notice, and the review upon such an appeal shall be limited to such question or questions. 4. APOSTLES ON APPEAL- TO CONTAIN. Sec. 1. The apostles, on an appeal to this court, shall, in cases where a general notice of appeal is served, consist of the following: (1) A caption exhibiting the proper style of the court and the title of the cause, and a statement showing the time of the commencement of the suit; the names of the parties, setting forth the original parties and those who have become parties before the appeal, if any change has taken place; the several dates when the respective pleadings were filed, whether or not the de- fendant was arrested, or bail taken, or properly attached, or erased and if so, an account of the proceedings thereunder; the time when the trial was had, and the name of the judge hearing the same; whether or not any ques- tion was referred to a commissioner, or commissioners, and if so, the result of the proceedings and report thereon; the date of the entry of the interroga- tory and final decree; and the date when the notice of appeal was filed. (2) All the pleadings, with the exhibit annexed thereto. (3) All the testimony and other proofs adduced in the cause. (4) The interlocutory decree and any order of the court which appellant may desire to have reviewed on the appeal. (5) Any report of a commissioner or commissioners to which exception may have been taken, with the order or orders of the court respecting the same, and the exceptions to the report, and so much of the testimony taken in the proceedings as may be necessary to a review of the exceptions. (6) All expense of the court, whether upon interlocutory questions or finally deciding the cause. (7) The final decree, and the notice of appeal; and (8) The assignment of error. Sec. 2. All other papers shall be omitted unless otherwise ordered by the judge who heard the cause. Sec. 3. Where the appellant shall appear specially and seek only to re- RULES IN ADMIRALTY 875 view one or more questions in the cause, the apostles may, by stipulation be- tween the proctors for the respective parties, contain only such papers and proceedings and evidence as are necessary to review the questions raised by the appeal. 5. CERTIFYING RECORDS. The appellant shall, within thirty days after giving notice of appeal, pro- cure to be filed in this court the apostles certified by the clerk of the district court, or in case of a special appeal, the stipulated record, with the certifica- tion by the said clerk of all papers contained therein on file in his office. 6. IF APPEARANCE OF APPELLEE NOT ENTERED. If the appellee does not cause his appearance to be entered in this court within ten days after service on his proctor of notice that the apostles are filed in this court, the appellant may proceed ex parte in the cause, and have such decree as the nature of the case may demand. 7. NEW ALLEGATIONS, ETC. Upon sufficient cause shown, this court, or any judge thereof, may allow either appellant or appellee to make new allegations or pray different relief or interpose a new defense, or make new proofs. Application for such leave may be made at any time after the perfecting of the appeal to this court, and within fifteen days after the filing in this court of the apostles, and upon at least four days' notice to the adverse party or his attorney of record. NEW PLEADINGS NEW TESTIMONY. If leave be granted to make new allegations, pray different relief or in- terpose a new defense, the moving party shall, within ten days thereafter, serve such new pleading, duly verified, on the adverse party, who shall, if such pleading be a libel, within twenty days answer on oath. If leave be given to take new testimony, the same may be taken and filed within thirty days after the entry of the order granting such leave, and the adverse party may take and file counter testimony within twenty days after such filing. 876 APPENDIX 9. NEW TESTIMONY HOW TAKEN. Such testimony shall be taken by deposition before the clerk of this court, or any United States commissioner, or any clerk of a district court of the United States, or any notary public upon reasonable notice, in writing, given to the opposite party or his attorney of record, either in this court or in the court below, which notice must state the name or names of the witness or witnesses and the time and place of taking his or their deposition; or by com- mission issued out of this court with interrogatories annexed. Upon suffi- cient cause shown, the court may grant an open commission. 10. PRINTING NEW PLEADINGS AND TESTIMONY. If new pleadings are filed or testimony taken in this court, the same shall also be printed and furnished by the clerk, as in the 23d General Rule pro- vided. 11. MOTIONS. All motions shall be made upon at least four days' notice. 12. EVIDENCE OF TIME. The time specified in the foregoing rules for any proceeding may be ex- tended by order of a judge of this court. EQUITY RULES IN FORCE FEBRUARY 1, 1913, ANNOTATED. (Index at end of Rules.) 877 l EQUITY RULES 879 TABLE OF OLD EQUITY RULES SHOWING WHAT HAVE BEEN IN- CORPORATED AND WHAT OMITTED IN THE NEW EQUITY RULES. - Those marked with a star (*) are identical with the new rule indicated. Old New 1 1 par. 1. 2 2 and see 6. 3 1 par. 2. 4 4-3-6. 5 5. 6 Out. 7 7* substantially. 8 8. 9 9* 1011* substantially. 1112. 1212. 1313* 14 14* substantially. 1515* 16 Out See 3. 17 Out See 16 and 12. 1816 and 17 and 58. 1917. 2025 par. 1. 2125 para. 1-2-3-5. 2225 par. 4. 2325 par. 5. 2424. 25 Out. 2621. 27 Out See 21. 2828 and 19. 2928 par. 2. 30 Out See 19. 31 Out See 29. 32 Out See 29. 33 Out See 29. 34 Out See 29. 35 Out See 29. 36 Out See 29. 37 Out See 29. 38 Out See 29. 39 Out See 29. 40 See 58. 41 Out See 58. 42 Out See 58. 43 Out See 58. 44 Out See 58. 45 Out See 31. 4632* with time changed. 4739. Old New 4838. 4937. 5041* 5142* 5243. 5344. 5440. 55 Out See 73. 5645. 5734. 5835* 5936. 60 Out See 19 and 30. 61 Abolished 33 and 21. 62 Out. 63 Out See 33. 64 Out See 33 and part 58. 65 Out. 66 Abolished 31. 67 See 58 and 46-49-51-52-53-47. 6854. 6955 and 47. 7047 and 54. 71 Out. 72 Out See 30. 73 Out. 7459. 7560* 7661* 7762. 7852 See 46. 7963. 8064* 8165* 8"2 68. 83 66* 8467. 8572. 8671* 8770* 8869. 8979. 90 Out See 79. 9178* 9210* substantially. 9374. 9427. with time changed. 880 APPENDIX CORRESPONDING TABLE OF NEW RULES SHOWING FROM WHERE DRAWN IN THE OLD RULES AND WHAT ARE ENTIRELY NEW. THOSE MARKED WITH A STAR ARE IDENTICAL. WITH THE OLD RULE. New Old Par. 11-1. Par. 21-3. 2 2. 3 new. See 4. 4 4 5 5. 6 new. 7 7* substantially. 8 pt. new. 8. 9 9* 1092* substantially. 1110* substantially. 1211 and 12. 1313* 14 14* substantially. 1515* 1618 first part. 1 719. 1 8 new. 1928, 29 and 60 supersedes 30. 20 new. 21 new. See 26, 27, 61. 22 new. 23 new. 24 partly new. 24. 25 Pur. 120. " 221. '' 3, new. " 422 pt. " 5 pt. 21 and 23. 26 new. 2794. 2828 1st pt. 29 1st pt. 29 new superseding 31 to 40. 30 new. See 60. Supersedes 72. 31 new superseding 45 and 66. 32 46* with time changed. 33 new superseding 61, 63, 64. 34 new superseding 57. 3558* 3659. 37 new superseding 49. 3848. 3947. 4054. New Old 4150* 4251* 43 52 and pt. new. 4453. 45 new superseding 56. 46 abolishing 67, 78. 47 new, pt. 67, pt. 69, pt. 70. 48 new. 49 new, pt. 67. 50 new. 51 new last pt. from pt. 67. 52 pt. new. 78 1st pt. 67 pt. 5367 pt. 54 68 and 70 superseded. 55 new superseding 69. 56 new. 57 new. 58 new pt. 18 2nd pt. Supersedes 40, 41, 42, 43, 44, 64, 67. 5974. 6075* 6176* 6277. 6379. 6480* 6581* 66 83* with time changed. 6784. 6882. 6988. 7087* 7186* 7285. 73 new superseding 55. 7493. 75 new. 76 new. 77 new. 7891* 79 89 supersedes 90. 80 new. 81 new. EQUITY RULES IN FORCE FEBRUARY 1, 1913, ANNOTATED. EXPLANATORY NOTE. Matter contained in parentheses followed by a number indicates that such mat- ter is the same as the old rule of that number except where changes are indicated by note numbers above the line of the text of the rule. Thus the first part of rule 1 is identical with old rule 1 except the word "district" followed by note number "1" in the new rule was "circuit" in old rule 1. The second part of rule 1 in parentheses is the same as part of old rule 3, and the last part of rule 1 in parentheses is new, as indicated in the note below. Rule 1. District court always open for certain purposes Orders at cham- bers. (The district 1 court, as courts of equity, shall be deemed always open for the purpose of filings any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein.) (1.) (Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings,) (pt. 3) (whenever the same are not grantable of course, according to the rules and practice of the court.) (New.) 1 Formerly "circuit." 2 Omits "bills, answers, and other." Drawn from old rule 1, Rose's Code, 365, and part of old rule 3, Rose's Code, 939; but last sentence of rule is new. The rule is identical with 9, Judicial Code, except omits "admiralty and" after "district courts," and before "as courts of equity." Rule 2. Clerk's office always open, except, etc. The clerk's office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attendance for the purpose of receiving and disposing of all motions, rules, orders and other proceedings which are grantable of course. . Drawn from old rule 2, Rose's Code, 604, which established the first Monday in the month as rule day. Rule day is now abolished. Motion day is provided for in rule 6, post. Rule 3. Books kept by clerk and entries therein. The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appearances, shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. Montg. 56. 882 APPENDIX The clerk shall also keep a book entitled "Order Book," in which shall be entered at length, in the order of their making, all orders made or passed by him as of course and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. New. Old rule 4 provided for an "Order Book." Otherwise this is a new rule. Supersedes old rule 16. Rule 4. Notice of orders. Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as sufficient proof of due notice of the order. New. Superseding old rule 4, which provided the entry in the Order Book was sufficient notice" 1 to the parties, except in cases where personal or other notice is specially required or directed. The part as to mailing copies is new. Rule 5. Motions grantable of course by clerk. (All motions and applica- tions in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; 1 for taking bills pro confesso;* and for other proceedings in the clerk's office which do not 3 require any allowance or order of the court or of a judge, shall be deemed motions and applications grant- able of course by the clerk; but the same may be suspended, or altered, or rescinded by the judge * upon special cause shown.) (5, Rosens Code, 942.) 1 Omits "for filing bills, answers, pleas, demurrers and other pleadings; for making amendments to bills and answers." 2 Omits "for filing exceptions." 8 Omits "by the rules hereinafter described." * Omits "of the court." Rule 6. Motion day. Each district court shall establish regular times and places, not less than once each iimntl). when motions requiring notice and hearing may be made and disposed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the circuit may dispense with the motion day during not to exceed two months in the year in any district. New rule substituting "motion day" for the abolished "rule day." Rule 7. Process, mesne and final. (The process of subpoena shall consti- tute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the * bill ; and, unless other- wise provided in these rules or specially ordered by the court, a writ of attach- ment and, if the defendant cannot be found, a writ of sequestration, or a EQUITY BULES 883 writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience ^o any interlocutory or final order or decree of the court.) (7.) 1 Omits "exigency of." Rule 8. Enforcement of final decrees. (Final process to execute any de- cree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the district 1 court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the de- livering up of deeds or other documents, the decree shall, in all cases, pre- scribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the pay- ment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If tho delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree.) (8. Identical. Rose's Code, 1096.) (If a mandatory order, injunction or decree for the specific performance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceedings against the disobedient party for a contempt or by sequestration, may by order direct that the act required to be done, be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the dis- obedient party, ^and the act, when so done, shall have like effect as if done by him.) (New.) 1 Pircuit. Rule 9. Writ of assistance. (When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court.) (Identical 9. Rose's Code, 1097.) Rule 10. Decree for deficiency in foreclosures, etc. (In suits for the fore- closure of mortgages, or the enforcement of other liens, (new) a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in rule 8 when the decree is solely for the payment of money.) (Substantially. 92.) Rule 11. Process in behalf of and against persons not parties. (Every per- son, not being a party in any cause, who lias obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, 884 APPENDIX against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. 1 ) (10.) 1 The last three words of the old rule 10, Rose's Code, 1098, "in the cause," are omitted. Rule 12. Issue of subpoena Time for answer. (Whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon,) (11.) as of course, upon the application of the plaintiff, (which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof.) (New.) (At the bottom of the subpoena shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint sub- poena against all the defendants.) (12.) This rule combines old rules 11 and 12, see Rose's Code, 969, 970, the time for answering is changed because of the abolition of the rule day. Ap- pearance day is abolished. Rule 13. Manner of serving subpoena. (The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family.) (13. Identical.) Rule 14. Alias subpoena. (Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other 1 sub- poenas 2 against such defendant, until due service is made.) (14, Rose's Code, 972.) 1 Changed from "another" 2 Omits "toties quoties." Rule 15. Process, by whom served. (The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof.) (Identical 15, Rose's Code, 973.) Rule 16. Defendant to answer Default Decree pro confesso. (It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court,! to file his answers or other defense (new) to the bill in the clerk's office within the time named in the subpoena as required by rule 12.* In default thereof the plaintiff may, at his election, take an order EQUITY RULES 885 os of course * that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte.) (1st pt. 18, Rose's Code, 977.) 1 Omits "on motion for that purpose." 2 Omits "plea, demurrer." 3 Changes "on the rule next succeeding that of his appearance." 4 Omits ''enter an order ... in the Order Book." Rule 17. Decree pro confesso to be followed by final decree Setting aside default. (When the bill is taken pro confesso the court may proceed to a final (new) decre^ at any time after the expiration of thirty days after the entry of the order I, pro confesso, and such decree 2 shall be deemed absolute, unless the court sha/ll, at the same term, set aside the same, or enlarge the time for filing the Answer, upon cause shown upon motion and affidavit.3 No such motion shall be granted, unless upon the payment of the costs of the plaintiff * up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause.) (19, Roses' Code, 978.) 1 To take the bill. 2 Rendered 3 Of the defendant. 4 In the suit Rule 18. Pleadings Technical forms abrogated. Unless otherwise pre- scribed by statute or these rules the technical forms of pleadings in equity are abolished. New. Rule 19. Amendments generally. The court may at any time, in further- ance of justice, upon such terms as may be just, permit any process, pro- ceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the pro- ceedings which does not affect the substantial rights of the parties. (28, 29. 60, Rose's Code, 956, 957.) See rule 28, post. Drawn from old rules 28, 29, and 60, which it supersedes. It also supersedes old rule 30. Rule 20. Further and particular statement in pleading may be required. A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. New rule, drawn from order XIX, rule 7, English chancery practice. As to object of particulars, see Speeding v. Fitzpatrick, 38 C. D. 413; Milbank v. Milbank, 1 Ch. 285. 886 APPENDIX Rule 21. Scandal and impertinence. The right to except to bills, answers, and other procedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, imperti- nent or scandalous matter striken out, upon such terms as the court shall think fit. This is a new rule, and abolishes the practice of taking exceptions for scandal and impertinence under old rules, 26, 27, 61, Rose's Code, 954. See Rule 33, post. Rule 22. Action at law erroneously begun as suit in equity Transfer. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential. New. Same as English practice under judicature act 1875. Rule 23. Matters ordinarily determinable at law, when arising in suit in equity to be disposed of therein. If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court. New. Rule 24. Signature of counsel. Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading; and that it is not interposed for delay. (24. Partly New. Rose's Code, 949.) Rule 25. Bill of complaint Contents. Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption: First, (the full name, when known, of each plaintiff and defendant, and the citizenship, and residence of each party. If any party be under any disability that fact shall be stated.) (From 20, Rose's Code, 944.) Second, (a short and plain statement of the grounds upon which the court's jurisdiction depends.) (From 21, Rose's Code, 945, 946.) Third, (a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence.) (New.) Fourth, (if there are persons other than those named as defendants who appear to be proper parties, the bill should state why they ai" not made parties as that they are not within the jurisdiction of the court, or can- not be made parties without ousting the jurisdiction.) (22. Partly, Rose's Code, 947.) Fifth, a statement of and prayer for any special relief pending the suit EQUITY RULES 887 or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired the bill should be verified -by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked. (From last pt. 21 and 23, Rose's Code, 945, 946, 948.) Rule 26. Joinder of causes of action. The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such cause of action cannot be conveniently disposed of together, the court may order separate trials. New. Rule 27. Stockholder's bill. Every bill brought by one or more stock- holders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States juris- diction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the share holders, and the causes of his failure to obtain such action,) (94) or the reasons for not making such effort. New. Rule 28. Amendment of bill as of course. (The plaintiff may, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the ' bill as amended, unless otherwise ordered by the court or judge.) (From 28, 1st part.) Rose's Code, 956. After pleading filed by any defendant, plaintiff may amend only by con- sent of the defendant or leave of the court or judge. (From 29, 1st part, Rose's Code, 957.) This rule, with rule 18 above, makes several changes in the practice as to amendments. Rule 29. Defenses How presented. Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every 888 APPENDIX such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore pre- sentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered. New. Does away with old rules 3 to 39 inclusive. Rule 30. Answer Contents Counterclaim. The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such state- ment operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as 'the defendant deems essential to his defense. The answer must state in short and simple form any counterclaim arising out of the transaction which is the subject matter of the suit, and may. without cross-bill, set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-bill, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. New. Supersedes old rules 60 and 72. Rose's Code, 1053. Rule 31. Reply When required When cause at issue. Unless the an- swer assert a set-off or counterclaim, no reply shall be required without special order of the court of judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set- off or counterclaim the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counterclaim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be ac- corded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counterclaim may be entered as in default of an answer to the bill. New. Supersedes old rules 45 and 66. EQUITY RULES 889 Rule 32. Answer to amended bill. (In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer ivithin ten days (new) after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, tUe like proceedings may be had as in case of an omission to put in an answer.) (46, Rose's Code, 1007.) Rule day being abolished, the only change of language in old rule 46 was that defining time. Rule 33. Testing sufficiency of defense. Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set- off Or counterclaim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. New, superseding old rules 61, 63, 64. Rule 34. Supplemental pleading. (Upon application of either party the court or judge, may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court ren- dered after the commencement of the suit determining the matters in con- troversy or a part thereof.) (New.) New. See old rule 57. Rose's Code, 961. Rule 35. Bills of reviver and supplemental bills Form. (It shall not be necessary in any bill of reviver or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it.) (58. Identical, Rose's Code, 962.) Rule 36. Officers before whom pleadings verified. Every pleading which is required to be sworn to by statute, or these rules, may be verified (before any justice or judge of any court of the United States, or of any state or territory, or of the District of Columbia, or any clerk of any court of the United States, or of any territory, or of the District of Columbia, or any notary public.) (59. Omitting commissioners and masters in chan- cery. ) Rule 37. Parties generally Intervention. Every action shall be prose- cuted in the name of the real party in interest, but an executor, administra- tor, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party ex- pressly authorized by statute, may sue in his own name without joining 890 APPENDIX with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief de- manded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a com- plete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when anyone refuses to join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be per- mitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceed- ing. Xew, superseding 49. Rule 38. Representatives of class. When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. This is a new rule, drawn from old rule 48. Coann v. Atlanta Factory Co. 14 Fed. Rep. 4; American Steel Co. v. Wire Drawers' Unioii, 90 Fed. 598. Rule 39. Absence of persons who would be proper parties. (In all cases where it shall appear to the court that persons, who might otherwise be deemed 1 proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties.) (47, Rose's Code, 1019. 1 Omits "necessary or." See 50, Judicial Code. Rule 40. Nominal parties. (Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subprena upon him, need not appear and an- swer the bill, unless the plaintiff specially requires him to do so bv the prayer,! but he may appear and answer at his option; and if he does not ap- pear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct.) (54, Rose's Code, 976. i Omits "of his bill." Rule 41. Suit to execute trusts of will Heir as party. (In suits to exe- cute the trusts of a will, it shall not be necessary to make the heir at law a EQUITY RULES 891 party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him.) (50 Identical, Eose's Code, 1022.) Rule 42. Joint and several demands. (In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. (51. Identical, Rose's Code, 1023.) Rule 43. Defect of parties Resisting objection. (Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may,* within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only,2 and where the plaintiff shall not so set down his cause, but shall proceed there- with to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order 8 to amend his bill by adding parties ; but the court * shall be at liberty to dis- miss the bill,) (52, Rose's Code, 1025.) (or to allow an amendment on such terms as justice may require.) (New.) 1 Omitted words, "shall be at liberty." 2 "And the purpose for which the same is set down shall be notified by an entry, to be made in the clerk's Order Book in form or to the effect following (that is to say) : 'Set down on the defendant's objection for want of parties.'" 3 "for liberty." 4 "if it thinks fit." Rule 44. Defect of parties Tardy objection. (If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by 1 motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall 2 be at liberty to make a decree saving the rights of the absent par- ties.) (53, Rose's Code 1026.) 1 Word "motion" substituted for "plea or answer." 2 "(if it shall think fit)" omitted. Rule 45. Death of party Reviver. In the event of the death of either party the court may, in a proper case, upon motion, order the suit to be re- vived by the substitution of the proper parties. If the successors or repre- sentatives of the deceased party fail to make such application within a rea- sonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion, may make the necessary orders for notice to the parties to be substituted and for the filing of such pleadings or amend- ments as may be necessary. New, superseding 56. 892 APPENDIX Rule 46. Trial Testimony usually taken in open court Rulings on objec- tions to evidence. In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evidence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the ruling, and the exception. If the appellate court shall be of opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that material preju- dice will result from an aiCrmance, in which event it shall direct such fur- ther steps as justice may require. Xew, abolishing the practice under 67. Rule 47. Depositions To be taken in exceptional instances. The court, upon application of either party, when allowed by statute, 1 or for good and exceptional cause for departing from the general rule, to be shown by affi- davit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depo- sitions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the ex- piration of the time for the filing of plaintiff's depositions; and rebutting de- positions by either party within twenty days after the time for taking origi- nal depositions expires. Xew. See last paragraph under 67, headed "Court may assign the time," 69, and 70. 1 See rule 54, post. Rule 48. Testimony of expert witnesses in patent and trademark cases. In a case involving the validity or scope of a patent or trademark, the district court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed to matters of opinion, be set forth in affidavits and filed as follows: Those of the plaintiff within forty daya after the cause is at issue; those of the defendant within twenty days after plaintiff's time has expired; and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affiant for cross-examination, the court or judge shall, on motion, direct that said cross-examination and any re-examination take place before the court upon the trial, and unless the affiant is produced and submits to cross-examination in compliance with such direction, his affidavit shall not be used as evidence in the cause. Xew. The probabilities are that this rule will make little change in patent EQUITY RULES and trademark cases, and that rule 46 will not be applied to these cases. Probably testimony will be largely taken as formerly, by resort to the first clause in rule 47, allowing depositions to be taken "for good and exceptional cause." Rule 49. Evidence taken before examiners, etc. All evidence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Depositions, whether upon oral examination before an examiner or like officer or otherwise, shall be taken upon questions and answers reduced to writing, or in the form of narrative, and the witness shall be subject to cross and re-examination. New. See 67, under heading "Proceedings." Rule 50. Stenographer Appointment Fees. When deemed necessary by the court or officer taking testimony, a stenographer may be appointed who shall take down testimony in shorthand and, if required, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript. New. Rule 51. Evidence taken before examiners, etc. Objections to the evi- dence, before an examiner or like officer, shall be in short form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. The testimony of each witness, after being reduced to writing, (shall be read over to or by him,! and shall be signed by him in the presence of the officer: 2 Provided, That if the witness shall refuse to sign his 3 deposition so taken, the officer * shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal.5 Objection to any question or questions shall be noted by the officer upon the deposition, but he shall not have power to decide on the competency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs of in- competent and immaterial or irrelevant depositions, or parts of them, as may be just. Substantially 67, last pt., under heading "Proceedings." ," for "the witness." * "Officer" instead of "of the parties or counsel, or such of them as may attend." 3 "His" instead of "the said" * "Officer" for "examiner" 5 Omitted "and the examiner may upon all examinations state any special matters to the court as he shall see fit." Rule 52. Attendance of witnesses before commissioner, master or examiner. (Witnesses who live within the district, and whose testimony may be taken out of court by these rules, (new) may be summoned to appear before a commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpo?na in the usual form, which may be issued 894 APPENDIX by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attend- ance the same compensation as for attendance in court; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified- to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in, the court.) (78, 1st part, Rose's Code, 1057.) (In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or (new) examiner or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories.) (67, pt. headed "Compulsory at- tendance of witnesses") Rule 53. Notice of taking testimony before examiner, etc. (Notice shall be given by the respective counsel or parties to the opposite counsel or parties of the time and place of examination before an examiner or like officer for such reasonable time as the court or officer* may fix by order in each case.) (67, pt. headed "Notice of time and place.") 1 "Court or officer" for "examiner." Rule 54. Deposition under Rev. Stat. 863, 865, 866, 867 Cross-examina- tioa After a cause is at issue, depositions may be taken as provided by 863, 865, 866 and 867, Revised Statutes. But if in any case no notice has been given the opposite party of the time and place of taking the dep- osition, he shall, upon application and notice, be entitled to have the witness examined orally before the court, (new) or to a cross-examination before an examiner or like officer, or a new deposition taken with notice, as the court or judge under all the circumstances shall order. (68 and 70 superseded, Rose's, Code, 1052.) Rule 55. Deposition deemed published when filed. Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court. New, superseding 69. Rule 56. On expiration of time for depositions, case goes on trial calendar. After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. Thereafter no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the reason why the testimony of the witness cannot be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give. New. EQUITY RULES 895 Rule 57. Continuances. After a cause shall be placed on the trial calen- dar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Continuances beyond the term by consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred theretofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar, subject to reinstate- ment within one year upon application to the court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. Rule 58. Discovery Interrogatories Inspection and production of docu- ments Admission of execution or genuineness. The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and docu- ments material to the support or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allowing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the examination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered sepa- rately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the ob- jections are sustained, answers shall not be required. (The court or judge, upon motion and reasonable notice, may make all 896 APPENDIX such orders as may be appropriate to enforce answers to interrogatories or to effect the inspection or production of documents in the possession of either party and containing evidence material to the cause of action or de- fense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plain- tiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer.) (See 2nd pt. 18, Rose's Code, 977.) By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglect- ing to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable. Supersedes 40, 41, 42, 43, 44, 64 and 2d pt. 18. Drawn from order XXXI., English practice. Rule 59. Reference to master Exceptional, not usual. Save in matters of account, a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. (When such a reference is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the master for a hearing 1 within twenty days (new) succeeding the time when the reference was made, unless a longer time be specially granted by the court or judge; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference.) (74, Rose's Code, 1070.) 1 Omitting "on or before next rule day." Rule 60. Proceedings before master. (Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same ia brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his descretion, to ad- journ the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay.) (Identical 75, Rose's Code, 1071.) Rule 61. Master's report Documents identified but not set forth. In the reports made by the master to the court, no part of any state of facts, ac- count, charge, affidavit, deposition, examination, or answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, examination, or answer shall be identified, and EQUITY RULES 897 referred to, so as to inform the court what state of facts?, account, charge, affidavit, deposition, examination, or answer were so brought in or used.) {Identical 76, Rose's Code, 1078,) Rule 62. Powers of master. (The master shall regulate all the proceed- ings in every hearing before him, upon every reference; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, or by deposition, according to the acts of Congress, or otherwise, as here provided ;1 and also to direct the mode in which the matters re- quiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him. which he may deem necessary and proper to the justice and merits thereof and the rights of the parties.) (77. Rose's Code, 1072.) 1 Formerly read "and to order the examination of other witnesses to be taken under commission to be issued upon his certificate from the clerk's office, or by deposition, according to acts of Congress or otherwise, as here- inafter provided." See Foote v. Silsby, 3 Blatchf. 507 ; Consolidated Fastener Co. v. Columbian Co. 85 Fed. 54; Bate Refrigerator Co. v. Gillette, 28 Fed. 673; White v. Rail- road Co. 79 Fed. 113; Deitch v. Staub, 115 Fed. 309; Welling v. La Baw, 32 Fed. 293; Lull v. Clark, 20 Fed. 454. Rule 63. Form of accounts before master. (All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories,! as the master shall driect.) (79 Rose's Code, 1073.) 1 Omitted "in the master's office, or by deposition." Rule 64. Former deposition, etc., may be used before master. (All affi- davits, depositions and documents which have been previously made, read, or used in the court upon any proceeding in any cause or matter may be used before the master.) (Identical 80 Rose's Code, 1074.) Rule 65. Claimants before master examinable by him. (The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in botli modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary.) (Identical 81 Rose's Code, 1075.) Rule 66. Return of master's report Exceptions Hearing. (The master, as soon as his report is ready, shall return the same into the clerk's office and the day of the return shall be entered by the clerk in the Equity Docket. Montg. 57. 898 APPENDIX The parties shall have twenty day si from the time of the filing of the re- port to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or othenyise.) (83. Rose's Code, 1077, 1079.) 1 Formerly "one month." Rule 67. Costs on exceptions to master's report. (In order to prevent ex- ceptions to reports from being filed for frivolous causes, or for mere de- lay, the party whose exceptions are overruled, shall, for every exception overruled, pay five dollars (new) costs to the other party, and for every exception allowed shall be entitled to the samel costs.) (84) Rose's Code, 1080. 1 "Omitted." Rule 68. Appointment and compensation of masters. (The district 1 courts may appoint standing masters in chancery in their respective districts (a majority of all* the judges thereof concurring in the appointment), and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master 3 shall be fixed by the district* court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court.) (82. Rose's Code, 690, 1069.) 1 Formerly "circuit." 2 Formerly "both." 3 Omitted "in chancery for his services in any particular case." Rule 69. Petition for rehearing. (Every petition for a rehearing shall ?ontain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other per- son. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the circuit court of appeals (new) or the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court.) (88. Rose's Code, 1094.) Identical with old rule 88, with the addition of the words, "circuit court of appeals." See Giant Powder Co. v. Cal. Powder Co. 5 Fed. 197; McLeod v. New Albany, 66 Fed. 378; Brook v. Railroad. Co. 102 U. S. 107, 26 L. ed. 91. EQUITY BULES 899 Rule 70. Suits by or against incompetents. (Guardian ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable of suing for themselves. All infants and other persons so incapable may sue by their /uardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the protection of infants and other per- sons.) (87. Identical, Rose's Code, 1024, 1025.) Rule 71. Form of decree. (In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz" (Here insert the decree or order.) (86 Identical, Rose's Code, 1090.) Rule 72. Correction of clerical mistakes in orders and decrees. (Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before* the close of the term at which final decree is rendered, (new) be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing.) (85 Rose's Code, 1092.) 1 Instead of "an actual enrolment thereof." Rule 73. Preliminary injunctions and temporary restraining orders. No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly appear from specific facts, shown by affidavit or by the verified bill, that immediate and irreparable loss or damage will result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contin- gency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary in- junction, and if he does not do so the court shall dissolve his temporary re- straining order. Upon two days notice to the party obtaining such temporary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall pro- ceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk's office. New, changing the practice under 55. Rule 74. Injunction pending appeal. (When an appeal from a final decree in an equity suit granting or dissolving an injunction is allowed by a jus* 900 APPENDIX tice or a judge who took part in the decision of the cause he may, in his discretion, at the time of such allowance make an order suspending, modify- ing, or restoring (new) the injunction during the pendency of the appeal upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party.) (93 Rose's Code, 2022.) Rule 75. Record on appeal Reduction and preparation. In case of ap- peal: (a) It shall be the duty of the appellant or his solicitor to file with the clerk of the court from which the appeal is prosecuted, together with proof or acknowledgment of service of a copy on the appellee or his solicitor, a precipe which shall indicate the portions of the record to be incorporated into the transcript on such appeal. Should the appellee or his solicitor de- sire additional portions of the record incorporated into the transcript, he shall file with the clerk of the court his precipe also within 10 days there- after, unless the time shall be enlarged by the court or a judge thereof, in- dicating such additional portions of the record desired by him. (b) The evidence to be included in the record shall not be set forth in full, but shall be stated in simple and condensed form, all parts not essential to the decision of the questions presented by the appeal being omitted and the testimony of witnesses being stated only in narrative form, save that if either party desires it, and the court or judge so directs, any part of the testimony shall be reproduced in the exact words of the witness. The duty of so condensing and stating the evidence shall rest primarily on the appel- lant, who shall prepare his statement thereof and lodge the same in the clerk's office for the examination of the other parties at or before the time of filing his precipe under paragraph (a) of this rule. He shall also notify t!ie other parties or their solicitors of such lodgment and shall name a time and place when he will ask the court or judge to approve the statement, the time so named to be at least 10 days after such notice. At the expiration of the time named or such further time as the court or judge may allow, the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or the judge, and if the statement be true, complete, and properly prepared, it shall be approved by the court or judge, and if it be not true, complete, or properly prepared, it shall be made so under the direction of the court or judge and shall then be approved. When ap- proved it shall be filed in the clerk's office and become a part of the record for the purposes of the appeal. (c) If any difference arise between the parties concerning directions as to the general contents of the record to be prepared on the appeal, such dif- ference shall be submitted to the court or judge in conformity with the provi- sions of paragraph (6) of this rule and shall be covered by the directions (which the court or judge may give on the subject.) Rule 76. Record on appeal Redu^ion and preparation Costs Correction of omissions. (In preparing the transcript on an appeal, especial care shall EQUITY RULES 901 be taken to avoid the inclusion of more than one copy of the same paper and to exclude the formal and immaterial parts of all exhibits, documents and ^ther papers included therein; and for any infraction of this or any kindred rule the appellate court may withold or impose costs as the circumstances of the case and the discouragement of like infractions in the future may re- quire. Costs for such an infraction may be imposed upon offending solicitors as well as parties. If, in the transcript, anything material to either party be omitted by accident or error, the appellate court, on a proper suggestion or its own mo- tion, may direct that the omission be corrected by a supplemental transcript. ) (New.) Rule 77. Record on appeal Agreed statement. (When the questions pre- sented by an appeal can be determined by the appellate court without an examination of all the pleadings and evidence, the parties, with the approval of the district court or the judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the appellate court. Such statement, when filed in the office of the clerk of the district court, shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the decree from which the appeal is taken, and, together with such decree, shall be copied and certified to the appellate court as the record on appeal.) Rule 78. Affirmation in lieu of oath. (Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupu- lous of taking an oath, in lieu thereof make solemn affirmation to the trutli of the facts stated by him.) (91 Identical, Rose's Code, 938.) Rule 79. Additional rules by district court. With the concurrence of a majority of the circuit judges for the circuit, the district courts may make any other and further rules and regulations for the practice, proceed- ings and process, mesne and final, in their respective districts, not inconsist^ ent with the rules hereby prescribed,! and from time to time alter and amend the same. (89. Rose's Code, 806.) 1 Omitted "in their discretion." Supersedes old rule 90. Rule 80. Computation of time Sundays and holidays. When the time prescribed by these rules for doing any act expires on a Sunday or legal holiday, such time shall extend to and include the next succeeding day that is not a Sunday or legal holiday. New. 902 APPENDIX Rule 81. These rules effective February 1, 1913 Old rules abrogated. These rules shall be in force on and after February 1, 1913, and shall gov- ern all proceedings in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which cannot be changed without doing substantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such in- justice. All rules theretofore prescribed by the Supreme Court, regulating the practice in suits in equity, shall be abrogated when these rules take effect. New. INDEX TO EQUITY RULES. Rule Abatement, defenses formerly presentable by, to be made in answer .... 29 Absence of persons who would be proper parties 39 Account : Matters of, reference to master 59 To be identified but not stated in master's report 61 Forms of, before master 63 Action : At law, erroneously begun as suit in equity, transfer 22 Joinder of, causes of 26 To be presented in name of real party in interest 37 Additional rules, by district court 79 Administrator as party : 37 Admissibility of evidence offered to be passed on by court 46 Admission of execution, etc., of documents, etc 58 Advancement of causes, notice of interlocutory orders, etc 6 Affidavit : Plaintiff's, of noncompliance with decree, attachment to issue ...... '8 To be made of service of process by person appointed therefor .... 15 Of expert witnesses in patent and trade-mark cases, provisions as to 48 Required on application for continuance 57 To be identified but not stated in master's report 61 Previously used in court, etc., may be used before master 64 On application for preliminary injunction 73 Affirmation in lieu of oath 78 Agreed statement, record on appeal 77 Alternative defenses may be stated in answer 30 Amended bill, answer to ,. . . 32 Amendments: Generally 19 Permitted of any process, pleading, record, etc 19 Of bill As of course 28 Not after defendant's pleading filed, except, etc 28 On suggestion of defect of parties 43 Of pleadings on substitution of parties 45 Answer : Subpoena, proper process to compel 7 Time for 12 903 904r APPENDIX -Answer continued. Rule To be filed within time named in subpoena 16 Enlarging time for filing . . 17 When to be filed, on motion to set aside decree pro confesso 17 Exceptions to, for scandal and impertinence, shall not obtain 21 Defenses to be presented in 29 To be filed if motion to dismiss denied 29 If not filed, decree pro confesso entered 29 Defenses formerly presentable by plea in bar or abatement, to be made in 29 What to contain 30 Amendment of, by leave, on reasonable notice 30 To omit statement of evidence 30 To avoid general denial of averments of bill 30 To specifically admit, or deny, or explain facts upon which plain- tiff relies 30 Contents, counterclaim 30 To state counterclaims 30 May state defenses in alternative 30 Cause at issue on filing of, unless, etc 31 To amended bill 32 New or supplemental, to be filed to amended bill 32 Exceptions for insufficiency of, abolished 33 If insufficient may be amended or matter stricken' out 33 When defect of parties suggested, proceedings on 43 May be stricken out for failure to answer interrogations or produce documents 58 To be identified but not stated in master's report 61 Appeal : Injunction pending 74 Record on Differences as to 75 Reduction and preparation 75 Costs correction of omissions . .'V.'. J! ^'. ?.' 76 Agreed statement 77 Appearance: Filed with clerk to be noted in equity docket 3 Subpoena proper process to compel 7 Appellant: To notify opposing party or solicitors, etc 75 To file precipe indicating portion of record on appeal 75 To condense evidence, etc 75 Appellate court: Not to reverse decree unless 46 May direct further steps as justice may require 46 Appellee to file precipe indicating additional portions of record on appeal 75 Appointment and fees of stenographers 50 Appointment and compensation of masters 68 INDEX TO EQUITY KULES Assistance, writ of: Rule When to issue 7 x On refusal to obey decree for delivery of possession 9 Attachment: Provisions as to 7 For noncompliance with decree "8 Not to be discharged unless upon full compliance with decree, etc. . . 8 May issue for failure to answer interrogatories or produce documents 58 Attendance of witnesses before commissioner, master, or examiner .... 52 Averments of bill, if not denied, deemed confessed, except, etc 30 Bill: Subpoena proper mesne process to compel appearance and answer to 7 When filed, clerk to issue subpoena 12 May be taken pro confesso if answer not filed, etc 12 Exceptions to, for scandal and impertinence, shall not obtain 21 To be signed, by solicitors 24 Of complaint, contents 25 Stockholder's 27 Stockholder's what to contain 27 Amendment of, as of course 28 Amended, answer to 32 Supplemental, what necessary in 3i> Of revivor and supplemental bills, what necessary in 3."> May be dismissed for failure to answer interrogatories or produce documents 58 Verification of, on application for preliminary injunction, etc 73 Bond on order suspending, etc., injunction pending appeal 74 Books : Clerk to keep equity docket, order book, equity journal 3 Papers, etc., production of, required by master 62 Calendar, trial case goes on, when 56 Cause, speeding, provision as to, on motion to set aside decree pro confesso 17 Causes : Advancement, conduct and hearing of, notice of interlocutory orders for 6 Of action, joinder of 2(1 Frivolous, imposition of costs on exceptions to master's report .... 67 Certificate, signature of solicitor to pleading to be considered 24 Chambers, awarding process, commissions, orders, rules, etc., by judge at 1 Charge to be identified but not stated in master's report 61 Circuit court of appeals, if appeal lies to, rehearing not granted after term (59 Circuit judge may dispense with motion day if public interest permits.. 6 Citizenship, name, and residence of each party to be stated in bill 2.~> Claim, further and better statement of nature of, may be ordered 2(1 Claimants before master, examinable by him 6-1 Class, representatives of, may sue or defend 3S Clerical mistakes in orders and decrees, correction of . 72 006 APPENDIX Clerk: Rule Duties of 2 To keep Equity docket 3 Order book 3 Equity journal 3 Motions grantable of course by 5 To grant as of course, motions and applications not requiring order of court or judge 5 To issue writ of assistance on refusal to obey decree for delivery of possession 9 To issue subpoena when bill filed, and not before 12 Of court, verification of pleadings before 36 To send copies of interrogatories to solicitors of record 58 Office of Awarding of process, commissions, orders, rules, etc., by judge at 1 When open 2 Master to return report into 66 Temporary restraining orders to be filed in 73 Statement as to appeal to be filed in . . . '. 75 Commissioner, attendance of witnesses before 52 Commissions, award of, by judge at chambers, etc 1 Compensation and appointment of masters 68 Compensation of master to be fixed by court 68 Competency, etc., of questions asked before examiner not to decided by him 51 Computation of time Sundays and holidays 80 Conduct of causes, notice of interlocutory orders for 6 Contempt for noncompliance with mandatory order, etc 8 Continuances, provisions as to 57 Copy of precipe: Indicating portions of record on appeal 75 Service of, indicating, etc ' 75 Corporate officer to sign interrogatories under oath 58 Corporations : When interrogatories to be answered by officer of 58 Stockholder's bill against 27 Correction : Clerical mistakes in orders and decrees 72 Omissions in transcript on appeal 76 Costs : Payment of, and full compliance with decree before a discharge of attachment j 8 Of plaintiff to be paid before court will set aside decree pro confesso, etc 17 Terms as to, when further and particular statement in pleading re- quired 20 To nominal parties 40 INDEX TO EQUITY KULES 907 Costs continued. Rule Stenographer's fees to be taxed as 50 x Of incompetent, etc., depositions to be dealt with by court 51 On continuances, provisions as to , 57 On proving execution or genuineness of document, etc 58 On reference to master 59 On exception to master's report 67 May be imposed upon offending solicitors 76 Imposition of, for infraction of rule as to record on appeal 76 Counsel : Signature of 24 To give notice of taking testimony before examiner, etc 53 Consent of, to continuances, provisions as to 57 To sign petition for rehearing 69 Counterclaim : To be stated in answer 30 To be replied to , 31 In default of reply to, decree pro confesso entered 31 Court : On motion or own initiative, may order redundant, impertinent, or scandalous matter stricken out 21 Testimony usually to be taken in, at trial 46 To deal with cost of incompetent, etc., depositions 51 Contempt of, by witness refusing to appear before commissioner, master, or examiner 52 May appoint standing masters in chancery 68 Provisions as to approval by, of appellant's statement, etc., on appeal 75 District, additional rules by 79 Creditor making claim before master examinable by him 65 Cross bill counterclaim to be stated in answer, and not by 30 Cross-examination of expert witnesses in patent and trade-mark cases . . 48 Cross-examination of witness where no notice of deposition given 54 Damage : Averments in bill as to 30 To be shown on application for preliminary injunction 73 Death of party, revivor 45 Decrees of court to be entered in equity journal 3 Decrees : Process to issue to compel obedience to 7 Compelling obedience to, writ of sequestration 8 Discharge of attachment upon compliance with 8 For specific performance, provision as to 8 For performance of specific act, attachment when 8 Solely for payment of money, writ of execution on 8 Final, enforcement of 8 For delivery of possession, writ of assistance on refusal to obey . . 9 For deficiency in foreclosure, etc 10 908 APPENDIX Decrees continued. Rule Pro confesso On default in answer 10 , When may be set aside 17 To be followed by final decree 17 Final, following decree pro confesao Pro confcsso Entered, if answer not filed, etc 20 In default of reply to counterclaim 31 Not to be reversed unless material prejudice would result 46 Form of 71 Shall not recite pleadings 71 Correction of clerical mistakes in .''!*. .'.".' 72 Final, appeals from in injunction suits ....;".' .''. 7 . ;*.''. .'Vv. 1 . '.'.I 74 To be sent up with agreed statement on appeal 77 Deeds, etc., decree for delivering up, attachment in 8 Default: ... To answer, bill taken pro confesso 16 Of reply to counterclaim, decree pro confesso 31 In answer to amended bill, proceedings on 32 Defect : Court to disregard in proceeding not affecting substantial rights . . 19 Of parties Resisting objection 43 Tardy objection to 44 Defendant: Subpoena proper process to compel appearance and answer of 7 If not found, writ of sequestration proper process to issue, etc 7 To take notice of certain decrees 8 Required to file answer on or before twentieth day after service of subpoena 12 Service of subpoena to be upon 13 To answer within time named in subpoena 16 Person refusing to join as plaintiff or defendant may be made de- fendant 37 Time within which to take deposition for 47 Defense : Further and better statement of nature of, may be ordered 20 How presented 29 What to be heard separately and disposed of before trial, etc 29 Testing sufficiency of 33 Deficiency in foreclosure, etc., decree for 10 Delay: Signature of solicitor to pleadings certificate that pleadings not in- terposed for 24 Master to certify reason for any to court 60 Imposition of costs for, on exceptions to master's report 67 Delivery of possession, writ of assistance to enforce 7 Demands, joint and several 42 INDEX TO EQUITY RULES 909 Rule Demurrers abolished 29 Depositions: To be taken in exceptional instances 47 Time within which to be taken 47 Taken before examiners, etc 49 Expense of taking to be advanced by party calling witnesses 50 Court to deal with costs of incompetent, etc 51 Under R, S. 863, 865, 866, 867 cross-examination 54 Deemed published when filed 55 On expiration of time for, case goes on trial calendar 56 To be identified but not set forth in master's report 61 May be taken by master 62 Etc., former, may be used before master 64 Previously used in court may be used before master 64 Differences concerning directions as to contents of record on appeal, pro- visions as to 75 Disability of any party to be stated in bill 25 Discovery, interrogatories for, when to be filed 58 Dismiss, motion to, setting down for hearing 29 Dismissal of causes continued, if not reinstated 57 District courts: Always open for certain purposes 1 To establish times and places when motions may be made and dis- posed of 6 Additional rules by 79 District judge may make, direct, and award process, commissions, orders, rules, etc 1 Documents : Inspection and production of 58 Court may enforce inspection and production of 58 Interrogatories for discovery of, when to be filed 58 Execution or genuineness of, call for admission of 58 Identified but not set forth in master's report 61 Production of, required by master 62 Previously used in court may be used before master 64 Dwelling house, service of subpoena by leaving copy at 13 Equity docket: Clerk to keep 3 Index of 3 Noting of order in, not notice 4 Day of return of master's report to be entered in 66 Equity journal: Clerk to keep 3 Index of 3 Equity, suit in: Action at law erroneously begun as transfer 22 Matters ordinarily determinable at law wlien arising in, to be dis- posed of therein 23 910 APPENDIX Rule Error or defect in proceedings, court to disregard when not affecting sub- stantial rights 19 Evidence: Mere statement of, to be omitted from bill 25 Admissibility of, to be passed on by court 46 Offered and excluded, proceedings on 46 Affidavits of expert witnesses in patent and trade-mark cases, when not to be used as 48 Taken before examiners to be returned to court 49 Taken before examiners, provisions as to 51 Objections to, taken before examiner, etc 51 Court or judge may enforce answers to interrogatories and production of documents containing 58 Master may direct mode of proving matters before him 62 Before master on examination to be taken down 65 How to be stated in record 75 Ex parte, cause to be proceeded with after decree pro confesso 36 Examination to be identified but not stated in master's report 61 Examiners: Evidence taken before To be returned to court 49 Provisions as to 51 Not to decide on competency, materiality, or relevancy of questions 51 Attendance of witnesses before 52 Notice of taking testimony before,' etc 53 Cross-examination of witness before 54 Exceptions: For insufficiency of answer abolished 33 To evidence offered and excluded, provisions as to 46 To master's report 66 Costs on 67 Execution : Writ of, provisions as to 8 Admission of, of documents, etc 58 Executor as party 37 Expert witnesses, testimony of, in patent and trade-mark cases 48 Facts : Ultimate statement of, upon which relief asked, to be stated in bill 25 Insufficiency of, as defense, how presented 29 Material, may be alleged in supplemental pleading 34 Not to be stated in master's report 61 Fees of stenographer 50 File number, each suit and all papers, process, etc., to be marked with, and noted on equity docket 3 Filing of deposition deemed publication 55 Final hearing, points of law may be disposed of before 29 INDEX TO EQUITY RULES 911 Final Process: Rule Issue and return of 1 -x To be served by marshal, deputy, etc 15 Foreclosure of mortgages, etc., decree for balance due 10 Form of accounts before master 63 Form of decree 71 Former depositions, etc., may be used before master 64 Forms : Technical, of pleadings abrogated 18 Alternative prayer for specific relief may be in 25 Genuineness of documents, admission of, etc 58 Guardian : As party 37 May sue for infants 70 Ad litem, may be appointed by court or judge, etc 70 Hearing : On merits making and directing interlocutory motions, orders, rules, etc., preparatory to 1 Of causes, notice of interlocutory orders for 6 Final, points of law may be disposed of before 29 On exceptions to report of master 66 Heir as party to suits to execute trusts of will 41 Holidays : Legal, clerk's office not open 2 Computation of time 80 Impertinence, scandal, exceptions to bills, answers, etc., for, shall not obtain 21 Incompetents, suits by or against 70 Indices of equity docket, order book, and equity journal, clerk to keep 3 Infants : Nothing to be taken against as confessed 30 Nominal parties in suits not against 40 May sue by guardian or by prochein ami 70 Guardians ad litem may be appointed to defend suits against 70 Injunction : For specific performance, provision as to 8 Preliminary, and temporary restraining orders 73 Pending appeal 74 Insufficiency of fact, defense of, how presented 29 Interlocutory motions, orders, rules, etc., making and directing 1 Interrogatories : Written, practice as to, to be followed in case of refusal of witness before master, examiner, etc 52 When to be filed 58 When to be answered, etc 58 Court may enforce answers to 58 To be answered separately and fully, in writing, under oath, and signed 58 Objections to, provisions as to 58 012 APPENDIX Interrogatories continued. Rule- Copies to be sent by clerk to solicitors of record 58 Examination of accounting party before master on 58 Claimants before master examinable on 65 Intervention, when allowed 37 Issue: Of subpoena 12 Cause at, upon filing of answer, except, etc 31 Joinder of causes of action 26 Joinder of parties, provision as to 37 Joint and several demands 42 Judge: District, may make, direct, and award process, commissions, orders, rules, etc 1 In chambers, orders by. to be entered in order book 3 May suspend, alter, or rescind motion granted as of course by clerk 5 On notice, if any, may make interlocutory orders, etc 6 Verification of pleadings before 36 Jurisidction, ground on which depends to be stated in bill 25 Justice, convenient administration of, joinder of causes of action to pro- mote 26 Land, decree for conveyance of, attachment in 8 Law: Action erroneously begun as suit in equity transfer 22 Matters ordinarily determinable at, when arising in suit in equity, to be disposed of therein 23 Points of, may be disposed of before final hearing 29 Letter, call for admission of genuineness of, etc 58 Loss, immediate and irreparable, to be shown on application for temporary restraining order 73 Lunatic, nothing to be taken against as confessed 30 Marshal, deputy, etc., to serve all process, except 15 Master: Attendance of witnesses before 52 Reference to, exceptional not usual 59 Proceedings before 60 Duties of 60 May proceed ex parte when 60 May adjourn examination, etc., when 60 To proceed with reasonable diligence 60 Reports of documents to be identified but not set forth 61 Powers of 62 To regulate all proceedings before him C2 May require production of all books, papers, etc 62 Form of accounts before 63 Former depositions, etc., may be used before 64 Claimants before, examinable by him 65 Appointment and compensation of 68 INDEX TO EQUITY EULES 913 Master continued. Rule Entitled to attachment for his compensation, when 68 Not to retain report as security for compensation 68 Pro hoc vice, in particular cases, may be appointed by court 68 In chancery, standing, may be appointed by the court 68 Master's report: Return of exceptions hearing 66 Costs on exception to 67 Not to be recited in decree or order 71 Material supplemental matter may be set forth in amended pleadings . . . 19 Materiality of questions not to be decided by examiner 5J Matter : Further and better particulars of, in any pleading may be ordered. . . 20 New or affirmative, in answer, deemed denied by plaintiff 31 Matters ordinarily determinable at law, when arising in suit in equity, to be disposed of therein 23 Merits, hearing on making and directing interlocutory motions, orders, rules, etc., preparatory to 1 Mesne process: Issuing and returning 1 Subpoena shall constitute proper 7 To be served by marshal, deputy, etc 15 Misjoinder, defense of, how presented 29 Mistakes, clerical, correction of, in orders and decrees 72 Money, payment of, final process to execute decree for 8 Mortgages, foreclosure of, decree for balance due 10 Motions: Interlocutory, making and directing 1 When may be made 1 Etc., grantable of course, received and disposed of by clerk 2 Grantable .of course by clerk 5 For mesne process grantable of course by clerk 5 And applications not requiring order of court or judge grantable of course by clerk 5 Grantable of course by clerk may be suspended, etc., by judge 5 Requiring notice and hearing, times and places for 6 To enlarge time for filing answer 17 Will not be granted unless payment of costs, etc 17 To strike out, to test sufficiency of answer 33 Motion day ' 6 May be dispensed with by senior circuit judge 6 Motion to dismiss, defenses to be presented in 29 Names of plaintiff and defendant to be stated in bill 25 Nominal parties 40 Non est inventus, return of, issuance of writ of sequestration 8 Nonjoinder, defense of, how presented 29 Notary public, verification of pleadings before 36 Notice : Reasonable, of filing supplemental pleading 34 Montg. 58. 914. APPENDIX Notice continued. Ruh- Of orders 4 Order without prior, to be mailed by clerk to party, etc 4 Of interlocutory orders, etc 6 Defendant to take, of certain decrees 8 Of motion to dismiss 20 Reasonable, of amendment of answer, by leave, etc 30 Reasonable, of filing supplemental pleading 34 To be given to parties to be substituted 45 Reasonable, of motion to enforce answers, etc 58 Of taking testimony before examiner, etc 53 To parties or solicitors of proceedings before master 60 No preliminary injunction granted without 73 Oath: May be made by plaintiff if special relief asked 25 Stockholder's bill to be verified by 27 Interrogatories to be signed under 58 Petition for rehearing to be verified by 60 Affirmation in lieu of 78 Objections : To defect of parties 43 Tardy, to defect of parties 44 To evidence taken before examiner, provisions as to 51 To be noted by examiner, etc 51 Officers before whom pleadings verified 36 Old rules abrogated 81 Omissions: In orders and decrees may be corrected without rehearing 72 Of portions of record on appeal 75 Correction of, in record on appeal 76 Orders : When may be made 1 Award of, by judge at chambers, etc 1 Interlocutory, making and directing 1 Grantable of course, received and disposed of by clerk 2 Filed with clerk to be noted in equity docket .' 3 Of court to be entered in equity journal 3 Made or passed by clerk, or judge in chambers, to be entered in order book 3 Made without notice, to be mailed by clerk . . / . . 4 Noting of, in equity docket or entered in order book, not notice to parties 4 Interlocutory, notice of 6 Process to issue to compel obedience to 7 Mandatory, for specific performance, provision as to 8 For delivery of possession, writ of assistance on refusal to obev .... 9 In favor of person not party, how enforced 11 Against person not party, how enforced 11 INDEX TO EQUITY KULE3 915 Orders continued. Rule That bill be taken pro confesso on default 1C Shall not recite pleadings 71 Correction of clerical mistakes in 72 Temporary restraining, and preliminary injunctions 73 Justice or judge may make order suspending, etc., injunction pend- ing appeal 74 Order book: Clerk to keep 3 To contain all orders made or passed by judge in chambers or by clerk 3 Index of, clerk to keep 3 Entry of order in, not notice 4 Papers and orders filed with clerk, etc., to be noted in equity docket.. .. 3 Papers, production of, required by master 62 Parties : Noting or entry of order not notice to 4 Persons not made 25 Generally intervention 37 Joinder of 37 Proper, absence of persons who would be 39 Nominal, appearance of 40 In cases of joint and several demands 42 Defect of, resisting objection 43 Defect of, tardy objection, proceedings on 44 To give notice of taking of testimony before examiner, etc 53 Clerk to send copies of interrogatories to, if there be no record solicitor 58 Notice to, of proceedings before master 60 Failing to appear before master 60 May be examined on oath by master 62 Accounting before master, how to bring in accounts 63 To examine accounting party viva voce or upon interrogatory 63 Time for filing exceptions to master's report by 66 To verify petition for rehearing by oath 6S To be given notice of preliminary injunctions, etc 73 Party: When order made in absence of, clerk to mail copy 4 Heir as, to execute trusts of will 41 Death of, revivor 45 Procuring reference to master, payment of costs by 59 Patent cases, testimony of expert witnesses in 48 Persons not parties, process on behalf of and against 11 Person appointed to serve process to make affidavit thereof 15 Persons not made parties to bill 25 Person, non compos, nothing to be taken against as confessed 30 Persons : Joining as parties 37 Who would be proper parties, absence of 39 916 APPENDIX Rulft Person making claim before master examinable by him 65 Petition for rehearing 69 Plaintiff: Entitled to subpoena as of course when bill filed 32 Time within which to take deposition for 47 Plea in bar, defenses formerly presentable by, to be made in answer 29 Pleadings: Filing of 3 Technical forms abrogated 18 Court may permit any, to be amended 19 Further and particular statement in, may be required 20 Further and better particulars of matters sta.ted in any may be ordered 20 Alteration in, on transfer of action at law erroneously begun as suit in equity 22 To be signed by solicitors 24 When bill may be amended as of course 28 Demurrers and pleas abolished 29 Supplemental, permitted when 34 Officers before whom verified 36 Filing, or amendment of, on substitution of parties 4.> Pleas abolished 29 Possession, delivery of, writ of assistance: To enforce 7 On refusal to obey decree for . . ...V'l-^^^-Jrfi ikt-^qv. 1 .! 9 Powers of master ...... 62 Practice, additional rules for, by district court 79 Precipe, filing indicating portions of record on appeal 75 Prayer for special relief to be stated in bill 25 Precedence given to hearing in cases of temporary restraining orders. ... 73 Prejudice, unless material, will result appellate court not to reverse decree 46 Preliminary injunctions and temporary restraining orders 73 Preparation and reduction of record on appeal 75 Costs corrections of omissions ..." 76 1'ro confesso : Taking bills, motion for, grantable of course by clerk 5 Bill may be taken when answer not filed, etc 12 Decree \ t^<-] On default in answer 16 To be followed by final decree 17 Entered if answer not filed 29 Proceedings before master: Speeding of 60 Powers in 62 Process : Mesne and final, issuing and returning 1 Award of, by judge at chambers, etc ] Issuing and return of 1 INDEX TO EQUITY RULES 917 Process continued. Rule Issued and returns thereon to be noted in equity docket 3 -, For taking bills pfo confesso grantable of course by clerk 5 Mesne or final, to enforce and execute decrees grantable of course by clerk 5 Mesne and final, denned 7 In behalf of and against person not parties 11 By whom served 15 Mesne and final to be. served by marshal, deputy, etc 15 May be served by person appointed therefor 15 Court may permit any process to be amended 19 Additional rules as to, by district court 70 Prochein ami may sue for infants 70 Production of books, papers, etc., may be required by master 62 Publication of deposition, when filed 55 Questions, competency, materiality, or relevancy of, not to be decided by examiner 51 Record : Court may permit any record to be amended . . . 10 How evidence to be stated in 75 Appellant's statement as to record on appeal to become part of 75 On appeal Indicating portions of 75 Additional portions, how indicated 75 Reduction and preparation 75 Difference as to 75 Reduction and preparations costs correction of omission .... 76 Agreed statement 77 Reduction and preparation of record on appeal 75 Costs corrections of omissions 7fi Reference to master exceptional, not usual 50 Rehearing : Petition for, provisions as to ' 60 Correction of clerical mistakes in orders and decrees without ...... 72 Reinstatement of causes, continued 57 Relevancy of questions not to be decided by examiner, etc 51 Relief: Special, prayer for, to be stated in bill 25 To be verified by oath of plaintiff, etc 25 Reply : When required when cause at issue 31 None required unless answer asserts set-off or counterclaim 31 Report : Master's To court 60 Documents to be identified but not set forth 61 Of master Exceptions, hearing 66 Costs on exceptions to 67 Not to be recited in decree or order . 71 918 APPENDIX Rule- Representatives of class may sue or defend 38 Residence and citizenship of each party to be stated in bill 25 Restraining orders, temporary, and preliminary injunctions 73 Returns on process to be entered on equity docket 3 Return : Of subpoena not executed 14 Of master's report exceptions hearing 66 Revivor : Bills of, what necessary in 35 On death of party 45 Rights, substantial, court to disregard error or defect in proceedings which does not affect 19 Rules : When they may be awarded 1 Interlocutory, making and directing 1 Award of, by judge at chambers, etc 1 Grantable of course, received and disposed of by clerk 2 Additional, by district court 7J> When effective 81 Old, abrogated 81 Sale, amount due above proceeds of decree for :, . . . . 10 Scandal and impertinence 21 Scandalous matter, signature of solicitor, certificate that none inserted in pleading 24 Sequestration, writ of: Proper process if defendant not found 7 Against estate of delinquent 8 Person other than disobedient party to comply with mandatory order for specific performance 8 Service of subpoena by delivery of copy, etc 13 Set-off to be stated in -answer 30 Set-off to be replied to- 31 Signatures, pleadings to be signed by solicitors of record 24 Solicitors : Noting or entry of order not notice to 4 Of record To sign every pleading 24 To be furnished copy of amended bill 28 Clerk to send copies of interrogatories to 58 Notice to, of proceedings before master 60 Offending, imposition of costs on 76 To file precipe indicating portions of record on appeal 75 Specific performance, by some other person than disobedient party .... 8 Standing masters in chancery, courts may appoint 68 Statement : Further and particular in pleading may be required 20 Agreed as to record on appeal 77 Stenographer appointment fees 50 Stockholder's bill 27 INDEX TO EQUITY KULES 919 Subpoena : Rule Shall constitute proper mesne process, etc 7 Issue of, time for answer 12 To issue when bill filed and not before 12 To contain names of parties 12 When returnable 12 Memorandum at bottom thereof 12 Joint, against more than one defendant 12 Separately, for each defendant when against more than one 12 Manner of serving 13 Not executed, provision as to 14 Alias 14 Substitution of proper parties by revivor 45 Sufficiency of defense, how tested . .33 Suits: Papers filed, process issued, etc., to be noted on equity docket 3 To execute trusts of will heir as party 41 By or against incompetents 70 Supplemental pleading, when may be filed 34 Supreme Court, if appeal lies to, rehearing not granted after term 69 Sundays : Clerk's office not open 2 And holidays computation of time 80 Temporary restraining orders and preliminary injunctions 73 Term: Awarding process, commissions, orders, rules, etc., by judge at cham- bers, etc., in 1 Orders, decrees, etc., of court to be entered in equity journal 3 Rehearing not granted after, if appeal lies 69 Testimony : Usually to be taken in open court at trial 46 Of expert witnesses in patent and trade-mark cases 48 May be taken down by stenographer 50 To be signed by witness 51 Of witnesses before examiner to be read to him 51 Contempt of court for refusal of witness to give testimony before commissioner, examiner, etc ; 52 Notice of taking before master or examiner ( 53 No further by deposition to be taken after case goes on trial calen- dar, except, etc 56 How stated in record on appeal 75 Testing sufficiency of defense 33 Time: Enlargement of For full compliance with decree 8 To file answer 16 On expiration of, for depositions, case on trial calendar 56 Computation of Sundays and holidays 80 Trade-mark cases, testimony of expert witnesses in 48 920 APPENDIX Transcript: Rule Cost of, to be advanced by party ordering 50 Of evidence before examiner not to include argument 51 On appeal Indicating portions of 75 Supplemental, correction of, omissions by 76 Transfer of action at law erroneously begun as suit in equity 22 Trial: Testimony usually taken in open court, rulings on objections to evidence 46 Calendar, on expiration of time for depositions case goes on 56 Trials, separate court may order separate trials of joint actions 26 Trustee as party 37 Vacation, awarding process, commissions, orders, rules, etc., by judge at chambers in 1 Value, averments in bill other than of, if not denied, deemed confessed . . 30 Verification : Bill to be verified by oath if special relief asked 25 Of pleadings, officers before whom taken 36 Petition for rehearing to be" verified by oath, etc 69 Viva voce, master may examine persons before him 65 Vouchers, production of, required by master 62 Will, execution of trusts of heir as party . 41 Witnesses : Testimony usually to be taken in open court 46 Depositions of, may be taken when 47 Testimony of expert in patent and trade-mark cases 48 Before examiners, etc., cross-examination of, etc 4^ Testimony of To be read to 51 To be signed by 51 Refusing to sign testimony 50 Expense of taking deposition of, to be advanced by party calling. ... 50 Attendance of before commissioner, etc 52 Refusing to appear before commissioner, master, or examiner 52 Compensation of, for attendance before commissioner, master, or examiner 52 May be examined orally before court, or cross-examined before ex- aminer, etc., when no notice of deposition given 54 Testimony of, by deposition, after case goes on trial calendar 56 May be examined on oath by master ..." ' 62 Testimony of, how stated in record, on appeal 75 Writing, call for admission of execution or genuineness of 58 Writings, production of required by master 62 INDEX. References are to Sections. A. ABSENT, defendants, venue, 166. ACCUSED, see that subhead under heading Criminal Procedure. ACKNOWLEDGMENTS, 714. i ACTIONS, at law, see Law Actions Summarized, ch. 18. criminal prosecutions, see Criminal Procedure, ch. 42. in equity, see Equity Suits Summarized, ch. 29. for neglect to prevent conspiracy against civil rights, limitations, 409. motion to transfer from equity to law side, 936. ADJOURNMENTS, see also Continuances. absence of district judge, 63. criminal cases, monthly, to expedite, 66. district courts, absence of judge, 63. law actions, 586. Supreme Court, 2457. ADMIRALTY, summary of several jurisdictional provisions, 360. C. C. A. rules follow Addenda Rule 45 C. C. A. Appendix. ADMISSIBILITY, of evidence in equity suits, 1003. ADMISSION TO PRACTICE, circuit court of appeals, 2408. Rule 7, C. C. A. Appendix, court of claims, 2302. district court, 71. Supreme Court, 2455. 921 922' INDEX AFFIDAVIT, amendment of attachment, conforms to state law, 616. experts, patent and trademark cases, 1001, 1005. AGENT, extradition from foreign country, powers of, 2193. AGGREGATING, amounts in controversy to create jurisdiction, 268. AGRICULTURE, jurisdiction district court, 196. ALABAMA, districts, terms and places of holding courts, 101. ALASKA, appeal and error to circuit court of appeals, 2035, 2036. appeal and error to Supreme Court, 2015. certification of questions to Supreme Court from ninth circuit, 842. certiorari, ninth circuit to Supreme Court, 2082. district court, procedure on appeal to Supreme Court, 2076. ALIAS, subpoena, see Subpoena, 914. ALIENS, claims of, court of claims, 2307. diverse citizenship of, 242. enemies jurisdiction district court, 197. same, duties of marshal, 198. Federal officers, suits against, removal of causes, 301. habeas corpus in removal suits against Federal officers, 303. removal of causes, suits against Federal officers by, 301. state against, in Supreme Court, 2458. summary of several jurisdictional provisions affecting suits in which aliens are parties, 358, 373. Supreme Court, as parties in, 2458. tort actions, summary of several jurisdictional provisions, 373. ALLOWANCE, appeal, 2058. circuit court of appeals, Rule 35 C. C. A. (2d circuit) Appendix, habeas corpus, writ of, 2205. interest, judgment law actions, 783. writ of error, 827. AMBASSADORS, suits against, in Supreme Court, 2458. INDEX 923 AMENDED BILL, time to answer, 868. AMENDMENT, affidavit for attachment, 617. amount in controversy, shown by, 269. answer in equity, 976. attachment affidavit, 617. attachment writ, 619. bill in equity, 904. counterclaim in equity, 976. defect in parties, 905. death of party, 906. death of party, bill in equity, 906. defensive pleading at law, 676. habeas corpus return, 2210. judgment law actions, 789. law actions, 585. process at law, 653. set-off in equity, 976. supplemental answer in equity, 979. verdict, 762. writ of attachment, 619. writ of error, 828. AMOUNT IN CONTROVERSY, aggregating to create jurisdiction, 268. amendment to show, 269. costs and fees, as affecting, 536. denned, 264. diverse citizenship involved, 230. effect of valid set-off or payment. 267. Federal question involved, 223. general statement, 260. good faith an issue, 271. immaterial, when, 263. includes what, 266. issue, how raised, 271. jurisdiction, aggregating amounts, how affects, 268. jurisdiction, how affected, ch. 9. land grant cases, 262. materiality of, 261. materiality of, land grant cases, 262. when not an issue, 263. payment, effect of, 267. pleading of, 265. raising issue as to amount or good faith, 271. set-off, effect of, 267. splitting demand, state statutes do not control, 270. 924 INDEX AMOUNT IN CONTROVERSY continued. stated in declaration or bill controls unless pleaded erroneously or in bad faith, 265. summary, see heading ''Summaries Jurisdiction, Amount, etc." ch. 12. what included, 266. what is, 264. ANSWER IN EQUITY, ch. 34. amendments to, 976. attacks upon, 978. certainty in, motion for, 978. contents of, 973. counterclaim in, 980-1-2-3. cross-bill, matter of, contained in, 982. definiteness in, motion for, 978. discovery, 975. effect of, 970-1. effect of failure to plead counterclaim or set-off, 983. evidence, is not, 971. form of, 974. general statement, 970. impertinent matter in, motion to strike, 078. independent suit in counterclaim, 981. irrelevant matter in, motion to strike out, 978. issue, 979. motion to make more definite and certain, 978. motion to strike out counterclaim or set-off, 978. motion to strike redundant, impertinent, or scandalous matter in, 978. pleading, ch. 34. redundant matter in. motion to strike, 978. reply, when required, 979. scandal in, motion to strike, 978. set-off pleaded in, 980-1-2-3. supplemental, 977. time for, 865-972. time for, after overruling motion to dismiss, 867. time for, to amended bil>, 868. ANTI-TRUST LAWS. witnesses, immunity under, 474. APPEAL, Alaska district court to circuit court of appeals, 2035-6. Alaska district court to Supreme Court, 2015. allowance of, 2058. circuit court of appeals, Rule 35 C. C. A. (2d circuit) Appendix, assignment of errors, 2059. China, United States court for, to circuit court of appeals, 2034. circuit court of appealn. bankruptcy cases, Rule 45 C. C. A. (8th circuit) Appendix. INDEX 925 APPEAL continued. instructions as to taking, Addenda Rule 45 C. C. A. Appendix. rules as to taking, Rule 14 C. C. A. Appendix. to Supreme Court, 2009. citation on, 2060. court of claims, 2332. court of claims to Supreme Court, 2012. court customs appeals, time for, 2200. dismissal of, 2084. court of claims, 2332. court of claims to Supreme Court, 2012. court customs appeals, time for, 2260. dismissal of, 2084. district court to circuit court of appeals, 2031. district court direct to Supreme Court, 2001. District of Columbia to Supreme Court, 2018. duties of judges on, 2037. Hawaii supreme court to United States Supreme Court, 2014. instructions as to taking to circuit court of appeals, Addenda Rule 45 C. C. A. Appendix. interlocutory orders district court, 2032. injunction against enforcement of state laws, 1065. injunction pending, 1061. parties in, 2051. Philippine Islands to Supreme Court, 2016. Porto Rico courts to Supreme Court, 2013. powers of judge in, 2037. procedure in circuit court of appeals, 2057. receivership proceedings district court to circuit court of appeals, 2032. return, time for, 2072. sentences prize cases to Supreme Court, 2004. Supreme Court from circuit court of appeals, 2009. time for appeals. circuit court of appeals to Supreme Court, 2055. district court to circuit court of appeals, 2053. district court to Supreme Court, 2052. from interlocutory orders, 2054. return of, 2072. APPEARANCE, bond on writ of error in criminal cases, Addenda Rule 45 C. C. A. Appendix. defensive pleading at law, ch. 22. defensive pleading in equity, chs. 32, 33. special, to quash process, 657. 926 INDEX APPELLATE, jurisdiction at law, chs. 39, 40. circuit court of appeals, see Appellate Jurisdiction Circuit Court of Appeals, ch. 40. district court, see Appellate Jurisdiction District Court, ch. 6. in equity, chs. 39-40. Supreme Court, see Appellate Jurisdiction of the Supreme Court, ch. 39. procedure. at law, see Appellate Procedure at Law, chs. 11-28. in equity, see Appellate Procedure in Equity, ch. 42. APPELLATE JURISDICTION DISTRICT COURT. awards of consuls, 204. Chinese exclusion laws, 202. consular awards, 204. general statement, 190. Yellowstone National Park, 203. APPELLATE JURISDICTION OF CIRCUIT COURT OF APPEALS, ch. 40. Alaska, appeal and error from district court in, 2035-6. appeal. Alaska, district court, 2035-6. China, United States court, 2034. district court, 2031. duties of judge on, 2037. interlocutory orders district court, 2032. powers of judge on, 2037. receivership proceedings, 2032. bankruptcy, 2033. China, United States court, 2034. district court. appeal and error to circuit court of appeals, 2031. appeals interlocutory orders, 2032. appeals receivership cases, 2032. general statement, 2030. injunctions, 2032. judges, powers and duties on appeal, 2037. receivership, 2032. writ of error. Alaska district court, 2035, 6. China, United States court, 2034. district court, 2031. APPELLATE JURISDICTION OF THE SUPREME COURT, ch. 39, Alaska, appeal and error, 2015. appeal, see that heading. bankruptcy appeahs, 2020. certification from circuit court of appeals, 2011. certiorari to circuit court of appeals, 2010. INDEX 927 APPELLATE JURISDICTION OF THE SUPREME COURT continued, circuit court of appeals, appeal and error, 2009. constitution, cases involving construction, 2005. constitutionality Federal law or treaty, 2006. court of claims, appeals from, 2012. district court, appeal direct, 2001. District of Columbia court of appeals, appeal and error, 2018, 2019. Federal laws drawn in question, 2006. general statement, 2000. Hawaii, appeal and error, 2014. jurisdiction, what is question of, 2002. jurisdiction, rules determining between circuit court of appeals and Supreme Court, 2003. mandamus to revise and correct proceedings of lower courts, 2021. Philippine Islands, appeal and error, 2016. Porto Rico, appeal and error, 2013. prize cases, 2004. state law contravening Constitution, 2007. territory, after admission, 2017. treaty drawn in question, 2006. writ of error, see that heading. APPELLATE PROCEDURE AT LAW, ch. 28, Alaska, certification to Supreme Court from ninth circuit, 842. allowance, writ of error, 827. amendment, writ of error, 828. assignment of errors, 830. bond, 832. nonrequirement of government, 832. certification, question of law, 840. from Alaska supreme court from ninth circuit, 842. from circuit court of appeals to Supreme Court, 840. certiorari, 840. circuit court of appeals, writ of error. district court to, time for, 823. procedure, 826. summary of procedure, 839. Supreme Court to, 824. time for, from district court, 823. time for, to Supreme Court, 824. citation, 831. costs, 845. damages, 845. district court. circuit court of appeals, time for, 823. Supreme Court, time for, 822. fact, no reversal for error in, 844. filing record on error, 837. general statement, 820. 928 INDEX APPELLATE PROCEDURE AT LAW continued. issuance of writ of error to Supreme Court, 829. parties to writ, 821. preparation of record, 837. proceedings in forma pauperis, 835. procedure. appellate court after transcript filed, 843. district court to circuit court of appeals, 826. summaries, 839. territories, 841. record, 836. reduction of record, 837. reversal not allowed for error in facts, 844. state court, time for, 825. summary of procedure, 839. supersedeas, 834. Supreme Court, writ of error to, certification of questions of law, 840-842. circuit court of appeals, time for, 824. district court, time for, 822. procedure, 839. territories, 841. time. return of writ of error, 838. writ of error circuit court of appeals to Supreme Court, 824. writ of error district court to circuit court of appeals, 823. writ of error district court to Supreme Court, 822. writ of error to state court, 825. APPELLATE PROCEDURE IX EQUITY, Alaska, certiorari to courts of, 2082. district court of, to United States Supreme Court, 2076. allowance of appeal, 2058. assignment of errors, 2059. bond on appeal. generally, 2061. none required by United States, 2062. certification to Supreme Court. by circuit court of appeals, 207-3. by District of Columbia court of appeals, 2080. certiorari. Alaska, cases in, 2082. circuit courts of appeals, by, 2074. circuit courts of appeals. certification to Supreme Court, 2075. certiorari to, 2074. death of party effect of, 2090-2091. filing record. 2069. in general. 2057. INDEX 929 APPELLATE PROCEDURE IN EQUITY continued. printing record, 2069. record in, as part of transcript, 2070. time for appeal. from district courts, 2053. from interlocutory orders, 2054. to Supreme Court, 2055. citation on appeal, 2060. death of party, effect of. after judgment before appeal, 2087-2089. pending appeal to Supreme Court, 2088-2089. pending appeal to circuit court of appeals, 2090-2091. differences law and equity, 6. diminution of record, 2085. district appeal to Supreme Court, one record suffices both parties, 2071 dismissal of appeals, 2084. district courts. time for appeal from, to circuit courts of appeals, 2053. time for appeals from, to Supreme Court, 2052. district court of Alaska to Supreme Court, 2076. district court of Porto Rico from, 2077. District of Columbia court of appeals. appeals from, or writs of error to, 2079. certification to Supreme Court, 2080. equity rules preparation of record under, 2068. errors, assignment of, 2059. error, writ of. time for, state to Supreme Court, 2055. time for return of, 2072. filing record on appeal in circuit court of appeals, 2069. final decisions. court of appeals, review by certiorari, 2074. forma pauperis proceeding in, 2065. general statement, 2050. Hawaii, supreme court of, to United States Supreme Court, 2081. injunction pending appeal, 2064. interlocutory orders, time for appeal from, 2054. mandate, 2086. orders, interlocutory, time for appeal from, 2054. parties on appeal, 2051. Philippines, from supreme court of, 2078. Porto Rico, from supreme and district courts of, 2077 preparation of record, 2067, 2068. printing record on appeal. to circuit court of appeals, 2069. to Supreme Court, 2070. record, diminution of, 2085. Montg. 59. 930 INDEX APPELLATE PROCEDURE IN EQUITY continued, record on appeal, one record sufficient when both parties appeal direct to Supreme Court, 2071. printing and filing, circuit court of appeals, 2069. printing and filing, Supreme Court, 2070. reduction and preparation of, 2067, 2068. reduction of record on appeal, 2067, 2068. representatives of deceased party. procedure when not within jurisdiction of Supreme Court, 2089, 2091. review by certiorari, 2074. review of state court decisions, time for, 2056. state courts. review of decisions of, time for, 2056. see title state courts, summary of, 2073. Bupersedeas, 2063. Supreme Court. Alaska district court, to, 2076. certification to, 2075. death of party pending appeal to, 2089. printing of record, 2070. reduction of record, 2067, 2068. time for appeal to. from circuit court of appeals, 2055. from district court, 2052. transcript of circuit court of appeals record as part of record in Supreme Court, 2070. time for appeal. circuit court of appeal to Supreme Court, 2055. district courts to circuit courts of appeal, 2053. district courts to circuit courts of appeal, from interlocutory orders, 2054. district court to Supreme Court, 2052. review of state court decisions, 2056. time for writ of errors, Supreme Court to state courts, 2056. time for return of writ of error, 2072. of appeal, 2072. transcript in appeal, 2066. see also Record on Appeal. United States, no bond required of, 2062. writ of error. state courts to Supreme Couit, time for, 2056. time for return of, 2072.. APPELLATE REVIEW, state court, 33, ch. 11. INDEX 931 APPLICATION, habeas corpus, how made, 2204. writs of certiorari under 240 Judicial Code, Addenda, Rule 45 C. C. A. Appendix. APPOINTMENT, masters in chancery, 1030. revocation of, of outside judges, 27. APPOINTMENT OF DISTRICT JUDGE, accumulation of business, 25. change of, 27. chief justice's, 26. disability of incumbent, 24. APPRAISAL, fees of appraisers on execution sale, 559. personal property on execution, 804. APPRAISERS, board of general, 2251. fees on execution sales, 559. ARBITRATION, common carriers and employees, jurisdiction district court, 212. ARGUMENT LISTS, rule 18, 3d circuit under Rule 17 C. C. A. Appendix. ARGUMENTS, circuit court of appeals, Rule 25 C. C. A. Appendix. Rule 19 C. C. A. (3d circuit) Appendix. Rule 23 C. C. A. (6th circuit) Appendix. Rule 41 C. C. A. (8th circuit) Appendix, printed, circuit court of appeals, form of Rule 26 C. C. A. Appendix. ARIZONA, districts, terms and places of holding court, 103. ARKANSAS, districts, terms and places of holding court, 102. ARREST, discharge from, conforms to state laws, 797. extradition, fugitive from foreign country, 2180. offenders against United States, 2126. prisoner to be taken to. nearest judicial officer, 2127. seaman deserting foreign vessel, 2197. same, jurisdiction district court, 206. 932 INDEX ASSIGNEE, of debenture for drawback of duties, summary of several jurisdictional provisions, 368. ASSIGNMENT, cases for hearing, circuit court of appeals, Rule 35 C. C. A. (5th & 9th circuit) Appendix, district judges. accumulation of business, 25. disability of incumbent, 24. by chief justice, 26. change of, 27. circuit judge for district judge, 28. errors, 830, 2059. errors circuit court of appeals, Rule 11 C. C. A. Appendix, judges circuit court of appeals, Rule 36 C. C. A. (5th circuit) Appendix, jurisdiction of district court by, 195. ASSISTANT, clerks, 2254. court of customs appeals, 40. district attorneys, 32. marshal Supreme Court, 2453. ASSOCIATE JUSTICES, Supreme Court, order of precedence, 2450. ATTACHMENT, ch. 20. affidavit, amendment of, 617. conforms to state law, 616. bond, 618. causes of action governed by state law, 614. delivery bond, 622. dissolution of, 624. law actions, 582, ch. 20. lien, 620. national banks exempt, 610. postal suits, 625. application for warrant, 626. issuing warrant, 627. ownership of property, trial, 628. proceeds of sale, investment, 62!). publication of warrant, 630. discharge of warrant, 632. does not affect adoption of state laws, 633. priorities of several, 621. property subject to, governed by state law, 615. provisional remedy only, 613. substituted service cannot be based upon, 613. INDEX 933 ATTACHMENT continued. state laws, adoption, 610, 611. state laws, construction followed, 612. third party claims, 623. writ, amendment, 619. ATTACKS, see Objections. ATTENDANCE, depositions de bene esse, witnesses. 508. under commission, witnesses, 516. under commission, exemption from, of witnesses, 515. to be used in foreign country, witnesses, 524. enforcing of witnesses' deposition de bene esse, 508. under commission, 516. deposition to be used in a foreign country, 524. exemption of witness, deposition under commission, 515. witness. deposition de bene esse, 508. under commission, 516. for foreign country, 524. exemption from deposition under commission, 515. witnesses. enforcing generally, 486. claim in departments, 495. patent cases, 492. interstate commerce act, 497. for the United States, 484. subpoena for, see Subpoana. ATTORNEYS, admission of. circuit court of appeals, Rule 7 C. C. A. Appendix. court of claims, 2302. district court, 71. Supreme Court, 2455. fees of, 539. civil rights cases, fees of, 544. liability for costs vexatiously increased, 540. AUTHORITY, removal by writ of error decision in state court against validity of, 335. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed under Federal, 337. AWARDS OF CONSULS, appellate jurisdiction district court, 204. 934 INDEX B. BAIL, admitted, capital cases, when, 2130. admitted in cases not capital, 2129. calling in Kentucky, 2231. committing defendant who has given such in another district, 2229. criminal cases removed by writ of error from state court, 2131. custom laws, property seized, 2227. de bene esse by clerks in absence of judges, 2232. error proceedings, Rule 15 C. C. A. (3d circuit), Appendix. holding defendant until final judgment in first suit, 2230. new, as better security, 2133. offenders against United States, 2126. photograph of Chinese to be attached to bond, Rule 37 C. C. A. (9th circuit), Appendix, special, suits for duties, 2228. surrender of, 2132. writ of error criminal case. circuit court of appeals, Rule 35 C. C. A. (2d circuit). Appendix. BAILIFFS, district courts, 38. BANKRUPTCY, appeal 8th circuit, Rule 45 C. C. A. Appendix. appeals to Supreme Court, 2020. circuit court of appeals, supervisory jurisdiction, 2033. summary of several jurisdictional provisions, 375. writ of error, 8th circuit, Rule 45 C. C. A. Appendix. BANKS, NATIONAL, see also National Banks. diverse citizenship of, 237. exception as to involving Federal question, 218. Federal question not ipso facto involved, 218. BIAS OF JUDGE DISTRICT COURT, designation of another judge, 31. removal of causes for, 286, 295. procedure, 295, et seq. provisional remedies preserved, 311. remanding, 296, 297, 310. return of record, 310. BIGAMY, challenges in prosecutions for, 2140. INDEX 935 BILL IX EQUITY, ch. 30, allegations of, 890, 892. amendment, death of party, 906. defect in parties, 905. generally, 904. amended, time for answer, 868. amount in controversy, statement of, 265. caption of, 893. cause of action in, 896. citizenship of parties in, 894. constitutional question must appear on face of, 219, 224. contents of, 892. differences between state and Federal statement of cause, 891. discovery, 900. Equity Rule 25, 892. sub. first, 894. sub. second. 895. sub. third, 896. sub. fourth, 897. sub. fifth, 898. Federal question must appear on face of, 220. 224. form of, 899. general statement, 860, 890. grounds of jurisdiction, statement of, 895. joint and several demands, 909. jurisdiction, statement of grounds of, 895. parties. citizenship and residence, 894. defect in, 905. generally, 897. stockholder, 901, 903. prayer, 898. residence of parties, 894. state practice, differences from Federal, 891. statement of cause of action, 896. statement ground jurisdiction, 895. stockholder, 901, 903. supplemental, 907. treaties, questions arising under, must appear on face of, 220, 224. BILL OF COSTS, see Costs and Fees, 531, 532. BILL OF EXCEPTIONS, ch. 26, authentication and signing, 765. circuit court of appeals, Rule 10 C. C. A. Appendix. contents of, 766. signing, 766. 936 -INDEX BOARD OF GENERAL APPRAISERS, 2251. BOND, appeal. generally, 2061. none required of United States, 2062. attachment, 618. clerk Supreme Court, 2452. contracts and other papers of United States in settlement of accounts with government, copies as evidence, 440. costs, circuit court of appeals, Rule 12 C. C. A. Appendix, delivery in attachment, 622. diverse citizenship, removal of cause, 291. Federal question, removal of cause, 291. form of supersedeas or cost bond 8th circuit Addenda, Rule 45 C. C. A. Appendix. removal of classes 1, 2, 3, 291. removal, bond of state court preserved, 311. separable controversy, removal of, 291. supersedeas, circuit court of appeals, Rule 13 C. C. A. Appendix, temporary restraining order, 1056. writ of error, 832. none required of government, 833. BOOKS, deposition under commission, production of, 517. motion and notice to produce, 712. production of, on deposition under a commission, 517. BOUND COPIES, of acts as evidence, 428, 429. BRIEFS, circuit court of appeals, Rule 24 C. C. A. Appendix. Rule 20 C. C. A. (6th circuit) Appendix. Rule 21 C. C. A. (6th circuit) Appendix. Rule 26 C. C. A. Appendix. Rule 41 C. C. A. (8th circuit) Appendix. BURDEN OF PROOF, court of claims, 2320. seizure cases under customs duties laws, 458. BUSINESS, accumulation of, how disposed, 25. distribution of, 24. C. CALENDAR, circuit court of appeals, Rule 17 C. C. A. Appendix. Rule 18 C. C. A. (3d circuit), Appendix. INDEX 937 CALENDAR continued. under Rule 17 C. C. A. Appendix. Rule 22 C. C. A. (6th circuit) Appendix, court of customs appeals, 2261. equity, reinstatement of case, 879. trial calendar, 876. CALIFORNIA, districts, terms and places of holding court, 104. CANALS, jurisdiction district court to remove obstructions, 200. CAPITAL CRIMES. see Criminal Procedure. accused entitled to counsel and to compel witnesses, 2142. statute of limitations, 391. CAPTION, bill in equity, 893. CARRIER, see Common Carrier. CAUSE OF ACTION, attachment, 614. bill in equity, allegation of, 896. joinder, legal and equitable, 603. CERTAINTY, answer in equity, motion for, 934, 978. motion for, equity, 934, 954. CERTIFICATION, circuit court of appeals to Supreme Court, 2011, 2075. District of Columbia, court of appeals of, 2080. error, question of law, 840. CERTIORARI, see Writs of Certiorari. Alaska cases, ninth circuit to Supreme Court, 2082. circuit courts of appeals, review of decisions by, 2074. congressional officers, removal of cases against, 307. error proceedings, 840. removal of causes against congressional and revenue officers, 307. revenue officers, removal of causes against, 307. Supreme Court to circuit court of appeals. 2010. 938 INDEX CHALLENGES, see also Jury, jury, law actions, 743. peremptory in criminal cases, 2144. CHARGE TO JURY, law actions, 591. trial, 749. CHIEF JUSTICE, Supreme Court, 2450. CHINA, appeal and error from United States court to circuit court of appeals, 2034. CHINESE EXCLUSION LAWS, district court jurisdiction, 202. fees United States commissioners, 546. CIRCUIT COURTS OF APPEALS, appeals from district courts, time for, 2053. appeal to Supreme Court, time for, 2055. appeals to, from interlocutory orders, time for, 2054. appeal to Supreme Court, 2009. appellate jurisdiction, see Appellate Jurisdiction Circuit Court of Ap- peals, ch. 40. certification by, to Supreme Court, 2075. certiorari, review of decisions by, 2074. death of party pending appeal to, 2090. filing and printing record on appeal, 2069. general statement, ^ 3. printing record on appeal, 2069. procedure, appeal to, 2057. record used in transcript to Supreme Court. 2070. time for appeal. from courts, 2053. from orders, 2054. to Supreme Court, 2055. writ of error, see that heading, ch. 28. writ of error to Supreme Court, 2009. CIRCUIT JUDGE, acting as district judge, 28. CITATION, appeal, 2060. INDEX 939 CITATION continued. form of, 8th circuit, Addenda, Rule 45 C. C. A. Appendix, writ of error, 831. CITATION OF AUTHORITIES, circuit court of appeals, Rule 37 C. C. A. (2d and 4th circuits) Appendix. CITIZENS, removal of causes, diverse citizenship, 286. land grants, 300. Supreme Court, suits between state and, 2458. CITIZENSHIP, see Diverse Citizenship. bill in equity, allegation of, 894. change of, as affecting jurisdiction, 246. Federal question does not involve, 222. venue, affected by, in cases involving Federal question, 222. CITIZENS OF A STATE AND A FOREIGN STATE, summary of several jurisdictional provisions affecting suits between. 357- CITIZENS OF A STATE AND FOREIGN CITIZENS OR SUBJECTS summary of several jurisdictional provisions affecting suits between, 358. CITIZENS OF DIFFERENT STATES, summary of several jurisdictional provisions affecting suits between, 356. CIVIL RIGHTS, habeas corpus in removal of causes, 303. CIVIL RIGHTS LAWS, conspiracy against, statute of limitations, 409. exemptions of jury, 735. penalty for exclusion, 736. fees, attorneys, clerks, marshals, 544. remanding cases fraudulently or improperly removed, 310. removal of causes, 302. summary of several jurisdictional provisions, 370. CIVIL SUITS, venue of, in general, 161. CIVIL SUITS BY UNITED STATES OR ITS OFFICERS, summary of several jurisdictional provisions, 351. 940 INDEX CLAIMANT, examination of, court of claims, 2322. CLAIMS, aliens in court of claims, 2307. court of claims, 2308. abandoned property against government, exceptions, 2305. aliens, 2307. pending elsewhere, excepted, 2306. proceeds abandoned property, 2308. railroad companies, 2312. referred by Congress, 2310. referred by departments, 2310. pending elsewhere, excepted from court of claims, 2306. railroad companies, court of claims, 2312. referred by Congress to court of claims, 2310. referred by Departments to court of claims, 2309. summary of several jurisdictional provisions, 376. statutes of limitations, 403. witnesses, enforcing attendance and testimony before Departments, ; } 494, 495. CLERKS, assistant, court of customs appeals, 2254. circuit court of appeals, Rule 5 C. C. A. Appendix. court of customs appeals, 2254. district court, 32, 33. fees of, 542. civil rights laws, fees of, 544. Supreme Court, 2451. liability of clerk for misfeasance of deputy, 2452. CLERKS NEW RECORDS IN CERTAIN STATES, copies as evidence, 455, 456. CLOUD ON TITLE, venue, 116. CODE, construction of, 2220. COLORADO, districts, terms and places of holding court in, 105. COMMERCE AND LABOR, judicial notice of seal, 457. COMMERCE COURT, general statement, 3. INDEX 941 COMMERCE LAWS, enforcing attendance and testimony of witnesses under interstate com- merce act, 497. immunity of witnesses under, 494. interstate commerce act, see that heading, summary of several jurisdictional provisions, 365. testimony, enforcing under interstate commerce act, 497. venue of suits affecting orders Interstate Commerce Commission, 180. witnesses, attendance and testimony under interstate commerce act, 497. witnesses, immunity of, under, 474. COMMISSION, see Depositions under Commission, 514. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed under Federal, 337. COMMISSIONER, Chinese exclusion laws, fees of, 546. depositions before, 520. district court, 41, 42. fees of, 545. notice of depositions before, 521. COMMISSIONER OF INDIAN AFFAIRS, certification of copies as evidence, 449. COMMITMENT, defendant who has given bail in another district, 2229. seamen by district court on application of foreign consul, 207. COMMON CARRIERS, removal of causes, employers' liability cases are not removable, 299. COMMON-LAW ACTIONS, see Law Actions. COMPENSATION, ' masters in chancery, 1030. COMPETENCE, anti-trust laws, immunity of witnesses under, 474. commerce laws, immunity of witnesses under. 474. Congress, immunity of witnesses testifying before, 476. criminal cases, immunity of witnesses in, 475. defending as a witness in, 478. customs, revenue laws, witnesses not disqualified by claiming compen- sation under, 472. defendant as witness in criminal proceedings, 478. determined in general by state laws, 470. 942 INDEX COMPETENCE continued. fines, officers and informers not disqualified as witnesses in suits for, 473. forfeitures, officers and informers not disqualified as witnesses in suits for, 473. immunity of witnesses, 474, 5, 6, 7. informers not disqualified as witnesses in suits for fines, penalties, or forfeitures, 473. judicial proceedings, immunity of witnesses testifying in, 477. officers and informers not disqualified as witnesses in suits for fines, penalties, or forfeitures, 473. penalties, officers and informers not disqualified as witnesses in suits for, 473. perjury does not disqualify witness, 471. revenue laws, witness not disqualified by claiming compensation under, 472. state laws determine, 470. testimony, see that heading, witnesses, see above and that heading, ch. 15. COMPLAINT, see Initial Pleading. bill in equity, ch. 30. differences, Federal and state, 891. law action, form of, 604. COMPTROLLER OF THE CURRENCY, copies of records as evidence, 438. injunctions against, venue, 172. COMPULSORY ATTENDANCE, see Attendance. COMPULSORY PROCESS, see Process. COMPULSORY TESTIMONY, see Testimony. CONCURRENT JURISDICTION, of district and state courts, 193. CONDEMNATION, insurrectionary property, venue, 177. CONFERENCE DAY, Saturday, Rule 35 C. C. A. (4th circuit) Appendix. INDEX 943 CONFINEMENT, juvenile offenders under sixteen in house of refuge, 2157. s juvenile offenders separate from prisoners over twenty, 2158. state jail or penitentiary when use of, so allowed by state law, 2154. same, where nonavailable, attorney general may designate, 2155. same, transportation of prisoners to place of imprisonment, 2156. CONFORMITY TO STATE LAWS, see Law Actions, ch. 18. allowance of interest on judgments, 783. appraisal of personal property on execution sale, 804. arrest, discharge from, in civil actions, 797. attachments, law actions, 610, 611. defensive pleading -at law to state practice, ch. 22. discharge from arrest -in civil cases, 797. executions at law, 791. garnishment law actions, 610, 611. imprisonment for debt, modifications, 796. discharge from, in civil cases, 797. judgments law actions, 782. lien of judgment, 787. levy of judgments, 782, 783. - rate of interest on judgments, 783. record of judgment, 785. sale of personal property on execution, appraisal, 804. stay of execution for one term, 794. CONGRESS, claims referred by, 2310. evidence from, in court of claims, 2323. immunity of witnesses testifying before, 476. CONGRESSIONAL JOURNAL, extracts from, as evidence, 427. CONGRESSIONAL OFFICERS, certiorari in removal cases, 307. habeas corpus in removal cases against, 307. removal of causes against, class eight, 304. CONNECTICUT, districts, terms and places of holding court in, 106. CONSOLIDATION, cases, 710. costs and fees, 537. indictments, 2123. law actions, 587. 944 INDEX CONSTITUTION, appellate jurisdiction Supreme Court in cases involving construction, 2005. Federal question arising under, 2219, 2221. habeas corpus, provision of, 2200. powers of courts, 1, 2. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed under Federal, 337. CONSTITUTIONALITY, appellate jurisdiction of Supreme Court where Federal law or treaty drawn in question on that ground, 2006. CONSTITUTIONAL JURY, see Jury. ;V;te trial law actions, 733. CONSTITUTIONAL POWERS, Federal courts, 1, 2. CONSTRUCTION, Code, 2220. Constitution, appeal to Supreme Court, 2205, 6. CONSUL, as a party in Supreme Court. 2458. awards of, appellate jurisdiction of the district court, 205. foreign, in United States, jurisdiction over seamen, 206. CONSULAR RECORDS, copies as evidence, 454. CONTEMPT, court's power to punish for, 1069. enforcement of decrees, see that heading. garnishee in, for failure to appear in government suits against corpora- tions, 642. witnesses, power to punish for, 487. (< .M'U; i .Jil^i-,. ss!'. ,3kiiif.v -v,s,c; }V i ;/, J*voifj'..\'- CONTINUANCES, see also Adjournments. C. C. A. Rule 19 (3d circuit) Appendix. death of a party, 691. debentures, suits on, 695. equity, suits, 878. judge's office vacant, 64. law actions, 586. postal laws, suits under, 694. suit against delinquent for public moneys, 693. tariff laws, suits under, 696. INDEX 945 CONTRACTS, and other papers of the United States in settlement of accounts with government, copies as evidence, 440. COPIES, as evidence, see subheading Copies under heading Evidence. COPYRIGHT, costs, 567. infringement of, statute of limitations, 411. penalty under, statute of limitations, 401. summary of several jurisdictional provisions, 364. CORPORATIONS, banks, national, do not ipso facto involve Federal question, 218. same, diverse citizenship, 237. diverse citizenship of, 234. Federal, involve question, ' 217. same, except national banks, 218. national banks, do not ipso facto involve Federal question, 218. CORRUPTION OF BLOOD, none in criminal cases, 2165. COSTS AND FEES, ch. 17, amount in controversy as affecting. 536. amount of recovery as affecting, 536. appraisers, fees on execution sales, 559. attorneys. civil rights cases, 544. fees of, 539. liability for costs vexatiously increased, 540. bill of costs, 531, 532. bond circuit court of appeals, Rule 13 C. C. A. Rule 27 C. C. A. (6th circuit), Appendix. Rule 29 C. C. A. (3d, 4th, 5th, 7th, 8th and Oth circuits) Appendix. Rule 31 C. C. A. (1st and 2d circuits) Appendix, clerk's fees, 542. civil rights case, 544. Chinese exclusion laws, commissioner's fees, 546. circuit court of appeals, Rule 43 C. C. A. (8th circuit) see Bond C. C. A. above. Appendix. civil rights laws, attorney's, clerk's, and marshal's fees, 544. commissioner's fees, 545. Chinese exclusion laws, 546. consolidated cases, 537. copyright cases, 567. court of claims, 2327. Montg. 60. 946 INDEX COSTS AND FEES continued, criminal cases. defendant, prosecution on ponal statute, 565. indigent parties, 534, 535. informer, prosecution on penal statute, 566. preliminary examination, United States only liable for witness fees, 553. defendant, indigent in criminal cases, witness fees, 535. nonsuit of prosecution under penal statute, 565, 566. definition, folio, printer's fees, 558. depositions. District of Columbia, witness fees, 550. district attorney's fees, 541. execution sale, appraiser's fees, 547. extradition, costs and fees, 547. fines, costs of prosecution, 564. folio defined, 558. form of bond, 8th circuit, Addenda, Rule 45 C. C. A. Appendir. general statement costs and fees, 530. grand juror, fees of, 555, 556. indigent party. costs and fees, 534. witness fees in criminal cases, 535. infringement of patent, 568. juror fees. grand juror, 555. petit juror, 556. payment, how made, 556. marshal, 543. civil rights cases, 544. master in chancery, 1034. mode of recovery, 538. nonsuit, costs against informer on nonsuit, 566. for defendant on nonsuit, 565. officer of court not entitled to witness fees, 549. patent infringement cases, 568. penal statute, costs against informer on nonsuit, 566. for defendant on nonsuit, 565. printer's fees, 557. folio defined, 558. prize cases, witness fees, how paid, 554. proctors, 539. revenue cases. against nonsuited plaintiff in action against officer, double costs taxed, 563. none against United States in cases upon information, 560. seizure cases, 561. INDEX 94-7 COSTS AND FEES continued. salary, district attorney, 541. x seamen, fees of, criminal cases, 552. solicitors, 539. taxable costs and fees, 531. verification bill of costs, 532. witness fees, see Witness, subhead Fees, 548. court officers not entitled to, 549. criminal examination, United States only liable for four witnesses, 553. depositions in District of Columbia, 550. indigent defendant in criminal cases, 535. letters rogatory from a foreign country, 551. prize cases, 554. seamen sent home to give testimony in criminal cases, 552. writ of error, 845. COUNSEL, to aid district attorney, 32, 39. COUNSELORS, see Attorneys. COUNTER ALLEGATIONS, habeas corpus return, 2210. COUNTERCLAIM, court of claims, enforcement of judgment, 2331. COUNTERCLAIM IN EQUITY, 980, 1, 2, 3. amendment, 976. answer in equity, 980. attacks upon, 978. certainty in, motion for, 978. contents, 980. cross bill, matter for, set up in counterclaim, 982. definiteness, motion for, 978. discovery, 975. effect of, 980, 1. effect of failure to plead, 983. form, 974, 980. impertinent matter in, motion to strike, 978. independent suit in equity in, 981. irrelevant matter in, motion to strike out, 978. issue, when reply filed, 875, 979. objections to, 978. motion to make more definite and certain, 978. motion to strike redundant, impertinent, or scandalous matter in. 078. pleading, 980. 048 INDEX COUNTERCLAIM IN EQUITY continued. redundant matter in, motion to strike out, 978. reply to, 874, 979. scandal in, motion to strike out, 978. service, time for, 872. set-off, in the answer, 980, 981. supplemental pleading, 979. time for, 972. COURT COMMISSIONERS, 41, 42. COURT OF CLAIMS, 3, eh. 47. abandoned property, claims for proceeds of, 2308. aliens, claims of, 2307. appeals, 2332. appeals to Supreme Court, 2012. burden of proof, 2320. claimant, examination of, 2322. claims. abandoned property, 2308. against government, exceptions, 2305. aliens, 2307. pending elsewhere, excepted, 2306. proceeds abandoned property, 2308. railroad companies, 2312. referred by Congress, 2310. referred by Departments, 2310. Congress, claims referred by, 2310. evidence from, 2323. costs, 2327. counterclaim, enforcement of judgment, 2331. defense by Attorney General, 2317. Departments, claims referred by, 2309. Department, evidence from, 2323. disqualification to practise in, 2302. evidence. burden of proof, 2320. examination of claimant, 2322. from Departments and Congress, 2323. testimony before commissioners, 2321. witnesses, 2324. examination of claimant, 2322. general statement, 3. indebtedness due government, settlement of, 2311. Indian treaties, no jurisdiction, 2306. interest, 2326. judges, 2301. judgment. counterclaim, enforcement, 2331. INDEX 949 COURT OF CLAIMS continued. judgment, effect of, 2328. reports to Congress and executive officers, 2329. set-off, enforcement, 2331. jurisdiction. claims against government, exceptions. 2305. claims, aliens, 2307. claims pending elsewhere, 2306. claims railroad companies, 2312. claims referred by Congress and Departments, 2309, 2310. Indian treaties (excepted) 2306. patent cases, unlicensed use by government, 2313. restrictions of, 2306. settlement indebtedness due government, 2311. treaties (excepted) 2306. limitations, statute of, 2314. maintenance of, 2303. new trial, 2325. officers, 2301. organization, 2300, 2301. patent infringement by government, 2313. petition, 2316. insufficient, 2318. practice, disqualification for, 2302. rules of, 2315. quorum. 2304. railroad companies, claims for transportation furnished, 2312. rules of practice, 2315. sessions, 2304. set-off, enforcement of judgment, 2331. statute of limitations, 2314. testimony before commissioners, 2321. traverse, 2319. treaties, no jurisdiction of claims under, 2313. witnesses, 2324. COURT OF CUSTOMS APPEALS, ch. 46. appeal, time for, 2260. assistant clerks, 2254. board of general appraisers. 2251. calendar, 2261. clerks, 2254. clerks, assistant, 2254. court rooms, 2257. general appraisers, board of, 2251. general statement, 2250. judges, 2253. jurisdiction, 2259. 950 INDEX COURT OF CUSTOMS APPEALS continued, marshal, 2256. organization, 2252. quorum, 2253. rules, 2252. sessions, 2258. time for appeal, 2260. COURTS, constitutional powers of, 1, 2. circuit court of appeals, see that heading, ch. 45. commerce court, 3. commissioners, 41, 42. court of claims, see that heading, 3, ch. 47. court of customs appeals, see that heading, 3, ch. 46. depositions, see that heading, ch. 16. district courts, see that heading, 3. double system of Federal, 5. enumeration of, 3. equity, see that heading, ch. 29. Federal courts, see that heading. generally as to, ch. 1. injunctions, see that heading, ch. 37. judicial districts, ch. 4. judicial power of, 1, 2. jurisdiction in general, ch. 1. to issue habeas corpus, 2201. law actions, see that heading, ch. 18. place of nonjudicial system, 1. places for holding, ch. 4. power to punish for contempt, see Contempt, rules, see Rules. states, district courts in the several, ch. 4. Supreme Court, 3, ch. 49. terms of, in judicial districts, ch. 4. CREDITS, government suits against individuals, 2234. postal laws, government suits under, 2235. CRIER, circuit court of appeals, Rule 6 C. C. A. Appendix, district court, 38. CRIMES, see also Criminal Procedure. district court jurisdiction over crimes on Indian reservation. 204. Indian reservation, South Dakota, 204. INDEX 951 CRIMES continued. statutes of limitations, 391, 397. revenue laws, 395. slave trade laws, 394. , summary several jurisdictional provisions, 359. venue, 174. CRIMINAL PROCEDURE, adjournments, monthly, to expedite criminal cases, 66. appearance bond on writ of error circuit court of appeals, Addenda, Rule 45 C. C. A. Appendix, accused. arrest, see that heading, 2126, 2127. bail, see that heading, 2129, 2134. compulsory process for witnesses, 479, 482, 2141, 2142. confinement, see that heading, 2126, 2154, 2158. costs and fees, indigent defendant, 535. counsel, entitled to, 2142. indictment, see that heading, 2119, 2123. lists of jurors and witnesses, entitled to, in what cases, 2141. prosecution, 2139. recognizance, 2134. trial, 2126, 2143, 2147. verdict, 2148, 2150. witnesses, entitled to list of and compulsory process, 479, 482, 2141, 2142. arrest, see that heading, 2126, 2127. bail, see that heading, 2129, 2134. bigamy, challenges in prosecutions for, 2146. challenges, 2144, 2146. compulsory process for witnesses, 479, 482, 2141, 2142. confinement of prisoners, 2126, 2154, 2158. corruption of blood, none, 2165. costs and fees, see Costs and Fees, death penalty, 2162, 2164. defendant as a witness, 478. defendant indigent, witnesses for, 485. discharge indigent convicts, 2153. execution, death penalty, 2162. postponement, 2151. Federal courts, penal laws enforced in, 2102. fine, mitigation or remission, 2159, 2161. forfeiture of estate, none, 2165. grand jury, 2115, 2111). imprisonment, see Confinement, 2126. indictment, see that heading, 2119, 2123. consolidation of charges, 2123. defect of form, 2124. grand jury, 2119. 952 INDEX CRIMINAL PROCP:DURE continued. navy court martial, 2122. perjury, 2120. subornation of perjury, 2121. judgment, fines how collected, 2152. on demurrer to indictment, 2125. jurors, list of, to be given person indicted of treason or capital offense, 2141. jury, criminal cases, see heading, Jury, 2109, 2119. * grand, 2115, 2119. jurisdiction, 2100. navy court martial, indictment, 2122. offenses, how prosecuted, 2108. officers authorized to hold to security of the peace and good behavior, 2128. pardon by president, 2167. parole of prisoners, 2168. peremptory challenges, 2144, 2145. perjury, indictment, 2120. pillory abolished, 2166. places in which criminal law of the United States applicable, 2101. plea not guilty, standing mute, 2140. polygamy, challenges in prosecution for, 2146. prisoner, arrest, see that heading, 2126, 2127. bail, see that heading, 2129, 2134. confinement, see that heading, 2126, 2154, 2158. counsel, entitled to, 2142. indictment, see that heading, 2119, 2123. list of jurors and witnesses, entitled to, in what cases, 2141. recognizance, 480, 482, 2134. removal from one district to another, 2136. trial, 2126, 2143, 2147. prosecution by district attorney, 2139. recognizance of witnesses, 480, 482. recognizance, forfeitures or remittance of, 2134. state. criminal jurisdiction not affected, 2105. jurisdiction of offenses, 2104. penal laws, where adopted in the Federal courts, 2103. subornation of perjury, indictment, 2121. statutes of limitation, 2107. trial. criminal cases, 2147. jury, right of accused to, 2143. removal for, of offenders against the United States, 2126. venue, 2106. INDEX 953 CRIMINAL PROCEDURE continued, verdict. for less offense than charge, 2148. in case of several defendants, 2149. qualified in cases of murder of the first degree or rape, 2150. whipping abolished, 2166. witnesses. compulsory process for, 479, 482, 2141, 2142. defendant as a witness, 478. immunity of, 474, 475. indigent defendant, for, 485. list of, to be given person indicted for treason or capital crime. 2141. recognizance of, 480, 482, 2134. writ. copy of jailer's authority, 2135. indictments, several against same person, one writ, 2l:>7. not required to bring a person in custody into court, 8 2138. removal of prisoner from one district to another, 2136. writ of error, circuit court of appeals. Rule 34 C. C. A. 7th circuit, Appendix. Rule 35 C. C. A. Appendix. Rule 37 C. C. A. 5th circuit, Appendix. CROSS BILL, answer in equity, contains matter of, 982. counterclaim takes the place of, 982. CUSTODY, prisoners on habeas corpus, circuit court of appeals, Rule 32 C. C. A. Appendix. Rule 31 C. C. A. (3d and 7th circuits) Appendix. Rule 32 C. C. A. (6th circuit) Appendix. CUSTOMS LAWS, bailing property seized, 2227. burden of proof seizure cases, 458. court of customs appeals, see that heading, ch. 46. district court's jurisdiction over, 199. motion and notice to produce books and papers, 712. procedure in seizure cases, 2226. statute limitations violation of laws, 399, 400. warrants for searches and seizures, 2225. witnesses, not disqualified by claiming compensation under. 472. D. DAMAGES, circuit court of appeals, Rule 26 C. C. A. (6th circuit), Appendix, writ of error, 845. 954 INDEX DEATH OF A PARTY, after judgment before appeal, 2087. circuit court of appeals, Rule 19 C. C. A. Appendix. Rule 21, 3d circuit under Rule 19 C. C. A. Appendix. Rule 16, 6th circuit under Rule 19 C. C. A. Appendix, continuance, 691. pending appeal to Supreme Court, 2088. pending appeal to circuit court of appeals, 2090. procedure in circuit court of appeals where decedent's representative not within jurisdiction, 2091. procedure in Supreme Court when deceased's representative not within jurisdiction, 2089. survival of law action, 692. DEATH PENALTY, abolished except in certain cases, 2163. execution of, 2162. life imprisonment, when may be substituted, 2164. DE BENE ESSE, see Depositions, De Bene Esse. DEBENTURE, continuances in suits on, 695. DEBT, IMPRISONMENT FOR, execution, state laws adopted, 796. suits by government, 798, 799. DECISIONS, see Opinions. district court, reports of, 70. Supreme Court, 2454. DECLARATION, amount in controversy, statement of, 265. initial pleading, see that heading. DECREE, equity suits, ch. 38. default, see that heading, 931. enforcement of, 1082. form, rule as to, 1080. injunctions, see that heading, ch. 37. lien of, 1083. mistakes, correction of, 1081. prize cases, appeals to Supreme Court, 2004. pro confesso, see Decree Pro Confesso, ch. 32. removable by writ of error to state court, 333. INDEX 955 DECREE PRO CONFESSO, ch. 32, default, when taken, 931. defensive pleading in equity, 930. final decree, when made, 937. motion to dismiss, as affecting default, 933. motion to make more definite and certain, 934. motion to strike redundant, impertinent, or scandalous matter, 935. motion to transfer to law side, 936. pleading to save from, 932. time for, 930, 937. when made final, 937. DEDIMUS POTESTATEM, see Depositions, 514 et seq. DEFAULT, decree pro confesso, when taken, 931. equity cases, 931. law actions, 672. pleading required to save from, in equity, 932. when taken in equity, 931. DEFECT OF PARTIES, defensive pleading, equity, 957. motion to dismiss for, equity, 956. parties in equity, 957. DEFENDANT, see also Criminal Procedure, subhead Accused. absent, venue when, 166. compulsory process for witnesses for indigent, 485. indigent, compulsory process for witnesses, 485. indigent, costs and witness' fees in criminal cases, 535. where in different district, same state, venue, 164. where some not found venue, 173. witness in criminal proceedings, 478. witness, subpoena for, on behalf of indigent in criminal cases, 485. DEFENSE, see Defensive Pleading. answer in equity, see that heading, ch. 34. counterclaim in equity, see that heading, 980, 1, 2, 3. court of claims, by Attorney General, 2317. cross bill, counterclaim takes the place of, 982. set-off, see Counterclaim, 980. DEFENSIVE PLEADING, see headings below, Defensive Pleading Equity, and Defensive Pleading Law. DEFENSIVE PLEADING, EQUITY, ch. 33, see headings, Answer (ch. 34); Decree pro Confesso (ch. 32); Equity Suit; Motions; Pleading. 956 INDEX DEDENSIVE PLEADING, EQUITY continued, answer, defense in point of law, 956, ch. 34. better statement, motion to obtain, 954. cause of action, failure to state, motion to dismiss or in answer, 956. defect of parties, 957. defense in point of law, motion to dismiss, 956. demurrers in equity abolished, 956. definite motion to make more, 934, 954, 978. impertinent matter, to remove, 955. issue of law, 956. kinds of, in equity, 950. misjoinder, motion to dismiss for, 956. motion day in equity, 951. motions to dismiss, 933, 956. motions grantable of course, 953. motion to make more definite and certain, 934, 954. motion to strike out defense, 873. motion to transfer to law side, 936. notices under equity rules, 952. notices of orders, 958. parties, defect of, 956, 957. particulars, to obtain, 934, 954. pleas abolished, 956. redundant matter, to remove, 935, 955. scandal, to remove, 955. time for defensive pleading, 930. DEFENSIVE PLEADING, LAW, 584, ch. 22. amendment, 676. conformity to state law, ch. 22. default, 672. differences between law and equity. 6. equitable defenses, 675. form of, 673. initial must show Federal grounds, 224, 225. manner of, 674. motion to transfer from equity to law, 939. order of, 671. scope of, 674. sufficiency of, 674. time for, 671. DEFINITENESS, motion for, equity, 954. DEFINITIONS, 2221, amount in controversy, 264. appellant, Rule 1 C. C. A. (6th circuit) Appendix. appellee, Rule 1 C. C. A. (6th circuit) Appendix. INDEX 957 DEFINITIONS continued. counsel, Rule 1 C. C. A. (6th circuit) Appendix, diverse citizenship, 231. Federal question, 220. folio, printer's fees, 558. DELAWARE, districts in, terms and places of holding court, 107. DELIVERY, depositions de bene esse, into court, 513. DELIVERY BOND, attachment, 622. DEMAND, to admit execution and genuineness of documents, 1011. DEPARTMENT OF INTERIOR, copies as evidence, return of contract to Returns Office of Depart- ment, 444. DEPARTMENTS, claims referred by, 2309. evidence from, in court of claims. 2323. witnesses in claim cases, subpoena, 494. DEPOSITIONS, ch. 16, attendance of witnesses. de bene esse, 508. under commission, 516. exemption from, under commission, 515. to be used in foreign country, 524. books, production of, on deposition under a commission, 517. commission, under a, 514 et seq. commissioner, before a, 520. commissioner, before a notice of, 521. conditions for taking and using de bene esse. 505. under commission, 514. court, delivery into, de bene esse, 513. de bene esse, 505 et seq. dedimus potestatem, depositions under commission. 514 et seq. delivery, de bene esse, into court, 513. documents, production of, taking deposition under commission, 517. equity suits. after issue, 503. after cases on trial calendar, 877. before issue, 871. form of deposition, rule, 510. 958 INDEX DEPOSITIONS continued, equity suits. generally, 863, 1001. grounds for taking, 504. objections to depositions, rule, 511. publication of depositions, 522. signing depositions, rule, 510. time for taking depositions, 502, 3. examiner, before, 520. filing as publication in equity, 522. foreign country, letters rogatory, 523. to be used in, 524. form of, in equity, rule as to, 510. general statement, 500. de bene essc, 505. under commission, 514. grounds, depositions in equity, 504. issue, depositions in equity after, 503. laws actions. generally, 590. time for taking, 501. letters rogatory, 523. master in chancery, before, 520. mode of taking de bene esse, 509. notice, before commissioner, examiner or master, 521. de bene esse, 507. objections to, in equity suit, 511. officers, de bene esse before, 506. papers, production of, on deposition under commission, 517. perpetuation of testimony, depositions taken under state laws, 518. production of books, etc., on depositions under a commission, 517. provisional, see De bene esse, 505 et seq. publication in equity on filing, 522. rule, form in equity, 510. objections in equity, 511. signing in equity, 512. signing in equity, 512. state laws, taken under, to perpetuate testimony, when admissible, 518. state laws prescribed by, 519. testimony, compelling for depositions. under a commission, 516. depositions to be used in foreign country, 524. perpetuation of, under state laws, 518. witnesses, see that heading and below, time, depositions in equity, 502. at law, 501. witnesses. attendance de bene esse, 508. INDEX DEPOSITIONS continued. ' witnesses. attendance under commission, 516. exemption under commission, 515. to be used in foreign country, 524. depositions de bene esse, 508. depositions under commission, 516, 517. fees for depositions, District of Columbia, 550. foreign country, letters rogatory, 523. depositions to be used in, 524. incrimination, depositions to be used in foreign country, 525. written instruments, production of, depositions under commission, 517. DEPUTY CLERKS, district courts, 34. Supreme Court, 2542. DEPUTY MARSHAL, district court, 36. DESIGNATION, additional district judge. accumulation of business, 25. change of, 21. Chief Justice's, 26. disability of incumbent, 24. DESTROYED RECORDS, see Lost or Destroyed Records. DETENTION, letters carried contrary to law, 2242. same, disposal of, 2243. DIAGRAMS, circuit court of appeals. Rule 34 C. C. A. Appendix. Rule 32 C. C. A. (3d, 7th, 8th, 9th circuits) Appendix. DIFFERENCES, bill in Federal and state courts, 891. complaint at law, Federal and state, 600. complaint in equity, Federal and state, 891. DIMINUTION OF RECORD, 2085. DIRECT APPEAL TO SUPREME COURT, one record sufficient for both parties, 2071. 960 INDEX DIRECTION, habeas corpus writ, 2205. DISABILITY OF DISTRICT JUDGE, designation of another judge, 24. DISCHARGE FROM ARREST, execution, conforms to state laws in civil actions, 797. indigent convicts imprisoned for fines, 2153. poor debtor,, in government suit, 798, 799. seamen, 208. DISCOVERY, at law, 711. in equity. after issue, 870. answer in equity, 075. before issue, 862. bill in equity, 900. by defendants, 870. by plaintiff, 862. time for, 862, 870. DISMISSAL OF APPEALS, 2084. circuit court of appeals. Rule 20 C. C. A. Appendix. Rule 19 C. C. A. (3d circuit) Appendix, law actions, 713. cases fraudulently or improperly removed, 310. motion to dismiss, see that heading. DISPOSAL, letters seized as carried contrary to law, 2242. DISPOSITION, party, habeas corpus, 2211. DISQUALIFICATION, re practice in court of claims, 2302. DISSOLUTION, attachment, 624. temporary restraining order, 1059. injunction on distress warrant against officer for failure to account for public moneys, 1074. DISTRESS WARRANT, injunction on, against officer for failure to account for public moneys, 1073, 1074. INDEX 961 DISTRIBUTING RECORDS, Rule 23 C. C. A. (3d circuit) Appendix. DISTRICT, subpoena for witnesses in another, 483. witnesses, subpoena for, in another, 483. DISTRICT ATTORNEY, counsel to aid, 32, 39. district court, 32, 39. fees of, 541. witnesses, recognizance of, in criminal cases, 482. DISTRICT COURT, accumulation of business, disposal of, 25. action at law, see that heading, ch. 18. rules governing, 72. additional judges, assignment of, 25. designation of, 26. duties and powers, 29. adjournments, when judge absent, 63. monthly to expedite criminal cases, 66. admission to practice, 71. affidavit, bias or prejudice of judge, 31. amount in controversy, see that heading, ch. 9. appeals. direct to Supreme Court, 2001. direct to Supreme Court, time for, 2052. circuit court of appeals, 2031. time for, 2053. interlocutory orders to circuit court of appeals, 2032. receivership proceeding to circuit court of appeals, 2032, appellate jurisdiction, 190, 202, 203, 205. appointment of additional judges, change of, 27. assignment of additional judges, 24, 25, 26. assistant district attorneys in, 40. bailiffs of, 38. bias of judge of, 31. business divided between, 24. disposal of accumulated, 25. change in appointments of judges of, 27. Chief Justice may assign additional judge of, 26. circuit judges act as judges of, 28. clerks of, 32, 33. commissioners of, 41, 42. concurrent jurisdiction with state court, 190, 193. continuances when judge's office vacant, 564. cric-rs of. 38. MontL'. 61. 962 INDEX DISTRICT COURT continued. court rules, admission to practice, 71. equity suits, 73. law actions, 72. criminal cases, monthly adjournments to expedite, 66. decisions, reports of, 70. deputy clerks of, 34. deputy marshals of, 36. designation of additional judges of, 26. disability of judge, substitution, 24. districts, see that heading, ch. 4. district attorneys in, 32, 39. division of business between, 24. duties and powers of additional or substituted judges of, 29. equity suits, rules, 73. exclusive jurisdiction from state court, 190, 193. generally, 3, 20. generally as to jurisdiction, ch. 6, 190. field deputies of marshals in, 37. income tax law, 24. injunctions, appeals in, to circuit court of appeals, 2032. interest of judge of, 30. judges, see District Judges. generally, 21. number in several districts, 22. judicial districts, ch. 4. officers, ch. 2. jurisdiction, see that heading, jurisdiction in general, 4. jurisdiction, arbitration disputes common carriers and employees, 212. jurisdiction, original and appellate, ch. 6. jurisdiction of. summary of provisions affecting the several matters of district court cognizance, ch. 12. law actions, rules, 72. marshals of, 32, 35. marshals field deputies in, 37. masters in chancery in, generally, 41. number in the several states, see headings various states, ch. 4. number of judges in several districts, 22. officers, ch. 2. organization of, ch. 2. organization, further as to, ch. 3. special terms, adjournments, continuances, records, reports of decisions, rules in law and equity, ch. 3. original and appellate jurisdiction, ch. 6. INDEX 963 DISTRICT COURT Continued. original jurisdiction, 190, 194. places for holding, ch. 4. see under heading various states. powers and duties of additional or substituted judges of, 29. practice, admission to, 71. prejudice of judge of, 31. procedure, see that heading. procedure when interest or relationship of judge appears, 30. receivers, in, generally, 41. receiverships, appeals in, to circuit court of appeals, 2032. reclamation act, 210. records, place for keeping, 68. transfer of territorial, 69. removal, see that heading, ch. 10. reports of decisions, 70. rules, admission to practice, 71. law actions, 72. rules equity suits, 73. special terms, 62. states, places of holding court in, ch. 4. substitution of judges for disability of one, 24. substitution of judges of, when interest or relationship of incumbent appears, 30. substitution of judges in, when bias or prejudice shown, 31. suits in equity, rules, 73. summaries, jurisdiction, amount and venue for the several matters of district court cognizance, ch. 12. terms. altering, effect of, 67. judicial district, ch. 4. special, 62. time for appeal. to circuit court of appeals, 2053. to Supreme Court, 2052. time and places for holding court in the several districts, ch. 4. see under headings of the several states, trials, conclusion of, in new term, 65. United States district attorney in, 39. venue, see that heading, when open, 61. writ of error to circuit court of appeals, 2031. time for, 823. writ of error to Supreme Court, time for, 822. DISTRICT COURT OF ALASKA, procedure on appeal to Supreme Court, 2076. 964 INDEX DISTRICT COURT OF PORTO RICO, procedure on appeal from, 2077. DISTRICT JUDGE, accumulation of business, disposal of, 25. additional, assignment of, 25. designation of, 26. disability of incumbent, 24. affidavit bias or prejudice, 31. appointment, accumulation of business, 25. change of, 27. Chief Justice's, 26. disability of incumbent, 24. bias or prejudice, affidavit of, 31. circuit judge acting as, 28. designation of additional, 24, 25, 26. disability, designation of another judge, 24. distribution of business, 24. duties and powers of additional or substituted judge, 29. interest of incumbent, outside judge, 30. number of, in the several districts, 22. prejudice, affidavit of bias or, 31. procedure, bias or prejudice of incumbent. 31. interest or relationship of incumbent, 30. relationship of incumbent, outside judge, 30. vacancy in office, continuance, 64. DISTRICT OF COLUMBIA, appeal and error to Supreme Court, 2018, 2019. appellate procedure, 2079. certification to Supreme Court, 2080. diverse citizenship, not a citizen, 232. procedure on appeal from court of appeals, 2079. DISTRICTS, see also Judicial Districts, ch. 4. Alabama, 101. Arkansas, 102. Arizona, 103. California, 104. Colorado, 105. Connecticut, 106. Delaware, 107. Florida, 108. Georgia, 109. Idaho, 110. Illinois. 111. Indiana, 112. INDEX 965 DISTRICTS continued. Iowa, 113. Kansas, 114. Kentucky, 115. Louisiana, 116. Maine, 117. Maryland, 118. Massachusetts, 119. Michigan, 120. Minnesota, 121. Mississippi, 122. Missouri, 123. Montana, 124. Nebraska, 125. Nevada, 126. New Hampshire, 127. New Jersey, 128. New Mexico, 129. New York, 130. North Carolina, 131. North Dakota, 132. Ohio, 133. Oklahoma, 134. Oregon, 135. Pennsylvania, 136. Rhode Island, 137. South Carolina, 138. South Dakota, 139. Tennessee, 140. Texas, 141. Utah, 142. Vermont, 143. Virginia, 144. Washington, 145. West Virginia, 146. Wisconsin, 147. Wyoming, 148. DISTRICTS, JUDICIAL, see table of contents, chapter 4 or under the name of each state. DIVERSE CITIZENSHIP, aliens, 242. bond in removal cases, 291. change of citizenship to give jurisdiction, 246. change of domicil after suit commenced, 24o. collective term, 244. commencement of suit, change of domicil afterwards, 245. constitutional provision, 2. corporations, 234. defined. 231. 966 INDEX DIVERSE CITIZENSHIP continued. District of Columbia citizens not meant, 232. domicil. change of, in cases of diverse citizenship, 245. domicil, change of, after suit commenced, 245. Federal question does not involve, 222. general statement, 230. ground of jurisdiction, ch. 8. guardians, 241. Indians, 243. issue how raised, 249. joint stock companies, 235. jurisdiction. basis for, ch. 8. change of domicil after suit, 245. shifting parties to create, 247. transfer of subject-matter to create, 246. venue as affecting, 248. married women, 238. national banks, 237. parties, shifting of, to create, 247. partnerships, 236. personal representatives, 239. removal of causes, 286, 288. remanding or dismissing cases fraudulently or improperly removed, 310. representatives, 239. shifting parties to create, 247. states not citizens, 233. subject-matter, transfer of, to give jurisdiction, 246. summary of several jurisdictional provisions affecting, 356, 357, 358. territorial citizens not meant, 232. territories not citizens, 233. transfer of subject-matter to give jurisdiction, 246. trial, want of, appearing, 250. trustees, 240. venue affected by, in cases involving Federal question, 222. venue as affecting jurisdiction, 248. what is, 231. when want of, appears on trial, 250. DIVISION OF BUSINESS DISTRICT COURT, 24. DOCKET, circuit court of appeals, Rule 17 C. C. A. Appendix. DOCKETING, cases in circuit court of appeals, Addenda Rule 45 C. C. A. Appendix. DOCKETING CASE, Rule 16 C. C. A. Appendix. INDEX 96T DOCUMENTS, demand to admit execution and genuineness, 1011. deposition under commission, production of, 517. production of, on deposition under commission, 517. DOMESTICS OF AMBASSADORS, ETC., Supreme Court, suits against, in, 2458. DRAWING JURY, trial law actions, place from where, 738. DUTIES, see customs duties; jurisdiction district court, 199. assignee of debenture for drawback of, 368. special bail in suit for, 2228. statute of limitations for violation laws, 399. 400. summary of several jurisdictional provisions, 368. interest, kind of money payable in suits for, 784. DUTIES OF MARSHAL, Supreme. Court, 2453. DUTIES OF REPORTER, Supreme Court, 2454. DUTY, removal of causes, state court on. 292. E. EFFECT, answer in equity, 970, 971. counterclaim in equity, 980, 981. failure to plead counterclaim or set-off, 983. set-off, 980, 981. verdkt, 761. valid set-off or payment on amount in controversy, 267. EMBARGO, seizure for venue, 178. EMPLOYERS' LIABILITY ACT, statutes of limitations, 408. removal of causes, common carrier, cases are not removable, 299. ENFORCEMENT, decree, equity suits, 1082. injunction, 1066. 9C8 INDEX ENFORCEMENT OF LIEN, upon creation or transfer of district or territory, venue, 170. ENFORCING ATTENDANCE, see also Witnesses, subhead Attendance, depositions, de bene esse, of witnesses, 508. under commission, of witnesses, 516. for foreign country, of witnesses, 524. witnesses for depositions de bene esse, 508. under commission, 516. for foreign country, 524. ENFORCING TESTIMONY OF WITNESSES, see Witnesses, Testimony, 486, 492, 495, 497. EQUITABLE DEFENSE, law actions, 675. EQUITY PROCEDURE, see Equity Suit. EQUITY SUIT, adjournment, see Continuances, ch. 29, 2068. amended bill, time to answer, 868. answer, (see that heading, ch. 34) time for, 865. after overruling motion to dismiss, 867. time for, to amended bill, 868. better statement, obtaining, 954. bill (see Bill in Equity, ch. 30) amendment, time for answer, 868. general statement, 860. calendar, reinstatement of case on, 879. trial, 876. certainty, obtaining, 954. continuances, 878. counterclaim or set-off (see that heading), 980, 981, 982, 983. issue, 875. reply to, 874. time for serving copy of, 872. cross bill now in the counterclaim, 982. decree, see that heading, ch. 38. decree pro confesso, see that heading, ch. 32. defect of parties in, 957. defense, see Decree pro Confesso, ch. 33, Answer in Equity, ch. 34. defense in point of law, 956. defense, motion to strike out, 873. defensive pleading, see that heading, ch. 33. 950. kinds of, 950. law, defense in point of, 956. motion to strike. 873. time for, 860. .INDEX 9G9 EQUITY SUIT continued. deliniteness, to obtain, 954. depositions (see that heading, ch. 16) after issue, 503. after case on trial calendar, 877. before issue, 871. form of rule, 510. generally, 863. grounds for taking, 504. objections, rule, 511. publication or filing, 522. signing, rule, 510. time for taking, 502, 503. differences from law, 6. discovery, see that heading. after issue, 870. before issue, 862. by defendant, 870. by plaintiff, 862. time for, 862, 870. evidence, see that heading, ch. 14. in, 1003. form of deposition, rule, 510. forms in, see that heading, grounds for taking depositions, 504. hearing, motion to dismiss, 866. motion to strike out defense, 873. trial calendar, 876. impertinent matter, removal of, 955. interrogatories by defendant, 870. by plaintiff, 862. time for, 862, 870. irrelevant matter, removal of, 955. issue, depositions after, 503. issue in, see that heading, issue when no counterclaim or set-off, 869. when counterclaim or set-off pleaded, 875. lawsuit begun as, 602. masters in chancery, see that heading, ch. 36. motion, see under Decree pro Confesso, ch. 33; Motions, and Pleadings, motion to dismiss, 866. time for answer after overruling, 867. motion to strike out defense, 873. motion to transfer to law side, 936. objections to depositions, 511. orders, notices of, 958. particulars, obtaining, 954. pleading in, see under headings of various pleadings, and the general heading, Pleading. 970 INDEX EQUITY SUIT continued. practice, summary of proceedings, ch. 29. precipe for subpoena, general statement, 861. proceedings in, summary, ch. 29. publication of deposition on filing, 522. redundant matter, removal of, 955. reinstatement case on calendar, 879. removal of redundant, scandalous, or impertinent matter, 855. reply to counterclaim in equity, 979. reply, time for, 874. return of subp-continued. from Departments and Congress, in court of claims, 2323. general statement, 420. Government paramount title does not affect possessory action mining title, 460. Indian affairs, copies of commissioner's records, 449. judicial notice, seal of Department Commerce and Labor, 457. judicial records. copies of lost or destroyed, 430. Land Office records, certification of, 447. law actions, 590. Little and Brown's statutes, 421. supplement, 422. lost or destroyed judicial records, 430. lost returns and official papers, judicial officers, 434. lost Supreme Court record, 432. national bank organization certificates, 439. Navy records in suits against delinquents, 441. objections to, Rule 12 C. C. A. Appendix. official papers, copies of lost or destroyed, 434. pamphlet copies of statutes and bound copies of acts, 428. patents. copies of foreign letters, 451. of letters patent, 450. of trademark records, 453. printed copies of specifications and drawings of, 452. Postoffice Department demand on postmasters, 446. postoffice records, copies, 445, 446. printed and bound copies of acts, 429. proof state and foreign legislative acts and state court records and pro- ceedings, 424. publication of Interstate Commerce Reports and Decisions as evidence, 461. records of public offices not appertaining to a court in states and terri- tories, 425. records, see that heading and also subhead above, Copies. reports of investigations of accidents from failure of boilers, not admis- sible in damage suits, 459. restoration of records, see that heading, 431, 435. returns, copies of lost or destroyed, 434. return of a contract to Returns Office Department of the Interior, 444. Revised Statutes, authorized editions, 421, 423. Richardson's Supplement of Revised Statutes. 423. seizures, customs cases, burden of proof, 458. solicitor of Treasury, copies of records, 437. state court records, 424. state laws, 424. state records, copies, 425. statutes, see Federal Laws, 421, 423. 974: INDEX EVIDENCE continued. subpoena duces tecum to register of Land Office, 448. supplement of Revised Statutes, 422. Supreme Court lost or destroyed records, copies, 432. testimony before commissioners court of claims, 2321. trademark, copies of Patent Office records, 453. Treasury, War, Navy, records in suits against delinquents, 441. Treasury Department books and proceedings in embezzlement suits, 443. war records, copies in suits against delinquents, 441. witnesses, see that heading. EXAMINATION OF CLAIMANT, court of claims, 2322. EXAMINER, depositions before, 520. EXCEPTIONS,. bill of, see Bill of Exceptions, ch. 26. master in chancery's report, 1034. trial law actions, taking of, 746. time for taking, in law actions, 747. EXCLUSION OF CHINESE, district court's jurisdiction, 202. EXCLUSIVE JURISDICTION, district court, 191, 192. Supreme Court, 2458. EXECUTION, ch. 27, allowance of interest on judgments, 783. appraisal, personal property, 804. arrest, discharge from, in civil actions, 797. conformity to state laws, 791. criminal cases, postponed where case carried to appellate court, 2151. death penalty, 2162. debt, imprisonment for, 796. discharge from arrest, 797. discharge from, poor debtor in government suits, 798, 799. fees of appraisers, 559. general statement, 781. government suits, discharge of poor debtor, 798. imprisonment for debt, 799. purchase by government on sale of real estate, 803. imprisonment for debt, 796. discharge from, 797. law actions, 593. lien not devested by change of district, 788. INDEX 975 EXECUTION continued. x motion for new trial, 793. new trial, 793. officers, 792. personal property, 800, 804. place, where runs and executed, 795. place, sale of real estate, 800. publication, sale of real estate, 801. revenue officers, when not against, 792. runs and is executed in any part of state, 795. sale of personal property, place of, 800. sale of personal property, appraisal of, 804. sale of real estate, place of, 800. state practice, conformity to, 791. stay of pending motion for new trial, 793. term, stay of, for one, 794. EXECUTION OF DOCUMENTS, demand to admit, 1011. EXECUTIVE DEPARTMENT RECORDS, ETC., copies as evidence, 436. EXEMPTIONS, jury, trial law actions, 734. civil rights acts, 735. after one term's service in a year, 737. EXHIBITS, of materials, Rule 34 C. C. A. Appendix. Rule 32 C. C. A. (3d, 7th, 8th, and 9th circuits) Appendix. EXPERT, witnesses in patent and trademark cases, 1001, 1005. EXTRADITION, agent to receive fugitive from foreign countries, 2193. arrest of fugitive from foreign countries, 2180. arrest of seamen deserting foreign vessel, 2197. costs and fees, 547. escape, retaking person held, 2189. evidence. extradition granted only where probable cause exists, 2181. hearing upon the return, 2187. foreign country. fugitive from, 2180. fugitive from place under control of United States, 2183. hearing. evidence on, 2187. to be public, 2185. 976 INDEX EXTRADITION continued. hearing to be on land, 2185. where fugitive from foreign country or territory under control of the United States, 2184. indigent prisoners, witnesses for, 2186. intrastate, 2195. political offense, extradition not allowed, 2182. rescue. prisoner extradited from foreign country, penalty, 2194. prisoner extradited from another state, 2196. seamen deserting foreign vessel, arrest of, 2197. territory, fugitive from foreign, under control of the United States, 2183. transportation, extradited person to the United States, 2192. treaty, extradition provisions continuing during existence of, 2192. trial, prisoner to be surrendered only for fair, 2188. warrant, arrest of fugitive from foreign countries, 2180. witnesses for indigent prisoners, 2186. witness fees, 547. F. FACT, Supreme Court, issues of, in, 2458. writ of error, none for error in, 844. FEDERAL BILL IN EQUITY, see Bill in Equity, ch. 30. FEDERAL COMPLAINT AT LAW, see heading Initial Pleading at Law, ch. 19. FEDERAL CONSTITUTION, see also Constitution. Federal question arises under, 219. FEDERAL CORPORATIONS, Federal question involved when parties, except national banks, 217. 218. national banks as, do not ipso facto involve Federal questions, 218. FEDERAL COURTS, see also Courts. actions in, see Law Actions, ch. 1. appellate procedure of, differences law and equity, 6. constitutional powers of, 1. 2. circuit court of appeals, see that heading, 3, ch. 48. commerce court, 3. court of claims, see that heading, 3, ch. 47. court of customs appeals, see that heading, 3, ch. 46. INDEX 977 FEDERAL COURTS continued. district courts, see that heading, 3, chs. 2, 3, 6. double system of, 5. enumeration of, 3. equity suits, see that heading, ch. 29. generally as to, ch. 1. judicial power of, under the Constitution, 1, 2. jurisdiction in general, see Jurisdiction, ch. 1. law actions, see that heading, ch. 18. penal laws enforced in, 2102. place of, in our judicial system, 1. practice, see that heading. procedure, see also that heading. blended, a future possibility, 9. desirability of a special study of, 12. differences between Federal and state, 6, 10. double system of, 5. equity suits, rules governing, 8, ch. 29. law actions, conformity to state practice, 7, ch. 18. Supreme Court, see that heading, 3, ch. 49. FEDERAL JURISDICTION, see also Jurisdiction, of offenses, 2104. FEDERAL LAWS, appeal to Supreme Court where Federal laws drawn in question. 2006. evidence of, 421, 423, 428. Federal questions arise under, 220, 354. pamphlet copies of statutes and bound copies of acts as evidence, 428. summaries of several jurisdictional provisions affecting suits under, in district court, see that heading, ch. 12. FEDERAL OFFICERS, see also Judicial Officers. aliens, suits by, against officers, removal of. 301. certiorari in removal of suits against congressional or revenue, 307. congressional, suits against removal of. 304. Federal question involved in suits by or against, 216. habeas corpus in removal suits, 303, 307. parties to suit, raises Federal question, 216. removal of causes, aliens against, 301. against congressional or revenue officers. 304. revenue officers, removal of suits against, 304. FEDERAL PROCEDURE, see Procedure. Montg. 62. 978 INDEX FEDERAL QUESTION, ch. 7, amount in controversy required, 223. arising under the Constitution, 219, 353, 2219. Federal laws, 220, 354. treaties, 220, 355. banks, national, exception as to, involving Federal question, 218. bill in Federal court must show, 224. bill in state court must show, 225. bond in removal cases, 291. citizenship, in cases involving Federal question as affecting venue, 222. class one in removal cases, 287. Constitution of the United States arising under, 219, 353, 2219. constitutional provision as to, 2. corporations, Federal, arises in suits involving, 217. exception national banks, 218. defined, 220. diverse citizenship, in cases involving Federal question, as affecting venue, 222. Federal corporations, arises in suits involving, 217. exception national banks, 218. Federal officers, arises in suits involving, 216. Federal Constitution, arising under, 219, 353, 2219. laws, arising under, 220, 354. treaties arising under, 220, 355. ground of jurisdiction, ch. 7. ground of original jurisdiction, 220. ground for removal, 221. issue, how raised, 226. jurisdiction. ground of original, 220. for removal, 221. laws of the United States arising under, 220, 354. national banks, suits involving do not ipso facto raise Federal question, 218. officers, Federal, arises in suits involving, 216. original jurisdiction, as a ground of, 220. parties in suits involving, 222. pleading, initial, must show in Federal court, 224. state court, 225. removal, ground for, 221. removal of causes, 286, 287. bond, 291. remanding, 310. treaties of the United States, 220, 221, 355. venue as affected by diverse citizenship, 222. what is, 215. where must appear in Federal court, 224. state court, 225. INDEX 979 FEDERAL SYSTEM, double, legal and equitable, 5. FEDERAL TREATIES, see Treaty, FEDERAL WRIT OF HABEAS CORPUS, cases where it will issue, 2203. FEES, see also Costs and Fees, ch. 17. amount of, and mileage, witnesses, 488, 489. claim cases pending in Departments, witnesses, 496. clerk circuit court of appeals, Rule 23 C. C. A. ( 7th circuit) , Appendix. departments claim cases, witnesses, 496. mileage, witnesses, 488, 489. double, prohibited, of witnesses, 490. witnesses, amount and mileage 488, 489, 490. claims cases in Departments, 496. patent cases, 493. FIELD DEPUTY MARSHALS, 37. FILING, depositions in equity published on, 522. record, appeal in circuit courts of appeals, 2069. record on error, 837. temporary restraining order, 10CO. FINAL DECISIONS, of circuit court of appeals, review by certiorari, 2074. FINAL DECREE, see also Decree, decree pro confesso, when made, 937. FINE, collection of judgment for, 2152. costs of prosecution, 564. mitigation or remission, 2159. rules and mode of providing, 2160. or remission, exception, 2161. witnesses, officers and informers not disqualified in suits for, 473. FLORIDA, districts, terms and places of holding court, 108. FOLIO, defined, 558. 980 INDEX FOREIGN CITIZENS, see Aliens. FOREIGN CONSULS, see also Consuls, jurisdiction over disputes of seamen, 206, 207, 208. FOREIGN COUNTRY, deposition on letters rogatory, 523. depositions to be used in, 524. extradition of fugitive from place under control of United States, 2183. extradition from, 2180. FOREIGN LAWS, evidence of, 424. FOREIGN LETTERS PATENT, copies as evidence, 451. FOREIGN LETTERS, ROGATORY, witness fees, 551. FOREIGN RECORDS, filed in Department Offices Relating to Land Titles in United States, copies as evidence, 426. FORFEITURE OF ESTATES, none in criminal cases, 2165. FORFEITURES, copyright laws, limitations, 401. damage suits for false claims against United States, limitations, 402. high seas, summary of several jurisdictional provisions, 367. statutes of limitation, 398, 399. summary of several jurisdictional provisions, 366. venue, 176, 178. witnesses, officers and informers not disqualified in suits for, 473. 1-ORMA PAUPERIS, proceeding in, on appeal, 2065. FORMS, affidavit of, prejudice, for removal, form 18, 295. return of subpoena for defendant in equity, 918. allowance of appeal, 2058. amount in controversy. issue as to, allegation, 271. good faith, issue as to, allegation, 271. IXDEX 981 FORMS continued, answer. equity, rule as to, 974. law, conforms to state law, 670, 673. appeal. allowance of, 2058. assignment of errors. 2059. bond on, 2061. bond circuit court of appeals, 8th circuit. Addenda Rule 45 C. C. A. Appendix. briefs, circuit court of appeals, Rule 21 C. C. A. (6th circuit), Ap- pendix. citation on, 2061. motion to dismiss, 2084. notice of motion to dismiss, 2084. petition for, 2058. appearance bond on writ of error in criminal cases, Addenda to Rule 37 C. C. A. (5th circuit), Appendix, assignment of errors, 2059. assignor's residence and citizenship, allegation of, 195. bill in equity, rule as to, 899. caption, 893. citizenship of parties, 894. bond. appeal, 2061. appearance on writ of error in criminal cases, Addenda to Rule 37 C. C. A. (5th circuit), Appendix. circuit court of appeals, 8th circuit Addenda Rule 45 C. C. A. Ap- pendix. removal, for, form 12, 291. notice of bond, form 13, 293. briefs. circuit court of appeals. Rule 21 C. C. A. (6th circuit) Appendix, caption to bill in equity, 893. certificate. clerk's, with record on removal, 293. officers to deposition dc bene esse, 509. questions by circuit judges to Supreme Court, 2075. certiorari. diminution of record, 2085. order for, in suit against revenue officers for removal from state courts, form 21, 307. petition and order for writ of, 2074. same in action against revenue officers for removal from state court, form 20, 305. removal on ground of prejudice or local influence, form 19. 2!>.~>. revenue officers, removal of suit^ against, form 22, 309. writ of, under 39 Judicial Code in removal of cases, form 23, 30!). 982 INDEX FORMS continued. circuit court of appeals, see Appeal herein above. bond 8th circuit, Addenda Rule 45 C. C. A. Appendix, briefs, Rule 21 C. C. A. (6th circuit) Appendix, certificate of questions to Supreme Court, 2075. citation on appeal, 2060. 8th circuit Addenda Rule 45 C. C. A. Appendix, citizenship. answer setting up lack of diversity of, 249. assignor of plaintiff, allegation of, 195. bill in equity, parties to, 894. corporations, allegations of, 234, 894. motion to dismiss for lack of diversity of, 249. clerk's certificate with record on removal, 293. complaint at law, 604. conforms to state law, 581. corporations, citizenship and residence of, allegations of, 234, 894. counterclaim in equity, rule as to, 980. criminal cases. appearance bond on writ of error to circuit court of appeals, Ad- denda to Rule 37 C. C. A. (5th circuit) Appendix, indictments. defects in form may be disregarded when immaterial, 2124. navy court martial, law as to indictment. 2122. perjury, law as to indictment, 2120. subornation of perjury, law as to indictment, 2121. decree, equity suits, rules as to, 1080. defensive pleading at law conforms to state law, 670, 673. deposition. certificate of officer to deposition de bene esse, 509. de bene esse deposition, 509. equity rule as to, 510. notice of taking, 507. diminution of record, certiorari, 2085. diverse citizenship, see "citizenship" above, answer setting up lack of, 249. motion to dismiss for lack of, 249. equity. answer, rules as to, 974. bill. caption, 893. citizenship and residence of parties, allegation. 894. corporation's citizenship and residence, allegation, 234, 894. rules as to, 899. counterclaim in equity, rule as to, 890. decree, rules as to, 1080. deposition, 509, 510. process, 913. returns of, rule and form, 918, 919. subpoena for defendant, 913. INDEX 983 FORMS continued. errors, assignment of (see also Appeal above and Writ of Error below) 2059. Federal question, allegation raising issue of, 226. general verdict conforms to state law, 761. good faith of amount in controversy, allegation raising issue, 271. Hawaii, writ of error to supreme court of, 2081. indictment, defect in form disregarded when immaterial, 2124. navy court martial, law as to, 2122. perjury, law as to, 2120. subornation of perjury, law as to, 2121. initial pleading, equity, see Bill in Equity, above, 893, 894, 899. law, see Complaint at Law, above, 581, 604. issue, amount in controversy, allegations, 271. diverse citizenship, answer and motion to dismiss raising, 249. Federal question, allegation raising, 226. good faith of amount in controversy, allegation, 271. law action, complaint, 581, 604. defensive pleading conforms to state law, 670, 673. process conforms to state practice except signatures, seal and tcste, 583, 650, 652. local influence, petition for removal on ground of, form 17, 295. mandate to district court, 2086. motion to dismiss, appeal, 2084. notice of, 2084. diverse citizenship, lack of, 249. venue improperly laid, 181. motion to remand to state court, form 24, 310. navy court martial indictments, law as to, 2122. notice, appeal, motion to dismiss, 2084. deposition, taking of, 507. removal, form 16, 293. of petition and bond, form 13, 293. order for, allowance of appeal, 2058. allowance of writ of error to state court, 339. remanding to state court, 310. removal, form 14, 293. supersedeas on appeal, 2063. writ of certiorari, 2074. writ of error to state court, 339. perjury, indictment for, law as to, 2120. 984 INDEX FORMS continued, petition, appeal, 2058. certiorari, diminution of record, 2085. for writ of, 2074. removal, certiorari, for, against revenue officers, form 20 305. citizen against alien, form 8, 290. Federal question, on ground of, forms 1, 3, 4, 290. local influence, on ground of, form 17, 295. nonresident plaintiff against nonresident defendant, form 5, 290. notice of petition, form 13, 293. prejudice, on ground of, form 17, 295. resident plaintiff against alien defendant, form 9, 290. resident plaintiff against defendant and a resident defendant who has disclaimed, form 7, 290. resident plaintiff against nonresident defendant, form 6, 290. separable controversy, form 10, 290. after dismissal of suits against other defendants, form 11, 290. writ of error to state court, 339. pleadings circuit court of appeals, Rule 21 C. C. A. (6th circuit) Appendix, precipe for subpoena, 912. prejudice, petition for removal on ground of, form 17, 295. printed records, circuit court of appeals, Rule 26 C. C. A. Appendix, process in equity, 913. rule as to 911. return of, 918. rule as to, 919. process at law conforms to state practice except signatures, seal and teste, 583, 650, 652. question, Federal, issue as to, allegations of, 226. record, circuit court of appeals, Rule 21 C. C. A. (6th circuit) Appendix. printed, Rule 26 C. C. A. Appendix. clerk's certificate with record on removal form 15, 293. remanding to state court, motion and order for, 310. removal, affidavit of prejudice, form 18, 295. bond on, form 12, 291. certiorari, petition for, in action against revenue officers, form 20, 305. citizen against alien, petition, form 8, 290. clerk's certificate with record, form 15, 293. Federal questions, petitions on ground of, form 1, 3, 4, 290. motion to remand on ground of no jurisdiction under. 37 Judicial Code, form 24. 310. INDEX 985 FORMS continued. removal, notice of, form 16, 293. petition and bond for, form 13, 293. order for, form 14, 293. remanding, form 25, 310. petitions, certiorari in actions against revenue officers, form 20, 305. citizen? against alien, form 8, 290. Federal question, on ground of, forms 1, 3, 4, 290. local influence, on ground of, form 17, 295. nonresident plaintiff against nonresident defendant, form 5, 290 notice of petition and bonds, form 13, 293. prejudice, on ground of, form 17, 295. resident plaintiff against alien defendant, form 9, 290. resident plaintiff against defendant and resident defendant who has disclaimed, form 7, 290. resident plaintiff against nonresident defendant, form 6, 290. separable controversy, form 10, 290. after dismissal of suit against other defendants, form 11, 290. verification of petition by attorney, form 2, 290. writ of error to state court, 339. writ of certiorari for removal in action against revenue officers, form 21, 307. order for, form 22, 309. petition for, form 20, 305. writ of certiorari for removal on ground of prejudice or local in- fluence, form 19, 295. writ of certiorari, under 39. Judicial Code, form 23, 309. writ of error to state court. 339. order allowing writ, 339. residence. assignor of plaintiff, allegation of, 195. corporations, allegations of, 234. parties to bill in equity, allegations of, 894. return of subpoena for defendant in equity, 918. rules as to, 919. return of writ of error, 8th circuit, Addenda to Rule 45 C. C. A. Appendix. separable controversy, petition for removal of, form 10, 290. petition for removal of, after dismissal of suits against other de- fendants, form 11, 290. set-off in equity, rule as to, 980. subpoena of perjury, indictment for. law as to, 2121. subpoena for defendant in equity, 913. precipe for, 912. return of, 918. Bupersedeas order on appeal, 2063. 986 INDEX FORMS continued, venue, answer, allegations in, as to improper, 181. corporation's, allegations of, 181. motion to dismiss for improper, 181. writ of certiorari, diminution of record, 2085. petition and order for, 2074. removal of causes, local influence or prejudice, form 19, 295. revenue officers, suits against, petition for, form 20, 305. order for, form 21, 309. writ of, form 22, 309. under 39, Judicial Code, form 23, 309. writ of error, clerk's certificate to transcript, 836. circuit court of appeals, 8th circuit, Addenda Rule 45 C. C. A. Ap- pendix, criminal cases, appearance bond on error to circuit court of appeals, Addenda to Rule 37 C. C. A. (5th circuit), Appendix. Hawaii, to supreme court of, 2081. return of, 8th circuit, Addenda to Rule 45 C. C. A. Appendix, state court to, order allowing writ, 339. petition for writ, 339. writ, 339. writ of mandate to district court on reversal, 2086. FRAUD, removal of causes, ground for remanding or dismissal, 310. G. GARXISHEE, see also Garnishment, issue by, 638. judgment against, 639. GARNISHMENT, see also Attachment. effect of, 635. general statement, 634. government suits against corporations, 640. same, issue tendered when garnishee denies, 641. same, garnishee in contempt on failing to appear, 642. issue by garnishee, 638. judgment against garnishee, 639. law actions, 582, ch.-20. notice of. 636. INDEX 987 GARNISHMENT continued, persons subject to, 637. postal suits against delinquents, 631. property subject to, 637. state laws, adoption, 610. GENERAL APPRAISERS, BOARD OF, 2251. GENERAL STATEMENT, actions at law, 580. amount in controversy, 260. amount in controversy, summaries of several jurisdictional provisions, 350. answer in equity, 970. appellate jurisdiction circuit court of appeals, 2030. appellate jurisdiction of the Supreme Court, 2000. appellate procedure, equity, 2050. appellate procedure at law, 820. bill in equity, 890. circuit court of appeals, 3. clerk district court, 32. commerce court, 3. continuances, law actions, 690. costs and fees, 530. counterclaim in equity, 970, 980. court commissioners, district court, 32. court of claims, 3. court of customs appeals, 3, 2250. defensive pleading, law actions, 670. depositions de bene esse, 500. under commission, 500, 514. district attorneys, district court, 32. district court, 3, 20. jurisdiction, 190. diverse citizenship, 230. evidence, 420. executions, 781. form and effect of general verdict, 761. garnishment, 634. judgments law actions, 780. judges district court, 21. judicial officers, district court. 20. jurisdiction district court, 190. jurisdiction, summaries of several jurisdictional provisions, 350. law actions, 580. marshals, district court, 32. masters in chancery, district court, 41. organization district court, 60. process at law, 650. 988 INDEX ( i I : \ ERAL STATEMENT continued, receivers, 41. removal of causes, 285. removal, summaries of several jurisdictional provisions, 350. removal by writ of error to state court, 330. statutes of limitation, 390. set-off in equity, 970, 980. summaries, jurisdiction, amount and venue for matters of district court cognizance, ch. 12, 350. Supreme Court, 3. trial, equity suits, 1000. trial, law actions, 730. venue, 160. venue, summaries of several jurisdictional provisions, 350. verdict, 761. GENUINENESS, demand to admit, 1011. GEORGIA DISTRICTS, terms, and places holding court, 109. GOOD FAITH, of amount in controversy, an issue, 271. GOVERNMENT, see also United States. paramount title does not affect possessory action mining titles, 460. suits against corporations garnishment, 640, 642. credits in, 2234. postal suits, 2235. execution, imprisonment for debt, 798, 799. execution purchase by government on sale of real estate, 803. interest in postal suits, 2236. GRAND JUROR, fees of, 555, 556. GRAND JURY, discharge of, 2118. foreman of, 2117. indictment to be by at least twelve jurors, 2119. number of, 2116. when summoned, 2115. GROUNDS, depositions, equity, 504. jurisdiction, see Grounds of Jurisdiction, removal of causes, ch. 10, 285. see that heading. INDEX 989 GROUNDS OF JURISDICTION, bill in equity, allegations of, 8fl5. complaint at law, allegations of, 601. diverse citizenship is, ch. 8, 356, 357, 358. Federal question is, ch. 7, 220, 354. H. HABEAS CORPUS, ch. 44. allowance of writ, 2205. amendment of return, 2210. application, how made, 2204. Civil Rights Cases, removal, 303. congressional officers, removal of suits against, 309. counter allegation on return, 2210. constitutional provision, 2200. courts authorized to issue, 2201. custody of prisoners, circuit court of appeals, Rule 33 C. C. A. Appendix. Rule 31 C. C. A. (3d and 7th circuits) Appendix. Rule 32 C. C. A. (6th circuit) Appendix, direction of writ, 2205. disposition of party, 2211. Federal cases where it will issue, 2203. hearing, day for, 2209. summary, 2211. issuance of writs, 2205. judges, power to grant writs, 2202. jurisdiction to grant, 2201, 2203. law of nations, involved, 2212. notice when law of nations involved, 2212. person, producing of, 2208. removal of causes, 303, 307. revenue officers, removal of suits against, 307. return, amendment, 2210. denial of, 2210. form of, 2207. time of, 2206. summary hearing, 2211. time, return of writ, 2206. writ, form of return, 2207. return of, 2206, 2210. time of return of, 2206. HARBORS, jurisdiction of district court to remove obstructions, 200. 990 INDEX HAWAII, appeal and error to supreme court, 2014. appellate procedure, supreme court of, to United States Supreme Court. 2081. HEARING, circuit court of appeals, Rule 42 C. C. A. (8th circuit) Appendix, criminal cases, monthly adjournments to expedite, 66. extradition, evidence on, 2187. extradition of fugitive from foreign country or territory under control of the United States, 2184. public, 2185. on land, 2185. habeas corpus, day for, 2209. summary, 2211. motion to dismiss, 866. to strike defense, 873. reference to master in chancery, 1032. trial calendar equity, 876. HEARING CALENDAR, see Calendar, Rule 22 C. C. A. (6th circuit) Appendix. I. IDAHO, districts, terms and places of holding court, 110. ILLINOIS, districts, terms and places of holding court, 111. IMMIGRATION, laws, summary of several jurisdictional provisions, 378. IMMUNITY, anti-trust laws, witnesses, 474. commerce laws, witnesses, 474. Congress witnesses testifying before, 476. criminal cases, witnesses, 474, 475. judicial proceedings, witnesses in, 477. removal by writ of error to state court of decision against, 337. witnesses, commerce and anti-trust laws, 474. witnesses, criminal cases, 474, 475. witnesses, testimony given before Congress, 476. witnesses, testimony in judicial proceedings, 477. IMPANELING JURY, law actions, 739. INDEX 991 IMPERTINENT MATTER, answer in equity, motion to strike from, 978. equity suits, removal of, 955. motion to strike, 935. IMPRISONMENT, see also confinement. offenders against United States, 2126. IMPRISONMENT FOR DEBT, execution, state laws adopted, 796. suit by government, 798, 799. INCOME TAX LAW, compulsory attendance of witnesses, 498. jurisdiction district court, 211. INCOMPETENT, see Competence, Immunity. INDEBTEDNESS DUE GOVERNMENT, settlement of court of claims, 2311. INDEPENDENT SUIT IN EQUITY, answer in equity, counterclaim, 981. INDEX, judgments law action, 786. INDIANA, districts, terms and places of holding court, 112. INDIAN AFFAIRS, copies of the commissioner's records as evidence, 449. INDIAN RESERVATION, crimes on, in South Dakota, 204. INDIANS, diverse citizenship, not citizens, 243. land allotment, summary of several jurisdictional provisions, 380. patents, statute of limitations, 407. INDIAN TREATIES, claims under, court of claims, no jurisdiction, 2306. INDICTMENT, capital crimes, accused entitled to counsel and to compel witnesses, 2142. consolidation of charges, 2123. 992 INDEX INDICTMENT continued, defect of form, 2124. demurrer, judgment respondeat ouster, 2125. grand jury by, 2119. navy court martial, 2122. perjury, 2120. subornation of perjury, 2121. INDIGENT, convicts, discharge of, when imprisoned for fines, 2153. prisoners, extradition, witness for, 2186. INDIGENT DEFENDANT, witnesses, subpoena for, on behalf of, 485, 53o. INDIGENT PARTIES, costs and fees, 534. process suits in forma pauperis, 658. witness fees of indigent defendant in criminal cases, 535. INFORMERS, witnesses, not disqualified as in suits for fines, penalties, or forfeitures. 473. INFRINGEMENT OF COPYRIGHTS, statutes of limitations, 411. INFRINGEMENT OF PATENT, costs of suit, 568. statutes of limitations, 410. venue, 171. INFRINGEMENT SUITS, trial of, 1012. INITIAL PLEADING, see also Bill in Equity, ch. 30. at law, ch. 19, 581. complaint, form of, 604. differences Federal and state, 600. effect of beginning as suit in equity, 602. joinder legal and equitable causes, 603. jurisdictional grounds, 601. INJUNCTIONS, appeal from order granting or denying injunction against entorcement of state law, 1065. appeals from district court to circuit court of appeals, 2032. appeal, pending on, 1061. INDEX 993 INJUNCTIONS continued. bond, temporary restraining order, 10f>G. Comptroller of Currency, venue, 172. contempt, court's power to punish for, 1069. dissolution temporary restraining order, 1059. dissolution order on distress warrant against officer for failure to account for public moneys, 1074. distress warrant against officer for failure to account for public moneys, 1073, 1074. enforcement of, 1066. filing temporary restraining order, 1060. interlocutory injunctions do not issue against national banks in state courts, 1071. judge, power to issue, 1055. justice, power to issue, 1055. modification temporary order, 1059. national banks, receivership, enjoinable, 1070. no interlocutory injunction against bank in state courts, 1071. ne exeat, 1067. notice of injunction against enforcement state laws, 1064. notice temporary restraining order, 1057. order for preliminary injunction, see Restraining Order, pending appeal, 2064. preliminary injunctions, 1056-1071. procedure, order granted without notice, 1058. order on distress warrant against officer for failure to account for public money, 1073, 1074. receivership of national banks, against, 1070. scire facias, 1068. state court, staying proceedings of, 1062. interlocutory injunction not to issue in, against national banks, 1071. state laws, hearing application for injunction against enforcement, 10G4. state laws, against enforcement of, 1063. tax, injunction does not issue against assessment or collection, 1072. temporary restraining order, bond, 1056. dissolution, 1059. filing, 1060. national bank, none in state court, 1071. notice, 1057. writ ne exeat, 1067. writ scire facias, 1068. INSTRUCTIONS. trial, law actions, 749. Montg. 63. 994 INDEX INSTRUCTIONS AS TO APPLICATIONS FOR WRITS OF CERTIORARI, under 240 of the Judicial Code Addenda Rule 45 C. C. A. Appendix. INSURRECTION, seizure for, venue, 178. INSURRECTIONARY, property condemnation of, venue, 177. INTEREST, allowance on judgments, 783. circuit court of appeals, Rule 26 C. C. A. (6th circuit) Appendix. Rule 28 C. C. A. (3d, 4th, 7th circuits) Appendix. Rule 30 C. C. A. (1st and 3d circuits) Appendix, court of claims, 2326. district judg^. outside judge to serve, 30. duties, in suits for, 784. judgments, law actions, 783, 784. levy for, 783. money, kind payable in suits for duties, 784. rate on judgments, 783. INTERLOCUTORY INJUNCTION, national banks, none against, in state courts, 1071. INTERLOCUTORY ORDERS, time for appeal from, 2054. INTERNAL REVENUE, statute of limitations, 394, 395. taxes, venue, 176. INTERPRETATION, see Construction. INTERROGATORIES IN EQUITY SUITS, by defendant, 870. by plaintiff, 862. equity, 1006, 1011. time for, 862, 870. INTERSTATE COMMERCE, commerce laws, see that heading. enforcing attendance and testimony of witnesses under, 497. testimony, enforcing in cases under, 497. witnesses, enforcing attendance and testimony, 497. immunity of, 474. INTERSTATE COMMERCE COMMISSION, venue of suits affecting orders of, 180. INDEX 995 JNTRASTATE, ^ extradition, 2195. INVESTIGATIONS, oatli, officers authorized to administer, 2241. IOWA, districts, terms and places of holding court, 113. IRRELEVANT MATTER, answer in equity, motion to strike from, 935, 955, 978. ISSUANCE, habeas corpus writs, 2205. venire for jury, law actions, 740. writ of error to Supreme Court, 829. ISSUE, amount in controversy, how raised, 271. answer in equity, 979. depositions in equity after, 503. diverse citizenship, how raised, 249. equity suit, 869, 875, 956, 979. fact in Supreme Court, how raised, 2458. Federal question, how raised, 226. garnishment, 638. good faith, amount in controversy, 271. process in equity, 911. time for, in equity, 979. ISSUE IN EQUITY, when no counterclaim or set-off, 869. when counterclaim or set-off pleaded, 875. ISSUE OF LAW, equity suits, 956. J. JOINDER OF CAUSES, legal and equitable, 603. JOINT AND SEVERAL DEMANDS, bill in equity, 909. JOINT STOCK COMPANIES, diverse citizenship of, 235. 096 INDEX JUDGES, see also District Judge. appeal, powers and duties on, 2037. circuit, acting as district judge, 28. court of claims, 2301. court of customs appeals, 2253. injunctions, power to issue, 1055. law action, trial by, 589. power to grant habeas corpus writs, 2202. state court, duty in removal of causes, 292. Supreme Court, 2450. trial, law actions by, 744. JUDGMENT, see also Decree Equity Suits, ch. 38. at law, see Judgment Law Actions, 592, ch. 27. court of claims, counterclaim, enforcement, 2331. effect of, 2338. reports of, to Congress and Executive officers, 2329. set-off, enforcement, 2331. default law actions, 672. equity suits, see Decree. fines, how collected, 2152. garnishment, 639. indictment, demurrer to, 2125. law actions, see Judgment Law Actions, below. non obstante veredicto, 763. removable by writ of error to state court, 333. JUDGMENT LAW ACTIONS, ch. 27, 592. allowance of interest on, 783. amendment of, 789. conformity to state laws, 782. duties, suits for, kind of money payable in, 784. general statement, 780. indexes, 786. interest on, 783, 784. lien of, 787. not devested by change in district, 788. rate of interest, 783. record, index of, 785. state practice, conformity to, 782. vacation of, by motion for new trial, 790. JUDICIAL DISTRICTS, see Districts, ch. 4. JUDICIAL NOTICE, taken of the seal of the Department of Commerce and Labor, 457. INDEX 997 JUDICIAL OFFICERS, see headings of various courts and various officers and next below, ch. 2. district court, assistant district attorney, 40. attorney, admission of, 71. bailiff, 38. circuit judge acting for district judge, 28. clerk, 32, 33. commissioners, 41, 42. criers, 38. deputy clerks, 34. deputy marshal, 36. district attorney, 32, 39. field deputy marshals, 37. judges, see District Judges, 21. marshals, 32, 35. masters in chancery, 41. receivers, 41. JUDICIAL POWER FEDERAL COURTS, constitutional provisions, 1, 2. JUDICIAL PROCEEDINGS, immunity of witnesses in, see Immunity, 477. witnesses, see that heading, ch. 15. immunity of, see Immunity. JUDICIAL RECORDS, copies of lost or destroyed records as evidence, 430. JURISDICTION, see also headings various courts, admiralty, 360. agriculture, district court, 191. alien enemies, district court, 197. duties of marshal, 198. aliens against Federal officers, removal, 301. amount in controversy how affects, ch. 9. how affected by aggregating amounts, 268. appellate, circuit court of appeals, see that heading, ch. 40. appellate, district court, see that heading, 202, et seq. appellate jurisdiction Supreme Court, see that heading, ch. 39. appellate in general, 190. Chinese exclusion laws, district court, 202. consular awards, district court, 204. Supreme Court, see that heading, ch. 39. Yellowstone National Park, district court, 203. arbitration disputes, common carriers and employees, 212. arrest of seamen on application of consul, 206. INDEX JUKI SDICTION continued, assignment, by, 195. awards of consuls, power to enforce, 205. bankruptcy, 375. basis of, diverse citizenship, ch. 8. Federal question, ch. 7. bias as a ground for removal from state court, 286, 295. bill in equity, allegations of grounds of, 895. canals, to remove obstructions, district court, 200. carrier, employers' liability not removable to Federal court, 299. certiorari in removal cases, 307. change of citizenship to create, 246. change of domicil after suit, 245. Chinese exclusion laws, 202. circuit court of appeals, see Appellate Jurisdiction of Circuit Court of Appeals, ch. 40. civil rights cases, 302, 370. commerce laws, 365. commitment of seamen on application of consul, 207. concurrent district and state courts, 193. generally, 4. congressional officers, removal of suits against, 304. constitutional question, ground for, 219, 353, 2219. consular awards, power to enforce, 205. consuls, foreign, over disputes between seamen. 206. copyright laws, 364. court of claims, see subhead jurisdiction under heading Court of Claims, 2305, 2313. court of customs appeals, 2259. crimes and offenses, 359. crimes on Indian reservations, South Dakota, 204. criminal, of district court, 2100. customs duties, 199. district court, appellate, 190, 202, 203, 205. concurrent, 190, 193. criminal, 2100. exclusive, 191, 192. generally, 4, ch. 6, 190. original, 4, 190, 194. original and appellate, 190, ch. 6. see Appellate Jurisdiction District Court, discharge from arrest, of seamen, 208. diverse citizenship, a ground of, ch. 8, 356. 357, 358. ground for removal, 286, 288. duties, district court, 199. employers' liability cases against common carriers not removable. 299. exclusion of Chinese, 202. exclusive in district court, of state courts, 191, 192. exclusive, Supreme Court. 2458. INDEX 990 JURISDICTION continued. Federal courts in general, ch. 1. Federal laws, question under, ground for, 220, 354. Federal officers, aliens against, removal, 301. certiorari, 307. congressional, removal of suits against, 304. revenue, removal of suits against, 304. Federal question as a ground of, ch. 7. original, 220. for removal, 221, 286, 287. foreign consuls over disputes between seamen, 206. forfeitures, 366. general statement, 190. ground for, diverse citizenship, ch. 8. Federal question, ch. 7. original, Federal question, 220, 354. removal Federal question, 221. grounds, law action, allegations of, 601. habeas corpus writs, 2201, 2203. harbors, to remove obstructions, 200. immigration laws, 378. income tax law, 211. Indian land allotments, 380. Indian reservation, South Dakota, crimes on, 204. land grants, 300, 352. laws of United States, question under, ground of, 220, 354. maritime, 360. monopolies, 379. national banks, 372. obstructions in rivers, harbors, and canals, 200. officers, aliens against, removal, 301. certiorari, 307. congressional, suits against removal, 304. revenue suits against, removal, 304. suits by, 351. original, Federal question ground for, ch. 7. diverse citizenship a ground for, ch. 8. of district court, 24 Judicial Code, 194. in general, 4, 190. original of Supreme Court, 2458. parties, shifting to create, 249. patent laws, 364. penalties, 366. postal laws, 363. prejudice as a ground for removal from state court, 286, 295. public lands, unlawful inclosure of, 377. question of, what is, 2002. receiver over real property outside the district of his appointment, 167. reclamation act, 10. 1000 INDEX JURISDICTION continued, removal of causes, see also that heading, class 1, Federal question, 287. 2, diverse citizenship, 288. 3, separable controversy, 289. 4, bias or prejudice, 295. 5, land grants of different states, 300. 6, aliens against Federal officers, 301. 7, civil rights cases, 302. 8, cases against congressional and revenue officers, 304. revenue laws, 362, 369. revenue officers, removal of causes against, 304. rivers, obstructions in. 200. seamen, foreign consuls over, 206, 207. separable controversy, removal of, 286, 289. shifting parties to create, 247. South Dakota, Indian reservation, crimes on, 204. state court's, concurrent with district, 193. exclusive of, in district court, 191, 192. after removal, 292. summary, see heading. Summary Jurisdiction, etc., ch. 12. Supreme Court, see Appellate Jurisdiction of the Supreme Court, ch. 39. exclusive, 2458. original, 2458. territorial, .see Venue, ch. 5. see Places of Holding District Court, ch. 4. cases transferred, 209. trademark laws, 364. trade restraints, 379. transfer of subject-matter to create, 246. transferred cases from territorial courts, 209. treaties, question under, ground for, 220. 355. United States civil suits, by, 351. United States, a party in partition suit, .381. United States claims against, 376. venue as affecting in case of diverse citizenship, 248. white slave traffic, 201. Yellowstone National Park, 203. JURORS, fees of, grand jurors, 555. list of, to be given person indicted of treason or capital offense, 2141. payment, how made, 556. petit jurors, 555. JURY, challenges, in law actions, 743. IMDJ2X ' 1001 JURY continued. charge to, in law actions, 591, 749. conduct of trial in law actions, 748. constitutional in law actions, twelve men, 733. criminal cases, 2109, 2119. drawing in law actions, 738. excluding, penalty under civil rights acts, 730. exemptions of. under civil rights acts, 735. after one term of service in a year, 737. grand jury, see that heading, 2115, 2119. impaneling in law actions, 739. instructions to, in law actions, 749. petit juries, law actions, 731, 743. qualifications in law actions, 734. under civil rights acts, 735. penalty for exclusion, 736. return of venire, 740. special, 742. Supreme Court for issues of fact, 2458. talesmen for petit, 741. trial by, at law, 588. trial, law actions, twelve men, 733. from where drawn, 738. venire, issuance and return of, 740. verdict, law actions, 591. JUSTICE, injunctions, power to issue, 1055. JUSTICES, Supreme Court, 2450. K. KANSAS, districts, terms and places of holding court, 114. KENTUCKY, calling bail in, 2231. districts, terms and places of holding court in, 115. L. LAND GRANTS. amount in controversy in suits involving, 262. removal of causes, class five, 300. summary of several jurisdictional provisions, 352. LAND OFFICE, records, certification of copies as evidence, 447. 1002 " INDEX LAND PATENTS, see Patents. LAW, objection on point of, in equity, 933. LAW ACTION (Summarized ch. 18). adjournments, see Continuances, ch. 23, 586. amendment, see that heading, 585. appellate procedure at law, ch. 28. attachment, see that heading, 582, ch. 20. begun when, 651. charge to jury, 591. complaint, 604, ch. 19. conduct of trial, 748. conformity to state practice, 7. consolidation, 710. continuances, ch. 23. default, 672. defensive pleading, see Defensive Pleading Law, ch. 22. depositions, see that heading, ch. 16, 590. time for taking, 501. differences law and equity, 6. discovery, 711. dismissal, 713. equitable defense, 675. evidence, see that heading, ch. 14, 590. execution, see that heading, 593, ch. 27. form of complaint, 604. garnishment, see that heading, 582, ch. 20. general statement, 580. initial pleading, see that heading, 581, ch. 19. judge, trial by, 589, 744. judgment, see that heading, 592, ch. 27. jury, charge to, 591. jury trial, 588, 731, 743. jury verdict, 591. method of trial, 731. mode of proof in, 745. motion for new trial, 764. new trial, 592. motion for, 764. nonsuit, 713. process, see that heading, 583, ch. 21. rules governing, 7, 72. summary, ch. 18. Supreme Court, action in, issues of fact, 2458. trial, see Trial Law Actions, ch. 25. ISDEX 1003 LAW ACTION continued, trial by judge, 589. jury, 588. verdict, 591, 761, ch. 26. witnesses, see that heading, ch. 15, 590. LAW LIBRARY, See Library. LAW OF NATIONS, habeas corpus, 2212. LAW PROCEDURE, see Law Actions and Procedure. LAW SIDE, motion to transfer from equity, 936. LAWS OF THE UNITED STATES, .see also Federal Laws. Federal question arising under, 220. summary of several jurisdictional provisions, 354. LAWYERS, see Attorneys. LEAVE OF COURT, receivers, suits against, without, 1053. LETTERS, seizure and detention of, carried contrary to law, 2242. same, disposal of, 2243. LETTERS ROGATORY, depositions in foreign country, 523. LIBRARY, circuit court of appeals. Rule 31 C. C. A. (6th circuit) Appendix. Rule 33 C. C. A. (7th circuit) Appendix. LIEN, attachment, 620. decree equity suits, 1083. enforcement of, venue, 170. execution, not devested by formation of new district, 788. judgment law actions, 787. not devested by creation of new district, 788. venue, 166. vessel for repairs, etc., 2240. 1004 INDEX LIFE IMPRISONMENT, when substituted for death penalty, 2164. LIMITATIONS, see Statute of Limitations, ch. 13. LITTLE AND BROWN'S EDITION, Federal laws, evidence, 421. same, supplement Revised Statutes, 422. LOCAL SUIT, venue of, subject-matter partly within different districts, 165. venue of, against defendant in different district, same siate, 164. LOST OR DESTROYED JUDICIAL RECORDS, copies as Evidence, see Restoration of Records, 430. LOST RETURNS AND OFFICIAL PAPERS, judicial officers, copies as evidence, 434. LOST SUPREME COURT RECORD, copies as evidence, 432. LOUISIANA, district, terms and places of holding court, 116. M. MAINE, districts, terms and places of holding court, 117. MAINTENANCE, court of claims, 2303. MAKING UP RECORDS, circuit court of appeals, Addenda Rule 45 C. C. A. Appendix. MANDAMUS, circuit court of appeals, Rule 33 C. C. A. (6th circuit) Appendix. Supreme Court, 2459. same, to revise and correct proceedings of lower courts, 2021. MANDATE, 2086, circuit court of appeals. Rule 32 C. C. A. Appendix. Rule 29 C. C. A. (6th circuit) Appendix. Rule 30 C. C. A. (7th circuit) Appendix. MANNER, defensive pleading at law, 674. , INDEX 1005 MARITIME, liens on vessels for repairs, etc., 2240. MARITIME CASES, summary several jurisdictional provisions, 360. MARRIED WOMEN, Diverse citizenship of, 238. MARSHAL, circuit court of appeals, Rule 6 C. !. A. Appendix. civil rights laws, fees of, 544. court of customs appeals, 2256. district court, 32. duties as to alien enemies, 198. fees, district court, 543. Supreme Court, 2453. MARYLAND, districts, terms and places of holding court in, 118. MASSACHUSETTS, districts, terms and places of holding court in, 119. MASTERS IN CHANCERY, ch. 35, appointment, 1030. compensation, 1030. costs, 1034. depositions before, 520. exceptions to report, 1034. generally, 41. hearing of reference, 1032. method of proceedings, 1033. notice of reference, 1032. reference of exceptional matters to, 1031. regulation of proceedings, 1033. report of, 1034. MESSENGERS, Supreme Court, 2453. METHOD, appeals, taking of, circuit court of appeals. Addenda Rule 45 C. C. A. Appendix, master in chancery proceedings, 1033. trial, law actions, 731, 732. MICHIGAN, districts, terms and places of holding court, 120. 1006 INDEX MILEAGE, amount of, for witnesses, 489, 490. double for witnesses, prohibited, 490. fees of witnesses, see Fees; Witnesses, 488, 489, 490, 493, 496. witnesses, amount and fees, 488, 489, 490. double prohibited, 490. generally, 488, 489, 490. MINNESOTA, districts, terms and places of holding court, 121. MISCELLANEOUS MATTERS, LAW ACTIONS, ch. 24. MISFEASANCE DEPUTY CLERK, Supreme Court, 2452. MISSISSIPPI, districts, terms, and places of holding court, 122. MISSOURI, districts, terms and places of holding court, 123. MISTAKES, decree, equity suits, correction of, 1081. MODELS, circuit .court of appeals. Rule 34 C. C. A. Appendix. Rule 32 C. C. A. (3d, 7th, 8th, and 9th circuits) Appendix. MODE OF PROOF, trial, law actions, 745. MODE OF RECOVERY, costs and fees, 538. MODE OF TAKING, Depositions de bene esse, 509. taking depositions de bene esse, 509. MODIFICATION, temporary restraining order, 1059. MONEY, paid into court, 2238. withdrawal of, paid into court, 2239. MONOPOLIES, summary of several jurisdictional provisions, 379. MONTANA, districts, term and places of holding court, 124. MOTION, better statement, to obtain (equity), 934, 954, 978. certainty, to obtain (equity), 934, 954, 978. circuit court of appeals. Rule 21 C. C. A.; Rule 24 C. C. A. (6th circuit) Appendix, defect of parties, to dismiss for (equity), 956, 957. defensive pleading in equity, see that heading, ch. 33. definiteness, to obtain, equity, 934, 954, 978. dismiss, to (equity). decree pro confesso, saves from, 933. on point of law, 956. time for answer after overruling, 867. equity suits, see that heading, ch. 29. grantable of course (equity), 953. impertinent matter, to remove (equity), 955. irrelevant matter, to remove (equity), 955. motion day (equity), 951. new trial (law), ch. 26, 764. execution, stay of pending, 793. notices (equity), 952. notice of orders (equity), 958. obtaining better statement and particulars (equity), 934, 954, 978. particulars to obtain (equity), 934, 954, 978. produce books or papers, 712. redundant matter, to strike (equity), 935, 955. removal of redundant, scandalous, or impertinent matter (equity), 935, 955. scandal, to remove (equity), 935, 955. statement, better and particulars (equity), 934, 954, 978. strike out, answer in equity, counterclaim or set-off, 978. counterclaim or set-off in answer in equity, 978. defense (equity), 873. redundant, scandalous, or impertinent matter (equity), 935, 955. set-off in answer in equity, 978. transfer action to law side, 936. MOTION DAY IN EQUITY, 951. N. NAME, circuit court of appeals. Rule 1 C. C. A. Appendix. 1 Rule 2 (6th circuit) under Rule 1 C. C. A. Appendix. 1008 INDEX NATIONAL BANKS, diverse citizenship of, 237. exempt from attachment, 610. Federal question not necessarily involved when same is party, 218. organization certificates, copies as evidence, 439. injunction against receivership proceedings, 1070. injunction, no interlocutory against in state courts, 1071. receivership, injunction against, 1070. stockholder's liability statute of limitations, 412. summary of several jurisdictional provisions, 372. NATURALIZATION LAWS, statutes of limitations for offenses against, 397. NAVY, records, copies as evidence, in suits against delinquents, 441. NAVY COURT MARTIAL, indictment, 2122. NEBRASKA, districts, terms and places of holding court, 125. NECESSARIES, lien on vessel for, 2240. NE EXEAT, writ of, 1067. NEW DISTRICT CREATED, venue of action, 169. NEW HAMPSHIRE, districts, terms and places of holding court, 127. NEW JERSEY, districts, terms and places of holding court, 128. NEW MEXICO, districts, terms and places of holding court, 129. NEW TRIAL, court of claims, 2325. execution, stay of, pending motion, 793. law action, 592. motion for, 764. NEW YORK, districts, terms and places of holding court, 130. INDEX 1009 NEVADA, districts, terms and places of holding court, 126. NON LOCAL SUITS, venue in district of more than one division, 163. venue in state of more than one district, 162. NONSUIT, costs against informer on penal statute, 566. costs for defendant, 565. law action, 713. NORTH CAROLINA, copies of clerk's new records as evidence, 456. districts, terms and places of holding court in, 131. NORTH DAKOTA, districts, terms and places of holding court, 132. NOTICE, circuit court of appeals. Rule 38 C. C. A. (8th circuit) Appendix, commissioner, depositions before, 521. defensive pleading in equity, 951. depositions before commissioner, 521. de bene esse, 507. examiner, 521. master, 521. equity suits, 952. orders in, 958. examiner, depositions before, 521. garnishment, 637. habeas corpus, service on state attorney general. 2212. injunction against enforcement of state laws, 1064. master in chancery, depositions before, 521. orders, equity, 958. reference to master in chancery, 1032. removal of causes, classes 1, 2, 3, 293. temporary restraining order, 1057. to produce books or papers, 712. NUMBER, district courts in the several states, see Districts, ch. 4. judges in the several districts, 22. O. OATHS, 714. court's power to administer, 1069. officers authorized to administer in investigations, 2241. Montg. 64. 1010 INDEX OBJECTIONS, answer in equity, to, 978. depositions, equity rule as to, 511. evidence, Rule 12 C. C. A. Appendix. OBSTRUCTIONS, in rivers, harbors and canals, jurisdiction of district court over, 200. OBTAINING, statement and particulars (equity), 954. OFFENSES, see also Crimes and Offenses. extradition, none for political, 2182. prosecution, method of, 2108. statutes of limitations, 391, 397. summary of several jurisdictional provisions, 359. venue, 174. OFFICE, suit to recover possession of, summary of several jurisdictional pro- visions, 371. OFFICERS, aliens, against Federal, removal of causes, 301. authority to administer oaths in investigations, 2241. authorized to hold to security of the peace and good behavior, 2128. certiorari, removal of cases against congressional or revenue, 307. circuit court of appeals, Rule 6 C. C. A. Appendix. congressional, removal of causes against, 304. court of claims, 2301. depositions, de benc esse, before whom taken, 506. district court, ch. 2. executions do not issue against revenue, when, 792. Federal, see that heading. question arises in suit involving Federal, 216. habeas corpus in suits against, 307. judicial, see Judicial Officers. revenue, see Revenue Officers. executions do not issue against, when, 792. removal of causes against, 304. removal of causes against, 301 et seq. suits by, summary of several jurisdictional provisions, 351. witnesses, not disqualified as in suits for fines, penalties, or forfeitures, 473. witness fees, court officer not entitled to, 549. OFFICIAL PAPERS, copies of lost or destroyed, as evidence, 434. INDEX 1011 OHIO, districts, terms and places of holding court in, 133. OKLAHOMA, districts, terms and places of holding court, 134. OPINIONS, circuit court of appeals. Rule 28 C. C. A. Appendix. Rule 25 C. C. A. (6th circuit) Appendix. Rule 26 C. C. A. (3d and 7th circuits) Appendix. ORAL ARGUMENTS, see Arguments. ORDER, see also Decree, Equity Suits, ch. 38. defensive pleading at law, 671. enforcement of, differences law and equity, 6. interlocutory, time for appeal from, 2024. notice of, in equity, 958. preliminary injunction, see Restraining Order. OREGON, districts, terms and places of holding court, 135. ORGANIZATION, circuit court of appeals, ch. 48. court of claims, 2300, 2301. court of customs appeals, 2252. district court, chs. 2 and 3. general statement as to district court, 60. Supreme Court, ch. 49. ORIGINAL JURISDICTION, see Jurisdiction, district court, 197. diverse citizenship, ch. 8. Federal question as a ground of, 220. removal, ch. 10. Supreme Court, 2458. P. PAMPHLET COPIES, of statutes and bound copies of acts, aa evidence, 428. 1012 INDEX PAPERS, 'ERS, deposition under commission, production of, 517. motion and notice to produce, 712. production of, on deposition under commission, 517. PARDON, President's power, 2167. PAROLE, of prisoners, 2168. PART, of defendants not found, venue, 173. PARTICULARS, motion for, equity, 954. PARTIES, allegations as to, in bill in equity, 894, 897. ambassador as, in Supreme Court, 2458. appeal, on, 2051. banks, national, diverse citizenship of, 237. bill in equity, allegations of residence and citizenship of, 894, 897. 908. citizens District of Columbia not included in term "diverse citizenship," 232. citizens as, in Supreme Court, 2458. consul as, in Supreme Court, 2458. continuance for death of, 691. corporation, diverse citizenship of, 234. defect in, bill in equity, 905, 957. District of Columbia not a citizen, 232. diverse citizenship, 247. domestics of ambassadors, etc., as. in Supreme Court, 2458. Federal officers as, raises a Federal question, 216. not ready. Rule 22 C. C. A. Appendix. party U. S. in partition suits, summary of several, 381. personal representatives, 239. process in equity for or against persons not parties. 915. proper in bill, 897. public minister as, in Supreme Court, 2458. residence of, allegations, 894. servants of ambassadors, etc., as in Supreme Court, 2458. shifting to create diverse citizenship, 247. state as, in Supreme Court. 2458. territorial citizens not included in term "diverse citizenship," 232. vice consul as, in Supreme Court, 2458. writ of error, 821. INDEX 1013 PARTITION SUITS, United States a party, summary of several jurisdictional provisions, 381. PARTNERSHIP, diverse citizenship of, 236. PATENT CASES, attendance of witnesses, enforcing, 492. claim for unlicensed use by government, 2313. costs in infringement cases, 568. copies foreign letters as evidence, 451. enforcing attendance and testimony of witnesses in contested cases, 402. expert witnesses, 1001, 1005. statute of limitations, infringements, 410. summary several jurisdictional provisions, 364. testimony, enforcing in contested cases, 492. venue, infringement suits, 171. witnesses, enforcing attendance and testimony of witnesses in contested cases, 492. PATENT OFFICE, records, letters, patents, etc., copies as evidence, 450. PATENTS, INDIANS, statutes of limitations, 407. PATENTS, LAND, statutes of limitations to vacate, 405. PATENTS, RAILWAY, statute of limitations, 406. PATENTS WAGON ROAD, statute of limitations, 406. PAYMENT, amount in controversy, effect on. 267. money into court, 2238. same, withdrawal of, 223't. PEACE, officers, authorized to hold to security of, 2123. PENAL LAWS, see Criminal Procedure, ch. 42. PENAL STATUTE, costs against informer on nonsuit or discontinuance. 566. costs of defendant, 565. 1014 INDEX PENALTIES, customs revenue laws, statutes of limitations, 399. Federal laws, statutes of limitations, 398. special bail in suit for, 2228. summary of several jurisdictional provisions, 36C. venue, 175. witnesses, officers and informers not disqualified in suits for, 473. PENALTY, excluding jurors contrary to civil rights acts, 736. PENNSYLVANIA, districts, terms and places of holding court, 136. PEREMPTORY CHALLENGES, criminal cases, 2144. excessive, in criminal cases disregarded, 2145. PERJURY, indictment for, 2120. subornation of, indictment for, 2121. witness, does not disqualify, 471. PERPETUATION OF TESTIMONY, depositions under state laws, when admissible, 518. PERSONAL PROPERTY, execution, appraisal on, 804. PERSONAL REPRESENTATIVE, diverse citizenship of, 239. PERSONS, not parties, process in equity in behalf ot- against, 915. producing, habeas corpus, 2208. PETITION, see also Forms, subheading Petitions. court of claims, 2316. same, insufficient, 2318. to revise in bankruptcy, circuit court of appeals. Rule 34 C. C. A. (6th circuit) Appendix. Rule 36 C. C. A. (1st, 4th, and 8th circuits) Appendix. Rule 37 C. C. A. (8th circuit) Appendix. Rule 38 C. C. A. (2d and 4th circuits) Appendix. PETIT JURIES, see also Juries, talesmen for, 741. INDEX 1015 PHILIPPINE ISLANDS, appeal and error to supreme court, 2016. procedure on appeal from supreme court of, 2078. PHYSICAL EXHIBITS, circuit court of appeals. Rule 30 C. C. A. (6th circuit) Appendix. PILLORY, abolished, 2166. PLACES, criminal law of the United States applicable, 2101. executions run where, 795. execution, sale of real estate, 800. for holding district court in the various states, ch. 4. see also Districts, jury, from where drawn, 738. PLEA, not guilty, standing mute, 2140. PLEADING, see also Procedure and under headings of various kinds of pleadings, amendment, see that heading. answer in equity, 976. bill in equity, 904. defensive, at law, 676. amount in controversy, 265. answer at law, see Defensive Pleading at Law, ch. 22. answer in equity, 973. is not evidence, 971. bill in equity, see that heading, 892, ch. 30. differences Federal and state, 891. caption of equity bill, 893. cause of action, equity, 896. certainty, motion for in equity, 934, 954, 978. citizenship of parties, equity, 894. complaint (see Initial Pleading) at law, ch. 19. complaint, equity, differences Federal and state, 891. conformity, at law to state law, ch. 18. conformity, defensive at law to state law, ch. 22. contents bill in equity, 892. counterclaim, equity, see that heading, 980. decree pro confesso, ch. 32. to save from, 932. equity, ch. 38. default at law, 672. default in equity, to save from, 932. 1016 INDEX PLEADING continued. defense, answer in equity, ch. 34. defensive at law, ch. 22. defensive in equity, time for, 930. definite, motion to make, equity, 934, 954, 978. differences between law and equity, 6. bill in equity, Federal and state, 891. complaint at law, Federal and state, 600. differences, Federal and state practice, 10. discovery at law, 711. answer in equity, 975. bill in equity, 900. effect of answer in equity, 970, 971. counterclaim or set-off in equity, 980, 981. failure to plead counterclaim or set-off, 983. equity suit (see that heading), equitable defenses law actions, 675. evidence, answer in equity is not, 971. Federal question, where must appear, 224, 225. forms, see that heading, general statement. answer in equity, 970. bill in equity, 890. counterclaim or set-off in equity, 980. grounds of jurisdiction, allegations of, in bill, 895. see also heading Grounds of Jurisdiction, impertinent matter in answer in equity, motion to strike, 935, 955, 978. independent suit in equity in counterclaim, 981. initial, see Initial Pleading. pleading at law (ch. 19), in equity (ch. 30). Federal question must show in, 224, 225. irrelevant matter, motion to strike in equity, 935, 955, 978. issue in equity, see heading Issue, 979. jurisdiction, ground of, see heading Jurisdiction, 895. manner of defensive, at law, 674. motions, see that heading, objections to answer in equity, 978. order defensive at law, 671. parties, see that heading. allegations as to in bill in equity, 894, 897. citizenship, allegation of, in bill, 894. proper, allegation of, in bill, 897. residence, allegation of, in bill, 894. prayer of bill in equity, 898. proper parties, allegations in bill in equity, 897. redundant matter, motion to strike (equity), 935, 955, 978. removal of causes, ch. 10. reply to counterclaim or set-off in equity, 979. residence of parties, allegation of, in bill, 894. INDEX 1017 PLEADING continued. scandal, motion to strike (equity), 935, 955, 978. scope defensive, at law, 674. set-off, see Counterclaim in Equity, 980, 981. state practice. bill in equity, differences Federal and state, 891. complaint at law, differences Federal and state, 600. differences, Federal and state practice, 10. statement of cause of action in bill in equity, 896. sufficiency defensive at law, 674. supplemental answer in equity, 979. time for answer in equity, (see heading Time), 972. counterclaim in equity, 972. defensive, at law, 671. reply to counterclaim in equity, 979. set-off in equity, 972. POLITICAL OFFENSE, extradition not allowed, 2182. POLYGAMY, challenges in prosecution for, 2146. PORTO RICO, appeal and error to supreme court, 2013. procedure, appeal from supreme and district courts of, 2077. POSSESSORY ACTION, mining titles, government title does not affect, 460. POSTAL LAWS, continuance in suits under, 694. credits in suits, 2235. interest in suits, 2236. letters, seizure of, 2242. same, disposition of seizures, 2243. summary several jurisdictional provisions, 363. POSTAL SUITS, attachment, 625, 633. garnishment, 631. POSTOFFICE, copies of Department demand on postmasters as evidence. 446. records, copies as evidence, 445. PRACTICE, s c Procedure. admission to district court, 71. circuit court of appeals, Rule 8 C. C. A. Appendix. 1018 INDEX PRACTICE continued. court of claims, disqualification for, 2302. rules of, 2315. differences in law and equity, 6. Federal and state, 10. equity, summary, ch. 29. law summary, ch. 18. PRAYER, bill in equity, 898. PREC1PE, process in equity, for, 912. subpoena in equity, 861. PREJUDICE, district judge, designation of another judge of affidavit filed, 31. removal of causes for, 286, 295. PRELIMINARY INJUNCTIONS, see Restraining Order and Injunctions. PREPARATION, record on appeal, 2067. record on error, 837. PRESERVATION OF LIEN, upon transfer or creation of new district, venue, 170. PRINTED, and bound copies of acts as evidence, 429. copies of patent, specifications and drawings as evidence, 452. PRINTER'S FEES, 557. folio defined, 558. PRINTING, appeal record, circuit court of appeals, 2069. Rule 19 C. C. A. (6th circuit) Appendix. Rule 23 C. C. A. Appendix. Rule 40 C. C. A. (8th circuit) Appendix. Addenda Rule 45 C. C. A. Supreme Court, 2070. PRIORITIES, attachments, 621. revenue cases, 2222. state a party, cases where, 2222. INDEX 1019 PRISONER, see that subhead under heading Criminal Procedure, custody. circuit court of appeals, Rule 33 C. C. A. Appendix. Rule 31 C. C. A. (3d and 7th circuits) Appendix. Rule 32 C. C. A. (6th circuit) Appendix, extradition, see that heading, ch. 43. PRIVILEGE, removal by writ of error, state court, decision against, 337. PRIZE CASES, appeals to Supreme Court, 2004. witness fees, how paid, 554. PROCEDENDO, circuit court of appeals. Rule 44 C. C. A. (8th circuit) Appendix. PROCEDURE, after removal, 294, 312. aliens, suits against Federal officers, on removal, 301. appeal, see that heading, ch. 41. appellate, see that heading subhead Procedure, ch. 28, 42. appellate court after transcript filed, 843, 2083. bias, on removal for, 295, 298. Civil Rights Cases, on removal of, 302, 303. congressional officers, on removal of suits against, 306, 307. custom law seizure cases, 2226. differences between law and equity, 6. Federal and state, 10. diverse citizenship, removal of causes, 2!)0 et seq. equity, see Equity Suit, ch. 29. Federal officers, aliens against, removal, 301. congressional, removal of suits against, 305 et seq. revenue, removal of suits against, 305 et seq. Federal question, removal of causes, 290 et seq. injunction on distress warrant against officer for failure to account for public money, 1073, 1074. land grant cases on removal, 300. law, see Law Actions, ch. 18. officers, aliens against, removal, 301. congressional, removal of suits against, 305 et seq revenue, removal of suits against, 305 et seq. prejudice, on removal for, 295 et seq. remanding cases removed, see Remand, removal of causes, ch. 10. removal by writ of error to state court, ch. 11, 339. revenue officers, removal of suits against, 305 et seq. 1020 INDEX PROCEDURE continued. separable controversy, removal of, 290 et seq. state court, removal by writ of error from, 339. temporary restraining order when granted without notice, 1058. writ of error, see that heading. district court to circuit court of appeals, 826. forma pauperis, 835. state court, to, 339. summary, 839. territories to, 841. PROCEEDINGS, see Procedure and Pleading, equity, summary, ch. 29. forma pauperis. C. C. A. Rule 17 (6th circuit) Appendix, law summary, ch. 18. PROCESS, alias subpoena, equity, 914. amendment at law, 653. circuit court of appeals. Rule 9 C. C. A. Appendix. Rule 8, 6th circuit under Rule 9 C. C. A. Appendix, equity suits, ch. 31. for or against persons not parties, 915. form, equity, 911, 919. of return, equity, 918, 919. law conform to state laws, exceptions, 652. forma paupei'is suits, 658. general statement, law actions, 650. issuance of equity, 911. law action, 583, ch. 21. mesne, in equity, the subpoena, 910. manner of service, 655, 917. precipe for, in equity, 912. publication of, 656. return of, in equity, 911. form, 918, 919. time for, 864, 911. service of, by whom made, 654, 916. by publication, 656. manner of, 655, 917. time for, 864, 911. special appearance to quash, 657. subpoena is, 910. summons in equity is the subpoena, 910. time for return, 864, 911. witnesses in criminal cases, 479. see also Subpoena. INDEX 1021 PROCTORS, admission to Supreme Court, 2455. fees of, 539. PRODUCTION, books and papers under customs, revenue laws, 712. books, documents and papers, depositions under commission, 517. person, habeas corpus, 2208. PROHIBITION, circuit court of appeals. Rules 33 C. C. A. (6th circuit), Appendix. Supreme Court, writ of, 2459. PROOF, differences in law and equity, 6. infringement suits, 1012. mode, in equity, 1002. in law actions, 745. records, on removal when copies refused by state court 'clerk, 308. PROPER PARTIES, see also Parties, bill in equity, 897. PROPERTY, attachment of, 615. condemnation of insurrectionary, venue, 177. PROSECUTION, by district attorney, 2139. criminal offenses, method of, 2108. failure to file rebate tariffs, venue of action, 179. PROVISIONAL, depositions. see Depositions de Bene Esse. remedies. attachment, ch. 20. garnishment, ch. 20. preserved on removal of causes from state to Federal courts, 311. PUBLICATION, depositions in equity on filing, 522. execution, sale of real estate, 801. interstate commerce reports and decisions as evidence, 461. summons, 656. 1022 INDEX PUBLIC LANDS, unlawful inclosure of, summary of several jurisdictional provisions, 377. PUBLIC MINISTERS, Supreme Court, suits against, in, 2458. PUBLIC MONEY, continuance in suit against delinquent, 683. Q. QUALIFICATIONS, jury, trial laws actions, 734. civil rights acts, 735. penalty for exclusion, 736. receivers, 1051. QUESTION, arising under the Constitution, 219, 353, 2219. Federal laws, 220, 354. treaties, 220, 355. of jurisdiction, what is, 2002. QUORUM, circuit court of appeals, Rule 4, C. C. A. Appendix. court of claims, 2304. court of customs appeals, 2253. Supreme Court, 2450. R. RAILWAY, companies, claims for transportation furnished the government, 2312. patents, statute of limitations, 406. RATE OF INTEREST, see Interest. REAL PROPERTY, receiver's jurisdiction over, when outside of district within circuit, venue, 167. sale of, see Executions. REBATE, tariffs giving, prosecution for failure to file, venue, 179. RECEIVERS, generally, 41. jurisdiction over real property outside district in circuit, venue, 167. manage properties according to state laws, 1052. INDEX 1023 RECEIVERS continued. qualifications of, 1051. suits against, without leave of court, 1053. RECEIVERSHIP, appeals from district court to circuit court of appeals, 2032. injunction against proceedings against national banks, 1070. RECLAMATION ACT, jurisdiction district court, 210. RECOGNIZANCE, criminal cases, witnesses, 480. in Vermont, 481. on behalf of United States district attorney, 482. forfeiture of, 2134. remittance of, 2134. witnesses in criminal cases, 480. in Vermont, 480. on behalf of United States district attorney, 482. RECORD ON APPEAL, circuit court of appeals. Rule 21 C. C. A. (6th circuit) Appendix, copy of C. C. A. Rule 27, C. C. A. Appendix, diminution of, 2085. district to Supreme Court, one record sufficient, 2071. instructions as to making up for circuit court of appeals. Addenda Rule 45 C. C. A. Appendix, one sufficient where both parties appeal, 2071. printing of (see that heading) on appeal to Supreme Court, 2070. of C. C. A. 2069. reduction and preparation of, 2067. reduction and preparation of, under equity rules, 2068. translations. Rule 15, C. C. A. Appendix. Rule 16, 3d circuit under Rule 15 C. C. A. Appendix, writ of error, 836. RECORDS, copies as evidence. clerk's new, 455, 456. Commissioner of Indian affairs, 449. Comptroller of Currency, 438. Department of Interior, 444. Executive Departments, 436. foreign, filed in Departments relating to land title. 426. lost or destroyed, 430, 435. Patent Office, 450, 453. 1024 INDEX RECORDS continued. Copies as evidence, Postoffice, 445, 446. Navy, 441. Solicitor of Treasury, 437. state, 425. Supreme Court, lost or destroyed, 432. Treasury Department, 441, 443. war, in suits against delinquents, 441. district court, place for keeping, 68. transfer of territorial, 69. judgment law actions, 785. index of, 786. restoration of, see Restoration of Records, 431-435. return of, removal of causes, 309. REDUCTION, record on appeal, 2067. record on error, 837. REDUNDANT MATTER, motion to strike, equity, 935, 955. REFERENCE, masters in chancery, costs, 1034. exceptions, 1034. hearing, 1032. notice, 1032. report, 1034. REGULATION, master in chancery proceedings, 1033. REGULATION OF PROCEEDINGS IN EQUITY, 880. REHEARING, circuit court of appeals. Rule 27 C. C. A. 3d, 7th, and 8th circuits) Appendix. Rule 28 C. C. A. (6th circuit) Appendix. Rule 29 C. C. A. (1st and 2d circuits) Appendix. REINSTATEMENT ON EQUITY CALENDAR, 879. RELATIONSHIP, district judge, outside judge to serve, 30. RELIEF GRANTED, differences law and equity, 6. INDEX 1025 REMANDING, cases removed from state court, 296. bias, failure to show, 297. diverse citizenship, class two, 298. Federal question, class one, 298. fraud for, 310. generally, 310. improperly removed, 310. prejudice, failure to show, 297. separable controversy in cases removed for bias or prejudice, 296. REMEDY, attachment, see that heading, 613. discovery, see that heading. differences law and equity, 6. equity suit, see that heading, ch. 29. garnishment, ch. 20. law action, see that heading, ch. 18. removal of causes, provisional, in state court preserved, 311. REMOVAL BY WRIT OF ERROR TO STATE COURT, ch. 11. see also Removal of Causes, ch. 10. appellate method of review state court decision, 332. authority Federal, decision against Federal, 335. decision against right, title, privilege or immunity claimed under, 337. commission, removal decision against right, title, privilege, or immunity claimed under Federal, 337. Constitution, decision against Federal, 335. decision against right, title, privilege, or immunity claimed under Federal, 337. decree removable, 333. general statement, 330. immunity, Federal, state decision against, 337. judgments removable, 333. privilege, Federal, state decision against, 337. procedure on, 339. reviewable cases, 334. right, Federal, state decision against, 337. state statutes claimed repugnant to Federal authority, state decision in favor of, 336. statute, Federal, state decision against, 337. title, Federal, state decision against, 337. treaty, Federal, state decision against validity, 335. stdte decision against right, title, privilege, or immunity claimed under, 337. Montg. 65. 1026 INDEX REMOVAL OF CAUSES, ch. 10. see also Removal by Writ of Error to State Court, ch. 11. aliens, suits against Federal officers, class six, 301. same, habeas corpus in, 303. bias of state court, class four, 286, 295. bond, diverse citizenship, 291. Federal question, 291. in state court preserved, 311. separable controversy, 291. carrier, employers' liability cases not removable, 299. certiorari, congressional officers, cases against, 307. revenue officers, cases against, 307. civil rights cases, class seven, 302. habeas corpus, 303. remanding, 310. common carriers, employers' liability cases not removable, 299. congressional officers, certiorari in cases removed against, 307. officers, class eight, 304 et seq. habeas corpus in cases removed against, 307. constitutional question a ground for, 221, 353. dismissal of suits fraudulently or improperly removed, 310. diverse citizenship, bond, fl 291. class two, 288. remanding or dismissing cases fraudulently or improperly removed, 310. procedure, 290 et seq. duty of state court on removal of causes, 292. employers' liability, common carrier cases not removable, 299. Federal officers, aliens against, 301. certiorari, 307. congressional, against, 304. habeas corpus, 303. 307. revenue against, 304. Federal question, bond, 291. class one, 287. as a ground, 221. dismissing cases improperly or fraudulently removed, 310. procedure, 290 et seq. fraud, ground for dismissal or remanding, 310. general statement, 285. grounds, 285. habeas corpus, civil rights cases, 303. congressional officers, 307. revenue officers, 307. jurisdiction, see that heading. class one, Federal question, 286, 287. class two, diverse citizenship, 286, 288. class three, separable controversy, 286, 295. class four, bias or prejudice, 286, 295. INDEX 10 27 REMOVAL OF CAUSES continued. jurisdiction class five, land grants, 300. class six, aliens against Federal officers, 301. class seven, Civil Rights Cases, 302. class eight, against congressional or revenue officers, 304. judge of state court, duty on removal of case, 292. land grant cases, class five, 300. laws of United States, question arising under, ground for, 221, 354. notice, removal of causes, classes 1, 2, 3, 293. officers, aliens against Federal, 301. certiorari in cases against, 307. congressional, against, 304. habeas corpus, 307. revenue against, 304. pleading, see Procedure below. prejudice, in state court, class four, 286, 295. procedure, after removal in classes, 1, 2, 3, 294. generally, 312. aliens against officers, 301. bias of state court, 295 et seq. Civil Rights Cases, 302, 303. congressional officers. 306, 307. procedure, diverse citizenship, 290 et seq. Federal officers, 301 et seq. Federal question, 290 et seq. land grants, 300. officers, 301 et seq. prejudice of state court, 295 et seq. remanding, see that heading. revenue officers, 305 et seq. separable controversy, .290 et seq. proceedings, see Procedure, above. after removal in classes 1, 2, 3, 294. generally, 312. proof of records of state court when copies refused by clerk, 308. records of state court, return of, 309. remanding, bias, failure to show, 297. diverse citizenship, class two, 298. Federal question, class one, 298. fraud, 310. generally, 310. improperly removed cases, 310. prejudice, failure to show, 297. separable controversy in cases removed for bias or prejudice, 206. remedies, provisional, in state courts, preserved, 311. return of record from state court, enforcement of, 309. revenue officers, cases against, 304. certiorari and habeas corpus, 307. 1028 INDEX RKMOVAL OF CAUSES continued. ^'parable controversy, class three, 286, 289. remanding in cases removed for bias or prejudice, 296. state court, bond in and provisional remedies, preserved on removal, 311. summary, see heading Summaries, Jurisdictions, etc., ch. 12. treaties, question arising under, ground for, 221, 355; REPAIRS, lien on vessels for, 2240. REPLEVIN, revenue laws, none for property taken under, 2233. REPLY, answer in equity, when required to, 979. counterclaim or set-off in equity, 979. issue on, 875. time for, 874. REPORTER, Supreme Court, 2454. REPORTS, circuit court of appeals, 2409. court of claims, 2329. district court decisions, 20. investigations of accidents from failure of boilers, not admissible in dam- age suits, 459. master in chancery, 1034. Supreme Court, 2454. REPRESENTATIVE OF DECEASED PARTY, procedure in Supreme Court when without jurisdiction of trial court, 2089. procedure in circuit court of appeals, when without jurisdiction of trial court, 2091. REPRESENTATIVES, diverse citizenship of, 239. RESCUE, extradition, intrastate, penalty .for, 2196. from foreign country, penalty for, 2194. RESIDENCE, assignor of plaintiff, 195. bill in equity, allegation of, 894. corporations, allegations of, 234. INDEX 1020 RESPONSE, circuit court of appeals. Rule 39 C. C. A. (8th circuit) Appendix. RESTORATION OF RECORDS, judicial, 431. in which United States are disinterested, by United States attorneys, 435. service of notice on nonresidents, 433. RESTRAINING ORDER, see also Injunction, bond, 1056. dissolution, 1059. filing, 1060. national bank, not to issue in state court, 1071. notice of, 1057. procedure when issued without notice, 1058. RETURN, amendment, habeas corpus, 2210. contract to Returns Office Department of the Interior, copy as evidence, 444. copies of lost or destroyed, as evidence, 434. denial of, on writ habeas corpus, 2210. form of, habeas corpus writ. 2207. process in equity, 918, 919. habeas corpus. amendment, 2210. denial of return, 2210. form of return, 2207. time of return, 2206. process in equity, 911, 918, 919. removal of causes, enforcement of return of record from state to Federal court, 309. rules governing in equity, 919. subpoena in equity, 864, 911, 918. time of, habeas corpus writ, 2206. in equity, 864, 911. venire for jury, law actions, 740. writ of error Rule 14, C. C. A. Appendix. form of (8th circuit) Appendix. Addenda to Rule 45 C. C. A. (8th circuit) Appendix. REVENUE, costs against nonsuited plaintiff in action against officer, double, 563. costs, none against United States upon information, 560. costs, seizure cases, 561. motion and notice to produce books and papers, 712. 1030 INDEX REVENUE continued. officers, see Revenue Officers. priority of cases, 2222. prosecutions of fraud, by district attorney, 2224. replevin does not lie for property taken, 2233. statutes of limitations, 395. suits in name of United States, 2223. summary of several jurisdictional provisions, 362. 369, venue, 176. witnesses not disqualified by claiming compensation. 472. REVENUE OFFICERS, certiorari in removal cases, 307. executions, when do not issue against, 792. habeas corpus, in removal of cases against, 307. procedure in removal cases, 305. removal of causes against, class eight, 304. REVERSAL, facts, none for error in, 844. REVIEW, appellate court. differences, law and equity, 6. certiorari, final decisions of circuit courts of appeal. 2074. District of Columbia court of appeals by Supreme Court, 2019. state court decisions, time for, 2056. writ of error to state court, 334. REVISED STATUTES, authorized editions, 421, 423. . Richardson's Supplement of Revised Statutes as evidence, 423. REVOCATION, of appointment of outside judges, 27. RHODE ISLAND, districts, terms and places of holding court, 137. RIGHT, removal by writ of error, state court decision against, 337. RIVERS, jurisdiction of district court to remove obstructions in, 200. ROOMS FOR HOLDING COURT, court of customs appeals, 2257. INDEX 1031 RULES, admiralty, circuit court of appeals follow the Addenda to Rule 45 C. C. A. Appendix, admission to practice, circuit court of appeals, 2408. court of claims, 2302. district court, 71. Supreme Court, 2455. adopting state attachment and garnishment remedies, 611. circuit court of appeals for all circuits, Appendix, court of claims, 2315. court of customs appeals, 2252. deposition, form of, 510. objections to, 511. signing, 512. determining jurisdiction circuit court of appeals and Supreme Court when question of jurisdiction in issue, 2003. equity, annotated, in, Appendix. suit, 8, 73. summary of proceedings, ch. 29. regulating proceedings, 880. law actions, 7, 72, 580. Supreme Court, in, Appendix. RULINGS, exceptions to, in law actions, 746, 747. trial law actions, taking of, 746. time for taking, 747. S. SALARY, see headings of various officers. SALE OF, personal property. appraisal of, on execution, 804. place of sale on execution, 800. real estate. marshal's successor to continue proceedings, 802. place of sale on execution, 800. purchase by government in government suits, 803. SCANDAL, equity suit, removal of, 935, 955, 978. SCIRE FACIAS, writ of, 1068. 1032 INDEX SCOPE, defensive pleading at law, 674. SEAL, circuit court of appeals, Rule 2 C. C. A. Appendix. 2, Rule 2, 6th circuit under Rule 2 C. C. A. Appendix. Department of Commerce and Labor, judicial notice of, 457. SEAMAN, arrest, deserting foreign vessel, 2197. consul's jurisdiction over, 206. witness fees when sent home to give testimony in criminal cases, 552. SEARCHES, under custom laws, 2225. SEDUCTION OF FEMALE PASSENGERS ON VESSELS, statutes of limitations, 396. SEIZURES, burden of proof under customs duties laws, 458. for embargo, forfeiture, insurrection, venue, 178. letters carried contrary to law, 2242. disposal of, 2243. procedure in cases under custom laws, 2226. summary of several jurisdictional provisions, 367. under custom laws, 2225. SENTENCES, prize cases, appeals to Supreme Court, 2004. SEPARABLE CONTROVERSY, bo.ul in removal cases, 291. remanding of, in cases removed for bias or prejudice, 296. removal of causes, 286, 289. SERVANTS OF AMBASSADORS, Supreme Courts, suits against in, 2458. SERVICE, attachment not basis for substituted, 613. by whom made in equity, 654, 916. form of return of, in equity, 918. manner of, in equity, 917. mesne process in equity, 916, 917. papers, circuit court of appeals. Rule 9, 6th circuit, Appendix, process in equity, by whom, 654, 916. manner of, 655, 917. INDEX 1033 SERVICE continued. process in equity return, form of, 918. return of, 911. return, time for, 864, 911. publication of, 656. return of, process in equity, 911. form on process in equity, 918. time for in equity, 864. subpoena, by whom, 654, 916. manner of, 655, 917. return of, 911. form of, 913, 918. time for, 864, 911. summons in equity, see Subpoena, 654, 655, 916, 917. time for, in equity, 864, 911. SESSIONS, see also Terms. circuit court of appeals, Rule 3 C. C. A. Appendix. Rule 36 C. C. A. (9th circuit) Appendix, court of claims, 2304. customs appeals, 2258. district court, ch. 4. Supreme Court, 2456. SET-OFF, see also Counterclaim. amount in controversy, effect on, 267. answer in equity, 980, 981. court of claims, enforcement of judgment, 2331. SETTLEMENTS FOR CUSTOMS DUTIES, statutes of limitations, 400. SHIFTING, parties to create diverse citizenship, 247. SIGNING, depositions, Equity Rule as to, 512. SLAVE TRADE, statute of limitations, 394. summary several jurisdictional provisions, 361. SOLICITOR OF THE TREASURY, records, copies as evidence, 437. 10.34 INDEX SOLICITORS, see also Attorneys, fees of, 539. SOUTH CAROLINA, districts, terms and places of holding courts, 138. SOUTH DAKOTA, districts, terms and places of holding court, 139. jurisdiction district court over crimes on Indian reservations in, 204. SPECIAL APPEARANCE, to quash process, 657. SPECIAL BAIL, suits for duties, 2228. SPECIAL JURIES, see also Juries, trial law actions, 742. SPECIAL TERMS, district court, 62. Supreme Court, 2456. SPECIAL VERDICT, see Verdict, 760. SPLITTING DEMANDS, amount in controversy, state statutes do not control, 270. STATE, court records, evidence of, 424. courts, see State Courts. criminal jurisdiction not affected, 2105. district courts in, ch. 4. diverse citizenship, not citizens, 233. Federal judicial districts in, ch. 4. jurisdiction of offenses, 2104. concurrent with district court, 193. laws, see State Laws, legislative acts, evidence of, 424. party to suit in Supreme Court, 2458. practice, see State Practice, priority cases where a party, 2222. records, copies as evidence, 425. statutes, see State Laws. INDEX 1035 STATE COURTS, appeals from decisions of, time for, 2056. appellate Federal review only obtainable by writ of error, 332. bonds in, to be preserved on removal of cases, 311. court records, evidence of, 424. injunction, interlocutory, not to issue in, against national banks, 1071. staying of proceedings, 1062. jurisdiction. concurrent with district court, 193. criminal cases, 2104. provisional remedies of, preserved on removal of cases, 311. records, evidence of, 424. removal of causes from, see Removal of Causes, ch. 10 and Removal from State Court by Writ of Error, ch. 11. time for reviewing decisions of, in United States Supreme Court, 2056. writ of error, only appellate method of Federal review, 332. writ of error, time for, 825. STATE LAWS, amount in controversy, do not control, 270. appellate jurisdiction Supreme Court where Constitution claimed to be contravened, 2007. attachment laws, adoption of, 611. construction of, followed, 612. conformity of procedure at law to, see Conformity, ch. 18, ch. 22. criminal, where adopted in Federal courts, 2103. depositions to perpetuate testimony under, when admissible in Federal courts, 518. taking of, in mode prescribed by state laws. 519. evidence of, 424. garnishment laws, adoption of, 610. hearing application for injunction against enforcement, 1064. injunction against enforcement, 1063. penal, where adopted in the Federal courts, 2103. perpetuation of testimony under, depositions when admissible in Federal courts, 518. receivers manage properties according to, 1052. removal by writ of error decision in state court upholding, when claimed repugnant to Federal authority, 336. witnesses, competence of, determined' by, 470. STATE PRACTICE, adoption of, in Federal law actions, see Conformity, 7. differences from Federal practice, 10. bill in equity, 891. complaint at law, 600. STATE PROCEDURE, see State Practice and Procedure. 10-'] 6 INDEX STATUTES, see also Federal Laws and State Laws. evidence of, 421, 423. removal by writ of error of decision in state court against validity, 33. removal by writ of error to state court of decision against right, title, privilege, or immunity claimed under Federal, 337. STATUTES OF LIMITATIONS, capital offenses, 391. civil rights, conspiracy against, 409. claims against United States, 403. copyrights, 401, 411. court of claims, 2314. crimes under internal revenue laws, 395. crimes under revenue and slave trade law's, 394. criminal cases, 2107. customs laws, 399, 400. duties, 399, 400. employers' liability act, 408. forfeiture and damage suits for false claims against United States, 402. forfeiture or penalty under copyright laws, 401. general statement, 390. infringement of copyrights, 411. infringement of patent, 410. internal revenue, 394, 395. national bank stockholder's liability, 412. naturalization laws, offenses, 397. offenses capital, 391. not capital, 392. patents, Indian, 407. infringement, 410. land, 405. railway, 406. wagon road, 406. penalties and forfeitures under customs revenue laws, 399. penalties and forfeitures under Federal laws, 398. revenue laws, 395. seduction of female passengers on vessels, 396. settlements for customs duties, 400. slave trade, 394. stockholder's liability of stockholders, national banks, 412. taxes, recovery of, 404. STAY, execution, pending motion for new trial, 793. term, for one, state laws so allow, 794. STENOGRAPHER. in equity suits, 1004 INDEX 1037 STIPULATION, transfer of venue, 168. STOCKHOLDER, bill in equity of, 901. same, old and new rules compared, 902. same, purposes of the rule, 903. liability of stockholders, national banks, 412. statutes of limitations, 412. SUBJECT-MATTER, partly within different districts, venue, 165. transfer of, to give jurisdiction on ground diverse citizenship, 240. SUBORNATION OF PERJURY, indictment for, 2121. SUBPCENA, see also Subpoena in Equity. another district, witnesses in, 483. claims, cases pending in Departments, witnesses, 494. contested patent cases, witnesses in, 493. criminal cases, 479, 480, 481, 482. of witnesses for indigent defendant, 485. defendant, on behalf of indigent, for witnesses, 485. department, claims in, witnesses, 494. government, witnesses for, 484. indigent, compulsory process for witnesses, 485. patent cases, contested, witnesses in, 493. United States, on behalf of, for witnesses, 484. witnesess, see that heading, ch. 15. SUBPCENA DUCES TECUM TO REGISTER OF LAND OFFICE, 448. SUBPCENA IN EQUITY, see also Process in Equity and Service, ch. 31. alias, 914. form of, 911. return of, 918, 919. general statement, 861. issue of, 911. manner of service of, 917. mesne process, is the, 910. precipe for, 912. process in equity, is the, 910, 913. return of, 911. form of, 918, 919. time for, 864, 911. 1038 l.NDEX SUUPCENA IN EQUITY continued. service of, by whom made. 654, 916. manner of, 655, 917. summons in equity, is the, 910. time for return, 864, 911. SUBSTITUTED SERVICE, attachment not basis for, in Federal court, 613. publication of summons, 656. SUFFICIENCY, , defensive pleading at law, 674. SUITS IN EQUITY, see also Equity Suits. rules governing (see Equity. Rules and Index in Appendix) 8, 73. 880. SUMMARIES, see also General Statement. action at law, ch. 18. amount in controversy, see heading Summaries Jurisdiction. Amount. etc., below, treated in ch. 12. appeal, of procedure on, 2073. equity, ch. 29. jurisdiction, see heading Summaries Jurisdiction, etc., ch. 12. law, ch. 18. procedure on appeal, 2073. on writ of error, 839. proceedings in equity, ch. 29. removal, see heading Summaries Jurisdiction, etc., ch. 12. venue, see heading Summaries Jurisdiction, Venue, etc.. ch. 12. SUMMARIES JURISDICTION, AMOUNT AND VENUE FOR THE SEV- ERAL MATTERS OF DISTRICT COURT COGNIZANCE, admiralty, 360. aliens, 358, 373, ch. 8. amount in controversy, ch, 12, ch. 9. assignee of debentures for drawback of duties, 368. bankruptcy, 375. citizens of different states, suits between, 356. ch. 8. citizens of a state and foreign citizens or subjects, suits between, 358. ch. 8. citizens of a state and a foreign state, suits between, 357, ch. 8. civil rights laws, 370. civil suits. United States or its officers, 351. claims against United States, .376. commerce laws, 365. Constitution, 353. INDEX SUMMARIES JURISDICTION, ETC. continued, copyright laws, 364. crimes and offenses, 359, ch. 42. district court, jurisdictional provisions, ch. 12, ch. 6. diverse citizenship, 356, 357, 358, ch. 8. duties, assignee of debenture for drawback of duties, 368. equity suits, ch. 29. Federal laws, generally, 354, ch. 7. foreign citizens and citizens of a state, 358, 373, ch. 8. forfeitures, 366. on high seas, 367. general statements as to summaries, 350. immigration laws, 378. interstate commerce laws, 365. jurisdictional provisions district court, ch, 12, ch. 6. land grants of different states, 352. law actions, ch. 18. laws of the United States, generally, 354, ch. 7. maritime cases, 360. monopolies, 379. national banks, 372. offenses, 359, ch. 42. office, suit to recover possession of, 371. officer, suits by Federal, 351. original jurisdiction, district court, ch. 12, ch. 6. partition suits, United States a party, 381. patents, 364. penalties, 366. postal laws, 363. public lands, 377. removal, ch. 12, ch. 10. removal by writ of error to state court, ch. 11. revenue, 362, 369. seizures, 367. slave trade, 361. treaties, 355. torts, suits of aliens for, 373. trademark, 364. trade restraints, 379. United States, party in partition suits, 381. suits by, 351. venue, ch. 12, ch. 5. vote, protection of right to, 369. SUMMONS IN EQUITY, see also Subpoena in Equity, ch. 31. form of, 911. return of, 918, 919. issue of, 911. 1040 IND1SX SUMMONS IN EQUITY continued, manner of service of, 655. 917. precipe for subpoena, 912. return of, 918, 919. service of, by whom made, 654, 916. manner of, 917. subpoena is, 910. time for return, 864, 911. SUPERSEDEAS, 2063, bond, Rule 13 C. C. A. Appendix, bond, form of, 8th circuit, Appendix. Addenda Rule 45 C. C. A. Appendix, writ of error, 834. SUPPLEMENT, Little and Brown's evidence, 422. SUPPLEMENTAL PLEADING, answer in equity, 979. bill in equity, 907. SUPPLIES, lien on vessel for, 2240. SUPREME COURT, ch. 49, actions at law in, issues of fact, 2458. adjournments of, 2457. admission to practise before, 2455. aliens, suits between a state and, 2458. ambassadors, suits against in, 2458. appeals to, from circuit courts of appeal, time for, 2055. appeals to, from district court, time for, 2052. appellate jurisdiction, see Appellate Jurisdiction of Supreme Court, ch. 39. assistant marshal, 2453. associate justices, order of precedence, 2450. bond, of clerk, 2452. certification to, by circuit court of appeals, 2075. chief justice of, 2450. citizens, suits between a state and, 2458. clerk, bond of, 2451. liability for misfeasance of deputy, 2452. -consul, a party in, 2458. copies of lost or destroyed records as evidence, 432. death of party pending appeal to, .2089. decisions of, 2454. deputy clerks, 2452. INDEX 1041 SUPREME COURT continued. domestics of ambassadors, suits involving, 2458. duties of marshal, 2453. duties of reporter, 2454. exclusive jurisdiction of, 2458. fact, issues of, in, 2458. general statement, 3. issues of fact in, 2458. jury for issues of fact in, 2458. judges, 2450. jurisdiction, exclusive, 2458. original, 2458. law actions, issues of fact, in, 2458. mandamus and prohibition, 2459. marshal, 2453. messengers, 2453. misfeasance of deputy clerk, liability of clerk for, 2452. original jurisdiction, issues of fact, 2458. party, ambassador, as, in, 2458. citizens as, in, 2458. consul as, in, 2458. domestics of ambassadors to, 2458. public minister as, in, 2458. servants of ambassadors as, in, 2458. state as, 2458. vice consul as, 2458. printing of record on appeal to, 2070. procedure, on appeal from Alaska district court, 2076. Hawaii supreme court, 2081. Philippine Islands supreme court, 2078. Porto Rico supreme court, 2077. prohibition and mandamus, 2459. public ministers, suits against, in, 2458. quorum, 2450. reduction and preparation of record on appeal to, 2067. reports, 2454. reporter, 2454. salary, assistant marshals, 2453. justices, 2450. marshal, 2453. reporter, 2454. servants of ambassadors or other public ministers, 2458. special terms, 2456. state as a party in, 2458. terms, 2456. Monte. - i- 1042 INDEX. SUPREME COURT continued. time for appeal to, from circuit court of appeals, 2055. to, from district court, 2052. transcript in, use of circuit court of appeals record as part of, 2070. trial of issues of fact in, 2458. vacancy in, 2450. vice consul as a party in, 2458. women may practise before, 2455. writ of error (see that heading) ch. 28. writ of mandamus, 2459. writ of prohibition, 2459. SURVIVAL OF LAW ACTION, 692. T. TABLE OF COSTS, promulgated by Supreme Court contained in Rule 27 C. C. A. Appendix. Rule 29 C. C. A. (4th circuit) Appendix. TAKING EXCEPTIONS, trial, law actions, 746. TALESMEN, petit juries, 741. TARIFF LAWS, see also Revenue Laws and Customs, continuances of suits under, 696. TARIFFS, giving rebate, prosecution for failure to file, venue, 179. TAXABLE COSTS AND FEES, 531. TAXES, injunction does not issue against assessment, 1072. statutes of limitations for recovery of, 404. venue, 176. TEMPORARY RESTRAINING ORDER, see Restraining Order and Injunction, 1056, 1059, 1060, 1071. TENNESSEE, districts, terms and places of holding court, 140. TERM, execution, stay of, for one term when state law so allows, 794. INDEX. 1043 TERMS, altering, district court, effect of, 67. circuit court of appeals, Rule 3 C. C. A. Appendix. Rule 36 C. C. A. (9th circuit) Appendix, district court, see Terms of District Court, ch. 4. effect of altering, 67. special, 62. Supreme Court, 2456. TERMS OF DISTRICT COURT, ch. 4. Alabama, 101. Arkansas, 102. Arizona, 103. California, 104. Colorado, 105. Connecticut, 106. Delaware, 107. Florida, 108. Georgia, 109. Idaho, 110. Illinois, 111. Indiana, 112. Iowa, 113. Kansas, 114. Kentucky, 115. Louisiana, 116. Maine, 117. Maryland, 118. Massachusetts, 119. Michigan, 120. Minnesota, 121. Mississippi, 122. Missouri, 123. Montana, 124. Nebraska, 125. Nevada, 126. New Hampshire, 127. New Jersey, 128. New Mexico, 129. New York, 130. North Carolina, 131. North Dakota, 132. Ohio, 133. Oklahoma, 134. Oregon, 135. Pennsylvania, 136. Rhode Island, 137. South Carolina, 138. 1044 INDEX TERMS OF DISTRICT COURT continued. South Dakota, 139. Tennessee, 140. Texas, 141. Utah, 142. Vermont, 143. Virginia, 144. Washington, 145. West Virginia, 146. Wisconsin, 147. Wyoming, 148. TERRITORIAL CITIZENS, are not citizens so as to base jurisdiction on diverse citizenship, 232. TERRITORIAL COURTS, district court's jurisdiction of cases transferred from, 209. Supreme Court's jurisdiction, 2017. writ of error to, 841. TERRITORIAL JURISDICTION, see Venue, ch. 5, and Places of Holding District Courts, ch. 4. TERRITORIAL RECORDS, transfer of, 69. TERRITORY, diverse citizenship, not a citizen, 233. extradition of fugitive from foreign under control of United States, 2183. Supreme Court jurisdiction where judgment rendered after admission, 2017. writ of error to, 841. TESTIMONY, before commissioners, court of claims, 2321. compelling, for depositions under a commission, 516. competence of witness, see Competence. Congress, immunity of witness, 476. depositions, see that heading, ch. 16. to be used in foreign country, 524. enforcing for depositions under commission, 516. enforcing of witnesses, 486, 492, 495, 497. immunity of witnesses, 474, 477. perpetuation of, 518. witnesses, see that heading, ch. 15. enforcing of, claim cases in Departments, 495. generally, 486. interstate commerce, 497. patent cases, 492. INDEX 1045 TEXAS, districts, terms and places of holding court, 141. THIRD PARTY CLAIM, attachment, 623. TIME, answer in equity, ch. 34. generally, 865, 972. after overruling motion to dismiss, 867. amended bill, 868. appeal, ch. 41. circuit court of appeals, to Supreme Court, 2055. court of claims, 2012. court of customs appeals, 2260. district court to circuit court of appeals, 2053. from interlocutory orders, 2054. district court to Supreme Court, 2052. calendar, see that heading. equity, 876. counterclaim in equity, 972. service on other defendants, 872. reply to, 874. default, equity, 931. law, 672. decree pro confesso, ch. 32, 930. defensive pleading, equity, ch. 33, 930. law, ch. 22, 071. depositions, see that heading, ch. 16. equity, 502, 863, 871, 877. law, 501. discovery, equity, 862, 870. law, 711. exceptions at trial, 747. habeas corpus, return of writ, 2206. hearing, see that heading. motion to dismiss, 866. holding court in the several districts, ch. 4. interrogatories in equity, 862, 870. issuance of process in equity, 861, 911. issue in equity, 869, 875. motion to dismiss, 865. hearing of, 866. motion to strike out defense in equity, 873. precipe for subpoena in equity, 861, 911. process in equity, 861, 911. return of, 864, 891, 911. 1046 l.XDEX TJ ME continued. reinstatement case on equity calendar, 879. reply in equity, 874, 979. returns, appeals, 2072. habeas corpus writ, 2206. process in equity, 864, 891, 911. writ of error, 838, 2072. service, counterclaim on other defendants in equity, 872. process in equity, 864, 891, 911. subpo?na in equity, 861, 864, 891, 911. taking exceptions, law actions, 747. writ of error, circuit court of appeals to Supreme Court, 824. district court to circuit court of appeals, 823. district court to Supreme Court, 822. return of, 2072. state court to Supreme Court, 825, 826, 2056. TIME AND PLACES OF HOLDING DISTRICT COURTS, ch. 4. TITLE, clouded, venue, 116. removal by writ of error state court decision against, 337. TORTS, aliens, action for, summary of several jurisdictional provisions, 373. TRADEMARK CASES, expert witnesses in, 1001, 1005. summary of several jurisdictional provisions, 364. TRADEMARKS, copies of Patent Office records as evidence, 453. TRADE RESTRAINTS, summary of several jurisdictional provisions, 379. TRANSCRIPT ON APPEAL, 2066, record, circuit court of appeals, Rule 26 C. C. A. (8th circuit), Appendix. Addenda Rule 45 C. C. A. Appendix. TRANSFER, by stipulation, venue, 168. from equity to law side, 936. of subject-matter to create diversity of citizenship. 246. of territory, how affects venue, 169. INDEX 1047 TRANSFERRED CASES FROM TERRITORIAL COURTS, jurisdiction district court over, 209. TRANSLATIONS, Rule 15 C. C. A. Appendix. TRANSPORTATION, extradited person, to the United States, 2192. TRAVERSE, court of claims, 2319. TREASURY DEPARTMENT, books and proceedings in embezzlement suits. 443. evidence, 443. records in suits against delinquents, copies as evidence, 441. TREATY, appeal to Supreme Court where drawn in question, 2006. claims under, no jurisdiction, court of claims, 2313. extradition provisions continue during existence of, 2191. Federal question arising under, 220, 355. removal by writ of error decision in state court against validity, 335. removal by writ of error to state court of decision against right, titk\ privilege, or immunity claimed, independence, 337. removal case involving question under, 221. summary of several jurisdictional provisions affecting cases under, 355. TRIAL, actions at law, see Law Actions, ch. 25. Supreme Court, 2458. admissibility of evidence, equity, 1003. affidavits -of experts in patent and trademark cases, 1001, 1005. amendment of verdict at law, 762. bill of exceptions, 765, 766. challenges to jury, 743. charge to jury, 749. conclusion of, in new term, 65. conduct of, at law, 748. constitutional jury, twelve men, s? 733. costs and fees, see that heading, ch. 17. criminal cases, see Criminal Procedure, ch. 42, 2147. demand to admit execution and genuineness of documents, 1011. depositions, see that heading, ch. 16. equity, 1011. diverse citizenship, want of, appearing on, 250. drawing jury, 738. equity suits, see that heading, ch. 35. evidence, see that heading, ch. 14. admissibility in equity, 1003. 1048 INDEX TRIAL continued, exceptions, bill of, 765, 766. taking of, 746. time for taking, 747. excluding jurors, penalty under civil rights act, 736. execution, see that heading, exemptions of jury, 734. after term of service in a year, 737. civil rights acts, 735. expert witnesses patent and trademark cases, 1001, 1005. extradition, surrender of prisoner for a fair trial, 2188. general statement, 730. equity suits, 1000. form and effect of verdict, 761. impaneling jury, 739. infringement suits, 1012. instructions to jury, 749. interrogatories (equity) 1006, 1011. issuance of venire, 740. issues of fact in Supreme Court, 2458. judge, trial at law, 589, 744. judgment at law, see that heading, ch. 27. judgment non obstante veredicto, 763. jury, see that heading. law actions, 588, 731, 743. right of accused to, 2143. law actions, see that heading, .ch. 25. method of, at law, 731, 732. mode of proof, at law, 745. in equity, 1002. motion for new trial at law, 764. petit jury, see Jury, 731, 743. pleading, see that heading, proof in actions for infringement, 1012. mode of, in equity, 1002. at law, 745. removal for, of offenders against United States, 2126. return of venire of jury, 740. rulings, exceptions to, 746-7. taking of, 746. time for taking, 747. special juries, 742. verdict, 760. statutes of limitations, see that heading, ch. 13. stenographer, equity suits, 1004. Supreme Court, issues of fact, 2458. taking exceptions, 746. INDEX 1049 TRIAL continued. talesmen petit juries, 741. terms of court, see Terms, time for taking exceptions, 747. venire, issuance and return, 740. venue, see that heading, ch. 5. verdict, effect of, 761. form of general, 761. witnesses, see that heading, ch. 15. experts in patent and trademark cases, 1005. TRIAL CALENDAR, in equity suits, 876. TRUSTEES, diverse citizenship of, 240. U. UNITED STATES, see also Federal. attendance of witnesses, enforcing, 484, 494, 495, 497. no bond required of, on appeal, 2062. party in partition suit, summary of several jurisdictional provisions, 381. suits by, summary of several jurisdictional provisions, 351. witnesses, recognizance of in criminal cases on behalf of, 482. subpoena for, on behalf of, 484. UTAH, districts, terms and places of holding court, 142. V. VACANCY, district judge's office, continuance, 64. Supreme Court, 2450. VACATION, judgment law actions, 790. by granting new trial, 793. VENIRE, for jury, 740. VENUE OF ACTIONS, ch. 5. absent defendant, 166. civil suits, in general, 161. cloud on title, 166. 1050 INDEX VENUE OF ACTIONS continued. condemnation, insurrectionary property, 177. Comptroller of Currency, injunction against, 172. creation of new district, how affects, 169. crimes and offenses, 174. criminal prosecutions, 2106. defendant, absent, 166. defendant in different districts, 164. defendants, part of, not found, 173. diverse citizenship, cases of, 248. embargo, seizure for, 178. enforcement of lien upon creation or transfer of district or tt/ritory, 170. Federal question, cases involving, 222. forfeitures and penalties in, 175. forfeitures, seizures for, 178. general statement, 160. infringement of patent, 171. in general, 160. injunctions against Comptroller of Currency, 172. insurrection, seizure for, 178. insurrectionary property, condemnation of, 177. internal revenue and taxes, 176. Interstate Commerce Commission, suits affecting order of, 180. jurisdiction of receiver over real property outside of district, 167. lien not devested by creation of new district or transfer of territory, 170. lien, how enforced, on creation or transfer of district or territory, 170. liens, generally, 166. local suit, subject-matter partly within several states, 165. local suit against defendant in different district, same state, 164. new district created, effect of, 169. nonlocal suits in district of more than one division, 163. nonlocal suits in state of more than one district, 162. offenses and crimes, 174. part of defendants not found, 173. patent, infringement of, 171. penalties and forfeitures, 175. property, condemnation of insurrectionary, 177. prosecutions for failure to file rebate tariffs, 179. real property, receivers' jurisdiction over, outside districts in circuit, 167. rebate, prosecution for failure to file tariff giving, 179. receivers, jurisdiction over real property outside district in circuit, 167. revenue, internal, 176. seizure, embargo, forfeiture, insurrection, 178. stipulation, transfer by, 168. subject-matter partly in different districts, 165. summary, see heading Summaries Jurisdiction, Amount and Venue, etc. ch. 12. tariffs giving rebate, prosecution for failure to file, 179. INDEX 1051 VENUE OF ACTIONS continued. taxes and internal revenue, 170. territory, transfer of, how affects, 169. title clouded, 166. transfer by stipulation, 168. transfer of territory, how affects, 169. VERDICT, ch. 26, amendment of, 762. criminal case, for less offense than charged, 2148. against one or more several joint defendants, 2149. qualified, in cases of murder in first degree or rape, 2150. form and effect of general, 761. law action, 591. special verdict, 760. VERIFICATION, 714. answer in equity, 970, 974. bill in equity, 898, 899. bill of costs, 532. complaint at law, 604. VERMONT, criminal cases, recognizance of witnesses. 481. districts, terms and places of holding court, 143. VICE CONSUL, see also Consul. Supreme Court, party to suit in, 2458. VIRGINIA, districts, terms and places of holding court, 144. VOTE, right to, protection of, summary of several jurisdictional provisions, 369. W. WAGON ROAD. patents, statute of limitations, 406. WARRANT, arrest of fugitive from foreign country, 2180. searches and seizures under custom law, 2225. WAR RECORDS, copies as evidence in suits against delinquents, 441. 1052 INDEX WASHINGTON, districts, terms and places of holding court, 145. WEST VIRGINIA, districts, terms and places of holding court, 146. , WHIPPING, abolished, 2166. WHITE SLAVE TRAFFIC, jurisdiction district court, 201. WISCONSIN, districts, terms and places of holding court, 147. WITNESSES, accused as against himself, 478. action at law, 590. anti-trust law, under, 474. attendance, claim cases in Departments, 494. enforcing, 484, 486, 492, 495, 498, 508, 516, 524. depositions de benc esse, 508. under commission, 515, 516. to be used in foreign country, 524. income tax law, 498. patent cases, 492. for United States, 484. claim cases in Departments, 494, 495. commerce laws, attendance enforcing under interstate commerce act, 497. immunity under, 474. testimony enforcing under interstate commerce act, 497. compelling attendance, see Attendance, above, competence, anti-trust laws immunity, 474. commerce laws, immunity, 474. Congress, immunity, 476. criminal cases, immunity, 475. defendant, 478.' customs, revenue laws, 472. defendant in criminal cases, 478. determined generally by state laws, 470. immunity of witnesses, 474, 475, 476, 477. judicial proceedings, immunity, 477. officers and informers not disqualified in suits for fines, penalties, or forfeitures, 473. perjury does not disqualify, 471. revenue law, not disqualified, 472. state laws determine, 470. testimony, se> that heading. INDEX 1053 WITNESSES continued. compulsory attendance, 484, 486, 492, 495, 497, 498, 508, 510, 524. process criminal cases, 479. for United States district attorney, 482. Vermont, 481. testimony, 486, 492, 495, 497. Congress, immunity of witnesses, 476. contempt, court's power to punish for, 487, court of claims, 2324. court officer not entitled to fees as, 549. criminal cases, compulsory process for, 479, 480, 481, 482. defendant as a witness, 478. immunity, 474, 475. recognizance of, 480, 481, 482. of indigent defendant, 485. customs laws, not disqualified by claiming compensation under, 472. defendant in criminal proceedings, 478. subpoena on behalf of indigent, 485. department, claim cases in, subpoena, 494. district, subpoena for witnesses in another, 483. district attorney, recognizance, 482. enforcing attendance, see Attendance, above, experts in patent and trademark cases, 1001, 1005. extradition, indigent prisoners, 2186. fees of, 548. claim cases in Departments, 496. criminal examination, United States liable for only four witnesses, 553. depositions in District of Columbia, 550. letters rogatory from foreign country, 551. mileage, 488, 489. double prohibited, 490. patent cases, 493. prize cases, how paid, 554. seaman sent home to give testimony in criminal cases. 552. fines, suits for, officers and informers not disqualified as, 473. forfeitures, suits for, officers and informers not disqualified as, 473. government, recognizance of, 482. subpoena of witnesses for, 484. immunity of, anti-trust laws, 474. commerce laws, 474. Congress before, 476. criminal cases, 474, 475. judicial proceedings, 477. letters rogatory need not incriminate, 525. income tax law, compulsory attendance, 49S. indictment for capital crimes, accused entitled to compel, 2142. incompetent, see Competence and Immunity, incrimination, see Immunity. 1054 INDEX \V I TN ESSES continued. indigent defendant, subpoena on behalf of, 485. informers not disqualified in suits for fines, penalties, or forfeitures, 473. interstate commerce act, enforcing attendance and testimony of, 497. immunity of witnesses under, 474. judicial proceedings, immunity of, 477. letters rogatory, 523, 525, 551. list of, to be given to person indicted for treason or capital offense, 2141. mileage, amount, 488, 489, 490. double prohibited, 490. officers not disqualified in suits for fines, penalties or forfeitures, 473. patent cases, enforcing attendance and testimony of, 492. fees of, in, 493. subpoena for, in contested cases, 491. penalties in suits for officers and informers not disqualified as, 473. perjury not a disqualification, 471. process for, see Subpoena, below, recognizance in criminal cases, 480. in Vermont, 481. for United States, 482. revenue laws, not disqualified by claiming compensation under, 472. state laws determine generally competence, 470. subpoena, another district, 483. claim cases in Departments, 494. contested patent cases, 493. criminal cases, 479, 480, 481, 482, 485. government, 484. in behalf of indigent defendant, 485. patent cases, 493. United States. 484. testimony, enforcing, 486, 492, 495, 497. claim cases before Departments, 495. competence, see that heading, above. ; ;(y ; Congress, immunity, 476. immunity, see that heading above. interstate commerce act, 497. judicial proceedings, immunity, 477. patent cases, 492. United States, enforcing attendance of, 484, 494, 495, 497. recognizance in criminal cases, 482. Vermont, recognizance in criminal cases, 481. WOMEN, admission to practice in Supreme Court, 2455. WRIT, see various kinds of, below, allowance, habeas corpus, 2205. copy of, jailer's authority, 2135. INDEX 1055 WRIT continued. not required to bring a person in custody into court, 2138. one writ where several indictments against same person, 2137. removal of prisoner from one district to another, 2136. WRIT NE EXEAT, 1067. WRIT OF ATTACHMENT, see also attachment, ch. 20. amendment of, 619. WRIT OF CERTIORARI, applications under 240, Judicial Code. Addenda Rule 45 C. C. A. Appendix. WRIT OF ERROR, ch. 28, Alaska district court to circuit court of appeals, 2035, 2036. Alaska district court to Supreme Court, 2015. allowance of, 827. amendment, 828. appearance bond form, Addenda Rule 4f> C. C. A. Appendix, appellate method of review of state court decisions, 332. assignment of errors, 830. bail, circuit court of appeals, Rule 35 C. C. A. (2d circuit) Appendix, bankruptcy, circuit court of appeals, Rule 45 C. C. A. (8th circuit) Ap- pendix. bond. 830, 832. certification, question of law, 840. China, United States court to circuit court of appeals, 2034. circuit court of appeals, Rule 14 C. C. A. Appendix. district court, time, 823. procedure, 826, 839. Supreme Court to, 824, 2009. citation, 831. costs, 845. court of claims to Supreme Court, 2012. criminal cases circuit court of appeals. Rule 35 C. C. A. Appendix. 34 C. C. A. (4th circuit) Appendix. 37 C. C. A. (5th circuit) Appendix, damages. 845. district court, 2031. circuit court of appeals to, 823. Supreme Court to, time for, 822. fact, no reversal for error in, 844. District of Columbia court of appeals to Supreme Court, 2018. filing record, 837. form of, in 8th circuit, Addenda to Rule 45 C. C. A. (8tb circuit) Appendix, general statement, 820. C 1056 INDEX / WRIT OF ERROR continued. Hawaii to Supreme Court, 2014. instructions as to suing out for circuit court of appeals, Addenda Rule 45 C. C. A. Appendix, issuance to Supreme Court, 829. parties, 821. Philippine Islands to Supreme Court, 2016. Porto Rico to Supreme Court, 2013. preparation of record, 837. proceedings in forma pauperis, 835. procedure, " , appellate court after transcript filed, 843. district court to circuit court of appeals, 826. removal from state court by writ of error, 339. summary, 839. to territories, 841. record, 836. reduction of record, 837. return, circuit court of appeals, Rule 14 C. C. A. Appendix, reversal not given for error in fact, 844. state court decisions reviewed by, in Federal appellate courts, ch. 11. to Supreme Court, time for, 2056. time for return of, 2072. state court, time for, 825. summary of procedure, 839. supersedeas, 834. Supreme Court, certification of questions of law, 840, 842. circuit court of appeals, time for, 824. district court, time for, 822. procedure, 839. territories, 841. time, return of writ of error, 838. writ of error circuit court of appeals to Supreme Court, 824. writ of error district court to circuit court of appeals, 8i3. writ of error district court to Supreme Court, 822. writ of error to state court, 825. WRIT OF HABEAS CORPUS, see also Habeas Corpus, ch. 44. return of, 2206, 2210. form of return, 2207. time of return, 2206. WRIT OF MANDAMUS, Supreme Court, 2459. INDEX 1057 WRIT OF PROHIBITION, Supreme Court, 2459. WRIT SCIRE FACIAS, 1068. WRITTEN INSTRUMENTS, see also Books, Papers, Documents. depositions under commission, production of, 517. WYOMING, districts, terms and places of holding court, 148. Y. YELLOWSTONE NATIONAL PARK, appellate jurisdiction district court, 203. LAW LIBRARY (UNIVERSITY OF CALIFORNIA 00 ANGKUDB .-'.-, . ;